IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 WP(C).No. 35411 of 2007(N) -------------------------- AGAINST THE ORDER IN EA 500/06 & EA 499/06 IN OA.286/2002 of PRL.SUB COURT,TRIVANDRUM .................... PETITIONER(S): --------------- 1. MS.LAKSHMI MOHAN,AGED 9 YEARS, D/O.J.N.MOHAN, NOW R/AT NO.49/728-C,MALLIECKAL LANE,KARAMA ROAD, ELAMAKKARA,EKM-682026,C/O. BY HER NEXT FRIEND, MATERNAL UNCLE AND GUARDIAN DR. G.N.RAMESH,47 YRS, S/O.K.N.GANESH KUMAR,CONSULTANT GASTRO-ENTROLOGIST NOW R/AT. SYREYAS,RAJAJI ROAD,EKM-682035. 2. MS. VARSHA MOHAN, AGED 22 YEARS, D/O. J.N.MOHAN, NOW RESIDING AT NO.49/728-C, MALLIEKAL LANE, KARAMA ROAD, ELAMAKKARA, COCHIN-682 026. BY ADV. SRI.SREELAL N.WARRIER SRI.THYPARAMBIL THOMAS THOMAS RESPONDENT(S): --------------- 1. NAVEEN SURENDRAN, S/O. SURENDRAN PILLAI, HOUSE NO.784, 1ST FLOOR, H.NO.784, 1ST FLOOR, JAYA MANSION COLONY, VELLAYAMBALAM, THIRUVANANTHAPURAM. 2. J.N.MOHANAN, S/O. JANARDHANAN NAIR, T.C.151881-1, SREE RAGAM, VAZHUTHACAUD, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE REGISTERED SETTLEMENT DEED NO.2532/1997 OF SRO, CHALA EXECUTED BY THE SECOND RESPONDENT IN FAVOUR OF THE PETITIONERS DATED 8.10.1997 EXT.P2 TRUE COPY OF THE REGISTERED CANCELLATION DEED NO.1782/2001 OF SRO CHALA EXECUTED BY THE SECOND RESPONDENT DATED30.6.2001 EXT.P3 TRUE PHTOCOPY OF THE CLAIM PETITION FILED UNDER SECTION 47 OF THE CODE OF CIVIL PROCEDURE BY THE PETITIONERS 27/3/2006 EXT.P4 TRUE PHOTOCOPY OF THE PETITION FOR LEAVETO SUE AS NEXT FRIEND OF MINOR UNDER 27.3.2006 EXT.P5 TRUE COPY OF THE OBJECTION FILED BY THE FIRST RESPONDENT TO THE CLAIM PETITION EXT.P6 TRUE PHOTOCOPY OF THE CERTIFIED COPY OF THE COMMON ORDER OF THE PRINCIPAL SUB JUDGE, TRIVANDRUM IN EA NO.499 AND 500 OF 2006 /TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.35411 of 2007 N -------------------------------------- Dated this the 4th day of November, 2008. JUDGMENT Heard counsel for petitioners. There is no representation for the respondents. 2. Petitioners are daughters of the second respondent. First petitioner is a minor represented by her maternal uncle. Second respondent, father of the petitioners executed Ext.P1, settlement deed in favour of the petitioners on 8.10.1997. Later the second respondent cancelled that settlement deed as per Ext.P2. Subsequent to Ext.P2, the property covered by Exts.P1 and P2 were proceeded against in execution of the decree obtained by the first respondent in O.S.No.252 of 2002 of Principal Sub Court, Thiruvananthapuram. Petitioners filed Exts.P3 and P4 in the executing court. Ext.P3 is an application claiming right over the property and Ext.P4 is an application filed by the maternal uncle of the petitioners seeking permission to represent the first petitioner as her next friend Vide Ext.P6, common order dated 17.10.2007, learned Principal Sub Judge dismissed the applications observing that the mother of the petitioners had not come forward to represent the first petitioner and no evidence is adduced in support of Exts.P3 and P4. Learned counsel contends that Ext.P6, order is illegal and that it is not the requirement of law the minor should be represented by mother or father. Learned counsel for petitioner pointed out that mother of the petitioners is actually a witness in Ext.P2, cancellation deed, hence she may not be able to give evidence in favour of the petitioners. WP(C) No.35411/2007 2 3. Order XXXII Rule 4 of the Code of Civil Procedure (for short, 'the Code') permitted any person who is of sound mind and has obtained majority to act as the next friend or guardian of the minor provided ofcourse, the interest of such person is not adverse to that of the minor, and subject to Sub-rule (2). 4. It is seen from the order under challenge that learned Principal Sub Judge has not adverted to the provisions of Order XXXII Rule 4 of the Code. It is not the requirement of law that when the mother or father is alive, the minor has to be represented by mother or father. Morevoer, it is the father of the petitioners who executed Ext.P2 cancellation deed and their mother is a witness in that document. Parents of the petitioners were therefore not the appropriate persons to represent the minor, first petitioner. In the circumstances the order under challenge cannot be sustained. Writ Petition is allowed in the following lines:- Ext.P6, common order dated 17.10.2007 passed by the learned Princpal Sub Judge, Thiruvananthapuram is set aside and Exts.P3 and P4 applications are remitted to the executing court for consideration. It is made clear that it will be open to the petitioners to adduce evidence in support of the claim petition. THOMAS P.JOSEPH, JUDGE. cks