IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932 SA.No. 626 of 1996(G) --------------------- AS.18/1990 of SUB COURT, TIRUR OS.5/1981 of MUNSIFF'S COURT, TIRUR .................... APPELLANT(S): APPELLANT/5TH DEFENDANT (TRANSPOSED AS 2ND PLAINTIFF): -------------------------------------------- ARAVINDAKSHAN, S/O.VADAKKEKARA POKKAT NARMATT SAROJINI AMMA, AGED 23 YEARS, RESIDING AT VALIYAKUNNU AMSOM AND DESOM IN TIRUR TALUK. BY ADVS. SRI.K.R.KURUP, SRI.C.R.SYAMKUMAR. RESPONDENT(S): RESPONDENTS/1ST PLAINTIFF AND DEFENDANTS: --------------------------------------------------------------------------------------------------------- 1. VADAKKEKARA POKKATT NARMAT SAROJINI AMMA'S SON JAYARAJAN NAIR, AGED 30 YEARS. 2. VAKKATT AMMUKUTTY AMMA'S DAUGHTER THANJAMMU AMMA, AGED 57 YEARS. 3. POKKATT NARMATT MEENAKSHI AMMA'S DAUGHTER SAROJINI AMMA, AGED 51 YEARS. 4. POKKATT NARMATT SAROJINI AMMA'S DAUGHTER SARALA, AGED 27 YEARS. 5. KATTU BAVA THEMMU'S SON ABOOBACKER, AGED 55 YEARS. 6. DECEASED INDIRADEVI AMMA'S DAUGHTER SATHYAKALA, 7 YEARS (MINOR) (BY GUARDIAN/FATHER SATHYANANDHAN, KODAMANA). Kss ..2/- ..2.... SA.NO.626/1996 *7. VADAKKEKKARA POKKAT NARMATT NARAYANI AMMA'S SON NARAYANAN NAIR, AGED 65 YEARS. ( D E L E T E D). 8. VADAKKEKARA POKKAT NARMATT MEENAKSHI AMMA'S CHILDREN KUNHUNNIKUTTY NAIR, 42 YEARS. 9. GOPINATHAN NAIR, AGED 37 YEARS. 10. RADHA, AGED 32 YEARS. THE RESPONDENTS 1 TO 6 AND 8 TO 10 RESIDING AT VALIYAKUNNU AMSOM & DESOM., TIRUR TALUK. THE 7TH RESPONDENT RESIDES AT NAYARANGADI IN VAILATHOOR AMSOM, AMANNAYANGAD P.O. IN CHAVAKKAD TALUK. * THE NAME OF THE 7TH RESPONDENT IS DELETED AT THE RISK OF THE APPELLANT AS PER ORDER DTD. 12/11/2007 IN I.A.NO.1978/2007. R1, R4 & R6 BY ADVS. SRI.RAJIT, SRI.RANJIT BABU. R5 BY ADVS. SRI.T.KRISHNANUNNI, SRIC.M.MOHAMMED IQUABAL. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss HARUN-UL-RASHID, J. ------------------------ S.A.No.626 Of 1996 ---------------------- Dated this the 29th day of November, 2010. J U D G M E N T The following substantial questions of law are formulated in the appeal. i) Can a court of law refuse to pass a decree declaring the sale deed as null and void when the suit itself was filed by the rightful owner after attaining majority in respect of a sale of his property by a third person/guardian unless it is established that the sale was necessitated for the family necessity and for minors-good by the assignees? ii) Once the sale of a property which is proved to have been done by the guardian on behalf of the minors was attacked by the minors after attaining majority is the burden of proof still continues to be on the plaintiff? iii) Is it not the burden shifted to the defendants - the assignee of the property of a minor -when it is established that the minor's property has been sold by the guardian to a third party on the ostensible ground of family necessity? S.A.No.626 Of 1996 ::2:: 2. The transposed plaintiff in O.S.No.5/1981 on the file of the Munsiff Court, Tirur is the appellant. The appeal is directed against the decree and judgment in A.S.No.18/1990 on the file of the Sub court, Tirur. Suit was filed for cancellation of sale deed dated 16.9.1966 and for partition. Plaintiff prayed for partition and separate possession of 1/5th share. The trial court held that the sale of the property on 16.9.1966 by virtue of Ext.A2 sale deed is for valid consideration and for bona fide need of the tavazhi. Claim of the plaintiff for partition is negatived. The trial court held that the plaintiff is not entitled to get a partition. The appellate court confirmed the decree and judgment passed by the trial court. 3. The plaint schedule property along with three other items are set apart to the share of the plaintiff's tavazhi as per the partition deed of the year 1964, marked as Ext.A1 in the case. The 5th defendant was born subsequent to the partition in the tavazhi tarawad. The second defendant in her personal capacity and on behalf of the minors including the plaintiff and defendants 3 to 5 assigned the plaint schedule property to one Narayani Amma and others as per Ext.A2 assignment deed. S.A.No.626 Of 1996 ::3:: Plaintiff alleged that the tarawad has no necessity at the time of the said sale and that the alleged sale would not in any way benefitted to the tavazhi. It is also alleged that the sale was for inadequate consideration. Therefore the suit was filed for declaration that the sale of plaint schedule property by the tavazhi is null and void, that the property be partitioned by 5 equal shares and out of which the plaintiff is entitled to 1/5th share with past profits. 