IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 AS.No. 313 of 1998() -------------------- OS.21/1990 of ADDL.SUB COURT, IRINJALAKUDA ................................ APPELLANT/1st DEFENDANT ----------------------------------------- MALATHY AMMA, D/O KUNDOOR AMMINI AMMA KONATHUKUNNA DESOM , THKKUMKARA VILLAGE MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON RESPONDENTS: PLAINTIFFS AND DEFENDANTS 2 TO 16 ---------------------------------------------------------------------------------- 1. USHARANI, D/O THONIYILVEETIL LEELA AMMA 2. SURAIKALA D/O THONIYILVEETIL LEELA AMMA 3. VARIJAKSHAN, S/O THONIYILVEETTIL LEELA AMMA RESPONDENTS 1 TO 3 ARE RESIDING AT THEKKUMKARA DESOM MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 4. LAKSHMIKUTTY AMMA, D/O NALIYITTHURUTHIYIL ICHIKUTTY AMMA 5. SASIDHARAN, S/O LAKSHMIKUTTY AMMA 6. RADHA AMMA D/O LAKSHMIKUTTY AMMA 7. CHANDRIKA D/O LAKSHMIKUTTY AMMA 8. SATHYAPALAN S/O LAKSHMIKUTTY AMMA 9. SATHY , D/O LAKSHMIKUTTY AMMA 10. MURALI S/O LAKSHMIKUTTY AMMA 11. SAVITHRI D/O LAKSHMIKUTTY AMMA 12. RADHAKRISHNAN S/O LAKSHMIKUTTY AMMA 13. INDUCHOODAN S/O LAKSHMIKUTTY AMMA 14. JAYA D/O LAKSHMIKUTTY AMMA 15. RAJAN S/O LAKSHMIKUTTY AMMA RESPONDENTS 4 TO 15 ARE RESIDING AT KARYAMPARAMBU ANGAMALI, ERNAKULAM DISTRICT 16. LEELA AMMA ,D/O THONIYILVEETTIL MADHAVI AMMA RESIDING AT NO. 65, SUBRAI CHETTY, 5TH STREET 1ST FLOOR, NAMMANWARPET, MADRAS-12 17. HEMALATHA, D/O LEELA AMMA RESIDING AT NO.20 , PERUMAL REDDY STREET, EGMORE, MADRAS-8 18. REMADEVI,D/O LEELA AMMA , RESIDING AT NO.65, SUBRAI CHETTY, 5TH STREET 1ST FLOOR NAMMANWAR PET, MADRAS-12 ADV. SRI.K.G.BALASUBRAMANIAN FOR R2,16,18 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P NO. 2389 OF 1998 IN A.S. NO. 313 OF 1998 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 16.9.2009 HARUN-UL-RASHID, J. ---------------------------------------- A.S.No. 313 of 1998 ---------------------------------------- Dated this the 16th day of September, 2009 JUDGMENT The 1st defendant in O.S. No. 21/1990 on the file of the Additional Sub court Irinjalakuda is the appellant herein. The suit was filed by the plaintiffs for partition with past and future profits. The plaint schedule properties are the thawazhi-tharawad properties of the plaintiffs and defendants 14 to 16. The plaint schedule properties includes two items of immovable properties. The trial court held that item No. 1 is not partible since it is the absolute and individual property of the 14th defendant and she conveyed her right as per Ext.A3 sale deed No.325/1975 in favour of defendants 2 to 13 that thereby they became absolute owners and that therefore the plaintiffs the defendants 15 and 16 are not entitled to claim any share from item No. 1. With regard to item No. 2 of the plaint schedule, the trial court held that the plaintiffs are entitled to 3/6 share. The preliminary decree was passed by the trial court holding that item No. 2 property will be divided into 6 equal shares and the plaintiffs together will be given three such shares and defendants 15 and 16 are entitled to one share each and the remaining one share will be given to the 1st defendant. It is also held that the 1st defendant is entitled to be allotted the residential building in item No.2 in equity without fixing any value and it will be set apart to her share, that if the same goes beyond 1/6 th share of the 1st defendant she is liable to pay the value of the excess property to other sharers. A.S. No. 313 of 1998 -2- 2. Aggrieved by the findings of the trial court regarding item No. 2 property the 1st defendant has come up in appeal . The parties hereinafter are referred to as plaintiffs and defendants as arrayed in the suit. 3. According to the plaintiffs the plaint schedule properties are the thawazhi-tharawad properties of the plaintiffs and defendants 14 to 16. Item No. 1 was allotted to the thawazhi as per registered partition deed No. 453/1964(Ext.A1) and item No. 2 as per registered partition deed No. 172/1975(Ext.A2) of Vadakkumkara S.R.O. According to them defendants 1 to 13 by playing fraud and misrepresentation, induced the 14th defendant ( the mother of plaintiffs and defendants 15 to 16) to sell the properties without any consideration in favour of defendants 1 to 13 by Ext.A3 sale deed No.325/1975 of Vadakkumkara S.R.O and that in the same year defendants 2 to 13 have executed Ext.A4 assignment deed No. 1092/1975 in favour of the 1st defendant and she is