JISHI V S v JAVAHAR, RAJA SINGH, JEENA V, SHEELA, SHIJIN, CHELLAMMA (RSA No. 589 of 2021)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 17[TH] DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943** **RSA NO. 589 OF 2021** **[AGAINST THE JUDGMENT & DECREE DTD.24.11.2020 IN AS 594/2015 OF ADDITIONAL DISTRICT COURT,NEYYATTINKARA & AGAINST THE JUDGMENT & DECREE DTD.29.02.2012 IN OS NO.42/2011 OF PRINCIPAL MUNSIFF'S COURT, NEYYATTINKARA]** ## **APPELLANT/APPELLANT/PLAINTIFF:** JISHI V S, AGED 29 YEARS, D/O. T SHEELA, RESIDING AT MAVILA PUTHEN VEEDU, KANJIRAMKULAM P.O, THIRUVANANTHAPURAM 695 524 BY ADVS. PIRAPPANCODE V.S.SUDHIR AKASH S. A.MEGHA ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 JAVAHAR, S/O. SUSHEELAN NADHAN, RESIDING AT 'JAVAHAR BHAVAN', THOPPIL, KANJIRAMKULAM, NEYYATTINKARA 695 524. 2 RAJA SINGH, S/O. RAJAYYAN, RESIDING AT LEXMI SADANAM, MADAMVILAKOM, VIZHINJAM, NEYYATTINKARA 695 521. 3 JEENA V, D/O. USHAKUMARI, RESIDING AT LEXMI SADANAM, MADAMVILAKOM, VIZHINJAM, NEYYATTINKARA 695 521. 4 SHEELA, W/O. LATE VIJAYAN, RESIDING AT MAVILA PUTHEN VEEDU, KANJIRAMKULAM P.O, THIRUVANANTHAPURAM 695 524. 5 SHIJIN, RESIDING AT LEXMI SADANAM, MADAMVILAKAM, VIZHINJAM, NEYYATTINKARA 695 521. R.S.A.No. 589 of 2021 ..2.. 6 CHELLAMMA D/O. ROSAMMA, RESIDING AT LEXMI SADANAM, MADAMVILAKOM, VIZHINJAM, NEYYATTINKARA 695 521. **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15.09.2021, THE COURT ON 17.09.2021 DELIVERED THE FOLLOWING:** R.S.A.No. 589 of 2021 ..3.. ## **JUDGMENT** The appellant is the plaintiff in O.S.No.42/2011 of the Principal Munsiff Court, Neyyattinkara (hereinafter referred to as 'the trial court') and the appellant in A.S.No.594/2015 of the Additional District Court, Neyyattinkara (hereinafter referred to as 'the first appellate court'). The respondents are the defendants in the suit and the respondents in the first appeal. The suit was filed by the plaintiff claiming partition of one-fourth share over the plaint schedule property, which was devolved on her on the death of her father on 9.4.2006. The parties shall be hereinafter referred to as referred in the original suit. 2. The plaint schedule item Nos.1 and 2 properties originally belonged to Sri.Vijayan, who is the father of the plaintiff. He died on 9.4.2006. On the death of Vijayan, the plaint schedule properties devolved upon the plaintiff and defendant Nos. 4 to 6. The plaintiff is claiming one-fourth R.S.A.No. 589 of 2021 **==> picture [22 x 8] intentionally omitted <==** share over the plaint schedule property. The defendants 4 to 6 executed sale deed No.765/2007 dated 9.8.2007 in favour of the first defendant in respect of 18.600 cents of property. They also executed sale deed No.764/2007 in favour of defendants 2 and 3 in respect of 29.400 cents. The properties to which sale deed Nos.765/2007 and 764/2007 were executed, were scheduled as plaint schedule item Nos.1 and 2 properties. The properties were not sold for the benefit of the minor. Hence, the defendants 4 to 6 had no authority to alienate the share of the plaintiff in the plaint schedule property. The defendants 4 to 6 did not use any part of the sale consideration for the benefit of the minor. The sale deed executed in respect of the share of the plaintiff in the plaint schedule property is void and illegal. Hence the suit. 3. The defendants remained ex parte to the proceedings. No oral evidence was adduced by the plaintiff. Exts.A1 to A3 were marked on the side of the plaintiff. R.S.A.No. 589 of 2021 ..5.. 4. The trial court, on consideration of the documents, dismissed the suit mainly on the following points:- 1. The sale deed executed by natural guardian for and on behalf of the minor is voidable at the option of the minor. 2. As long as the minor did not opt to set aside the document, the document executed by the natural guardian for and on behalf of the minor is valid. 3. The plaintiff did not seek for setting aside Exts.A2 and A3 documents. 4. Exts.A2 and A3 documents are voidable at the option of the minor plaintiff. 5. Since the plaintiff did not pray for setting aside Exts.A1 and A2 documents, the plaintiff cannot claim that the plaint schedule property belonged to her father. 6. Defendants 1 to 3 are owners of the property pursuant to Exts.A1 and A2. 