4. All the defendants except the second defendant entered appearance. It is contended inter alia that the suit is barred by limitation, that the suit was filed by the plaintiff after three years of attaining majority and the plaintiff's father who instigated the plaintiff to file the suit is in inimical terms with the first defendant, that the sale was executed by the plaintiff's tavazhi for the benefit of members of the tavazhi in good faith, that there is adequate consideration for the sale, that by using the consideration of the same the plaintiff's tavazhi constructed a building and began to reside in the house, that no complaint was seen raised by the plaintiff in respect of other items of properties set apart to his tavazhi which are sold and therefore there is no S.A.No.626 Of 1996 ::4:: bonafides in filing the suit to set aside the sale of the property. It is also contended that the second defendant mother at the time of the sale was competent to sell the property for and on behalf of the minor members of her tavazhi. It is also contended that the defendant improved the property by planting kuzhikoors and by reconstructing the house in the suit property and that the second defendant obtained jenm purchase certificate from the Tribunal. It is stated that in the year 1981 the property was assigned by the defendant to one Aboobackar and the said Aboobacker is in possession and enjoyment of the same. The 6th defendant, Aboobacker is the purchaser of the plaint schedule property from the first defendant. He filed a written statement supporting the contentions of the first defendant. 5. Both sides adduced oral and documentary evidence. Oral testimonies of PWs 1 to 3, DWs 1 & 2 are recorded. Exts.A1 to A7 and B1 to B7 were marked. 6. Suit was filed for setting aside Ext.A2 deed executed by the second defendant for and on behalf of the minor children including the plaintiff herein. The second defendant is the mother of the plaintiff and defendants 3 & 4 are the sisters of the S.A.No.626 Of 1996 ::5:: plaintiff. The 5th defendant is the brother of the plaintiff. All of them belongs to the tavazhi of the plaintiff. Three items of properties were set apart to the tavazhi of the second defendant as per Ext.A1 partition deed in the year 1964. Items 6, 7 & 8 were set apart to the tavazhi represented by the second defendant. The second defendant and defendants 2 to 5 are the tavazhi members. The plaintiff conceded that item No.8 in Ext.A1 partition deed was assigned by the second defendant in favour of one stranger by accepting consideration for and on behalf of the plaintiff and other minor children. The second defendant also assigned 6th item in the schedule of Ext.A1 in favour of her husband by Ext.A3 assignment deed on 18.7.1966. Item No.7 in the schedule of Ext.A1 is the plaint schedule property. It has come out in evidence that all the three items set apart to the tavazhi were sold away by the 2nd defendant when her children including the plaintiff were minors. Ext.B6 is the certified copy of the sale of item No.8. Plaintiff has no case that Ext.A3 sale in respect of item No.6 and Ext.B6 in respect of item No.8 belonging to the tavazhi of the plaintiff are not sold for the benefit of the tavazhi or that there is under valuation. Ext.A3 S.A.No.626 Of 1996 ::6:: would show that the second defendant for and on behalf of her minor children assigned 60 cents of garden land in favour of her husband for a consideration of Rs.500/-. Ext.A3 deed was executed in the year 1966. Ext.B6 sale was in the year 1975. The property covered by Ext.B6 is 50 cents of land. Rs.5,000/- is the consideration received out of the same. The consideration fixed in the impugned sale deed namely Ext.A2 is Rs.2,600/-. It is contended by the plaintiff that Ext.A2 assignment deed in respect of the plaint schedule property is on inadequate consideration and Rs.2,600/- fixed as consideration as per Ext.A2 is the lowest value by comparing the value of properties prevailed during the period of execution of Ext.A2. 