now in possession of the properties. At the time of execution of Ext.A3 sale deed the plaintiffs and defendants 15 and 16 were minors and that 14th defendant was not competent to represent the minors and hence Ext.A3 and Ext.A4 sale deeds are not valid and hence void abinitio. It is pleaded that no permission was obtained from the District Court for the alienation of the plaint schedule properties under the Hindu Minority and Guardianship Act. The plaintiffs also pleaded that the 1st defendant can only get the right of A.S. No. 313 of 1998 -3- the 14th defendant being a co-owner along with them and defendants 15 and 16 and that the plaintiffs are entitled to 3/6 shares in the plaint schedule properties. Hence the suit was filed for partition of 3/6 shares 4. The appellant/1st defendant contended interalia that item No. 1 of plaint schedule was the absolute property of the 14th defendant set apart to her as per Ext.B1partition deed No. 453/1964 (Ext.A1) and therefore plaintiffs or defendants 15 and 16 have no manner of right therein. It is further pleaded that item No. 2 property is not a thavazhy property as contended by the plaintiffs and defendants 14 to 16 According to her the plaintiffs are not entitled to claim any share in the suit properties and the assignments in favour of defendants 1 to 13 are legal and valid and binding on the plaintiffs. It is also pleaded that the claim by the plaintiffs is also barred by adverse possession and limitation 5. The defendants 2 to 13 have filed a joint written statement supporting the 1st defendant and contended that the alienation by the 14th defendant in their favour was for the benefit of the plaintiffs and defendants 15 and 16 and that it was supported by consideration and the 1st defendant is now in possession of the properties under valid title by virtue of assignment deed No.1092/1975. 6. The evidence consists of oral testimonies of PW1, DW1 to DW4, Exts.A1 to A8 and Exts B1 to B14. 7. The trial court raised six issues. But the issue regarding the A.S. No. 313 of 1998 -4- claim by adverse possession and limitation is not seen framed . The trial court also elaborately considered the evidence on record. After perusing Ext.A1 the trial court held that item No. 1 of plaint schedule was acquired by one Kalliyani Amma and her children with their individual funds and after the demise of Kalliyani Amma and her daughter Madhavikutty Amma ( mother of the 14th defendant), it devolved upon their legal heirs exclusively who subsequently divided the same and the 14th defendant being one of the heir of her mother Madhavikutty Amma got item No. 1 of the plaint schedule which was allotted to her share exclusively as per Ext.A1 partition deed.The 14th defendant being the grand daughter of the aforesaid Kalyani Amma got half of ¼ share of the Madhavikutty Amma, her mother, by virtue of Ext.A1 partition and Item No. 1 of the plaint schedule is that property ,that the 14th defendant sold item No.1 of plaint A schedule to defendants 2 to 13 as per Ext.A3 document along with item No.2 and that the defendants 2 to 13 sold the same to the 1st defendant as per Ext.A4 document No. 1092/1975. In the above said facts and circumstances the trial court held that the defendants 2 to 13 have thereby become the absolute owners of item No.1 of plaint schedule and their further alienation of the property in favour of the 1st defendant in 1975 as per Ext.A4 is legal and valid Consequently the trial court held that the plaintiffs and defendants 15 and 16 are not entitled to claim any share in item No. 1 property . After hearing both sides and perusing the evidence on record I also find that the said finding arrived at by the trial court cannot be A.S. No. 313 of 1998 -5- assailed for any reasons stated in this appeal memorandum Moreover there is no appeal preferred by the plaintiffs against the finding of the trial court with respect to item No. 1 property. 