5. Challenging the judgment and decree, the plaintiff preferred an appeal before the first appellate court. During the pendency of the appeal, the plaintiff filed I.A.No.117/2018 dated 3.3.2017 seeking to amend the plaint by incorporating declarations that the plaintiff has title and possession over the plaint schedule properties and that Sale Deed Nos.765/2007 and 764/2007 respectively are void and R.S.A.No. 589 of 2021 ..6.. not binding on the plaintiff. The respondents 1 to 3 filed objection before the first appellate court. After having heard both sides, the first appellate court held that the application for amendment was filed seeking for incorporation of a time barred claim. Hence, the application was disallowed on the ground of limitation. The appeal was also dismissed confirming the judgment and decree of the trial court. Feeling aggrieved, the plaintiff preferred this appeal. 6. Heard Sri.Pirappancode V.S.Sudheer, the learned counsel for the appellant. 7. Learned counsel for the appellant contended that the first appellate court wrongly dismissed the amendment application. According to the learned counsel, both the trial court and the first appellate court went wrong in dismissing the suit on the ground that Exts.A1 and A2 sale deeds were not sought to be set aside even though the plaintiff had impleaded all the buyers in the suit. According to the R.S.A.No. 589 of 2021 ..7.. learned counsel, the first appellate court ought to have allowed the amendment application and remanded the suit for fresh consideration. 8. The plaint schedule properties admittedly belong to one Vijayan. Consequent to his death, the property devolved upon his legal heirs. The plaintiff and defendants 4 to 6 alone are the legal heirs of the deceased. While so, the defendants 4 to 6 executed Ext.A1 sale deed in favour of the first defendant in respect of plaint schedule item No.1 property. Ext.A2 sale deed was also executed in favour of defendants 2 and 3 in respect of plaint schedule item No.2 property. Plaintiff is then a minor and hence, the 4[th] defendant- the mother and natural guardian of the plaintiff executed the sale deeds on behalf of the minor plaintiff also. 9. The plaintiff, on attaining majority, filed the suit for partition questioning the authority of defendants 4 to 6 to alienate her share over the property. It is clear that the R.S.A.No. 589 of 2021 ..8.. plaintiff filed the suit for partition without seeking to set aside Exts.A1 and A2 sale deeds. The alienation effected by the natural guardian, without the sanction of the court, has to be challenged in accordance with law. Without setting aside the sale deeds, no relief can be granted. The maximum period available to institute a suit for setting aside the transaction is only 3 years from the date of attaining majority [See the Full Bench decision reported in **Ramadas Menon** v. **Sreedev** i [2004 KHC 55(FB)]. In view of the settled legal principles, a suit for partition, without a prayer for setting aside Exts.A1 and A2 sale deeds, is unsustainable. 10. The date of birth of the plaintiff is 22.5.1991 and she has attained majority on 22.5.2009. Article 60 of the Limitation Act provides that a suit for setting aside a transfer of property made by the guardian of a ward shall be instituted within three years from the date of attaining majority. The plaintiff has not filed the suit within three years as stated R.S.A.No. 589 of 2021 ..9.. hereinabove. The application for amending the plaint was filed during the pendency of the proceedings on 3.3.2017. Hence, the first appellate court rightly dismissed the application for amendment, which is hopelessly barred by limitation. If a fresh suit on the amended plaint is barred by limitation on the date of application, the first appellate court will be fully justified in dismissing the application seeking to amend the plaint incorporating a time barred claim. 11. The general rule is that this Court will not interfere with concurrent findings of the two courts below. This Court should be satisfied that the case involved is a substantial question of law and not a mere question of law. A question of law, having a material bearing on the decision of the case will be a substantial question of law, if it is not covered by any specific provision of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. The question of law involved in this case R.S.A.No. 589 of 2021 **==> picture [28 x 8] intentionally omitted <==** is practically covered by the decision of this Court reported in Ramadas Menon' s case (supra). The principle decided therein is applicable in this case as well. Needless to say, if there is no substantial question of law involved, the appeal has to be dismissed. In the result, this appeal is dismissed in limine. There shall be no order as to costs. Pending applications, if any, stand closed. **sd/-** **N.ANIL KUMAR, JUDGE** MBS/