Balanchandra Panicker v Kavukutty Kunjamma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939** **RSA.No. 479 of 2017 (F)** **----------------------AGAINST JUDGMENT & DECREE DATED 30-11-2016 IN AS 102/2014 of SUB COURT, PERUMBAVOOR** **AGAINST JUDGMENT & DECREE DATED 31-07-2014 IN I.A.NO.1959 OF 2013 IN OS 241 OF 2004 OF MUNSIFF'S COURT, PERUMBAVOOR** **APPELLANT(S)/APPELLANT/1ST DEFENDANT:** **-------------------------------------** ## **BALANCHANDRA PANICKER,** **AGED 70 YEARS, SON OF SANKARAN KUNJI,** **KUMMANODU MADOM, KUMMANODU KARA, PATTIMATTOM VILLAGE, ERNAKULAM DISTRICT.** **BY ADVS.SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SMT.ASHA BABU SMT.R.S.ASWINI SANKAR SRI.SABIN BABU** ## **RESPONDENT(S)/PETITIONERS/PLAINTIFFS & 2ND DEFENDANT:** **-----------------------------------------------------** **1. KAVUKUTTY KUNJAMMA, AGED 68 YEARS, D/O. PAPPY KUNJAMMA, KUMMANODU MADOM, KUMMANODU KARA, PATTIMATTOM VILLAGE, ERNAKULAM DISTRICT, PIN - 683 562** **2. VINU @ BALAKRISHNA KAIMAL,** - **AGED 48 YEARS, SON OF KAVUKUTTY KUNJAMMA, KUMMANODU MADOM, KUMMANODU KARA, PATTIMATTOM VILLAGE, ERNAKULAM DISTRICT, PIN - 683 562.** **3. GIRIJA, D/O. LEELAVATHI KUNJAMMA, AGED 51 YEARS, MADOM, KUMMANODU KARA, PATTIMATTOM VILLAGE, ERNAKULAM DISTRICT, PIN - 683 562. (SINCE SHE IS MENTALLY RETARDED PERSON AND NO GUARDIAN IS APPOINTED LEGALLY NOTICE CANNOT BE SERVED).** **R1,R2 BY M/S SMT.GIRIJA K GOPAL(CAVEATOR) SMT.K.N.VIGY(CAVEATOR)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **[CR]** ## **B. KEMAL PASHA, J.** ................................................................ R.S.A. No. 479 of 2017 ............................................................... Dated this the 9[th] day of October, 2017 ## **J U D G M E N T** The 1[st] defendant in O.S.No.241 of 2004 of the Munsiff’s Court, Perumbavoor has come up in Regular Second Appeal, by challenging the final decree passed by the said court and the judgment and decree passed by the lower appellate court in A.S.No.102 of 2014. 2. The suit is one for partition. The suit property originally belonged to late Pappi Amma, devolved on her three children, since she died intestate. The 1[st] plaintiff is the eldest among the children. The 2[nd] defendant in the suit is a mentally retarded woman, whose mother is the younger R.S.A.479 of 2017 -: 2 :- sister of the 1[st] plaintiff. The mother of the 2[nd] defendant, Leelavathi Kunjamma, is the second daughter of Pappi Amma and she predeceased Pappi Amma leaving the 2[nd] defendant as her sole legal heir. The appellant herein, who is the 1[st] defendant, is born to Pappi Amma in her second marriage and therefore, he is the uterine brother of the 1[st] plaintiff and deceased Leelavathi Kunjamma. 3. On the death of Pappi Amma, her properties devolved on the 1[st] plaintiff, the 2[nd] defendant and the 1[st] defendant in equal shares. Therefore, the 1[st] plaintiff filed the suit for getting her 1/3 share over the property partitioned by metes and bounds. A preliminary decree declaring her right to get partition of her 1/3[rd] share over the property was passed. The said decree was not challenged or carried in appeal. In fact, the 1[st] defendant had admitted, as DW1 during trial, that he had no objection in granting the decree for partition and separate possession of the 1/3[rd] share of the 1[st] plaintiff. The preliminary decree became R.S.A.479 of 2017 -: 3 :- final. 4. Thereafter, the 1[st] plaintiff filed I.A.No.1959 of 2013 for getting the final decree passed. In the final decree application, the 1[st] defendant had not raised an objection to the effect that no guardian was appointed for the 2[nd] defendant. The trial court passed the final decree. Suddenly, wisdom prevailed upon the 1[st] defendant in the form of a contention that no guardian was appointed for the 2[nd] defendant and therefore, the preliminary decree as well as the final decree are nullity and _non-est_ in the eye of law. 5. Taking up such a contention, he challenged the final decree before the Subordinate Judge’s Court, Perumbavoor, through A.S.No.102 of 2014. The main challenge was that no guardian was appointed for the 2[nd] defendant under order XXXII Rule 3 of the Code of Civil Procedure and therefore, the judgments and decrees in the suit are nullity as well as _non-est_ in the eye of law. The lower appellate court did not find any merit in the appeal and consequently, R.S.A.479 of 2017 -: 4 :- dismissed the appeal with costs and hence, this Regular Second Appeal. 