The High Court of Kerala dismissed the second appeal, holding that an assignment deed executed by the natural guardian (mother) was valid and the suit for title declaration was barred by limitation, rejecting the claim that restraint clauses in the gift deed rendered the assignment void.
The second appeal was dismissed with costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR
WEDNESDAY, THE 5TH SEPTEMBER 2007 / 14TH BHADRA 1929
SA.No. 544 of 1994(F)
--------------------(AGAINST THE DECREE AND JUDGEMENT DATED 22/10/93 IN AS.25/1993 ON THE FILE OF THE SUB COURT OF HALASSERY IN OS.96/1988 OF THE MUNSIF COURT, KUTHUPARAMBA)
APPELLANTS:APPELLANTS:PLAINTIFFS:
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1. KUTTIPURATH OMANA, D/O.KUNHIRAMAN, AGED 38 YEARS, HOUSE NO.7/46, PATHIRIYAD AMSOM, DESOM, VENGAD PANCHAYAT, THALASERY.
2. SISTER, SHOBHANA, AGED 34 YEARS, D/O.KUNHIRAMAN, RESIIDNG AT ...DO.....
3. SISTER DHANALAKSHMI, D/O.KUNHIRAMAN, AGED 30 YEARS, RESIDING AT ....DO....
BY ADV. SRI.T.A.RAMADASAN
RESPONDENTS: RESPONDENTS:DEFENDANTS:
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1. MADATHUMPRATH NARAYANAN, S/O.MATHA, AGED 56 YEARS, RESIDNG AT MOKERI AMSOM, BAVODI DESOM, PERALASSRI PANCHAYATH, TELLICHERRY TALUK.
2. KOMATH LAKSHMANAN, S/O.KUNHIRAMAN, COOLIE, THAZHEPURA VEEDU, PATHIRIYAD AMSOM DESOM, VENGAD PANCHAYATH, THALASSERY TALUK.
Kss
..2/-
...2.....
S.A.NO.544/1994
*THE DEATH OF R3 IS RECORDED AS PER ORDER DTD. 26/11/97 ON MEMO C.F.NO.2124/97.
4. C.P. BALAKRISHNAN, S/O.KUNHAMBU, KAITHERI PUTHIYEDATH, BEEDI WORKER, PATHIRIYAD AMSOM DESOM, VENGAD PANCHAYATH, TELLICHERRY TALUK.
5. MADATHUMPRATH JANU, D/O.KANNAN, AGED 64 YEARS, RESIDING AT ...DO...DO...
**ADDL.R6 TO R9 ARE IMPLEADED AS LRS OF DECEASED 3RD RESPONDENT VIDE ORDER DTD. 10/03/03 IN C.M.P.NO.2731/98.
BY ADV. SMT.VIDHYA. A.C for R1,R2 to R4 SRI.C.P.KUNJHIKANNAN) SMT.S.ANITHA ) for R5
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/09/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
/TRUE COPY/
P.A.TO JUDGE
Kss
M.SASIDHARAN NAMBIAR, J.
