Regular Second Appeal No. 392 of 2022 (Hareesh Babu & Kailasanath v. Anju Hariharan, P.G. Purushothamman Pillai & Jayasree)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945** **RSA NO. 392 OF 2022** **AGAINST THE DECREE AND JUDGMENT DATED 22.12.2021 IN AS 78/2017 OF ADDITIONAL DISTRICT COURT-I,MAVELIKKARA ARISING FROM THE DECREE AND JUDGMENT DATED 27.03.2017 IN OS 83/2012 OF MUNSIFF COURT, HARIPAD** **APPELLANTS/APPELLANTS 2 AND 3 IN AS 78/2017 /DEFENDANTS 5 & 6 IN OS 83/2012:** **1 R.HAREESH BABU, AGED 51 YEARS S/O. N. RETNAN, KAILAS , PILAPPUZHA, HARIPAD VILLAGE, ALAPPUZHA 690 512.** **2 R. KAILASANATH, AGED 46 YEARS S/O. N. RETNAN, KAILAS, PILAPPUZHA, HARIPAD VILLAGE, ALAPPUZHA 690 512.** **BY ADVS. R.PARTHASARATHY SEEMA PARTHASARATHY** **RESPONDENTS/RESPONDENTS IN AS 78/2017/PLAINTIFF & DEFENDANTS 2 & 3 IN OS 83/2012:** **1 ANJU HARIHARAN, AGED 28 YEARS D/O. JAYASREE, PUTHUPARAMBIL, THEKKATHIL HOUSE, THATTARAMBALAM P.O, MATTOM NORTH MURI, KANNAMANGALAM VILLAGE, FROM KONDOOR VEETTIL, NEENDOOR MURI, PALLIPPAD, ALAPPUZHA 690 512.** **RSA NO. 392 OF 2022** **2** **2** **P.G. PURUSHOTHAMMAN PILLAI, AGED 69 YEARS S/O. GOPALAKRISHNA PILLAI, PERUMPRAL HOUSE, PULLAMBARA MURI, PALLIPPAD VILLAGE, ALAPPUZHA 690 512.** **3 JAYASREE , D/O. CHELLAMMA, PUTHUPARAMBIL, THEKKATHIL HOUSE, THATTARAMBALAM P.O, MATTOM NORTH MURI, KANNAMANGALAM VILLAGE, FROM KONDOOR VEETTIL, NEENDOOR MURI, PALLIPPAD , ALAPPUZHA 690 512.** **BY ADVS. T.KABIL CHANDRAN FOR R1 R.ANJALI FOR R1** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 392 OF 2022** **3** ## **CR** ## **JUDGMENT** Dated this the 6[th] day of February, 2024 This regular second appeal has been filed under Section 100 and Order XLII Rule I of the Code of Civil Procedure, 1908 by defendants 5 and 6 in O.S.No.83/2012 on the files of the Munsiff’s Court, Haripad and they impugn verdict in the above suit as well as the verdict in A.S.No. 78/2017 on the files of the Additional District Court-I, Mavelikkara. The respondents are the plaintiff and defendants 2 and 3 in the above suit. 2. Heard both sides. Perused the lower court records. 3. I shall refer the parties in this regular second appeal as ‘plaintiff’ and 'defendants’ for convenience. 4. At the time of admission, this Court formulated the following substantial questions of law as per order dated 01.07.2022. **RSA NO. 392 OF 2022** **4** - _“1. When the plaintiff, a minor, who was represented by the mother – the natural guardian is it legal to find that the minor was not properly represented at the time of earlier suit?_ _2. Whether it is legal and proper to find that there is no service of summons in the previous suit when service of summons to mother has been declared in the former suit and when the plaintiff has no case that notice to the mother was not proper?_ _3. Is it legal to find that the plaintiff is not bound by the execution proceedings pursuant to O.S.No.391/1997 when execution is as against the property of the father for his liability?_ _4. Is it legal and proper in decreeing partition of half right of the plaintiff without directing the plaintiff to pay the proportional liability with interest towards the amount due from the father?”_ 5. This is a suit filed by the plaintiff, Anju Hariharan, **RSA NO. 392 OF 2022** **5** seeking the relief to set aside the decree in O.S.No.391/1997 and the sale in execution of the said decree, recovery of possession, partition and permanent prohibitory injunction. According to the plaintiff, O.S.No.391/1997 filed by the plaintiff therein was decreed after declaring defendants 1 and 2 therein as _ex parte_ . Thereafter, the decree was executed and the entire plaint schedule property was sold in court auction and subsequently, the first defendant herein/decree holder in O.S.No.391/1997 got delivery of the same. The plaintiff herein was a minor at the time of the proceedings and on attaining majority at the age of 19, she filed the present suit seeking the above prayers. 6. The first defendant filed written statement and resisted the suit contending that the entire proceedings in execution of O.S.No.391/1997 were over and therefore, the present suit to set aside the decree and judgment in O.S. No.391/1997 is not sustainable. The second defendant also filed written statement specifically contending that this is a **RSA NO. 392 OF 2022** **6** suit filed in collusion between the plaintiff and the third defendant. 