P T CHATHU CHETTIAR Vs. KARIAT KUNNUMMAL KANARAN

JUDGEMENT

(1.) The legal representatives of P. T. Chathu Chettiar, two in number, who are additional appellants 2 and 3, are the appellants in the second appeal. Deceased Chathu Chettiar was the second defendant in O. S. 95 of 1960 in the Munsiffs Court, perambra. The respondents to the second appeal are plaintiffs Nos. 1 and 2 and the 1st defendant in the suit. The 1st defendant in the suit is one Peruvana Changaran, father of plaintiffs 1 and 2. On 8-3-1947 Changaran aforesaid, the 1st defendant and one Kelappan obtained the plaint property in 'kanam kuzhikkanom' right. Kelappan's right was later got assigned by Ammalu, mother of the plaintiffs 1 and 2 on their behalf on 24/25-3-1955, evidenced by Ext. B1. The father of plaintiffs 1 and 2, 1st defendant in the suit, Changaran, and the plaintiffs' mother Ammalu for and on behalf of and as the guardian of plaintiffs 1 and 2, executed an assignment deed in favour of deceased P. T. Chathu Chettiar, the 2nd defendant on 12-11-1958 in respect of a portion of the plaint property. The original document is Ext. B2 and the certified copy thereof is Ext. A1 in the case. Alleging that Ammalu, their mother, is not competent to represent the plaintiffs and execute an assignment deed in respect of their half share in the plaint property, the plaintiffs filed the present suit for partition and separate possession of their half share in the plaint item after ignoring Ext. B8 (Ext. A1) in favour of the 2nd defendant in respect of a portion of the plaint property. The plaintiffs alleged that their mother, Ammalu was incompetent to represent them who were minors on the date of Ext. B2. that the transfer was not for the benefit of the plaintiffs, nor was it supported by consideration and the same is void ab initto and will not bind the half share of the plaintiffs in the suit property. The 2nd defendant, according to the plaintiffs, did not get any right under the document, Ext. B2. On the date of the suit, the 1st plaintiff had attained majority and he filed the suit on his behalf and as guardian of the 2nd plaintiff (minor) for partition and separate possession of their half share.

(2.) The 2nd defendant-alienee raised various contentions. According to him Ammalu is a necessary party to the suit, that Ext. 52 assignment deed is supported by consideration and necessity, that the consideration received as per Ext. B2 was utilised for the benefit of the plaintiffs, that the plaintiffs have no right over the property which is in his possession in view of the assignment, that the suit is filed at the instance of the 1st defendant, father, and his wife (mother of the plaintiffs) and that, it is not maintainable and in case it is found that partition has to be allowed the amount paid by him should be made a charge on the half share belonging to the 1st defendant and he should also be made liable for the consideration paid as per Ext. B2 deed.

(3.) The learned Munsiff decreed the suit in part. The learned Munsiff adverted to the 'fact that Ammalu, the mother of the plaintiffs, was not the legal guardian at the time of Ext. B2 and in view of Section 11 of Hindu Minority and Guardianship Act such a document is void ab initio and will not bind the minors. He also found that in Ext. B2 deed the plaintiffs' father had hot joined as the guardian of the minor children (plaintiffs). Notwithstanding the above, according to the Munsif, the junction of the 1st defendant (father) in Ext. B2 should be "considered" as one on his own behalf and as the guardian of the plaintiffs (minors) though it was not mentioned in the deed that the father had joined as the guardian of the minors. In this view of the matter, the learned Munsiff held that in so far as there is no prayer to set aside Ext. B2, it cannot be simply ignored by the plaintiffs and so the plaintiffs are bound by Ext. B2 and not entitled to & share on partition regarding the properties covered by Ext. B2. Excluding the properties covered by Ext. B2 a preliminary decree for partition of one half share in the other properties was decreed by the learned Munsiff, According to the learned Munsiff,. Ext. B2 document is only voidable and so should he set aside. In appeal by the plaintiffs as A. S. 231 of 1974, the learned Subordinate Judge, Badagara took the view that the mother was only a dc facto guardian of the plaintiff, if at all, and that in view of the decision of this court in Santha v. Cherukkutti (1972 Ker LT 1051 : (AIR 1972 Ker 71)) the minors can void the document Ext. B2 by their conduct and that there is no need to file a suit for avoiding the transfer, that they can treat Ext. B2 as void without the assistance of the court, that intention has been made clear in this case in the plaint and so, the view of the learned Munsiff that the plaintiff should have asked for cancellation of Ext. B2 cannot be sustained as correct. In this view of the matter, the appeal was allowed and in modification of the decree passed by the trial Court, the suit was decreed lor partition and separate possession of the plaintiffs' half share in the suit property. The other matters were left open to be decided in appropriate proceedings.