6. Heard the learned Senior Counsel Sri.Ram Kumar for the appellant, and the learned counsel Smt.Girija K. Gopal for respondents 1 and 2. 7. The appellant has arrayed the 2[nd] defendant as the 3[rd] respondent in the Regular Second Appeal. According to the learned Senior Counsel, there is no use for the preliminary decree as well as the final decree in the matter and the same is not executable. 8. _Per contra_ , the learned counsel for respondents 1 and 2 has argued that the appellant has no _locus standi_ to challenge the validity of the preliminary decree or the final decree in the matter. It has been argued that the appeal preferred by the 1[st] defendant before the lower appellate court as well as the Regular Second Appeal preferred by the appellant are not maintainable under Section 97 of the Code of Civil Procedure, when no appeal was preferred by him R.S.A.479 of 2017 -: 5 :- against the preliminary decree. Further, it has been argued that all along the proceedings before the trial court, the appellant herein had specifically taken the stand that he was the guardian of the 2[nd] defendant, and that the 2[nd] defendant was under his care and protection and further, that he had no interest adverse to that of the 2[nd] defendant. It has been argued that the trial court had appointed the 1[st] defendant as guardian for the 2[nd] defendant, when the 1[st] defendant had acted as guardian for the 2[nd] defendant, and the same was admitted by the plaintiffs before the trial court. The learned counsel for respondents 1 and 2 has further argued that the appellant has filed the present Regular Second Appeal solely with a view to protracting the execution proceedings in the matter, and with a view to denying the fruits of the litigation to the 1[st] plaintiff. 9. In the plaint in the suit, the 2[nd] defendant was impleaded by describing as follows: _“Balachandra Panicker, S/o.Sankaran_ R.S.A.479 of 2017 -: 6 :- _Kunji, Business, aged 56, Kummanodu Madom, Kummanodu Kara, Pattimattom Village, who is the maternal uncle of Girija, aged 45, Mentally Retarded, D/o.Leelavathi Kunjamma, as her guardian.”_ The 1[st] defendant filed a written statement admitting that the 2[nd] defendant is in his care and protection and that he is the guardian of the 2[nd] defendant. The written statement was filed by the 1[st] defendant for him as well as for and on behalf of the 2[nd] defendant, as her guardian. He contended that late Pappi Amma had executed settlement deed No.657/1985 of Puthencruz Sub Registry, thereby enabling him to act as guardian of the 2[nd] defendant and also to handle and deal with the properties of the 2[nd] defendant. He had contended that he has been looking after and maintaining the 2[nd] defendant as his own daughter. 10. Apart from contending that there was no cause of action for the plaintiffs against him, he had no case that the 1[st] plaintiff was not entitled to any share in the property. R.S.A.479 of 2017 -: 7 :- Over and above it, the 1[st] defendant has filed a detailed affidavit in lieu of chief examination as DW1 before the trial court. He has categorically admitted therein that he is the guardian of the 2[nd] defendant and that he was swearing the affidavit for and on behalf of the 2[nd] defendant also. He has also affirmed with regard to the settlement deed No.657/1985. 11. As per Section 97 of the Code of Civil Procedure, where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal, which may be preferred from the final decree. As far as the 1[st] defendant is concerned, he cannot challenge the validity of the preliminary decree so far as it is against him, in the appeal before the lower appellate court or in the Second Appeal on the final decree, as per Section 97 of the Code of Civil Procedure. 