S.A.No. 544 OF 1994
DATED THIS THE 5th DAY OF SEPTEMBER, 2007
JUDGMENT
Plaintiffs in O.S.96 of 1988 on the file of Munsiff Court, Kuthuparamba are the appellants. Defendants are the respondents. Appellants instituted the suit seeking a decree for declaration of their title and to set aside Ext.B1 Kuzhikanam assignment deed executed by 5th defendant in favour of first respondent. Plaint schedule properties originally belonged to Kunhiraman, husband of 5th respondent and father of appellants. Under Ext.A1 gift deed, he gifted the properties in favour of his wife and children. Item Nos. 1 and 2 of Ext.A1 gift deed are the plaint schedule properties. Under Ext.B1 Kuzhikanam assignment deed, 5th respondent mother assigned the property in 1964, in favour of first defendant and Balan, who under Ext.B3, entrusted the property in favour of Ayammu and later under Ext.B4 assigned to third respondent. According to appellants, 5th respondent is not entitled to transfer the property under Ext.B1 as Ext.A1 provides that the property shall not be transferred. It was also contended that 5th respondent is an illiterate woman and first respondent and Balan her brothers
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obtained Ext.B1 and it is void. Appellant also contended that as permission of the court was not obtained as provided under subsection 2 of Section 8 of Hindu Minority and Guardian Ship Act, Ext.B1 is void and respondents did not derive any title thereunder and appellants have title under Ext.A1 gift deed and therefore they are entitled to a decree for declaration of title and injunction and also that Ext.B1 is void. Respondents 1 to 4 in their written statement contended that for discharging the kanam debt of Othayoth Narayanan Nambiar the property covered under Ext.B1 was assigned by 5th respondent in favour of first respondent and his brother Balan on 4.7.1964 and eversince then first respondent and Balan were in possession of the property and they did not trespass into the property and as the first respondent and Balan were residing away due to business, the property was given under Melpattam to Kallakandi Ayammu as per Ext.B3 in 1970 and Ayammu was in possession till 1979 and subsequently third respondent under Ext.A4, purchased the property on 3.7.1987 and third respondent is now in possession of the property and appellants are not entitled to the decree sought for. It was contended that Ext.B1 is not void and was validly executed for consideration and is not vitiated.
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1)Whether on the facts and circumstances of the case, courts below were correct in finding that Ext.B1 was a valid document binding on the appellants who were minors.
3)Whether permission is required to be taken under Section 8 of the Hindu Minority and Guardianship Act for execution of Ext.B1 and whether 5th respondent is the natural guardian of plaintiffs.
4)Whether the findings of courts below that the assignees
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respondents 1 and 3 are in possession of the property is correct.
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from the date of coming to know about the existence of Ext.B1 and therefore is within time.
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gifted the property in favour of 5th respondent wife and appellants daughters who were minors at that time. The mother is admittedly the natural guardian. Under Ext.B1 assignment deed on 14.7.1964, 5th respondent assigned the property on her behalf as well as on behalf of minor children, in favour of first respondent and Balan. The question is whether Ext.B1 is void. As rightly found by first appellate court, by no stretch of imagination Ext.B1 can be termed as void document as held by this court in Sundeep and another V. Sarojini Nossiar and others (1990(1) KLJ 625). When 6th respondent has also equal right in the plaint schedule properties and she being a natural guardian assigned the property including her individual share, the document cannot be void document and to transfer the said property, permission as provided under sub-section 2 is not necessary. If that be so, Ext.B1 document is valid as it was executed by the natural guardian of the appellant and therefore on that ground appellants cannot claim title to the properties.
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properties. In any case, the clause in Ext.A1 restraining the enjoyment of the property including the transfer is therefore void and the said condition does not make it a conditional gift. Ext.A1 does not provide that in the event of the alienation the gift deed is liable to be cancelled. Because of the clause restraining transfer in Ext.A1, it cannot be said that Ext.B1 is void. The evidence establish that even though appellants were minors at the time when Ext.B1 assignment deed was executed, and all the appellants attained majority more than three years prior to the institution of the suit and it was also proved that suit was not instituted within the period of three years from the date of coming to know about the execution of Ext.B1 claim is barred. In such circumstances, courts below rightly held that appellants are not entitled to the declaration of title sought for. There is no merit in the appeal. It is dismissed.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-
3 issues framed by the court
Whether the assignment deed executed by the natural guardian of minor daughters was void ab initio due to restraint on transfer in the gift deed.
Whether the suit for declaration of title is barred by limitation under Article 58 of the Limitation Act.
Whether permission of the court under Section 8 of the Hindu Minority and Guardianship Act was required for the assignment by the mother.
Colour shows how this judgement treated each authority
Sundeep and another V. Sarojini Nossiar and othersRelied on¶6
(1990(1) KLJ 625)
2 provisions across 2 enactments
Kuttipurath Omana
Shobhana
Dhanalakshmi
Madathumprath Narayanan
Komath Lakshmanan
Kalathil Balan
M.Sasidharan Nambiar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
