IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 RSA.No. 392 of 2007() --------------------- AS.119/2006 of DISTRICT COURT, ERNAKULAM OS.395/1996 of MUNSIFF COURT,MUVATTUPUZHA .................... : APPELLANT/APPELLANT/PLAINTIFF ---------------------------------------------- NITHIN JAYAN, AGED 11 YEARS, S/O JAYAN, RESIDING AT MANTHARAYIL HOUSE, EZHAKKARANADU KARA, MANEED VILLAGE, REP. BY NEXT FRIEND AYYAPPAN, S/O NANU, MANIKKANIRAPPEL, MARANGATTULLI KARA, THIRUVANIYOOR VILLAGE.(RECORDED) (IT IS RECORDED THAT APPELLANT IS PERMITTED TO PROSECUTE THE PROCEEDINGS IN HIS INDIVIDUAL CAPACITY AS A MAJOR AS PER ORDER DATED 6/8/07 ON I.A.1399/07) BY ADV. SRI.C.RAGHAVAN RESPONDENTS: RESPONDENTS/DEFENDANTS -------------------------------------------------- 1. SHAJI, S/O RAMAN, KURIKKANPARAMBIL, EZHAKKARANADU KARA, MANEED VILLAGE. 2. MOHANAN, S/O KUTTAN, MANTHIKUZHI, NACHOORKARA, MANEED VILLAGE. 3. RAJAN NAIR, ANAMPILLIL, EZHAKKARANADU KARA, EZHAKKARANADU VILLAGE. BY ADV. SRI.P.V.BABY FOR R1 AND R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 392 OF 2007 =========================== Dated this the 4th day of April,2008 JUDGMENT Plaintiff in O.S.395/1996 on the file of Munsiff Court, Muvattupuzha is the appellant. Defendants are the respondents. Appellant instituted the suit for declaration of title and recovery of possession of the plaint schedule property. Plaint schedule property admittedly belonged to appellant a minor. Plaint schedule building is in the possession of respondents under Ext.B1 lease granted by Jayan the natural guardian the father of minor appellant on 11.6.1996. What was contended by appellant was that Jayan has no right to create a lease after receiving Rs.1,00,000/- and without obtaining sanction of the court as provided under sub section 2 of Section 8 of Hindu Minority and Guardianship Act and so appellant is entitled to get his title declared and recover possession of the same. R.S.A.392/07 2 Respondents contended that they are in lawful possession of the property as lessees, obtained from the natural guardian of the appellant and the lease is not void and without terminating the lease appellant is not entitled to recover possession of the property. 2. Learned Munsiff on the evidence finding that father is not entitled to grant a lease without obtaining sanction of the court as provided under section 8 and finding that under Ext.B1 respondents are not entitled to be in possession of the property granted a decree for declaration of title. But recovery of possession was disallowed on the ground that as respondents being in possession, appellant is entitled to recover possession only on terminating the lease. Appellant challenged the judgment before District Court, Ernakulam in A.S.119/2006. Learned District Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. R.S.A.392/07 3 3. Learned counsel appearing for appellant was heard. 4. The argument of the learned counsel is that the grandfather of the appellant was acting as guardian of the minor and father is not entitled to encumber the property either by grant of a lease or by obtaining Rs.1,00,000/- as security and as no sanction was obtained under sub section 2 of Section of 8 of Hindu Minority and Guardianship Act, respondents are not entitled to claim any right and on the strength of title appellant is entitled to recover possession of the property and courts below should have granted the decree. 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 6. Admittedly father of the appellant is alive. He is the natural guardian of the minor son. Ext.B1 lease was granted by the father. A natural guardian is entitled to transfer the property, for the benefit of the minor. No R.S.A.392/07 4 sanction is necessary, as provided under sub section (2) of Section 8 of Hindu Minority and Guardianship Act. The transaction even if not for the benefit of the minor will not be void but only voidable, at the option of the minor. Therefore it cannot be said that the father natural guardian of the appellant is not entitled to grant a lease in favour of respondents. Ext.B1 establish that respondents are in possession of the property as lessees. Courts below rightly found that appellant is not entitled to recover possession of the property without terminating the lease in accordance with law. In such circumstance, appeal is dismissed. The dismissal of the appeal will not disentitle the appellant to claim recovery of possession on terminating the lease or getting Ext.B1 set aside. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006