12. According to the learned Senior Counsel for the R.S.A.479 of 2017 -: 8 :- appellant, the appellant is pointing out the nullity of the decree, so far as it relates to the 2[nd] defendant. Of course, the 2[nd] defendant can maintain an appeal against the preliminary decree as well as the final decree, in case she was not represented by a guardian and prejudice has been caused to her within the meaning of Order XXXII Rule 3A CPC. 13. The learned counsel for respondents 1 and 2 has invited the attention of this Court to the sequence of events relating to various litigations between the 1[st] plaintiff and the 1[st] defendant. There was an agreement between the 1[st] defendant and a third party named Mukundan.K.S, enabling the third party to cut and remove the rubber trees standing in the property of the 2[nd] defendant. The 1[st] defendant wanted to sell out those trees and to misappropriate its proceeds. 14. When the plaintiffs opposed the said move, the said Mukundan.K.S filed W.P.(C) No.25191/2006 before this R.S.A.479 of 2017 -: 9 :- Court seeking police protection for cutting and removing the trees. Initially, police protection was granted. When the 1[st] plaintiff came to know about it, she rushed to this Court with R.P. No.896/2006 in the said writ petition. The said R.P. was allowed and W.P.(C) No.25191/2006 was dismissed. The police protection granted was recalled. 15. Thereafter, the 1[st] defendant approached the Munsiff's Court, Perumbavoor with O.S.No.42/2008 for and and on behalf of the mentally retarded 2[nd] defendant. The suit was filed by the 1[st] defendant as next friend of the 2[nd] defendant seeking a decree of perpetual injunction restraining the present 1[st] plaintiff from causing obstructions to his user of the properties of the 2[nd] defendant, to the cutting and removal of the rubber trees, to the replanting of rubber in the said property, etc. In the said suit, the learned Munsiff passed an order permitting slaughter tapping of the trees through public auction, and directing the deposit of the amount so collected, in court. Accordingly, an amount of ₹ R.S.A.479 of 2017 -: 10 :- 99,000/- was received in deposit. The 1[st] defendant, thereafter, filed an application for withdrawal of the said amount. The said application was resisted by the 1[st] plaintiff. The learned Munsiff dismissed the application seeking withdrawal of the amount and directed the amount to be deposited in a nationalised bank or treasury in the name of the 2[nd] defendant herein. 16. The 1[st] defendant challenged the said order before this Court through W.P.(C)No.28066/2008. This Court directed the 1[st] defendant to get an order passed under the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (hereinafter referred to as 'the National Trust Act') for appointing him as the guardian. 17. Again with a view to misappropriating the amount, the 1[st] defendant approached the District Court, Ernakulam through O.P.(MH) No.910/2009 under the Mental Health Act, 1987, for declaring that the 2[nd] defendant is a mentally ill R.S.A.479 of 2017 -: 11 :- person and to appoint him as her guardian. The District Court, Ernakulam allowed the O.P. vide order dated 12.03.2010 and appointed the 1[st] defendant as the guardian of the 2[nd] defendant. When the 1[st] plaintiff came to know about it, she rushed to the District Court and filed R.P. No.1/2012 in O.P.(MH) No.910/2009. When it was revealed that the 2[nd] defendant is not a mentally ill person within the meaning of Section 2(l) of the Mental Health Act, 1987, the District Court reviewed the order and dismissed the OP. The 1[st] defendant did not stop there. He filed M.F.A. No.48/2012 before this Court challenging the order in R.P. No.1/2012 in the Mental Health O.P. This Court found that the competent authority under the National Trust Act is the authority competent to appoint the guardian of the 2[nd] defendant. 