Sugunan and Radhamani v. Asharani and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY,THE 19TH DAY OF SEPTEMBER 2018 / 28TH BHADRA, 1940** **RSA.No. 886 of 2003** **AGAINST THE ORDER/JUDGMENT IN AS 30/2000 of SUB COURT, NEDUMANGAD DATED 29-10-2002** **AGAINST THE ORDER/JUDGMENT IN OS 524/1997 of ADDITIONAL MUNSIFF COURT,NEDUMANGAD DATED 17-08-1999** ## **APPELLANTS/DEFENDANTS 2 AND 3:** **1. SUGUNAN, S/O.PADMANABHAN, ASA NIVAS, THEVARUKUZHI, PULIPPARA, KARIPPOOR MURI, KARIPPOOR VILLAGE.** **2. RADHAMANI, W/O.SUGUNAN, ...DO.....DO.....** **BY ADV. SRI.G.S.REGHUNATH** ## **RESPONDENTS/PLAINTIFF & 1ST DEFENDANT:** - **1 ASHARANI (WRITING AS ASA), D/O.SAROJAM, KATTUVILAKATHU VEEDU, KADATHUVILAKOM VILLAGE.** - **2 ANU, D/O.SUNDARAM PILLAI, -DO- -DO-** - **3 SAROJA SUNDARAM (WRITING AS SAROJAM), D/O.VALLI AMMAL, ANU BHAVAN, KAVADITHALAKKAL MANIKANTESWARAM, VATTIYOORKAVU VILLAGE FROM KATTUVILAKATHU HOUSE, POTHUJANAM LANE, PULLIYEL MURI, KADAKAMPALLY VILLAGE.** **R1 &R2 BY ADV. SRI.P.V.KUNHIKRISHNAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA.No. 886 of 2003 2 ## **JUDGMENT** The appellants are defendants 2 and 3 in O.S.No.524 of 1997 of the Additional Munsiff Court, Nedumangad. The aforesaid original suit was filed by respondents 1 and 2 herein and the suit was one for partition. The parties are referred here as per their status in the original suit. 2. According to the averments in the plaint, the 2[nd] plaintiff/2[nd] respondent herein is a minor and 1[st] plaintiff/1[st] respondent herein has instituted the suit as next friend of the 2[nd] plaintiff. The plaintiffs and the first defendant had jointly obtained plaint schedule property by virtue of document No.1904/82. Each plaintiff and the first defendant were having 1/3[rd] share over the plaint schedule property. The first RSA.No. 886 of 2003 3 defendant has executed sale deed No.4908/1994 for herself and for and on behalf of the plaintiffs in favour of the defendants 2 and 3. But the first defendant had no manner of right or authority to execute the sale deed in favour of defendants 2 and 3 in respect of the plaintiffs share in the plaint schedule property, without permission of the Court, as they were minors at the time of the execution of the document No.4908/94. That apart, the first defendant is not the natural guardian of the plaintiffs. Therefore, the sale deed No.4908/94 executed by the first defendant in favour of defendants 2 and 3, in respect of the plaint schedule property is void _ab inito_ and is not binding upon their right over the plaint schedule property. The plaintiffs have the right to ignore the execution of sale deed No.4908/94 and RSA.No. 886 of 2003 4 they are entitled to get separate possession of their 2/3[rd] share in the plaint schedule property, ignoring the sale deed executed by the first defendant in favour of defendants 2 and 3. 3. The defendants 2 and 3 filed a joint written statement with the following contentions: According to them, the suit itself was ill conceived and ill motivated. It was instituted collusively at the instigation of the first defendant. In fact, the 2[nd] plaintiff was a major even at the time of institution of the suit, as her date of birth was 10.05.1979, and hence the suit itself was not maintainable. The first defendant had purchased the plaint schedule property, by utilising her own funds, and the names of the plaintiffs were included in the title deed out of the love and affection towards them. The plaintiffs RSA.No. 886 of 2003 5 are unnecessary parties to the said sale deed and they have no legal right to claim any share in the plaint schedule property. The first defendant had every right to execute the sale deed in respect of the plaint schedule property, in accordance with her wishes. The first defendant has sold the plaint schedule property to defendants 2 and 3 for conducting the marriage of first plaintiff and for meeting the educational expenses of the second plaintiff. So the plaintiffs have no right to question the sanctity of the sale deed executed by the first defendant. The defendants 2 and 3 are _bona fide_ purchasers, for valuable consideration and after the purchase of the plaint schedule property, they have effected valuable improvements therein, including construction of a building, by spending lakhs of RSA.No. 886 of 2003 6 rupees. The defendants 2 and 3 purchased the plaint schedule property, by payment of valuable consideration and the plaintiffs were well aware of the circumstances under which the plaint schedule property was sold to defendants 2 and 3, after receiving adequate consideration. Hence, the plaintiffs are not entitled to get the 2/3[rd] share in the plaint schedule property. 4. On the aforesaid rival pleadings, both the parties adduced evidence which consists of the oral testimony of PW1 and Exts.A1 to A5 on the part of the plaintiffs and the oral testimony of DW1 on the part of the 3[rd] defendant. After considering the evidence on record, the trial court decreed the suit as prayed for by passing a decree. 5. Feeling aggrieved, defendants 2 and 3 filed RSA.No. 886 of 2003 7 appeal and the appellate court allowed the appeal in part by granting a decree for realising value of made them over the improvements by plaint schedule property. Dissatisfied with the aforesaid decree passed in the appeal, defendants 2 and 3 filed this appeal raising different questions of law. 6. Heard the learned counsel for the appellants and the learned counsel for the respondents. 