7. Ext.A1 would go to show that total valuation of the property is described in Ext.A1 is Rs.3,000/-. The share value as evidenced from Ext.A1 allotted to the plaintiff's tavazhi is for Rs.800/-. In the property allotted to the 3rd tavazhi consisted of a residential house was valued at Rs.2,600/-. The recitals in Ext.A1 would go to show that 3rd tavazhi (plaintiff's tavazhi) is directed to give Rs.1,800 towards equalisation of amount to 1st and 2nd tavazhis as her tavazhi was allotted the house in the S.A.No.626 Of 1996 ::7:: property. On an evaluation of the evidence on record the trial court observed that the plaintiff's father actively participated in the execution of Ext.A1 partition deed. The trial court also observed that the plaintiff has no case that consideration fixed for sale of 60 cents of garden land for Rs.500/- is the lowest value prevailed during the time of execution. Ext.A3 assignment deed is dated 18.7.1966 and Ext.A2 assignment deed was executed in 16.9.1966. The husband of the first defendant was examined as DW1 and the 6th defendant as DW2. So their case is that the house in the property when they got Ext.A2 assignment was a house built in mud even though it was tiled that the front portion of the house was re-modified and reconstructed by the assignor and himself. The trial court observed that no contra evidence comes forth to prove that the house in the property was not a house built in mud. The commissioner reported that the front portion look newer than the other portions. The trial court observed that the transferees in Ext.A2 and the first defendant newly constructed a portion of the house and it appears to the commissioner as new portion. The commissioner was also examined as PW3. After appreciating all the contentions and on S.A.No.626 Of 1996 ::8:: the basis of materials on record the trial court concluded that as per Exts.B5, A3 and B3 deeds, the consideration fixed in Ext.A2 is a fare and reasonable price. Therefore the trial court repelled the contentions of the plaintiff, that Ext.A2 assignment deed was executed for inadequate consideration. The trial court also examined the question as to whether there is any necessity for execution of Ext.A2 and as to whether the sale deed was executed for the benefit of the tavazhi. The contentions of the plaintiff that the recitals in Ext.A2 that the second defendant assigned the property in order to raise money for construction of another house is without any merit and further contention that at the time of alleged sale of the plaint schedule property the tavazhi would not have any land in their hand fit for construction of a house was also considered in detail. The trial court concluded that the version of PWs 1 & 2 with regard to the payment of equalisation amount by the second defendant in favour of the first and second tavazhis is also seen unbelievable in the light of recitals in Ext.A1 regarding the payment of equalisation amount. The trial court also noticed the fact that the plaintiff's father Madhavan Nambiar was present in court and S.A.No.626 Of 1996 ::9:: seen instructing the counsel on behalf of the plaintiff actively till the hearing of the case. The court took note of several circumstances that led to the execution of Ext.A2 assignment deed. On the basis of the said circumstances, the court also held that plaintiff's father actively participated in the execution of Ext.A1 partition deed and he was also aware of the subsequent transaction of property by the second defendant for and on behalf of the children including the plaintiff. The court also accepted the contentions of the first defendant that at the time of purchase of plaint schedule property in favour of 1st defendant he made due enquiries regarding the bona fide need of the 2nd tavazhi and ascertained that second defendant's tavazhi constructed a house in the property described in Ext.A3 by raising funds by disposing one of the properties by virtue of Ext.A2 to Narayanan Nair and others. The trial court also concluded that the second defendant for and on behalf of the tavazhi assigned the property for a reasonable consideration for raising money to construct the building as the building in the plaint schedule property was not a good one for residence and therefore held that the second defendant for and on behalf of the tavazhi assigned the plaint S.A.No.626 Of 1996 ::10:: schedule