MOIDU Vs. SANTHA

JUDGEMENT

(1.) The above appeal is filed by defendants 2 to 4 in O.S. 29/1992 on the file of the Sub Court, Vadakara against the judgment and decree in the said case. The suit was filed by respondents 1 and 2 as plaintiffs for partition of their 2/5th share in plaint items 1 and 2. The case of the plaintiffs was that the plaint schedule properties were allotted as per Ext. Al settlement deed dated 4.9.1975 to the plaintiffs, the first defendant and two of their brothers Gangadhara Kurup and Balakrishna Kurup. Plaint schedule item No. 1 has got an extent of 60 cents, while item No. 2 is 39 cents. According to the plaintiffs, both Gangadhara Kurup and Balakrishna Kurup have assigned their 2/5th share in item No. 1 to the second defendant. Thus, plaintiffs and defendants 1 and 2 are the joint owners of plaint item No. 1. The second defendant is in possession of the property on behalf of the plaintiffs as well. So far as item No. 2 is concerned, both Gangadhara Kurup and Balakrishna Kurup have assigned their right in favour of defendants 3 and 4. Hence, with regard to that item, plaintiffs and defendants 1, 3 and 4 are joint owners. Defendants 3 and 4 are in possession of plaint item No. 2 on behalf of the coowners. The plaintiffs came to know during January 1992 that their rights in the plaint items have been assigned while they were minors. Thus, their rights in item No. 1 have been assigned to the second defendant, while their rights in item No. 2 have been assigned to defendants 3 and 4. The assignments are not for their benefit and permission was not obtained under S.8 of the Hindu Minority and Guardianship Act before the assignments were made. Hence, so far as their rights are concerned, the assignments have no validity in law. The consideration shown in the document is not proper. There is an alternate prayer for setting aside the assignment deeds in case it is necessary. The plaintiffs prayed for partitioning the plaint schedule items into five equal shares and allotting two shares to the plaintiffs.

(2.) The first defendant has filed a written statement. According to her, she is entitled to 1/5 share in plaint item No. 1 and 1/5 share in item No. 2. She also contended that the assignment made in favour of defendant No. 2 with regard to item No. 1 and assignment with regard to item No. 2 were executed at the time when she was a minor and without obtaining previous permission from the Court. Hence, the assignments are not valid and binding. She came to know of the assignment only in January, 1992. She has also prayed for partition by metes and bounds of her 1/5th share.

(3.) The second defendant filed a separate written statement. In that written statement, it was contended that neither the plaintiffs nor the first defendant have any right in item No. 1. This item exclusively belongs to him. One of the sharers of item No. 1, Gangadhara Kurup, assigned his rights in item No. 1 in favour of the second defendant on 7.4.1978 by Ext. B8. Subsequently the shares of Balakrishna Kurup, the first defendant and the plaintiffs were also purchased by the second defendant on 19.4.1978. This is evident from Ext. A2 dated 19.4.1978. The minors were represented by their guardian, their father, and the property was sold for valid consideration. The first defendant was made to understand that the property was being sold for the benefit of the minors. The second defendant further contended that the plaintiffs have to prove their age with valid documents since according to him they have attained majority long back. The second defendant has been in possession of the property for more than 12 years and he has effected title by adverse possession. He further contended that the first defendant is not entitled to any relief, since she has not filed a suit.