7. The trial court recorded evidence and ventured the matter. PW1 examined and Exts.A1 to A6 were marked on the side of the plaintiff. DW1 examined and Ext.B1 to B6 were marked on the side of the defendants. Ext.C1 series marked as court exhibits and X1 and X2 series also were marked. 8. Finally, the trial court decreed the suit, declaring that the decree in O.S.No.391/1997 on the files of the Munsiff's court, Haripad, the sale in execution of the said decree and subsequent transfer of property would not bind the plaintiff and her half share over the plaint schedule property. Accordingly, preliminary decree was passed declaring half title of the plaintiff over the plaint schedule property. 9. Although appeal filed challenging the said verdict, the said appeal also was dismissed. **RSA NO. 392 OF 2022** **7** 10. The learned counsel for defendants 5 and 6, who are the legal heirs of the first defendant, argued that when O.S.No.3971/1997 was filed, the mother of the present plaintiff got arrayed as the first defendant and the plaintiff herein got arrayed as the second defendant, with prayer to appoint the first defendant, the mother of the plaintiff herein, as the guardian of the minor. Since, on notice, the first defendant did not turn up, the trial court declared both defendants ex parte and thereafter, an ex parte decree was passed. Then the same was put into execution and the sale certificate issued and delivery was also effected. According to the learned counsel for defendants 5 and 6, even though a minor on attaining majority could challenge an adverse decree against him, the grant of the said relief shall be subject to satisfaction of Order XXXII Rule 3A of CPC. He also placed the decision of this Court in **Abdul Salam v. Chalil Sajitha and Another** , reported in **2017(2) KHC 757** in support of the said contention. Paragraph No.19 of the **RSA NO. 392 OF 2022** **8** ## judgment has been given emphasis on this point and the same is extracted hereunder: _“19. However the position may be different in a case where the fraud or negligence is alleged against the guardian. What amounts to negligence must depend on the facts of each case. What has to be considered is whether by reason of the conduct of the guardian the minor has been prejudiced and lost a valuable right. It was held by this court in Gangadharan v.Narayanan (AIR 1959 Kerala 169), that the mere fact that the guardian remained ex parte is not sufficient to establish negligence. It must further be shown that there was a real defence to the action. Once it is held that the minor was represented by the Guardian/mother and had become ex parte, and it is found that there is negligence on the part of the mother in prosecuting the case, the question is whether such a decree against the minor requires to be set aside. As already indicated, Order XXXII Rule 3A clearly indicates that no decree passed against a minor shall be set aside merely on the ground that the Guardian had an interest in the subject matter of the suit whereas it has to be shown that prejudice has been caused to the interest of the minor._ **RSA NO. 392 OF 2022** **9** _Though in the case on hand, guardian ad litem has not been appointed by the Court, the mother represented the minor and had appeared, contested and filed objection on her behalf and on behalf of the minor, opposing the claim of the petitioner in the case. She had no interest adverse to that of the minor. But she did not prosecute the case and remained ex parte. She did not take any steps to set aside the ex parte decree on behalf of the minor within a reasonable period. Materials placed on record would show that the petitioner does not have a valid defence in that case especially in the light of the DNA report. What purpose will be served in reopening the matter is also not explained. Under such circumstances, we are of the view that condoning the delay of such a long period and setting aside the ex parte decree was unwarranted.”