The Kerala High Court dismissed a Regular Second Appeal filed by a party challenging a partition decree as nullity for lack of a formal Order XXXII Rule 3 guardian appointment. The court held the appellant was estopped as he acted as guardian, admitted rights during trial, and later obtained valid appointment under the National Trust Act.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939
RSA.No. 479 of 2017 (F)
AGAINST JUDGMENT & DECREE DATED 30-11-2016 IN AS 102/2014 of SUB COURT, PERUMBAVOOR
AGAINST JUDGMENT & DECREE DATED 31-07-2014 IN I.A.NO.1959 OF 2013 IN OS 241 OF 2004 OF MUNSIFF'S COURT, PERUMBAVOOR
APPELLANT(S)/APPELLANT/1ST DEFENDANT:
BALANCHANDRA PANICKER,
AGED 70 YEARS, SON OF SANKARAN KUNJI, KUMMANODU MADOM, KUMMANODU KARA, PATTIMATTOM VILLAGE, ERNAKULAM DISTRICT.
BY ADVS.SRI.T.RAMPRASAD UNNI
SRI.S.M.PRASANTH
SMT.ASHA BABU SMT.R.S.ASWINI SANKAR SRI.SABIN BABU
RESPONDENT(S)/PETITIONERS/PLAINTIFFS & 2ND DEFENDANT:
1. KAVUKUTTY KUNJAMMA,
AGED 68 YEARS, D/O. PAPPY KUNJAMMA, KUMMANODU MADOM, KUMMANODU KARA, PATTIMATTOM VILLAGE, ERNAKULAM DISTRICT, PIN - 683 562
2. VINU @ BALAKRISHNA KAIMAL,
AGED 48 YEARS, SON OF KAVUKUTTY KUNJAMMA, KUMMANODU MADOM, KUMMANODU KARA, PATTIMATTOM VILLAGE, ERNAKULAM DISTRICT, PIN - 683 562.
3. GIRIJA,
D/O. LEELAVATHI KUNJAMMA, AGED 51 YEARS,
MADOM, KUMMANODU KARA, PATTIMATTOM VILLAGE, ERNAKULAM DISTRICT, PIN - 683 562. (SINCE SHE IS MENTALLY RETARDED PERSON AND NO GUARDIAN IS APPOINTED LEGALLY NOTICE CANNOT BE SERVED).
R1,R2 BY M/S SMT.GIRIJA K GOPAL(CAVEATOR) SMT.K.N.VIGY(CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
[CR]
B. KEMAL PASHA, J.
................................................................ R.S.A. No. 479 of 2017
............................................................... Dated this the 9th day of October, 2017
J U D G M E N T
The 1st defendant in O.S.No.241 of 2004 of the
Munsiff’s Court, Perumbavoor has come up in Regular Second Appeal, by challenging the final decree passed by the said court and the judgment and decree passed by the lower appellate court in A.S.No.102 of 2014.
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sister of the 1st plaintiff. The mother of the 2nd defendant, Leelavathi Kunjamma, is the second daughter of Pappi Amma and she predeceased Pappi Amma leaving the 2nd defendant as her sole legal heir. The appellant herein, who is the 1st defendant, is born to Pappi Amma in her second marriage and therefore, he is the uterine brother of the 1st plaintiff and deceased Leelavathi Kunjamma.
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final.
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dismissed the appeal with costs and hence, this Regular Second Appeal.
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against the preliminary decree. Further, it has been argued that all along the proceedings before the trial court, the appellant herein had specifically taken the stand that he was the guardian of the 2nd defendant, and that the 2nd defendant was under his care and protection and further, that he had no interest adverse to that of the 2nd defendant. It has been argued that the trial court had appointed the 1st defendant as guardian for the 2nd defendant, when the 1st defendant had acted as guardian for the 2nd defendant, and the same was admitted by the plaintiffs before the trial court. The learned counsel for respondents 1 and 2 has further argued that the appellant has filed the present Regular Second Appeal solely with a view to protracting the execution proceedings in the matter, and with a view to denying the fruits of the litigation to the 1st plaintiff.
“Balachandra Panicker, S/o.Sankaran
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Kunji, Business, aged 56, Kummanodu Madom, Kummanodu Kara, Pattimattom Village, who is the maternal uncle of Girija, aged 45, Mentally Retarded, D/o.Leelavathi Kunjamma, as her guardian.”
The 1st defendant filed a written statement admitting that the 2nd defendant is in his care and protection and that he is the guardian of the 2nd defendant. The written statement was filed by the 1st defendant for him as well as for and on behalf of the 2nd defendant, as her guardian. He contended that late Pappi Amma had executed settlement deed No.657/1985 of Puthencruz Sub Registry, thereby enabling him to act as guardian of the 2nd defendant and also to handle and deal with the properties of the 2nd defendant. He had contended that he has been looking after and maintaining the 2nd defendant as his own daughter.
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Over and above it, the 1st defendant has filed a detailed affidavit in lieu of chief examination as DW1 before the trial court. He has categorically admitted therein that he is the guardian of the 2nd defendant and that he was swearing the affidavit for and on behalf of the 2nd defendant also. He has also affirmed with regard to the settlement deed No.657/1985.
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appellant, the appellant is pointing out the nullity of the decree, so far as it relates to the 2nd defendant. Of course, the 2nd defendant can maintain an appeal against the preliminary decree as well as the final decree, in case she was not represented by a guardian and prejudice has been caused to her within the meaning of Order XXXII Rule 3A CPC.
