Dismissed

Rethna Bai v. Sreepriya

Kerala HC30 Nov 2016RSA/1198/2016

Case brief

AI extract

What is this about?

In this regular second appeal, the appellant challenged the trial court's decree granting title and possession to plaintiffs (minors) over ancestral property. The High Court affirmed that alienation via a partition deed without District Court permission under the Hindu Minority and Guardianship Act, 1956, was invalid against minors, holding the suit neither barred by res judicata nor limitation.

What did the court decide?

Appellant's Regular Second Appeal dismissed; original decree and appellate judgment affirmed.

Rethna Bai Vs Sreepriya — Succession and Inheritance | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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WEDNESDAY, THE 30TH DAY OF NOVEMBER 2016/9TH AGRAHAYANA, 1938

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RSA.NO. 1198 OF 2016 ()

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AGAINST THE JUDGMENT AND DECREE DATED 09.09.2016 IN A.S. NO. 11/2010 OF THE SUB COURT, CHERTHALA

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AGAINST THE JUDGMENT AND DECREE DATED 14.01.2010 IN O.S. NO. 269/2006 OF THE PRINCIPAL MUNSIFF COURT, CHERTHALA

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APPELLANT/APPELLANT/5^TH DEFENDANT

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RETHNA BAI,

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AGED 62, W/O INDRANATHA SHENOY, VALIAVEETIL, PADINJATTUMKARA NORTH MURI, KUTHIYATHODE VILLAGE, CHERTHALA.

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BY ADVS.SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM

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RESPONDENTS(RESPONDENTS/PLAINTIFFS AND DEFENDANTS 1 TO 4)

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1. SREEPRIYA, D/O CHANDRAKALA, AGED 31, VALIAVEETTIL, PADINJATTUM KARA NORTH MURI, KUTHIYATHODE VILLAGE, CHERTHALA 688 533

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2. ASWATHY, D/O CHANDRAKALA, AGED 28, VALIAVEETTIL, PADINJATTUM KARA NORTH MURI, KUTHIYATHODE VILLAGE, CHERTHALA 688 533

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3. BALACHANDRA BHAT, AGED 67, S/O VENKITESWARA VADHYAR, VALIAVEETTIL, PADINJATTUMKARA NORTH MURI, KUTHIYATHODE VILLAGE, CHERTHALA 688 533.

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4. VIJAYALAKSHMI ALIAS VIJAYAKUMARI, D/O VENKITESWARA VADHYAR, VALIAVEETTIL, AGED 62, PADINJATTUMKARA NORTH MURI, KUTHIYATHODE VILLAGE, CHERTHALA 688 533.

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RSA.NO. 1198 OF 2016 ()

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5. URMILA DEVI, AGED 59, D/O VENKITESWARA VADHYAR, VALIAVEETTIL, PADINJATTUMKARA NORTH MURI, KUTHIYATHODE VILLAGE, CHERTHALA 688 533.

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6. INDRANATHA SHENOY, AGED 69, S/O VENKITESWARA VADHYAR, VALIAVEETTIL, PADINJATTUMKARA NORTH MURI, KUTHIYATHODE VILLAGE, CHERTHALA 688 533.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. HARILAL, J.

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= = = = = = = = = = = = = = = = = = = = = R.S.A. No. 1198 of 2016

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- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2016

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J U D G M E N T

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The appellant is the 5^th defendant in O.S.

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No.269 of 2006 of the Principal Munsiff Court, Cherthala. The plaintiffs are the children of the 2^nd defendant and the 1^st defendant is the brother of the 2^nd defendant and defendants 3 and 4 are the sisters

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of the 2^nd defendant. The 5^th defendant is the wife of the 1^st defendant.