8. As regard the 2nd item the contention of the plaintiffs are accepted and the trial court held that the plaintiffs are entitled to 3/6 shares of item No. 2 property. Ext.A3 is the sale deed executed by the 14th defendant by which she sold item No.2 to defendants 1 to 13 when the plaintiffs and defendants 15 and 16, were minors. The 14th defendant represented as guardian of the minors. The trial court after perusing Ext.A2 partition deed held that Ext.A2 would make it clear that item No. 2 of plaint schedule was the thavazhy property of the branch representing the plaintiffs and defendants 14 to 16 that the 14th defendant had only 1/6th right over item No. 2 after Ext.A2 partition and if so she had no absolute power of alienation of the right of the minors in that item. It is also held that the 14th defendant has not obtained permission from the District Court for sale of minors' property The trial court rightly held that even if defendants 15 and 16 have ratified the transaction it does not validate Ext.A3as far as the minors' interests in item No. 2 are concerned. With respect to item No. 2, Ext.A3 is valid only to the extent of the 1/6th share of the mother and it is void as far as 5/6 share of the plaintiffs and defendants 15 and 16 in that item and therefore Ext.A3 transfer affecting the rights of the plaintiffs and defendants 15 and 16 in item No.2 is null and void. Since A.S. No. 313 of 1998 -6- the 14th defendant was incompetent to act as the natural guardian of the minors and alienate their shares and the transfer of property by virtue of Ext.A3 and A4 affecting the rights of the minors in item No.2 and the transfers are in contravention of Section 6 of the Hindu Minority and Guardianship Act, 1956, the trial court rightly held that the transfer of property by virtue of Ext.A3 and A4 are illegal , invalid and void abinitio as far as the shares of minors and therefore the plaintiffs and defendants 15 and 16 are entitled to their legitimate shares in item No.2 of plaint schedule . I do not find any reason to disagree or interfere with the said finding of the trial court. 9. The learned counsel for the appellant/1st defendant referred to the pleadings in paragraph 8 of her written statement. In paragraph 8 it is pleaded that in case it is found that that the properties partakes the character of thavazhy property of the plaintiffs and defendants 14 to 16 and they are entitled to their respective shares, their rights are lost by adverse possession and limitation by the long continuous hostile and uninterrupted possession of the 1st defendant for more than the statutory period. 10. In the appeal the 1st defendant/appellant raised a contention that the trial court failed to frame the issue regarding adverse possession and limitation It is also contended by him that she came into possession A.S. No. 313 of 1998 -7- of the property under valid sale deeds executed by the mother of the minor plaintiffs and defendants 15 and 16, executed for herself and on behalf of the minors and that she is in continuous possession of item No.2 property till the date of filing of the suit uninterruptedly as of right and thereby she has perfected title by adverse possession and limitation. I am of the view that the trial court ought to have raised the issue of adverse possession and limitation before entering the findings. Order XIV (1) of the C.P.C. reads: 1. Framing of issues:- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue (4) Issues are of two kinds (a) Issues of fact (b) issues of law. (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and (after examination under Rule 2 of Order X and after hearing the parties or their pleaders) ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend (6) Nothing in this rule requires the Court to frame and A.S. No. 313 of 1998 -8- record issues where the defendant at the first hearing of the suit makes no defence. 11. Since the issue of adverse possession and limitation is not framed and adjudicated I have no other option than to remand the case for considering the issue of adverse possession and limitation by the trial court. The trial court shall frame the said issue and permit the parties to adduce additional evidence if any . The evidence recorded by the trial court and the findings recorded in the issues already raised and decided shall stand confirmed subject to the modification if any to be made by the trial court after deciding the issue of adverse possession and limitation. The trial court shall dispose of the suit within a period of 9 months from today. The parties shall appear before the lower court 14.10.2009. Transmit the records immediately. In the result, the appeal is remanded subject to the findings and observations made above. No order as to costs. The appellant is entitled to refund of the court fee. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S. No.313 of 1998 ---------------------------- JUDGMENT 16th September, 2009