_ 11. Per contra, it is submitted by the learned counsel for the plaintiff that in O.S.No.391/1997, no person appointed as guardian of the minor at any point of time and when notice was issued to the proposed guardian, the first defendant, she **RSA NO. 392 OF 2022** **10** did not turn up and accordingly, the trial court declared defendants 1 and 2 in O.S.No.391/1997 without opting the procedure of appointing a court guardian to protect the interest of the minor. Therefore, the said decree shall not affect the half right of the minor in respect of the plaint schedule property. 12. Order XXXII of CPC deals with suit by or against minors and persons of unsound mind. Order XXXII Rule 3 of CPC provides that _where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor._ Order XXXII Rule 3(2) of CPC provides that _an order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff_ . 13. Order XXXII Rule 3(3) of CPC provides that _such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters_ **RSA NO. 392 OF 2022** **11** _in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed. The affidavit shall further state the name of the person or persons on whom notice has to be served under the provision of sub-rule(4)._ 14. Order XXXII Rule 3(4) of CPC provides that no _order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian of the minor, or, where there is no father, mother or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule._ 15. Order XXXII Rule 3 (4A) of CPC provides that _the Court may, in any case, if it thinks fit, issue notice under sub-_ . _rule (4) to the minor also_ **RSA NO. 392 OF 2022** **12** 16. Order XXXII Rule 3(5) of CPC provides that _a person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree._ 17. On a plain reading of Order XXXII Rule 2 CPC, it provides that an order of appointment of a guardian for the suit may be obtained on application in the name and on behalf of the minor or by the plaintiff. Going by the proceedings of the trial court in O.S.No.391/1997, as borne out from Ext.A3 judgment and Ext.A4 B diary proceedings, it could be gathered that soon after filing of O.S.No.391/1997, notice was issued to the 1[st] defendant in her capacity as defendant as well as the guardian of the 2[nd] defendant/minor. But she did not turn up. In such contingency, the court should have appointed a proper guardian to represent the minor to **RSA NO. 392 OF 2022** **13** save the minor's interest in the said suit. In the decision in **Tresa Xavier & Others v. Mary Simon & Others,** reported in **2022 (2) KHC 708,** a Division Bench of this Court held that a party may fail in appointing a guardian but the court cannot fail in its duty to appoint a guardian. 18. In the case at hand, even though the court issued notice to the 1[st] defendant, the proposed guardian, the court never appointed a guardian to protect the interest of the minor. No court guardian also was appointed. Thus it is discernible that the proceedings in O.S.No.391/1997 was proceeded without a proper guardian for and on behalf of the minor. It is true that Order XXXII Rule 3A of CPC provides that _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,_ **RSA NO. 392 OF 2022** **14** ## _shall be a ground for setting aside the decree._ 19. When an exparte decree is obtained without appointing a proper guardian for the minor to protect his interest, it cannot be held that the right of the minor not at all prejudiced. If so, as per Order XXXII Rule 3A(2) of CPC, the minor could obtain any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit, resulting in prejudice to the interests of the minor. In the case at hand, no guardian was appointed at all and therefore, decree in O.S.No.391/1997 is a nullity as far as the minor is concerned. Be it so, the present suit seeking half share of the minor, in exclusion of the decree in O.S.No.391/1997 and further proceedings as granted by the trial court, is perfectly justified. Therefore, it is held that the plaintiff herein is not bound by the decree in O.S.No.391/1997 and the execution proceedings pursuant to the decree in O.S.No.391/1997, for want of appointment of guardian to the minor and the plaintiff, **RSA NO. 392 OF 2022** **15** who was not properly represented either in the suit or in the execution proceedings. 