Velayudhan Rajappan v. Ponnappan and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 SA.No. 579 of 1995(B) --------------------AS.34/1993 of ADDL SUB COURT,ALAPPUZHA. OS.307/1984 of PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANT/APPELLANT/1ST DEFENDANT: ---------------------------------------------VELAYUDHAN RAJAPPAN, PUSHPALAYATHIL, CHARAMANGALAM MURI, THANNERMUKKAM VILLAGE. BY ADV. MR.V.N.SWAMINATHAN & S.DILEEP RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 4: - ------------------------------------------------------------------------1. PONNAPPAN, S/O.KUMARAN, VALLYAMMANATHARA VEETTIL, KUMARAKOM PANCHAYATH, KOTTAYAM TALUK.(PLAINTIFF) 2. VELAYUDHAN RAVINDRAN, NIJKARTHIL, CHERUVARANAM MURI, THANNEERMUKKAM VADAKKU VILLAGE, VARANAM P.O. (2ND DEFENDANT) - *3. BHAIMI, D/O.PARU, VALLYAMMANATHARA VEEDU, _**(DIED)**_ KUMARAKOM PANCHAYATH, KOTTAYAM TALUK.(3RD DEFENDANT) 4. THANKAMANI, D/O.BHAIMI OF -DO-DO- (4TH DEFENDANT) *RESPONDENTS 1 & 4 AS LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.3 BROUGHT ON RECORD VIDE SUPREME COURT'S ORDER DTD. 17.2.2005 PASSED IN I.A.NO.3 IN C.A.5632/1999/SCC. ADV.MR.K.K.SATHISH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 579 of 1995(B) ## ORDER ON C.M.P.NO.1419/1995 IN S.A.NO.579/1995 DISMISSED. 10.6.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. ## **HARUN-UL-RASHID, J. -----------------------S.A.No.579 Of 1995 ---------------------Dated this the 10[th] day of June, 2010.** ## **J U D G M E N T** The first defendant in O.S.No.307 of 1984 on the file of the Principal Munsiff Court, Cherthala is the appellant. Suit was filed for setting aside a sale deed and for recovery of the property with mesne profits and in the alternative for partition and allotment of 1/3 share of the plaintiff in case it is found that the sale deed is binding on defendants 3 & 4. The trial court by judgment dated 28.11.1986 set aside Ext.A1 sale deed so far as 1/3 share of the plaintiff is concerned. Plaintiff is allowed to recover 1/3 share as partition of the property by metes and bounds and was allowed to recover 1/3 share of mesne profits from the first defendant and from the property excluding plaintiff's share. In the appeal preferred by the first defendant as A.S.No.34 of 1993, the appellate court by judgment and decree dated 31.11.1994 confirmed the decree and judgment and the appeal was dismissed. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. ## **S.A.No.579 Of 1995** ::2:: 2. The decree and judgment passed in A.S.No.34 of 1993 was originally challenged by the first defendant in this appeal. This Court by judgment dated 16.12.1997 allowed the second appeal and set aside the decree and judgment passed by the courts below. The defeated plaintiff preferred a Civil Appeal before the Supreme Court. The Supreme Court allowed the Civil Appeal and set aside the decree and judgment passed in S.A.No.579 of 1995. The Supreme Court remanded the case to this Court for fresh consideration directing this Court to dispose of the matter afresh after formulation of substantial questions of law. Subsequently, substantial questions of law are framed. 3. The plaint schedule property having an extent of one acre 39 cents belonged to the tharavad of plaintiff and defendants 3 & 4. The third defendant is the mother and the plaintiff and 4[th] defendant are her children. The plaint schedule property was jointly allotted to the plaintiff and defendants 3 & 4 under Ext.B1 partition deed of the year 1961. In 1965, the third defendant mother executed Ext.A1 sale deed in favour of the first and second defendants conveying her right, title and interest in plaint schedule property. On the date of the execution of the sale deed the plaintiff was a minor. The third defendant mother ## **S.A.No.579 Of 1995** ::3:: executed the sale deed for and on behalf of the plaintiff also. The second defendant as per a release deed released his rights in the property in favour of the first defendant. These facts are not disputed by either parties. The case of the plaintiff is that the 3[rd] defendant mother is not competent to execute Ext.A1 sale deed in her capacity as guardian of the plaintiff. According to the plaintiff, third defendant mother is not the legal and natural guardian of the plaintiff and therefore the sale deed is liable to be set aside to the extent of his share. Plaintiff also contended that the sale deed is not supported by tharavad necessity therefore is not binding on the thavazhi and therefore the sale deed is void ab-initio and the plaintiff is entitled to recover the same with mesne profits. It is also pleaded that if for any reason the sale deed is binding on the defendants 3 and 4 it may be set aside to the extent of 1/3 share and he may be allowed to recover his 1/3 share. 