ILLATHKANDY DEEPAK Vs. ILLATHKANDY VISWANATHAN

JUDGEMENT

(1.) The plaintiff in O.S. 556 of 1984 on the file of the Munsiff's Court, Calicut is the appellant. A suit for partition filed by him claiming one out of four shares was dismissed by the Trial Court and that dismissal was confirmed in appeal. This second appeal under S.100 of the Code of Civil Procedure challenges the dismissal of the suit.

(2.) The parties are Thiyyas of Calicut governed by Hindu Mitakshara Law. The plaint schedule property alongwith Other properties belonged to the family of the plaintiffs and defendants 1 to 3. As per a partition of the year 1945 the properties of the family were divided and the plaint schedule property was set apart to the share of the branch consisting of defendants 1 and 2, the plaintiff and defendant No.3. The plaintiff and defendant No.3 are the children of defendant No.1 in the suit. Defendant No.2 is the brother of defendant No.1. Defendant No.1 for himself and acting as the guardian of the plaintiff and defendant No.3 and defendant No.2 together sold the plaint schedule property to defendant No.4 in the suit for a consideration of Rs.4,000 on 23rd May 1971 under Ext. B - 1. Defendant No.4 sold a portion of the property to defendant No.6, wife of defendant No.5 under Ext. B - 2, dated 6th March 1972. the suit for partition was filed by the plaintiff on 1st October 1984, twelve years after Exts. B - 2 and B - 1. The plaintiff contended that the plaintiff had a right by birth in the plaint schedule property and sale executed by defendant No.1 his father in the year 1971 was not binding on him since it was not for the benefit of the minor or for necessity of the minor and no permission was also obtained from the court before the sale in terms of S.8(2) of the Hindu Minority and Guardianship Act. the plaintiff was hence entitled to ignore the sale deed executed by his father and entitled to claim his share on partition. Defendant No.3 supported the claim of the plaintiff. But defendant No.4 challenged the right of the plaintiff to claim a partition. He contended that the legal guardian of the plaintiff who was a minor at the relevant time was the first defendant his father. The property was sold for consideration and it was supported by bona fides. The suit is filed without bona fides and the plaintiff is not entitled to a share as claimed. Defendant No.6 contended that the plaintiff not having taken steps to get the sale deed executed by the guardian set aside, the suit was not maintainable. She had effected improvements in the property and the suit was filed with a view to try and grab the property. The suit was not bona fide. The Trial Court held that plaintiff being the son of the first defendant and the parties being Thiyyas of Calicut governed by Hindi Mitakshara Law, the plaintiff was entitled to a share in the property that was set apart in partition to the share of the branch of the first defendant. The Trial Court further held that Ext.,B - 1 assignment executed by the father as guardian of the minor plaintiff was only voidable and since the same was not sought to be got set aside, the plaintiff was not entitled to claim a share in that property by ignoring the sale. The Trial Court thus dismissed the suit. On appeal by the plaintiff, the lower appellate court held that sanction under S.8 (2) of the Hindu Minority and Guardianship Act was not necessary for the sale of the property. After referring to some relevant decisions the Appellate Court held that alienations effected by the legal guardian father of the plaintiff was only voidable and it required to be set aside. Since there was no prayer for setting aside the deed, the plaintiff was not entitled to relief and the Trial Court was justified in dismissing the suit. It is this decree that is challenged in this second appeal.

(3.) The substantial questions of law formulated in the memorandum second appeal were the following: