G. Santhakumari, Soman Shaji and Santhakumari Sheela v. Vasandhathi Rohini, Vasanti Ragini, Vasandhathi Jayakumari and Vasanti Vinodhini

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL WEDNESDAY, THE 16TH DAY OF NOVEMBER 2016/25TH KARTHIKA, 1938 ## SA.No. 354 of 2002 (A) ----------------------- ## AGAINST THE JUDGMENT IN AS 17/1992 of DISTRICT COURT,TRIVANDRUM AGAINST THE JUDGMENT IN OS 552/1981 of III ADDL.MUNSIFF'S COURT, TRIVANDRUM APPELLANT(S)/RESPONDENTS 2 TO 4 /DEFENDANTS 3 TO 5: -------------------------------------------------------------------------------------- 1. G.SANTHAKUMARI, T.C.NO.298/1, ICF, NORTH COLONY, MADRAS. 2. SOMAN SHAJI, T.C.NO.298/1, ICF, NORTH COLONY, MADRAS. 3. SANTHAKUMARI SHEELA, T.C.NO.298/1, ICF, NORTH COLONY, MADRAS. BY ADV. SRI.R.S.KALKURA RESPONDENT(S)/APPELLANTS 1ST & 5TH RESPONDENTS/PLAINTIFFS: - ----------------------------------------------------------------------------------------------------- 1. VASANDHATHI ROHINI, KORAKULANGARA VADAKKU MURI VEEDU, KLIKUNNAM KIZHAKUMURI VEEDU, KADAKAMPALLY MURI, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM. 2. VASANTHI RAGINI, KORAKULANGARA VADAKKU MURI VEEDU, KLIKUNNAM KIZHAKUMURI VEEDU, KADAKAMPALLY MURI, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM. 3. VASANDHATHI JAYAKUMARI, KORAKULANGARA VADAKKU MURI VEEDU, KLIKUNNAM KIZHAKUMURI VEEDU, KADAKAMPALLY MURI, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM. 4. VASANTHI VINODHINI, FORMERLY WRITTEN AS AMBIKA, KORAKULANGARA VADAKKU MURI VEEDU, KLIKUNNAM KIZHAKUMURI VEEDU, KADAKAMPALLY MURI, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM. SA.No. 354 of 2002 2 5. KARTHYANI VASANTHATHI, VARUVILAKOM VEEDU, FROM KORAKULANGARA VADAKKUMURI VEEDU, HAVING ALSO KILIKUNNAM KIZHAKKUMURI VEEDU, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM. 6. SOMAN SUDHEER FROM TC.NO.298/1, ICF NORTH COLONY, MADRAS, NOW RESIDING AT BLOCK 733/04.93, WOODLANDS CIRCLE, SINGAPORE 730 733. R, R6 BY ADV. SRI.M.AJAY (IRUMPANAM) R, R1 TO R3 BY ADV. SRI.L.MOHANAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. HARILAL, J.** ````````````````````````````````````````````````````````````` ## S.A. No.354 of 2002 ````````````````````````````````````````````````````````````` _Dated this the 16[th] day of November, 2016_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ Appellants are defendants 3 to 5 in O.S. No.552/1981 on the files of the Additional Munsiff's Court, Thiruvananthapuram and respondents 2 to 4 in A.S. No.17/1992 on the files of the District Court, Thiruvananthapuram. The parties are referred to as in the original suit. The plaintiffs instituted the suit for declaration that the plaint schedule properties exclusively belong to them and the mortgage created by defendants 1 and 2 in the 7[th] defendant on 09.11.1996 and the sale deed executed on 13.02.1970 in favour of deceased Lakshmanan Soman do not affect the right or title of the plaintiffs and for decree to set aside the said documents and for recovery of possession of plaint schedule properties with mesne profit. 2. It is the case of the plaintiffs that the plaint SA.354/2002 : 2 : schedule property was purchased for the benefit of the plaintiffs, who were minors on 31.08.1961, as per Ext.A3 sale deed executed in the name of the 1[st] respondent, the mother of the plaintiffs, as their guardian and since then, the plaint schedule properties belong to the plaintiffs. Their parents, who are defendants 1 and 2, with an intention to defeat the rights of the plaintiffs, mortgaged the property for ₹500/- in favour of the 7[th] defendant on 09.11.1996 as per Ext.A5 and that the transaction is invalid and subsequently, defendants 1 and 2 sold away the said property to Lakshmanan Soman, the predecessor of defendants 3 to 6, as per Ext.A1 sale deed which is void _ab initio_ and which is not affecting the right or title of the plaintiffs. According to them, on the death of Soman, his wife and children are not entitled to claim any right under the document which is void _ab initio_ . It is further contended that the plaintiffs are Hindus governed by Hindu Minority and Guardianship Act and the transaction entered into by defendants 1 and 2 are void _ab_ SA.354/2002 : 3 : _initio_ as they have not obtained the permission of the District Court under Section 8 of the Guardian and Wards Act. It is also contended that the said sale deed was executed by the mother of the plaintiffs, who is not a natural guardian under the Guardian and Wards Act and thereby the document is void _ab initio_ . 3. In the written statement, 3[rd] defendant contended that the suit itself is barred by limitation, _estoppel_ , non joinder and misjoinder of parties. But, the relationship alleged in the plaint was admitted. So also, they admitted the purchase of plaint schedule properties under Ext.A1 sale deed. They would contend that defendants 1 and 2 never tried to defraud the appellants and the suit was instituted collusively. According to them, Ext.A1 sale deed is supported by adequate consideration. It is also contended that on the date of sale of Ext.A1, the 2[nd] defendant had executed Ext.B3 sale deed in favour of the plaintiffs in lieu of the plaint schedule properties, which was sold away by SA.354/2002 : 4 : Ext.A1. Thus, the plaintiffs got a valuable property purchased by using consideration obtained from the defendants by Ext.A1 sale deed. It is also contended that after the death of Soman, defendants 3 to 6 have been in possession of the property and they have effected improvements as their own property and the plaintiffs have no right over the said property and they are not entitled to the decree for declaration and also for recovery of possession as prayed for. 4. On the above rival pleadings, both parties adduced evidence and after appreciating the evidence on record, the trial court partly decreed the suit on a finding that the suit is barred by limitation with respect to plaintiffs 1 to 3 and allowed as prayed for with respect to the right of the 4[th] respondent. Feeling aggrieved, the plaintiffs have filed appeal before the lower appellate court and the lower appellate court, after re-appreciating the entire evidence on record, decreed the suit on a finding that Ext.A1 sale deed SA.354/2002 : 5 : and Ext.A5 mortgage deed are void as against the plaintiffs and the plaintiffs have title over the plaint schedule property. They are entitled to recover possession of the plaint schedule property. The defendants are directed to surrender vacant possession of the plaint schedule property to the appellants within a period of three months from the date of judgment, failing which they are entitled to take delivery through the court. The legality and propriety of the aforesaid finding, whereby the court below decreed the suit, are under challenge in this appeal. 5. Heard learned counsel for the appellants and learned counsel for the respondents. 6. Even though this appeal is filed on various grounds challenging the legality and propriety and correctness of the entire findings, whereby the court below decreed the suit, the learned counsel for the appellants fairly confined to the point that the court below had committed an error by not granting a decree directing the plaintiffs to SA.354/2002 : 6 : restore the property, which was covered under Ext.B3 sale deed and got executed in favour of them in lieu of Ext.A1 sale deed in favour of the husband and father of the appellant. In other words, the court below ought to have granted a decree in favour of the appellants directing the respondents to restore the property to them. In support of the above argument, the learned counsel for the appellants cited the decisions of this Court in _**Cheriathu Varkey v. Meenakshi Amma** [1964 KLT 952]_ and _**Padinhare Veettil Madhavi v. Pachikaran Veettil Balakrishnan and another** [2009 KHC 989]._ _7_ . _Per contra_ , the learned counsel for the respondents advanced arguments contending that even though Ext.B3 sale deed was executed in favour of the plaintiffs, thereafter, the 2[nd] defendant himself executed another sale deed in favour of his other children with respect to the very same property covered under Ext.B3 and now, they are not in possession of the said property. SA.354/2002 : 7 : 8. In view of the submissions made at Bar, the only point to be considered in this Regular Second Appeal is whether the appellants are entitled to get a decree for restoration of the property covered under Ext.B3. I deem it apposite and profitable to survey the judicial precedence cited by the learned counsel for the appellants at first. In _**Cheriathu Varkey v. Meenakshi Amma** [1964 KLT 952]_ , this Court held as follows:- “ _Ordinarily, the benefit which a party receives when he sells the property is the price which the vendee pays. Any profits which the vendor might make with the moneys would be too remote in estimating what he has to return in case he is entitled to avoid the sale and elects to do so. Where however for the protection of a purchaser contracting with a guardian or a qualified owner, a particular dealing with the money was in the direct contemplation of the parties such as the purchase of other lands with the consideration and the money is so applied, the benefit which the other party obtains will be the land or other property acquired with the_ SA.354/2002 : 8 : _consideration.... There can de little doubt that if the purchase of the land at Sriperumbudur was the benefit contemplated by the parties and arose in connection with the same transaction as the sale of ancestral properties by the minors’ mother, the plaintiff would be entitled to a conveyance of the properties so purchased.” We think the identical relief might well have followed S.41 of the Specific Relief Act, 1877._ _7. Applying the equitable principle embodied in the 3 Sections quoted above to the instant case, the plaint B schedule properties, the purchase of which has been mentioned as an item of consideration in the impugned alienation and was made the same day, have to be held as the benefit that accrued to the estate of the plaintiffs under the impugned alienation; and therefore they must be directed to be given to the disappointed alienees, defendants 2 onwards. It may be noted here that the plaintiffs have in the plaint disowned the acquisition of plaint B schedule properties in their names.”