Manamal Shamsudheen v. Gurusikkavil Abdul Kader and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY ,THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940** **SA.No. 772 of 2001 AND CROSS OBJECTION** **AGAINST THE JUDGMENT AND DECREE DATED 29-03-2001 IN AS 45/1996 AND CROSS OBJECTION ON THE FILE of SUB COURT, QUILANDY** **AGAINST THE JUDGMENT AND DECREE DATED 30-03-1996 IN OS 35/1991 of MUNSIFF COURT, QUILANDY** ## **APPELLANT/1ST RESPONDENT/PLAINTIFF:** **MANAMAL SHAMSUDHEEN S/O.AMMED, RESIDING AT 'SAMEERA BYTH' KOTHAMANGALAM DESOM, PANTHALAYANI VILLAGE, KOYILANDY TALUK.** **BY ADVS. SRI.M.KRISHNAKUMAR SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH** ## **RESPONDENTS/APPELLANT & RESPONDENTS 2 TO 13/DEFENDANTS:** |**1**|**GURUSIKKAVIL ABDUL KADER**| |---|---| ||**S/O.ATHRUMAN HAJI, RESIDING AT MEETHALEPATH HOUSE,**| ||**PANANGAD VILLAGE, KOYILANDY TALUK, KOZHIKODE**| ||**DISTRICT.**| |**2**|*** MANAMEL MARIYAM UMMA,**| ||**D/O.MAMMED KOYA, RESIDING AT 'SAMEERA BYTH'**| ||**KOTHAMANGALAM DESOM, PANTHALAYANI VILLAGE, KOYILANDY**| ||**TALUK.**| ||*** IT IS RECORDED THAT THE APPELLANT AND RESPONDENTS 3**| ||**AND 4 ARE THE LEGAL REPRESENTATIVES OF THE DECEASED**| ||**2ND RESPONDENT AS PER ORDER DATED 5.4.2006 (VIDE MEMO**| ||**CF 1743/2006)**| |**3**|**SUBAIDA,**| ||**D/O.MAMMED KOYA, .DO. .DO.**| |**4**|**NAZAR,**| ||**S/O.MAMMED KOYA, .DO. .DO.**| |**5**|**THURUTHEL MANIYAPPAN,**| SA.No. 772 of 2001 AND CROSS OBJECTION 2 **S/O.KRISHNAN, RESIDING AT MEETHALEPATH , PANANGAD VILLAGE, KOYILANDY TALUK.** - **6 PUTHALATHKANDY P.K.AHAMMED, S/O.KALATHANKUTTY HAJEE, NADUVALLUR VILLAGE, RAMALLUR DESOM, KOZHIKODE TALUK.** - **7 MOHANAN, S/O.RAMAN, RESIDING AT MEETHALEYATH PARAMBIL THEKKEKHANNATHIL, PANTHALAYANI DESOM, PANTHALAYANI VILLAGE, KOYILANDY TALUK, KERALA.** - **8 PRASANNA, D/O.RAMAN, .DO. .DO..DO.** - **9 VIJAYAN, S/O.RAMAN, .DO. .DO..DO.** - **10 PUSHPA, D/O.RAMAN, .DO. .DO..DO.** - **11 VASANTHA, D/O.RAMAN, .DO. .DO..DO.** - **12 MADHAVI, W/O.RAMAN, .DO. .DO..DO.** - **13 THANKAM, W/O.ITTIRAMAN, RESIDING AT CHAMAKKALAYIL, PANANGAD VILLAGE, KOYILANDY TALUK.** **BY ADVS. SMT.SEEMA SRI.K.LAKSHMINARAYANAN SRI.N.L.KRISHNAMOORTHY SRI.R.PARTHASARATHY** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.02.2019, ALONG WITH CROSS OBJECTION, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SA.No. 772 of 2001 AND CROSS OBJECTION 3 ## **JUDGMENT** The plaintiff in a suit for partition is the appellant. The property sought to be partitioned is an item measuring 44¼ cents. The first defendant is the mother of the plaintiff and defendants 2 and 3 are the siblings of the plaintiff. Defendants 4 to 6 are strangers. The suit property is one acquired by the first defendant on her behalf and also on behalf of the plaintiff and defendants 2 and 3. Out of the said 44¼ cents, the first defendant sold 11¼ cents to the fourth defendant, 5 cents to the fifth defendant and the remaining 28 cents to the sixth defendant. The documents in respect of the aforesaid transactions were executed by the first defendant on her behalf and also on behalf of the plaintiff and defendants 2 and 3. The case of the plaintiff is that the sale deeds executed by the first defendant in favour of defendants 4 to 6 during his minority are not binding on him. He therefore, claimed partition of his one-fourth share in the property on that basis. It is stated by the plaintiff in the plaint that he is a person born on 18.5.1970 and the suit is, therefore, instituted within three years from the date of his majority as required under Article 60 of the Schedule to the Limitation Act. SA.No. 772 of 2001 AND CROSS OBJECTION 4 2. The fourth defendant, in fact, died prior to the suit and when the plaintiff came to know the said fact, he arrayed the legal representatives of the fourth defendant as additional defendants in the suit. The legal representatives of the fourth defendant contended that they were arrayed as additional defendants in the suit beyond the time stipulated under Article 60 of the Schedule to the Limitation Act and therefore, the plaintiff is not entitled to any relief in respect of the property purchased by the fourth defendant from the first defendant. The sixth defendant disputed the date of birth of the plaintiff as pleaded by him in the plaint and contended on that basis that the suit is not one instituted within time. 3. Placing reliance on Ext.X1 page of the school admission register containing the name of the plaintiff, the trial court found that the date of birth of the plaintiff is 18.05.1970 and that the suit in respect of the properties sold by the first defendant excluding the one sold to the fourth defendant, is within time and that the plaintiff is entitled therefore, to claim partition of his share in the property ignoring the alienations made by the first defendant. In the light of the said findings, the trial court decreed the suit declaring the ¼[th] share of the plaintiff, over the suit property excluding the 11¼ cents of property sold by the first defendant to the fourth defendant. SA.No. 772 of 2001 AND CROSS OBJECTION 5 In terms of the decree, the trial court also declared the shares of defendant Nos.2 and 3 and that of the seventh defendant, who claimed to have acquired right in the property at a later point of time. The sixth defendant preferred an appeal challenging the decision of the trial court. The plaintiff preferred a cross objection in the appeal filed by the sixth defendant as against the value of improvements directed to be paid by the trial court to defendants 5 and 6. The appellate court held that Ext.X1 school admission register does not establish the date of birth of the plaintiff and consequently dismissed the suit reversing the decision of the trial court. The cross objection preferred by the plaintiff was also rejected. The plaintiff is aggrieved by the said decision of the appellate court. 