18. Thereafter, the 1[st] defendant as applicant approached the Local Level Committee, Ernakulam District under the National Trust Act, to appoint him as the guardian of the 2[nd] defendant. Through, Annexure R1(a), the District R.S.A.479 of 2017 -: 12 :- Collector who is the Chairman of the Committee, who is the competent authority, issued order dated 18.08.2017 appointing the 1[st] defendant as the legal guardian of the 2[nd] defendant under the National Trust Act. 19. All along the proceedings, till the filing of A.S.No.102/2014, the 1[st] defendant maintained that he was the guardian of the 2[nd] defendant. Before the Munsiff's Court, Perumbavoor in the present suit also, the 1[st] defendant was impleaded as the guardian of the 2[nd] defendant. It is the admitted case of the plaintiffs that the 2[nd] defendant is under the care and protection of the 1[st] defendant and he was the guardian of the 2[nd] defendant. Instead of challenging the said fact, the 1[st] defendant had chosen to admit clearly in the written statement that he is the guardian of the 2[nd] defendant and that the 2[nd] defendant is under his care and protection and he has been maintaining and looking after the affairs of the 2[nd] defendant as his own daughter. Strangely enough, he had chosen to R.S.A.479 of 2017 -: 13 :- file a written statement for him as well as for and on behalf of the 2[nd] defendant also in his capacity as guardian of the 2[nd] defendant. He filed affidavit in lieu of chief-examination before the trial court by clearly admitting that he was swearing the affidavit for and on behalf of the 2[nd] defendant also and that the 2[nd] defendant is under his care and protection. In cross-examination as DW1 he admitted the whole case of the plaintiffs and deposed that he had no objection in carrying out the partition of the property. He admitted that the 1[st] plaintiff is entitled to 1/3[rd] share in the property. He invited a decree against him. 20. The 1[st] defendant suffered the preliminary decree and has not chosen to file an appeal. The final decree was passed subsequently as aforesaid. In the final decree proceedings also he had no contention that the 2[nd] defendant was not represented in the suit. In the final decree also the 1[st] defendant was impleaded as the guardian of the 2[nd] defendant. After the passing of the final R.S.A.479 of 2017 -: 14 :- decree, the 1[st] defendant has chosen to take a strange argument that no guardian was appointed for the 2[nd] defendant and therefore, the preliminary judgment and decree and the final decree are nullity and non-est in the eye of law. 21. The learned Senior Counsel for the appellant has relied on the decision of the Apex Court in _**Ram Chandra Arya v. Man Singh and another** [AIR 1968 SC 954]_ wherein it was held that a decree against a lunatic without appointment of a guardian is a nullity and the same could be challenged even at the execution stage. In the case relating to the decision noted _supra_ , no guardian at all was appointed for the lunatic and the lunatic was not at all represented. The said decision has no application to the facts and circumstances of the present case. In this suit, willingly the 1[st] defendant has chosen to represent the 2[nd] defendant as her guardian. All along, he represented himself as the guardian of the 2[nd] defendant. Thereafter, he has R.S.A.479 of 2017 -: 15 :- chosen to approach the competent authority under the National Trust Act and has sought for an order to get himself appointed as the legal guardian of the 2[nd] defendant. Once again, he was appointed. 22. The present argument forwarded by the learned Senior Counsel is that there was no formal order from the trial court for the appointment of the 1[st] defendant as guardian of the 2[nd] defendant under Order XXXII Rule 3 of the Code of Civil Procedure. The said argument has no legs to stand. The 1[st] defendant who has himself filed the written statement for and on behalf of the 2[nd] defendant and had all along maintained a case that he was the guardian of the 2[nd] defendant, cannot now turn round and say that no guardian was appointed for the 2[nd] defendant. The lower appellate court has categorically stated in the impugned judgment repeatedly that the records of the trial court clearly reveal that the 1[st] defendant was appointed as the guardian of the 2[nd] defendant by the trial court. Even if a formal order is not R.S.A.479 of 2017 -: 16 :- there, it is