4. The second defendant remained absent and he was set ex-parte. The first defendant contested the suit and prayed for dismissal of the suit. According to him the suit was filed collusively by the plaintiff and defendants 3 & 4. The third defendant executed the sale deed as guardian of the plaintiff ## **S.A.No.579 Of 1995** ::4:: since the plaintiff was a minor at that time. According to the first defendant the sale deed is supported by consideration and bonafides. The third defendant was the natural guardian as well as the legal guardian of the plaintiff and that the document is executed for tharavad necessity and for all these reasons the sale deed is not liable to be set aside. 5. On the side of the plaintiff, PW1 was examined and Exts.A1 to A3 were marked. DWs 1 to 3 were examined on the side of the defendants and EXts.B1 to B4 were marked. 6. The plaintiff is the son and the 4[th] defendant is the daughter of the third defendant. It is not disputed that the suit property belongs to the thavazhi consists of plaintiff and defendants 3 & 4. The question is whether Ext.A1 sale deed executed by the mother in favour of the defendants 1 & 2 is valid and binding on the plaintiff. The main grounds raised by the plaintiff in the suit is that Ext.A1 executed by the third defendant as guardian of the plaintiff is ab-initio void because she is not the legal guardian of the plaintiff and therefore it will not bind the plaintiff’s share in the plaint schedule property. To adjudicate the question as to whether the third defendant was competent to execute Ext.A1 sale deed for and on behalf of the plaintiff, certain ## **S.A.No.579 Of 1995** ::5:: statutes are relevant for consideration. The statues are the Travancore Ezhava Act (Regulation III of 1100), Hindu Minority and Guardianship Act, 1956 and the Kerala Joint Hindu Family System (Abolition) Act, 1975. Regulation 4 clause 3 of the Travancore Ezhava Act defines; _“thavazhi of a female” means a group of persons consisting of that female and her issue how-low-soever in the female line, or such of that group as are alive.”_ Clause (6) of the above regulation defines tharavad as: _“tarwad” means and includes all the members of a Marumakkathayam family, with community of property._ Clause (7) of the Regulation of the above Act defines a Karanavar as: _“karanavan” means the senior major male member of the Tarwad in whom the headship of the Tarwad., the right of management of its affairs and the possession of the properties thereof are vested in law, and in the absence of such male member, the senior major female member._ 7. Part III of the Travancore Ezhava Act deals with the maintenance and guardian ship. Regulation 13 of the above Act reads as follows: ## **S.A.No.579 Of 1995** ::6:: _“The husband shall be the legal guardian of his minor wife, and the father the legal guardian of his minor children in respect of their person and property._ _Provided that such guardianship shall not extend to the right and interest of his wife or children in their Tarwad property.”_ Section 6 of the Hindu Minority Guardianship Act, 1956 stipulates that; _6. The natural guardian of Hindu minor in respect of the minor’s person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-_ _(a) in the case of a boy or an unmarried girl-the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;_ _x x x x_ Going by Section 6 of the said Act the natural guardian of a Hindu minor in respect of the minor’s person as well as the property is the father and naturally, after him the mother. Section 6 is not applicable in the case of minor’s undivided interest in joint family property. 