_ 9. Thereafter, this Court considered the above question in _**Padinhare Veettil Madhavi v. Pachikaran**_ SA.354/2002 : 9 : ## _**Veettil Balakrishnan and another** [2009 KHC 989]_ and the ## Court held as follows:- _“17. Under S.33 of the Specific Relief Act, on adjudging the cancellation of an instrument, the Court may require the party, to whom such relief is granted, to make any compensation to the other which justice may require. The learned counsel for the appellant invited my attention to the decision reported in Chacko v. Sreeja, 1991 KHC 76 : 1991 (1) KLT 191 : 1991 (1) KLT 686 in which it was held:_ _'In cancelling the documents, the plaintiff need only surrender benefits received as justice may require. Such benefit required by the justice is the actual benefit received under the impugned transaction, which is avoided. It may not be conducive to justice to allow the minor to have double advantage by avoiding the transaction and at the same time retaining its benefits. “Benefit' or 'advantage' referred to in S.64 and 65 of the Contract Act, do not relate to profit derived from the investment of the benefit. Sometimes the investment may result in loss also. In a given case, the benefit may be only_ SA.354/2002 : 10 : _the actual consideration and its interest. But, where the consideration for the impugned transaction itself is the purchase of another property in the name of the minor that property must be taken as the benefit derived by the minor and it must be directed to be returned. Value of properties might have gone up and return of the consideration is money alone may work out injustice to the defendant purchaser and undue gain to the minor.'_ _18. Therefore, the legal postilion is that whether the Sale Deed is void or voidable, the minor seeking to set aside it cannot claim interference of a Court of law without making restitution. The law is clear that if a person sells or mortgages another's property having no legal or equitable right to do so and that other benefits by transaction the latter cannot have it set aside without making restitution to the person whose money has been applied for the benefit of the estate. The principle of restitution in such cases is based on the equitable maxim 'he who seeks equity must do equity'. No person who is entitled to avoid a transaction ought to be allowed to do so in such a manner_ SA.354/2002 : 11 : _as to enable him to recover the property which would be otherwise lost to him and at the same time to keep the money or other advantages which he has obtained under it. Therefore, if a transfer by a guardian is set aside as having been made without previous permission of the Court, equity requires that the minor should restore to the transferee any benefit he may have received under the transfer before the minor can take the benefit of any decree in his favour. “_ 10. The proposition that can be culled out from the aforesaid decision is that if the transfer of the guardian is set aside as having been made without previous permission of the court, equity requires that the minors should restore the property which they have acquired in lieu of sale to the disappointed alienees of that property. When applying the above proposition in the instant case, I have no hesitation to hold that the appellants herein are entitled to get restored the property conveyed to the plaintiffs under Ext.B3 by the 2[nd] defendant to them. I do so. This Court is not interfering SA.354/2002 : 12 : with the decree granted by the lower appellate court in favour of respondents 1 to 4 herein. But, at the same time, this Court is inclined to pass a decree in favour of the appellants in view of the aforesaid finding. Hence, it is declared that respondents 1 to 4 are liable to surrender the property conveyed to them, under Ext.B3 by the 2[nd] defendant, to the appellants herein within a period of three months from the date of receipt of a copy of this judgment, failing which the appellants are entitled to take delivery of the said property through court and the decree is passed accordingly. The Second Appeal is allowed in part as above. All pending interlocutory applications in this Appeal are dismissed. Sd/- **(K. HARILAL, JUDGE)** aks/17/11 _// True Copy // PA to Judge_