ASSIYA Vs. RAJEEVAN

JUDGEMENT

(1.) The second appeal arises from a suit for recovery of possession. While plaintiffs were minors the plaint schedule properly which belonged to them was assigned by their mother as guardian to defendant for a consideration of Rs. 6000/ -. Alleging that the sale was effected without obtaining the permission of the District Court and that no benefit was obtained by the minors, relief of recovery of possession was sought in the plaint. Of the two minors one has attained majority and the other was still a minor at the time of suit. She was represented by the 1st plaintiff as the next friend. Defendant resisted the suit on various grounds. The sale is alleged to have taken place after obtaining permission from the District Court. Defendant was made to understand (bat the mother had obtained permission from the court whereas the permission was really obtained by the father. When this was noticed subsequent to the sale deed, defendant wanted the father of the minors to get the defect rectified, but defendant is alleged to have been told that the assignment by the mother is valid. No action was therefore taken by the defendant. The property was sold for raising consideration to purchase another property in the name of the minors. A property was purchased in the name of the utilising this consideration. Defendant therefore disputed the rights of plaintiffs to question the validity of the transaction and to get recovery of possession.

(2.) The trial court granted a decree for recovery finding that Ext. B2 assignment executed by the mother as guardian of defendant is void ab initio since the permission required under Sec. 8 of the Hindu Minority and Guardianship Act was not obtained by the mother. On appeal the lower appellate court concurred with that decision and dismissed the appeal. The lower appellate court permitted the defendant to remove the house constructed by him before surrendering possession. Hence the second appeal by the defendant which was admitted on the following substantial questions of law formulated in the appeal memorandum :

(3.) The validity of the assignment deed Ext. B2 was questioned mainly on the ground that the permission required under sec. 8 of the Hindu Minority and Guardianship Act was not obtained. Admittedly the mother who executed the document as guardian of the minors had not obtained the permission of the District Court. It is seen that the father of the minors had moved the District Court, Kozhikode by O.P. 157/1978 and by Ext. B5 order dt. 1 -8 -1978 the District Court granted permission to self the property. The assignment deed was executed three days later wherein the mother figured as the guardian. The father participated in the document as one of the attesting witnesses as well as the identifying witness. It is therefore contended that the father was fully aware of the transaction and that he had played a fraud on the defendant in not executing the document as the guardian of the minors. Whatever that be, the sale deed was executed by the mother and not by the father. Since no permission was obtained by the mother as contemplated under sec. 8 of the Hindu Minority and Guardianship Act, the transaction is void. Minors can treat the document as invalid and inoperative and are competent to seek recovery of the property. Both the courts below were therefore right in finding that the document executed by the mother is void and that the minors had a right to get recovery of possession.