property to the transferees named in Ext.A2 for valid consideration and for the bonafide need of constructing a house in the property. After answering other issues the court dismissed the suit finding that the plaintiff has miserably failed to establish the case set up by him, therefore not entitled to get any relief as prayed for. 8. The first plaintiff filed the suit against defendants 1 to 5. When the suit came up for trial the plaintiff called absent and thereby the 5th defendant brother filed application for transposing him as the plaintiff. His prayer for transposing himself as plaintiff was allowed and amendment was carried out by incorporating the 5th defendant as second plaintiff in the suit. In the light of the said development the contesting defendant submitted that when the first plaintiff came to know that his claim for setting aside Ext.A2 is barred by limitation he left the scene and in his place the 5th defendant was proposed as second plaintiff. The trial court noticed that when the suit came up for trial both of the plaintiffs are seen contesting. The date of birth of the first plaintiff produced on the side of the defendant was 8.8.1959. The suit was filed after three years of becoming a major and S.A.No.626 Of 1996 ::11:: hence the suit is barred by limitation. The first plaintiff became a major as on 8.8.1977. To set aside Ext.A2 assignment deed he should have filed the suit on or before 3 years of attaining majority as per 60A of the Limitation Act. Since the suit was filed beyond three years, it is clear that the suit is barred by limitation. In the circumstances, the second plaintiff applied for transposing him as additional second plaintiff. Date of birth of the second plaintiff is 8.5.1965. He became a major on 8.5.1983, during the pendency of the suit. When the case come up for trial on 1.1.1986 the 5th defendant applied before the trial court for transposing him as plaintiff since the first plaintiff did not turn up for contesting the suit. On the date of transposition it is seen that his claim is within three years from the date of attaining majority. Therefore the court held that the claim is not barred by limitation and that the suit is maintainable. 9. The lower appellate court re-appreciated the evidence. All the questions agitated before the trial court are again considered in detail by the lower appellate court. The lower appellate court examined the issues as to whether there was valid consideration and whether alienation was made for the S.A.No.626 Of 1996 ::12:: benefit of the tavazhi taking into account all the materials placed before it. The lower appellate court confirmed the findings of the trial court and held that the plaintiffs could not give any worthwhile evidence with regard to the value of the property at the time of assignment and the purpose for which it was assigned. The court also followed the well settled proposition of law that what transaction would be for the benefit of the family must necessarily depend upon the facts of each case. The lower appellate court also noticed the fact that the plaintiffs could not establish that the consideration was inadequate and it was not for the bona fide need of the tavazhi. The court also found that if the evidence is taken in totality, it is seen that the probabilities are in favour of the second defendant that she alienated the property for valid consideration and for the bonafide need of the tavazhi. The lower appellate court also satisfied that a different conclusion cannot be drawn on the basis of the facts placed before the court. 10. The trial court as well as the lower appellate court on facts decided the issues. The findings are purely based on facts and evidence. Even on facts of the case, a different conclusion S.A.No.626 Of 1996 ::13:: cannot be drawn. As rightly observed by the lower appellate court the settled position is that whether a transaction would be for the benefit of the family must necessarily depend upon the facts of the case. On an appreciation of the facts, both courts concurrently held that there was valid consideration and that the alienation was made for the benefit of the tavazhi. No question of law muchless any substantial questions of law arises for consideration in the second appeal. In the result, the appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-