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Court seeking police protection for cutting and removing the trees. Initially, police protection was granted. When the 1st plaintiff came to know about it, she rushed to this Court with R.P. No.896/2006 in the said writ petition. The said R.P. was allowed and W.P.(C) No.25191/2006 was dismissed. The police protection granted was recalled.
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99,000/- was received in deposit. The 1st defendant, thereafter, filed an application for withdrawal of the said amount. The said application was resisted by the 1st plaintiff. The learned Munsiff dismissed the application seeking withdrawal of the amount and directed the amount to be deposited in a nationalised bank or treasury in the name of the 2nd defendant herein.
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person and to appoint him as her guardian. The District Court, Ernakulam allowed the O.P. vide order dated 12.03.2010 and appointed the 1st defendant as the guardian of the 2nd defendant. When the 1st plaintiff came to know about it, she rushed to the District Court and filed R.P. No.1/2012 in O.P.(MH) No.910/2009. When it was revealed that the 2nd defendant is not a mentally ill person within the meaning of Section 2(l) of the Mental Health Act, 1987, the District Court reviewed the order and dismissed the OP. The 1st defendant did not stop there. He filed M.F.A. No.48/2012 before this Court challenging the order in R.P. No.1/2012 in the Mental Health O.P. This Court found that the competent authority under the National Trust Act is the authority competent to appoint the guardian of the 2nd defendant.
approached the Local Level Committee, Ernakulam District under the National Trust Act, to appoint him as the guardian of the 2nd defendant. Through, Annexure R1(a), the District
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Collector who is the Chairman of the Committee, who is the competent authority, issued order dated 18.08.2017 appointing the 1st defendant as the legal guardian of the 2nd defendant under the National Trust Act.
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file a written statement for him as well as for and on behalf of the 2nd defendant also in his capacity as guardian of the 2nd defendant. He filed affidavit in lieu of chief-examination before the trial court by clearly admitting that he was swearing the affidavit for and on behalf of the 2nd defendant also and that the 2nd defendant is under his care and protection. In cross-examination as DW1 he admitted the whole case of the plaintiffs and deposed that he had no objection in carrying out the partition of the property. He admitted that the 1st plaintiff is entitled to 1/3rd share in the property. He invited a decree against him.
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decree, the 1st defendant has chosen to take a strange argument that no guardian was appointed for the 2nd defendant and therefore, the preliminary judgment and decree and the final decree are nullity and non-est in the eye of law.
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chosen to approach the competent authority under the National Trust Act and has sought for an order to get himself appointed as the legal guardian of the 2nd defendant. Once again, he was appointed.
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there, it is evident that the plaintiffs in the suit, the trial court and the 1st defendant had understood that the 1st defendant was the guardian of the mentally retarded 2nd defendant. In such case, even in the absence of a formal order, it is evident that the 2nd defendant was properly represented. As per Order XXXII Rule 3A CPC, no decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject matter of the suit adverse to that of the minor, but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree. Therefore, even when it is noted that the guardian had any interest adverse to that of the minor (here in this case the mentally retarded person), the decree has to be set aside only when prejudice has been caused to the mentally retarded person. Here in this particular case, the due share of the mentally retarded
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person has been identified and declared correctly.
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with his two sisters are the only children of deceased Pappi Amma. Pappi Amma died intestate as far as this property is concerned. The 1st defendant has no case that Pappi Amma settled the properties either on him or on the 2nd defendant alone. In such case, the only legal heirs who can succeed to the properties of Pappi Amma are the 1st plaintiff, the mentally retarded 2nd defendant, and the 1st defendant. They are entitled to 1/3rd share each over the property. In the preliminary decree as well as in the final decree, such 1/3rd share has been set apart for each of these persons. The interest of the 2nd defendant is properly protected in the matter. The trial court as well as the lower appellate court has found that the 2nd defendant is entitled to 1/3rd right over the property and her due share has been allotted to her.
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solely for protracting the matter unnecessarily. The interest of the 2nd defendant is not at all prejudiced in any manner. The 1st defendant, who has suffered the preliminary decree without preferring an appeal, could not have filed the appeal against the final decree before the lower appellate court, for challenging the preliminary decree. Similarly, he cannot file the present second appeal also. The 1st defendant cannot approbate and reprobate. He is estopped from challenging the validly of the preliminary decree as well as the final decree. Apart from all the above, presently he has been appointed as the legal guardian by the competent authority under the National Trust Act. The 1st defendant shall comply with all the terms and conditions stipulated in the said Act for dealing with the properties of the 2nd defendant. Matters being so, this second appeal is devoid of merits and is only to be dismissed with costs, and I do so.
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In the result, this RSA is dismissed with costs. All the interlocutory applications in this appeal are closed.
Sd/- B. KEMAL PASHA, JUDGE.
ul/dsv/-
// true copy //
P.S. to Judge.
3 issues framed by the court
Whether an appellant who acted as a guardian without a formal Order XXXII Rule 3 appointment but was later approved by the competent authority can challenge the validity of the final decree claiming i
Whether Section 97 of the Code of Civil Procedure bars a party from challenging the final decree after omitting to appeal against the preliminary decree.
Whether prejudice was caused to the mentally retarded respondent given that her share was properly identified and allotted in the decree.
Colour shows how this judgement treated each authority
Ram Chandra Arya v. Man Singh and anotherDistinguished¶21
AIR 1968 SC 954 · Who else cites this
5 provisions across 3 enactments
BALANCHANDRA PANICKER
KAVUKUTTY KUNJAMMA
VINU @ BALAKRISHNA KAIMAL
GIRIJA
B. KEMAL PASHA
As recorded by the court registry
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