7. The scope and extent of consideration in this appeal are confined to the question of law framed and admitted in this appeal only. At the time of admission, this Court has framed the following question of law for consideration. The question of law to be considered in this appeal is: _1. Are the courts below justified in entering_ RSA.No. 886 of 2003 8 _the findings on maintainability without referring to the provisio to Order VI Rule 14 of CPC._ 8. The learned counsel for the appellant advanced the arguments highlighting the legal effect and impact of a suit filed by a next friend, for and on behalf of a minor, when actually the minor was a major. According to the learned counsel for the appellants, there was no pleadings signed or verified by the second plaintiff, who was a major at the time of filing the suit, as required under Order VI Rule 14 of CPC. So, there cannot be a suit for the second plaintiff, as required under Order III Rule 1 of the CPC and also Civil Rules of Practice. Further, it is contended that the sale was effected for the benefit of plaintiffs 1 and 2, when they were minor. RSA.No. 886 of 2003 9 Therefore, they have an option either to confirm such transfer made for and on behalf of them, when they were minors, or to descent from it after dislodging the benefit, which they have acquired under the alleged transfer of property. In order to substantiate the said argument, the learned counsel for the . appellant cited _**Chacko v. Sreeja**_ [ **1991 (1) KLT 191]** Further it is contended that the court fee paid is not sufficient. As the appellants were not in joint possession of the property as contemplated under Section 37(2) of the Court fees Act, the plaintiffs ought to have paid court fee under Rule 37(1) of the court fees Act. Per contra learned counsel for the 9. respondent/plaintiffs advanced the arguments to justify the concurrent findings of the court below; RSA.No. 886 of 2003 10 whereby the plaintiffs are granted with a decree of partition and separate possession of 2/3[rd] share. 10. Coming to the question of law, it is not a disputed fact that at the time of filing of the suit the second plaintiff was a major as her date of birth was 10.05.1979. But, going through the impugned judgment passed by the court below, it is seen that the suit was instituted by the first plaintiff for and on behalf of the second plaintiff on an averment that at the time of filing of the suit the second plaintiff was a minor. Going by the written statement, it can be seen that defendants 2 and 3 have raised their objections that the original suit was not maintainable with respect to the 2[nd] plaintiff, as she was not a minor at the time of filing the suit, and they have specifically stated that the date of birth of the second plaintiff RSA.No. 886 of 2003 11 was 10.05.1979. Going by the chief affidavit of the first plaintiff, as PW1, it can be seen that in the chief affidavit itself the first plaintiff has stated that though at the time of filing the suit the second plaintiff was a major, as her date of birth was on 10.05.1979, the suit was filed mistakenly for and on behalf of the second plaintiff. Further she had prayed for an order recording that the second plaintiff has attained majority. Thus, the first plaintiff, who had instituted the suit for and on behalf of the second plaintiff, as next friend, herself admitted that at the time of instituting the suit the second plaintiff was a major. 11. In the proceedings itself, it could be seen that first plaintiff has filed I.A.No.2041/1999 dated 20.07.1999 to record the second plaintiff has attained majority and the same was seen allowed as prayed RSA.No. 886 of 2003 12 for. Challenge regarding the maintainability of the suit, was discarded by the appellate authority on a finding that the order in I.A.No.2041/1999 itself would show that the second plaintiff was a major, which would cure the defect in filing the original suit. This Court is unable to agree with the aforesaid finding of the appellate court on the basis of the order passed in I.A.No.2041/1999. According to Order XXXII Rule 1, a next friend can file a suit as next friend, only if the person for whom the suit is filed is a minor. "Minor" means a person who has not attained his majority within the meaning of Section 3 of the Indian Majority Act, 1875. It follows that, if the second plaintiff was a major at the time of instituting the suit, the first plaintiff could not have filed the suit for and on behalf of the second plaintiff also. In other words the suit RSA.No. 886 of 2003 13 was instituted for the 2[nd] plaintiff, without the concurrence of the second plaintiff, when she was major. 12. The above view is fortified by the statutory mandate under Order VI Rule 14 and Order III Rule 1. According to Order VI Rule 14, every pleadings shall be signed by party and his pleader (if any): provided that where a party pleading is, by reason of absence or for other good cause; unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf. When applying the mandatory requirements to the instant case it could be seen that, as regards the second plaintiff is concerned, the pleadings in the suit was not signed by her, particularly, when she was a major. Coming to Order III Rule 1, any appearance, RSA.No. 886 of 2003 14 application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader on his behalf. 