4. Heard the learned counsel for the appellant as also the learned counsel for the contesting respondents, namely the sixth defendant and the legal representatives of the deceased fourth defendant. 5. The learned counsel for the appellant contended that in so far as the appellate court found that the evidence let in by the plaintiff to establish his date of birth was not sufficient to prove the said fact, the appellate court should have afforded the plaintiff another opportunity to prove his date of birth, instead of non suiting him on SA.No. 772 of 2001 AND CROSS OBJECTION 6 that technical plea, as it is evident from the materials that had the plaintiff been advised the manner in which his date of birth has to be proved, there would have been no difficulty for him to prove his date of birth in a manner known to law. It was pointed out by the learned counsel that the view taken by the appellate court is that the plaintiff should have examined his parents who have furnished the relevant information to the school authorities to prepare the school admission register, in order to prove his date of birth. It is submitted by the learned counsel that the parents of the plaintiff are still alive and the plaintiff would have certainly examined either of them in the suit for the said purpose. In short, the submission made by the learned counsel is that since the reason for not adducing proper evidence to prove the date of birth is not attributable to the plaintiff, the appellate court ought to have remitted the matter to the trial court in the interest of justice, invoking Rule 23 of Order 41 of the Code of Civil Procedure. 6. Per contra, the learned counsel for the sixth defendant contended that the plaintiff had enough and more opportunity to adduce proper evidence to prove his date of birth and since he has not availed the said opportunity, a suit of the year 1991 shall not be remitted for the said purpose. It was also contended by the learned SA.No. 772 of 2001 AND CROSS OBJECTION 7 counsel that the purchase of the property by him from the first defendant was in exchange of another item of property measuring 43 cents and the first defendant has sold the said property immediately thereafter. According to the learned counsel, if the court finds that the sale deed executed by the first defendant in favour of the sixth defendant is voidable at the instance of the plaintiff, he is entitled to get back his property and since the first defendant has already sold that property to third parties, the court may not set at naught the transaction. It was also contended by the learned counsel that 12½ cents out of the 28 cents of property sold to the sixth defendant by the first defendant was outstanding on a mortgage and in the proceedings instituted by the mortgagee for execution of the decree obtained by him for realisation of the mortgage money, the mortgage holding was sold to the seventh defendant. It was pointed out that the sixth defendant, in the circumstances, had to purchase the said part of the property again from the seventh defendant. As such, according to the learned counsel, even if it is found that the plaintiff has any right in the property, the plaintiff is not entitled to claim a share in respect of the said 12½ cents of property. It was further contended by the counsel that at any rate, the plaintiff alone can claim a share in the suit property excluding the property sold by the first SA.No. 772 of 2001 AND CROSS OBJECTION 8 defendant to the fourth defendant and the trial court has acted erroneously in declaring the rights of defendants 2, 3 and 7. It was submitted by the learned counsel that the share of the seventh defendant was declared by the court on the basis that he purchased the property mortgaged by the first defendant. It was pointed out that in so far as the said property has been subsequently purchased by the sixth defendant, there was no necessity at all for the court to pass a decree in favour of the seventh defendant. It was also pointed out by the learned counsel that there was absolutely no justification for the trial court to declare the shares of defendants 2 and 3 who did not initiate proceedings for avoiding the documents executed by the first defendant within the time stipulated. 