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The property having an extent of 81 cents, including the plaint schedule property, originally belonged to the predecessors of the plaintiffs Sri. Damodara Vadhyar and Sri. Venketeswara Vadhyar and thereafter, Damodara Vadhyar executed Will No.49/1989, with respect to his one half right over the property. As per the Will, the plaint schedule property is allotted to the plaintiffs. On 10/1/1991

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R.S.A. No. 1198 of 2016

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-: 2 :-

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the said Damodara Vadhyar died and the property exclusively devolved upon the plaintiffs. After the death of Damodara Vadhyar, the 3^rd defendant filed a suit for partition with respect to the property covered by the Will against defendants 1, 2 and 4 and Sri. Venketeswara Vadhyar, who is her father, as O.S. No.370/1992. The suit was decreed and a preliminary decree was passed. Thereafter, the 1^st defendant influenced defendants 2, 3, 4 and Sri. Venketeswara Vadhyar for executing a partition deed with respect to the properties, including the plaint schedule property and a partition deed was executed at the instigation of the 1^st defendant without the knowledge and consent of the 2^nd defendant. As per the partition deed, the plaint schedule property was allotted to the 1^st defendant and thereafter, he alienated the property to his wife, the 5^th defendant. According to the plaintiffs, the said

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R.S.A. No. 1198 of 2016

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-: 3 :-

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partition deed and the subsequent deeds with respect to the plaint schedule property are not binding on the plaintiffs as they were minors and the said document was executed without obtaining permission from the District Court. Hence the plaintiffs constrained to file a suit for declaring the right and title over the property and for recovery of possession.

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In the written statement, the defendant

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contended that the suit is barred by res judicata and limitation. According to them, the suit is a collusive one between the plaintiff and the 2^nd defendant, who is the father of the plaintiffs. It is also contended that the partition deed was executed for the benefit of the members of the family. Prior to the present suit, the plaintiffs filed O.S. No.755 of 2000 through their father as next friend and guardian and thereafter they filed

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R.S.A. No. 1198 of 2016

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-: 4 :-

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O.S. No.663 of 2002 through their mother, as next

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friend and guardian and both suits were dismissed. The preliminary decree passed in O.S. No.370 of 1992 was challenged in Appeal and during the pendency of Appeal, entire disputes were settled in Lok Adalath and a compromise was entered in the Adalath. Since the execution of the partition deed and the proceedings in the Lok Adalath were for the benefit of the plaintiffs, they are incompetent to file the present suit and the suit is not maintainable at all. Now, the 5^th defendant is the absolute owner in possession of the property and the plaintiff have neither right nor possession over the plaint schedule property and the document in favour of the 5^th defendant is binding on the plaintiffs.

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On the aforesaid pleadings, both parties adduced evidence and after appreciating the evidence on record, the trial court decreed the suit and in

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R.S.A. No. 1198 of 2016

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-: 5 :-

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Appeal the appellate court upheld the findings of

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the trial court and dismissed the suit. Thus, the concurrent findings, whereby the courts below declared the plaintiffs' title over the property, are challenged in this Regular Second Appeal.

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Heard the learned counsel for the

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appellant.

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The first question to be considered is, whether the courts below are justified in finding that the suit is not barred by res judicata or limitation? According to the defendants, the father of the plaintiffs filed suit as O.S. No.755 of 2000 and after the dismissal of the same, the mother of the plaintiffs filed O.S. No.663 of 2002 for the same purpose and thereby the present suit is barred by res judicata . Obviously, it is discernible from Ext.B4 judgment that O.S. No.755 of 2000 was filed by the father in his personal capacity only and not

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R.S.A. No. 1198 of 2016

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-: 6 :-

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for and on behalf of present plaintiffs' and the

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relief sought for was a declaration that the partition deed bearing No.3292 of 1999 as null and void and for consequential injunction. After comparing the relief sought for in the present suit and Ext.B3 plaint, the courts below arrived at a finding that the cause of action, the matters in issue and the relief sought for in both suits are different and distinct. So the court below is justified in finding that the judgment and decree passed in O.S. No.755 of 2000 will not operate as res judicata in the present suit.