13. When applying the mandatory requirement to the instant case, it could be seen that the first plaintiff was not an authorized agent of the second plaintiff to act in or to any court for and on behalf of the second plaintiff, as the second plaintiff herself was a major, who was competent to appear before the court in the suit. So also she was competent to appoint an agent or a pleader at the time of institution of the suit. More importantly, going by I.A.No.2041/1999 it could be seen that the said RSA.No. 886 of 2003 15 application, seeking an order to record the second plaintiff as a major, was also filed by the first plaintiff. So it cannot be said that the said application was filed with the concurrence of the second plaintiff. Had it been filed by the second plaintiff, it could have been held that the second plaintiff has ratified the defective institution of suit, made by a mistake. Thus, going by the records, it could be seen that second plaintiff was ignorant of the proceedings throughout in the suit. In the above analysis, it can be held that there was no proper suit from the part of the second plaintiff and the said defect in the institution of the suit was not a curable defect and it was an inherent defect, which cannot be cured in a later stage. Therefore, it can be held that the courts below are not justified in rendering a finding on maintainability RSA.No. 886 of 2003 **==> picture [11 x 6] intentionally omitted <==** of the suit, without referring to the provisions of Order VI Rule 14 of the CPC and the question of law is answered accordingly. 14. Coming to the other contentions, the learned counsel for the appellants contended that the suit cannot be decreed unless and until the plaintiffs, who have acquired the benefits under the transfer of property dislodged the benefits obtained by them. It is contended that the marriage of the first plaintiff was conducted by spending money obtained from the sale of property. So also the purchase money obtained from the sale was utilised for the education of the second plaintiff also. Therefore, they cannot claim double benefits by seeking partition of the property. This Court has meticulously gone through the pleadings in the written statement RSA.No. 886 of 2003 17 and recitals in Ext.A2 sale deed. 15. Going by paragraph 8 in the written statement it is stated that the first defendant has promised before defendants 2 and 3 that the sale is for the welfare and benefit of her children. There is no specific contentions to the effect that the plaintiffs have obtained the benefit from the sale in favour of them. It is true, in Ext.A2 sale deed, that there is a recital to the effect that the sale is for raising money, for the marriage of the first plaintiff. This Court is of the view that, even if the aforesaid averment in the written statement and Ext.A2 sale deed are taken at its face value, those averments are not sufficient to arrive at a finding that the benefits, from the sale in favour of defendants 2 and 3, have been utilized for the welfare of the plaintiffs. Even if RSA.No. 886 of 2003 18 the money was obtained from the sale was utilised for the marriage of the first plaintiff, the first plaintiff cannot be held liable to return the same as the same was the liability of the first defendant only as guardian of the first plaintiff. So also there was no evidence to prove that the money obtained from the sale was utilized for the benefit of plaintiff nos.1 and 2. Even though, the first defendant has spoken to that effect in his chief examination, the same was not sufficient to arrive at a finding that the plaintiffs have obtained benefits from the sale and they are liable to dislodge the benefits. Unless it is found that the plaintiffs would get double benefit by the sale and subsequent decree in the partition deed, it cannot be held that the plaintiffs would dislodge the benefit allegedly obtained from the sale. In short, there is no RSA.No. 886 of 2003 19 pleadings or evidence to prove that the plaintiffs have obtained benefits from the unauthorized sale. Therefore, this Court is not inclined to accept the said contention and the said contention would stand rejected. 16. As regards the court fee, going by the written statement, it could be seen that originally the said contention was not raised in the written statement and the same was placed belatedly in the first appeal as on 22.10.2002 only. This Court is of the view that insufficiency of a court fee is a matter, which ought to have been raised at the written statement at the stage of institution of the suit itself. Admittedly the suit was filed for partition on the basis of a contention that when the plaintiffs were minors, their mother-first plaintiff sold out the property RSA.No. 886 of 2003 20 without obtaining the sanction from the court, as required under Section 8 of the Guardians and Wards Act, 1890. Since the transaction was not legally valid with respect to the plaintiffs, they can ignore the sale deed. If that be so, the minors shall be deemed to be in joint possession of the property along with their mother. 17. In that view of the matter, the plaintiffs are justified in remitting the court fee as per Section 37(2) of the Act. This Court does not find any reason to interfere with the court fees remitted by the plaintiffs. In the above analysis, the judgment and decree passed by the courts below with respect to the 2[nd] plaintiff will stand set aside and the decree and judgment will stand modified to that extent only. The RSA.No. 886 of 2003 21 1[st] plaintiff is entitled to get[1] /3 share in the plaint schedule property, as found by the courts below. All other findings of the appellate court in respect of the 1[st] plaintiff's right over the plaint schedule property will stand as such, without any interference. All pending Interlocutory Applications will stand closed. This appeal is allowed in part. // **sd/K.HARILAL, JUDGE** AMV/DST/27/09/2018