MANIYAMKANDI KUNHIRAMAN Vs. MACHIL PARAMBATH VANAJA

JUDGEMENT

(1.) These appeals at the instance of the contesting defendants in OS Nos. 14 of 1986 and 15 of 1986 have been referred to the Division Bench in view of the importance of the question arising for decision. The appeal from OS 15 of 1986 was initially filed as AS 253 of 1987 before the District Court of Calicut but was subsequently withdrawn to this Court by order dt. 9.10.1992 for being heard with AS 323 of 1987. The appeal withdrawn from the District Court was subsequently numbered as A.S. 657 of 1992.

(2.) In a partition dt. 4.10.1962 between one Kumaran and his brother Kunhikannan, the properties involved in these suits were set apart to the share of Kunhikannan. Kunhikannan, a Hindu, died in the year 1967. On 4.5.1978 defendant No. 7 in the suit, the widow of Kunhikannan, the mother of the plaintiffs and defendants 8. to 10 sold for herself and as guardian of the minors the plaint B schedule property in OS No. 14 of 1986 to defendants 1 to 5 in the suit and one Andy, father of defendant No. 6. The extent of the property sold was 6 acres 77 cents and the price for which it was sold was Rs. 10,500/-. A daughter and son of Kunhikannan filed the suit OS 14 of 1986 on 10.2.1986 for partition of the property and delivery to them of their share on the basis that the deed of assignment executed by their mother on 4.5.1978 was void and could be ignored by them in view of the fact that they were minors on the date of the sale, the sale was effected without sanction from the court in terms of the Hindu Minority and Guardianship Act, hereinafter called the Act and that it was not for the necessity or the benefit of the minors. Another item of property having an extent of 1 acre 98 cents held on tenancy right by Kunhikannan and inherited by his widow and children was also sold by the widow acting for herself and as guardian of her minor children, alongwith her major children on 16.8.1967 to defendants 1 to 6 in OS 15 of 1986 for a price of Rs. 200/-. The two children who instituted the suit OS 14 of 1986 instituted the suit OS 15 of 1986 praying for partition and delivery of their share in the property sold on 16.8.1967 on identical grounds.

(3.) In defence the contesting defendants arrayed as defendants 1 to 6 in both the suits contended that the age of minors shown is not correct, that the suit filed for partition without seeking the setting aside of alienations effected by their mother, their natural guardian was not maintainable, that the sale was for the benefit of the minors, that Hindu Minority and Guardianship Act had no application since the property was joint family property, that a suit merely for partition is not maintainable and that the suits are liable to be dismissed.