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Coming to O.S. No.663 of 2002, the said

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suit was filed by the mother of the plaintiffs representing herself as the guardian of the plaintiffs, who were minors at that time. Ext.B7 is

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the plaint in O.S. No.663 of 2002 and Ext.A3 is the judgment passed in the suit. After analysing the

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R.S.A. No. 1198 of 2016

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-: 7 :-

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pliant and judgment passed in O.S. No.663 of 2002,

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the court below found that O.S. No.663 of 2002 has been withdrawn with a liberty to file a fresh suit and since the court has granted permission to withdraw the suit with liberty to file fresh suit that judgment will not operate as res judicata. I do not find any illegality in the aforesaid finding. Thus, the courts below are justified in finding that judgment passed in O.S. No.663 of 2002 will not operate as res judicata in the present suit.

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The next question to be considered is,

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whether the suit was barred by limitation? The respondents have filed I.A. No.731 of 2016 under Order XLI Rule 27 of the Code of Civil Procedure, 1908, to accept the copy of the S.S.L.C. Book of the plaintiff Nos. 1 and 2. According to them, they could not produce the said document during the court of trial and the said document is decisive in

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R.S.A. No. 1198 of 2016

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-: 8 :-

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determining the question of limitation. After

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considering the relevancy and significance of the documents produced by the plaintiffs in Appeal, the court below allowed the said petition and the copy of S.S.L.C. Book was marked as Exts.A5 and A6 in the Original Suit. Exts.A5 and A6 show that the date of birth of the 1^st plaintiff is 25.04.1985 and the 2^nd plaintiff is 30.05.1988. So, they have attained majority on 25.04.2003 and 30.05.2005 respectively. The suit was filed on 05.04.2006. As far as the 1^st respondent/1^st plaintiff is concerned, she has to file the suit on or before 26.04.2006 and as far as the 2^nd respondent/2^nd plaintiff is concerned, she has to file suit on or before 31.05.2008. Since, the present suit was filed on 05.04.2006, the suit is not barred by limitation and the courts below are justified in rejecting the plea of limitation also.

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The next question to be considered is,

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R.S.A. No. 1198 of 2016

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-: 9 :-

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whether the courts below are justified in finding

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that Ext.B2 partition deed were not binding on them? Admittedly, at the time of execution of Ext.B2 partition deed, the plaintiffs were minors and they were not properly represented and no permission under Section 8 of the Hindu Minority and Guardianship Act, 1956 was obtained from the District Court. It follows that the parties in Ext.B2 has no right or authority to deal with the property of the minors. It is pertinent to note that as per Ext.A1 Will Deed, the property which was subjected for partition has been bequeathed to the plaintiffs and in Ext.B2 partition deed also the execution of Ext.A1 Will is admitted. That apart, the execution of Ext.A1 Will was upheld in the judgment in O.S. No.370 of 1992, which was marked as Ext.A2. So, no further proof is required with respect to the execution of Ext.A1 Will. Needless to

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R.S.A. No. 1198 of 2016

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say, since the plaint schedule property was obtained

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by way of Ext.A1 Will, by the plaintiff none of the parties in Ext.B2 partition deed are entitled to make partition or other alienation, without the consent of the District Court, under Section 8 of the Hindu Minority and Guardianship Act, 1956. Indisputably, the permission of the District Court was not obtained, before executing Ext.B2 partition deed.

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The 5^th defendant derives the title over the property from Ext.B2 partition deed, which is not binding on the plaintiffs. In the absence of permission from the District Court, for executing the partition deed with respect to the plaint schedule property, which belonged to the plaintiffs, Ext.B2 partition deed is not binding on the plaintiffs and it follows that subsequent alienation under Ext.B2 partition deed are also not binding on

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R.S.A. No. 1198 of 2016

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-: 11 :-

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the plaintiffs. Thus, the trial court is justified in decreeing the suit and the appellate court is justified in confirming the same in appeal. No question of law arises for consideration.

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This Regular Second Appeal is dismissed

accordingly.

Sd/-

K. HARILAL,

JUDGE

NaN/DST

//True copy//

P.A. To Judge

Rethna Bai v. Sreepriya

Case brief

What is this about?

What did the court decide?

Rethna Bai v. Sreepriya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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