KRISHNAN SREEDHARAN Vs. GOVINDAN CHELLAPPAN

JUDGEMENT

(1.) The first defendant in O. S. 869/122 of the Kottarakara Munsiff Court is the appellant. The suit was for setting aside Ext. III sale deed dated 13-11-117 executed by the Second defendant as guardian of the plaintiffs for A schedule items in favour of the first defendant. Second defendant is the second husband of the deceased Kunchaki Kochali who was the mother of plaintiffs 1 to 3. Plaintiffs 2 and 3 are the children of Kochali by the second defendant and the first plaintiff is her son by her former husband. A schedule properties are the sub tarwad properties of Kochali and the plaintiffs. The sale deed Ext. III was executed by plaintiffs grandmother Kunchaki Kochali and the second defendant as the guardian of the plaintiffs for a consideration of 700 fanams. Plaintiffs sought to set aside the sale deed on the ground that the second defendant was incompetent to act as their guardian and for want of consideration and tarwad necessity. The Trial Court dismissed the suit holding that the second defendant was competent to represent the plaintiffs as he was the de facto guardian and also that the sale deed is supported by consideration and necessity. In appeal the learned Judge reversed both those findings and decreed the suit.

(2.) The correctness of both the findings by the appellate court, viz., that the second defendant was not competent to represent the minors, and that the sale deed is unsupported by consideration and tarwad necessity, is challenged. As mentioned already the second defendant is the father of PWs 2 & 3 and the stepfather of the first plaintiff. Under S.13 of the Ezhava Act, the father is not the legal guardian of his minor children regarding their right and interest in their tarwad property. In Raman Pillai Vasu Pillai v. Kesavan Nair Prabhakaran Nair 1955 KLT 270 , it was held that a minors property can be dealt with only by a person who has legal authority to represent the minor and to act on behalf of the minor, and self imposed guardianship or management by other persons will not confer on them any legal authority to deal with the minors property. Such dealings will be absolutely void and will not in any way affect the minors interest in such property. Hence it is clear that the second defendant had no authority to represent the minors when he executed the sale deed. On the question of consideration and necessity also, the finding of the learned Judge has to be upheld. The consideration for the sale deed is 700 fanams, and it is recited in the document that the entire amount can be received for the purchase of property in the name of the minors. Admittedly no property was purchased. It is the defence case that Ext. Y release of a sub mortgage right was taken with the amount. Ext. 1 is a release taken in the names of the minors and the second defendant, and it is stated that out of the consideration of 700 fanams, 350 fanams was paid by the second defendant, and the balance was paid out of the consideration received under Ext. A sale deed. So Ext. 1 itself falsifies the case that the entire consideration for Ext. A was utilised for the purchase of other property for the minor. Further an alienation of immovable property of the tarwad for acquiring other properties could he upheld only if the fresh acquisition is also immovable property and the acquisition is shown to have been to the advantage of the tarwad. Taking an assignment of a sub mortgage right cannot be deemed to have been for the advantage of the tarwad vide 1953 KLT 452 Kunjan Pillai Karunakaran Pillai v. Mani Pillai Devaki Pillai

(3.) In view of the above findings the appeal fails and is dismissed with costs.