CHANDU Vs. SREEDHARAN NAIR

JUDGEMENT

(1.) First defendant/first respondent is the appellant. O.S. No. 112/85 was filed by respondents 1 and 2 for partition of the plaint schedule property between the plaintiffs and the first respondent after ignoring the sale deed executed in favour of the first defendant. The plaint schedule property is 4 cents in extent. It forms part of the larger extent of 10 cents. It belonged to plaintiffs 1 and 2 and defendants 2 and 3. Fourth defendant is the mother of the plaintiffs and defendants 2 and 3. By registered document dated 22.7.1974 the plaint schedule property was sold to the first respondent/first defendant. At that time, the plaintiffs were minors. So, the document was executed by defendants 2 and 3 and the 4th defendant mother on behalf of plaintiffs 1 and 2. The consideration was Rs. 1,000/-. The case of the plaintiffs is that the mother is not the natural guardian and further, the sale deed was effected without compliances of S.8 of the Hindu Minority and Guardianship Act (hereinafter referred as to the Act). Hence, according to law, the assignment deed is not valid and it is only binding on defendants 2 and 3. Hence, the suit was filed for partition of their half share over the plaint schedule property.

(2.) First defendant filed written statement and contended as follows: The suit is not maintainable in law. Plaintiffs have no right over the plaint schedule property. The 4 cents of property in the plaint schedule is part of a property owned by the plaintiffs and defendants 2 and 3 . The plaint schedule property was assigned for valuable consideration. It was effected for the needs and benefit of the minor plaintiffs. Fourth defendant told the first defendant that the sale consideration was to be used for the needs of the plaintiffs. First defendant bona fide believed that the sale consideration has been actually used for the benefit of the minors. The father of the plaintiffs, who is an attester to the sale deed, has approached the defendant to purchase the property and actually took an active part in the finalisation of the transaction. It was further contended that the suit was bad for partial partition and that it was barred by limitation. Another contention taken was that in case the court finds that the property is partiable the structures put by the first defendant on the plaint schedule property should be reserved for the first defendant or he should be given value of improvements for the same.

(3.) The Trial Court framed necessary issues. It found that the mother could not legally execute the document as she was not the natural guardian when the father was alive. Further it was found that there was no sanction obtained from the District Court as envisaged under S.8 of the act. Thus, it was found that the assignment was invalid so far as the minors were concerned. It also found that the suit was not barred by limitation, since it was not necessary for setting aside the document. On the question of reservation of the structures in favour of the first defendant, the Trial Court held that the buildings were constructed by the first defendant believing in good faith that he has absolute title over the property and hence he is entitled to claim valuable improvements under S.51 of the Transfer of Property Act. since the structures were constructed in good faith and under the bona fide belief that he is the full owner, the first defendant was declared to be entitled to claim reservation of all the structures constructed by him. Thus, a preliminary decree for partition was passed for dividing the plaint schedule property into four equal shares, out of which the plaintiffs were entitled to two shares and the first respondent is entitled to the remaining shares. The structures constructed by the first defendant in the property were not available for partition. They will be exclusively reserved for the first defendant. The plaint schedule property excluding the construction thereon will be subject to partition. Against the judgment and decree of the Trial Court reserving the structures in favour of the first defendant, the plaintiffs filed A.S. No. 66/87 before the Sub Court, Badagara. The first defendant filed cross appeal challenging the finding regarding the invalidity of the assignment deed. The lower appellate court upheld the findings with regard to the invalidity of the assignment deed with respect to the shares of the minors. It also found that the suit was hot bad for partial partition and that it was not barred by limitation. As to the question whether the first defendant was entitled to reservation of the structures, it held that the structures were not put up by the first defendant bona fide or in good faith. Hence, it vacated the direction of the Trial Court reserving the structures in favour of the first defendant. Thus, the appeal was allowed and the cost appeal was dismissed. It is against that the present appeal has been filed.