7. True, it has come out in evidence that the sale of the property by the first defendant in favour of the sixth defendant was an exchange of another property, measuring 43 cents. It has also come out that the said property was sold by the first defendant, immediately thereafter, for consideration. Suits of the present nature are essentially suits against those persons, who have effected transfers on behalf of the minors. The law on the point is that transfers made on behalf of the minors would not bind the minors. If the transfers would not bind the minors and they are entitled to avoid the same, the SA.No. 772 of 2001 AND CROSS OBJECTION 9 manner in which consideration was obtained by the transferor for effecting transfer is irrelevant. Coming to the mortgage created by the first defendant and the sale of the mortgage holding, it is seen that the sale was pursuant to the decree in O.S.No.64 of 1973 and in terms of the said decree, the court permitted sale of only the right of the first defendant in the suit property. In other words, what is purchased by the seventh defendant and later by the sixth defendant from the seventh defendant is only the right of the first defendant in the mortgage holding. As noted, the first defendant has already sold her rights over the said 12.5 cents of property to the sixth defendant and as such, the said transaction does not in anyway affect the right of the plaintiff in the suit property. 8. In the aforesaid circumstances, the following are the questions of law arising for consideration in the second appeal. _i) Was the appellate court justified in non-suiting the plaintiff, on the facts of the present case, merely for the reason that he did not let in proper evidence to prove his date of birth?_ _ii) If question No.1 is answered in the negative, the relief to be granted._ _iii) Was the trial court justified in declaring the shares of defendants 2, 3 and 7 in the suit ?_ 9. As noted, the specific case of the plaintiff in the plaint as regards his date of birth is that he is a person born on 18.5.1970. SA.No. 772 of 2001 AND CROSS OBJECTION 10 The suit is one instituted on 22.2.1991. The defendants have disputed the said case pleaded by the plaintiff. It is on that basis that they contended that the suit is barred by limitation. In terms of Article 60 of the Schedule to the Limitation Act, a suit of the instant nature is to be instituted within three years from the date of majority of the minor. As such, in the light of the plea of limitation taken by the defendants, it was obligatory for the plaintiff to prove his date of birth in order to establish that the suit is one instituted within time. As noted, the only evidence let in by the plaintiff in this connection is Ext.X1 School Admission Register. It is now trite that the date of birth mentioned in the School Admission Register has no evidentiary value unless the entry contained in the admission register is shown to have been made on the basis of the information given by the parents of the candidate or persons having special knowledge about the date of birth [See **Birad Mal Singhvi** v. **Anand Purohit** (AIR 1988 SC 1796)]. As rightly pointed out by the learned counsel for the appellant, had the plaintiff been advised properly the manner in which his date of birth has to be proved in a proceedings of this nature, there would have been no difficulty for him to prove his date of birth by examining his parents as his parents were alive then. As such, as submitted by the counsel for the appellant, the reason for not adducing proper evidence SA.No. 772 of 2001 AND CROSS OBJECTION 11 to prove the date of birth cannot be attributable to the plaintiff. If that be so, according to me, the appellate court should have remitted the matter to the trial court in the interest of justice, invoking the power under Rule 23 of Order 41 of the Code of Civil Procedure. As the appellate court has not adopted the said course, the matter has to go back to the trial court so as to afford the plaintiff an opportunity to adduce evidence to prove his date of birth. Questions (i) and (ii) are answered accordingly. 10. It is seen that defendants 2 and 3 are elder siblings of the plaintiff. They have not instituted any proceedings for avoiding the sale deeds effected by their mother, the first defendant on their behalf in favour of defendants 4 to 6, within the time stipulated under Article 60 of the Schedule to the Limitation Act. In other words, they are, therefore, not entitled to avoid the sale deeds executed by their mother in respect of the suit property. The trial court, in the circumstances, was not justified at all in declaring their share in the suit property. Question (iii) is thus answered in favour of the sixth defendant. 11. In the result, the decisions of the courts below are set aside and the suit is remitted to the trial court for the limited purpose of affording the plaintiff an opportunity to adduce evidence to prove SA.No. 772 of 2001 AND CROSS OBJECTION 12 his date of birth. It is made clear that if the court finds thereafter that the suit is one instituted within time, the court will be free to pass a decree declaring the one-fourth share of the plaintiff alone in the suit property excluding the portion of the same which was sold by the first defendant to the fourth defendant. Coming to the cross objection, the same is defective, as no substantial question of law is framed therein. Notice is also not seen issued on the cross objection to the respondent/appellant. The cross objection is, therefore, closed. **Sd/-** **P.B.SURESH KUMAR** **SKS** **JUDGE**