8. I have already referred to Regulation 4(7) of the Travancore Ezhava Act wherein it is stated that karanavar means the senior major male member of the tharavad and in the ## **S.A.No.579 Of 1995** ::7:: absence of such male member the senior major female member will be the karanavar of the family. Section 6 of the Hindu Minority Guardian ship Act 1956 states that the natural guardian of a hindu minor in respect of minors person as well as the property is father and after him the mother. Se tion 6 of the Act excludes the minor's undivided interest in the joint family property (Section 6 is extracted above). The said provisions exclude the guardianship by a father in respect of the minor’s undivided share in the joint family property. Similarly, Section 13 of the Travancore Ezhava Act excludes the father’s guardianship in respect of the right and interest of a minor in his tharavad property. In the present case thavazhi got partitioned in the tharavad partition of 1961. Thavazhi consists of 3[rd] defendant mother and plaintiff, 4[th] defendant and their lineal descendants. Admittedly, the plaint schedule property is the thavazhi property. So, in respect of the minor’s share in the thavazhi/tharavad property the above referred Acts excludes the guardianship of the father since the tharavad consists of only three members and the mother who is the senior major female member of the family she is the only person who can act as the guardian of her son, who was a minor at the time of the ## **S.A.No.579 Of 1995** ::8:: execution of the document. Therefore, the contentions of the plaintiff that Ext.A1 sale deed is void in respect of minor’s share cannot stand since the third defendant mother is the legal guardian of the plaintiff. Therefore, the findings of the trial court as well as the appellate court that the legal guardian of the plaintiff is his father is not sustainable in law. 9. Learned counsel for the appellant contended that the finding of the courts below that the suit is barred by limitation is also illegal. Ext.A1 sale deed is executed for and on behalf of the plaintiff as well on 31.8.1965. The plaintiff became a major on 12.10.1973. The suit was filed on 13.4.1984 only. The appellant/first defendant contended that the suit filed beyond three years from the date on which the plaintiff attained majority is barred by limitation. The parties are Hindu Ezhavas and they are governed by the Travancore Ezhava Act (Regulation No.III of 1100). Section 7 of the the Kerala Joint Hindu Family System (Abolition) Act 1975 repealed the Travancore Ezahava Act (Regulation III of 1100). 10. The trial court as well as the appellate court held that the suit is not barred by law of limitation. The trial court held that Article 60 of the Limitation Act will not apply because the ## **S.A.No.579 Of 1995** ::9:: case of the plaintiff is that Ext.A1 is not executed by legal guardian and hence 12 years period is available under Article 65 of the Act. The trial court further held that the relevant article to be applied is either 59 or 65 of the Limitation Act. The appellate court confirmed the findings of the trial court. I have examined the contentions raised by the appellant on this point as well. Article 59 of the Limitation Act deals with cancellation or setting aside of an instrument or decree. Article 59 is a general provision applicable in all cases where a party intends to set aside a document or decree. Article 60 deals with setting aside a transfer of a property made by a guardian of a ward. Under Article 60, the ward can file a suit within three years when the ward attains majority. In this case, admittedly, the plaintiff was a minor at the time when Ext.A1 sale deed was executed. He became a major on 12.1.1973 and the suit was filed on 13.4.1984; beyond the period of three years. Since the relevant article to be applied is Article 60, the suit is barred by limitation. Since the suit is filed for setting aside a document executed by the guardian to a ward, the suit has to be filed within three years by the ward on attaining majority. The suit is barred by limitation. ## **S.A.No.579 Of 1995** ::10:: 11. The learned counsel for the appellant also cited the decision reported in _**Sri. Narayan Bal and Others v. Sridhar**_ _**Sutar and Others**_ (AIR 1996 SC 237). The Apex Court held that _“the joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property.”_ Thus the Apex Court held that previous permission of the court before disposing of a suit property is not required. In the result, the appeal is allowed and the decree and judgment passed by the court below is set aside. The suit stands dismissed. There will be no order as to costs. **HARUN-UL-RASHID, Judge.** bkn/-