GOPALAKRISHNAN NAIR Vs. KARTHIYAYANI NANGELI AMMA

JUDGEMENT

(1.) S. A. 553 of 1986 is by the plaintiffs and S. A. 567 of 1986 is by defendant No. 2 in O. S. 68 of 1979 on the file of the Munsiff's Court of Perumbavoor. The plaintiffs are the children of the Karthyayani Amma who died sometime in the year 1959 or 1960, after the coming into force of the Hindu Succession Act. The plaintiffs originally sued defendant No. 1 for redemption of a mortgage dated 3.1.1958 executed by their mother in favour of defendant No. 1. On the plea of defendant No. 1 that subsequent to the mortgage the equity of redemption also had been sold on behalf of the plaintiffs by their guardian to defendant No. 2, defendant No. 2 was also impleaded and an amendment sought challenging the alienation of the equity of redemption and seeking the setting aside of that document and for recovery of possession from defendant No. 2 also. Defendant No. 1 resisted the suit essentially contending that the equity of redemption had been lost to the plaintiffs by the assigning of the same in favour of defendant No. 2 and hence the plaintiffs were not entitled to relief. Defendant No. 1 also pleaded that subsequent to the sale of equity of redemption in favour of defendant No. 2 defendant No. 1 had surrendered the mortgagee's interest in favour of defendant No. 2 and defendant No. 2 was in possession. Defendant No. 2 pleaded that the assignment of the equity of redemption in her favour by the guardian of the plaintiffs was valid and binding on the plaintiffs and the plaintiffs were not entitled to challenge the said assignment. Defendant No. 2 also pleaded that the suit by the plaintiffs was barred by limitation.

(2.) The deed of mortgage was marked as Ext. A1 and the sale deed executed by the father of the plaintiffs acting as their guardian in favour of defendant No. 2 was marked as Ext. B1 and its copy was marked as Ext. A2. The sale taken by the father of the plaintiffs from one Ramakrishnan Nair on the date of sale Ext. B1 was marked as Ext. B2. This was to support the plea that utilising the consideration obtained by the sale of the equity of redemption, father of the plaintiffs had acquired another property for the minors. The first plaintiff was examined as PW 1, the second plaintiff was examined as PW 2 and a stranger was examined as PW 3. The Trial Court held that the sale of equity of redemption by the father of the plaintiffs acting as their guardian was void since no permission as envisaged by S.8(2) of the Hindu Minority and Guardianship Act, 1956 was obtained prior to the sale, and hence the plaintiffs could ignore the said sale and seek redemption of the mortgage since the suit for redemption of the mortgage was within time. The Trial Court found that defendants were entitled to value of improvements and the quantum would be determined in the final decree proceedings. The Trial Court passed a preliminary decree for redemption. The defendants went up in appeal. The appellate court held that the plaintiffs were bound to seek the setting aside of the sale of the equity of redemption Ext. B1 and the relief in that behalf was barred by limitation in view of the fact that plaintiff No. 1, who could give a valid discharge had attained majority more than three years prior to the filing of the suit. But that court took the view that the share in the property inherited by plaintiff No. 2 on the death of the mother could not be affected by the sale of the equity of redemption effected by the father as guardian of the plaintiff and since the suit was instituted within three years of the attaining of majority by plaintiff No. 2 that plaintiff was entitled to redeem the mortgage and was entitled to have one out of six shares in the property delivered over to him on a division of the property. It is feeling aggrieved by this modification that the plaintiff has filed S. A. 553 of 1986. Defendant No. 2 has filed S. A. 567 of 1986 by raising a contention that the plaintiffs were bound to disgorge the benefit derived by them on utilising the consideration realised by the sale of the equity of redemption in favour of defendant No. 2 and the appellate court erred in not providing for such an equity in favour of defendant No. 2.

(3.) When these Second Appeals came before a learned Single Judge, the learned Judge thought that an authoritative pronouncement on the question of the effect of not obtaining sanction under S.8(2) of the Hindu Minority and Guardianship Act was called for in the light of the doubt expressed by this Court regarding the earlier decisions in a subsequent decision and hence it was just and proper to refer the Second Appeals to a Division Bench. That is how these Second Appeals have come up for hearing before the Division Bench. Before proceeding further it may be better to note some of the aspects relevant for the purpose of decision. According to the plaint the plaint schedule property was obtained by their mother as per a partition deed, document No. 248 of 1955 of Aikaranadu Registry. On 3.1.1958 mother Karthyayani Amma for self and as guardian of her minor son Gopalakrishnan plaintiff No. 1 herein executed Ext. A1 mortgage in favour of defendant No. 1. Plaintiff No. 2 was not born on that day. The mother Karthyayani Amma died sometime in the year 1959 or 1960 just after the birth of plaintiff No. 2. The father of the plaintiffs Raghavan Nair executed a sale deed Ext. B1 dated 3.10.1960 for and on behalf of the plaintiffs who were shown as being six years and two years old respectively as on that date. That sale of the equity of redemption was in favour of defendant No. 2. The same day under Ext. B2 another item of property was purchased in the name of the minors by their father Raghavan Nair. The sale deed Ext. B2 dated 3.10.1960 includes that the consideration for the same was paid out of the consideration obtained by the sale Ext. B1. The plaint does not disclose when plaintiff No. 2 attained majority. Nor does it disclose when plaintiff No.2 attained majority. But the plaint gives the age of plaintiff No. 1 as 24 and the age of plaintiff No. 2 as 19. The suit was filed on 22.2.1979. Obviously, the suit for redemption of Ext. A1 mortgage was filed well within time. The question therefore is of the effect of the sale of the equity of redemption by the father of the plaintiffs under Ext. B1 and the consequences if any arising from that transaction. Though in the Second Appeal by defendant No. 2 a claim has been raised regarding the disgorging of benefits by the plaintiffs in view of the purchase under Ext. B2 of another property from out of the consideration obtained by the sale of the equity of redemption under Ext. B1, it is to be stated that the defendants have not laid sufficient foundation for enabling the Court to give defendant No. 2 any relief based on that claim. All that was done was to produce the document and the meagre evidence adduced suggests that the property was sold by the father of the minors immediately after the acquisition under Ext. B2. The defendants did not even seek the raising of an issue on that question in the Trial Court. They are not seen to have pursued that aspect before the lower appellate court. It may also be noted here that though in the plaint the plea raised by the plaintiffs was that the plaint schedule property was obtained by their mother on a partition of the year 1955, the document of mortgage Ext. A1 recites that the property was obtained under that partition by the mother Karthyayani and her minor son who had joined her in the mortgage. But this must be on the basis that the allotment to the mother under the partition of the year 1955 enured to the thavazhi of the mother since obviously plaintiff No. 1 was also not born on the date of partition of the year 1955. The parties being marumakhathayees, property allotted to the mother was obviously treated by the mother as an allotment to the thavazhi consisting of herself and her children subsequently born.