20. In a suit of this nature, when the decree as against a minor is set aside, definitely, an opportunity shall be given to the plaintiff in the earlier suit (i.e., O.S.No.391/1997), who is the 1[st] defendant herein, to sue against the minor, now attained majority, to get a part of the decree debt, which was not satisfied by the half right he got on court auction sale. In this context, the learned counsel for the defendants submitted that the first defendant/decree holder in O.S.No.391/1997 had discharged liability to the tune of Rs.61,353/- (Rupees sixty one thousand three hundred and fifty three only) subsisted with District Co-operative Bank, Pallippad branch, Alappuzha. Therefore, it is submitted that since the minor's share is separated from the property auctioned and delivered in favour of the first defendant/decree holder, was given in favour of the minor, the amount due to the first defendant from the father of the **RSA NO. 392 OF 2022** **16** minor allowed to be realised by allowing the first defendant to proceed with the suit, O.S.No.391/1997, against the plaintiff herein. 21. Whereas it is submitted by the learned counsel for the plaintiff that going by the evidence of DW1, supported by Exts.X1 and X2, the property was sold for the decree debt covered by the decree in O.S.No.391/1997. It is true that, the first defendant/decree holder discharged the liability of Rs.61,353/- in favour of the District Co-operative Bank, Pallippad, Alappuzha. But as per the evidence given by DW1, the Branch Manager of District Co-operative Bank, Pallippad, and as per Ext.X2, the valuation done as on 25.02.1995, at the time of availing loan, the value of the property was Rs.5,20,000/-. On perusal of the evidence of DW1, DW1 admitted that Hariharan Pillai availed loan CPL 2994-95 as on 25.02.1995 and at the time when property (plaint schedule property herein) was valued, the same was Rs.5,20,000/- (Rupees five lakh twenty thousand only) at the **RSA NO. 392 OF 2022** **17** rate of Rs.10,000/- per cent. In this matter, evidently, the property was sold for the decree debt and the decree debt is Rs.50,000/- as the principal amount. Thus, it is discernible that the property was sold in execution of decree in O.S.No.391/1997 for a much lesser price than the valuation done during 1995. Therefore, there is no reason to hold that the amount due from the father of the defendant was not fully realised by adjusting half right over the plaint schedule property. In view of the matter, I am of the view that further opportunity need not be given to the 1[st] defendant/plaintiff in O.S.No.391/1997 to sue against the plaintiff herein, as the first defendant had satisfied the decree debt due from the father of the minor in toto. 22. In view of the discussion, the substantial questions of law answered as under: It is held that even though service of summons to the mother had been declared in O.S.No.391/1997 (former suit), when the mother was exparte, it could not be held that the **RSA NO. 392 OF 2022** **18** minor was represented by a proper guardian. Therefore, it is held that nobody represented the minor in the proceedings. Since the decree passed against the minor is a nullity, the execution proceedings pursuant to the said decree also not binding on the plaintiff in order to discharge the liability of her father. Since it is found that by adjusting the half share obtained by the first defendant, who is the decree holder in O.S.No.391/1997, the decree debt and the amount he spent to discharge the liability towards the District Co-operative Bank was discharged, there is no illegality or impropriety in partitioning the half right of the plaintiff over the plaint schedule property after allotting half share alone to the first defendant/decree holder in O.S.No.391/1997. 23. Accordingly, it is held that the trial court rightly decreed the suit and the appellate court confirmed the same on re-appreciation of evidence. 24. In the result, this regular second appeal stands dismissed. **RSA NO. 392 OF 2022** **19** All interlocutory orders stand vacated and all interlocutory applications pending in this regular second appeal stand dismissed. Registry is directed to forward a copy of this judgment to the trial court as well as the appellate court forthwith. **Sd/A. BADHARUDEEN JUDGE** nkr