evident that the plaintiffs in the suit, the trial court and the 1[st] defendant had understood that the 1[st] defendant was the guardian of the mentally retarded 2[nd] defendant. In such case, even in the absence of a formal order, it is evident that the 2[nd] defendant was properly represented. As per Order XXXII Rule 3A CPC, no decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject matter of the suit adverse to that of the minor, but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree. Therefore, even when it is noted that the guardian had any interest adverse to that of the minor (here in this case the mentally retarded person), the decree has to be set aside only when prejudice has been caused to the mentally retarded person. Here in this particular case, the due share of the mentally retarded R.S.A.479 of 2017 -: 17 :- person has been identified and declared correctly. 23. The learned counsel for respondents 1 and 2 has pointed out that presently the 1[st] defendant has come up with this second appeal in order to circumvent the repeated orders passed by various courts against him and also the order passed by the competent authority appointing him as the legal guardian of the 2[nd] defendant under the National Trust Act. In order to possess and enjoy the property of the 2[nd] defendant as legal guardian under the National Trust Act, he has to comply with various formalities. There are rigors as per the provisions of the said Act and now he wants to wriggle out of the such rigors created through that Act. There is considerable force in the said submission of the learned counsel for respondents 1 and 2. 24. Even according to the 1[st ] defendant, in the written statement as well as in his deposition as DW1, it is his admitted case that the 1[st] plaintiff is entitled to 1/3[rd] right over the property. He has clearly admitted that he along R.S.A.479 of 2017 -: 18 :- with his two sisters are the only children of deceased Pappi Amma. Pappi Amma died intestate as far as this property is concerned. The 1[st] defendant has no case that Pappi Amma settled the properties either on him or on the 2[nd] defendant alone. In such case, the only legal heirs who can succeed to the properties of Pappi Amma are the 1[st] plaintiff, the mentally retarded 2[nd] defendant, and the 1[st] defendant. They are entitled to 1/3[rd] share each over the property. In the preliminary decree as well as in the final decree, such 1/3[rd] share has been set apart for each of these persons. The interest of the 2[nd] defendant is properly protected in the matter. The trial court as well as the lower appellate court has found that the 2[nd] defendant is entitled to 1/3[rd] right over the property and her due share has been allotted to her. 25. The 1[st] defendant cannot be heard to say anything against the decree on the ground that he was not appointed as guardian. This present second appeal is quite unnecessary and he has chosen to file the second appeal R.S.A.479 of 2017 -: 19 :- solely for protracting the matter unnecessarily. The interest of the 2[nd] defendant is not at all prejudiced in any manner. The 1[st] defendant, who has suffered the preliminary decree without preferring an appeal, could not have filed the appeal against the final decree before the lower appellate court, for challenging the preliminary decree. Similarly, he cannot file the present second appeal also. The 1[st] defendant cannot approbate and reprobate. He is estopped from challenging the validly of the preliminary decree as well as the final decree. Apart from all the above, presently he has been appointed as the legal guardian by the competent authority under the National Trust Act. The 1[st] defendant shall comply with all the terms and conditions stipulated in the said Act for dealing with the properties of the 2[nd] defendant. Matters being so, this second appeal is devoid of merits and is only to be dismissed with costs, and I do so. R.S.A.479 of 2017 -: 20 :- In the result, this RSA is dismissed with costs. All the interlocutory applications in this appeal are closed. **Sd/- B. KEMAL PASHA, JUDGE.** ul/dsv/- // true copy // P.S. to Judge.