Dismissed

Syamalakumari Amma v. Kucheria Varghese

Kerala HC6 Apr 2018AFA/61/1999

Case brief

AI extract

What is this about?

This appeal concerned a suit to set aside a sale of ancestral property executed by the plaintiff's mother during her minority, alleging unauthorized disposition. The High Court dismissed the appeal, holding that the sale was a family necessity that provided benefits to the plaintiff. Consequently, she was required to relinquish those benefits to make an election regarding the validity of the trans

What did the court decide?

Both appeals filed against the original decree dismissing the partition suit were dismissed; the original decree and judgment were upheld.

Syamalakumari Amma Vs Kucheria Varghese — Succession and Inheritance | Kerala HC (2018)

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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FRIDAY, THE 6TH DAY OF APRIL 2018 / 16TH CHAITHRA, 1940

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AFA.No. 61 of 1999

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AGAINST THE DECREE AND JUDGMENT IN AS 303/1988 of HIGH COURT OF KERALA DATED 29-10-1998

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(O.S.No.110/81 OF SUB COURT, MAVELIKARA)

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APPELLANT/I RESPONDENT/PLAINTIFF : -

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SYAMALAKUMARI AMMA USHA KUMARI AMMA,

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MONYAMANGALATHU VEEDU, CHERIYANAD PADINJATTU MURI,

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CHERIYANAD VILLAGE Qr. No.11/37,

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NEW PENSIMBEDA COLONY, NEAR TECHNICAL SCHOOL, RAIPUR, M.P.

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BY ADV.SRI.P.R.VENKATESH

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RESPONDENTS/APPELLANTS AND RESPONDENTS 2 TO 4/DEFENDANTS : -

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JOHN STEEPHANOSE, NAISAL SADANAM, CHERIANADU PADINJARU MURI, CHERIANADU VILLAGE.

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KUNCHERIA VARGHESE, VADAKKEMMVILATHU, CHERIANADU KIZHAKKUM MURI, CHERIANADU VILLAGE (DEFENDANT No.4)

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KUNJUKUTTY AMMA SYMALA KUMARI AMMA, MANAYAMANGALATHU VEEDU, CHERIANADU PADINJATTU MURI, CHERIANADU VILLAGE (SYAMALAKUMARI Qr. No.11/37,

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NEW PENSIMBEDA COLONY, NEAR TECHNICAL SCHOOL, RAIPUR, M.P.) (DEFENDANT No.1 IN THE SUIT).

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AMMINI JOSHY, NAISAL SADANAM, CHERIANADU PADINJARU MURI, CHERIANADU VILLAGE (DEFENDANTS 2 AND 3 IN THE SUIT).

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ABDUL KHADER, DEEPTHIYIL, VISHAVARSSERIKARA MURI, MANNAR VILLAGE, MANAGER SANDHIA THEATRE, CHERIANADU VILLAGE (DEFENDANT No.5 IN THE SUIT).

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R2 BY ADV. SRI.R.HARIKRISHNAN BY ADV. SRI.JOHN BRITTO BY ADV. SRI.C.A.RAJEEV BY ADV. SMT.A.SINDHULAKSHMY

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THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28.03.2018 ALONG WITH A.F.A.No.4/2000. THE COURT ON 06.04.2018 DELIVERED THE FOLLOWING:

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DMR/-

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A.M.SHAFFIQUE & P. SOMARAJAN, JJ.

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-----------------------------------------------A.F.A. No.61 of 1999 & A.F.A. No.4 of 2000

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-----------------------------------------------Dated this the 06^th day of April, 2018

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J U D G M E N T

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Somarajan, J.

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Against the common judgment and decree in A.S.Nos.322/1988 and 303/1988 of a learned Single Judge of this court, the original plaintiff/appellant came up with these two appeals.

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The suit in O.S.No.110/1981, on the file of the Sub Court, Mavelikkara, was filed by the plaintiff/appellant for setting aside Exhibit A1 document, certified copy of which was produced by the defendants as Exhibit B11, as against her one half right over the property and for partition by metes and bounds with mesne profits. The suit was decreed by the trial Court and granted partition after setting aside the sale deed (Exhibit B11= A1). Two appeals were preferred in A.S.No.303/1988 and A.S.No.322/1988 by defendants 4 and 2 respectively and a learned Single Judge of this Court allowed the appeals and dismissed the suit. Aggrieved thereby, the plaintiff came up with these appeals.

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A.F.A. Nos.61 of 1999 & 4/2000 2

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The dispute is pertaining to an immovable property which is the subject matter of Exhibit A1 sale deed executed by the mother of the plaintiff in the year 1967 while the plaintiff was a minor. It is having an extent of 37.5 cents. The suit was filed in the year 1981 when the plaintiff was turning into 21 years, challenging the sale deed executed by the mother in the year 1967 stating that she is having one half right over the property and the mother has no right to sell the property either in a representative capacity or otherwise for and on behalf of the minor plaintiff.

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The property was the subject of a partition in the year 1963 by which the tharavadu property was divided into two shares, one is given to the thavazhi of the mother of the plaintiff. There is no dispute that originally the property was the tharavadu property. The nature of partition would clearly show that the property was divided into two for two thavazhies, one was given to the minor plaintiff and her mother. Necessarily the property has to be treated as tharavadu property and if the sale is conducted for necessity of the tharavadu it would be valid and binding. In the document itself the necessity of the tharavadu

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A.F.A. Nos.61 of 1999 & 4/2000 3

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was mentioned as for acquiring land with house for the residence of members of the tharavadu including the minor plaintiff. The property was sold for acquiring a house compound at Raipur in Madhya Pradesh and the same was stated as a tharavadu necessity in the document itself. Further, the plaintiff has no case that no such property was acquired in Raipur in Madhya Pradesh. On the other hand, the acquisition of house and property at Raipur for the benefit of the family consisting of minor daughter (plaintiff) and the mother was brought out in evidence. It is also not in dispute that the minor was residing in that house and brought up there and completed her studies up to post graduation at Raipur in Madhya Pradesh. It would sufficiently show that the minor was the beneficiary of the acquisition of immovable property at Raipur. So, it would squarely come under the purview of family necessity and the minor has availed of the benefit. When it was brought in evidence that the property was sold not for family necessity, the minor who is having right over the property being a member of the family can very well challenge the alienation, if any, on attaining majority within three years. But, in that challenge when the minor acquired any benefit

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A.F.A. Nos.61 of 1999 & 4/2000 4

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under the same transaction which is under challenge, the minor has to opt for one and cannot claim both at the same time. The acquisition of immovable property and house is somewhat admitted. It is not in dispute that she brought up in that house and took education up to the level of post graduation. The benefit acquired by the minor and the benefit still enjoyed by the plaintiff over the property has not been rejected or relinquished by the plaintiff after attaining majority. At this juncture it has to be borne in mind that when the minor had already benefited by the acquisition of immovable property by way of family necessity whatever the minor had enjoyed has to be relinquished without which there cannot be an election by the minor on attaining majority. Section 35 of the Transfer of Property Act is extracted below for reference:

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“35. Election when necessary - Where a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not

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A.F.A. Nos.61 of 1999 & 4/2000

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been disposed of,

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subject nevertheless,

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where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer,

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and in all cases where the transfer is for consideration,

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to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.”

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The suit filed without relinquishing the benefit enjoyed by

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the minor by the acquisition of immovable property under the family necessity is really hit by Section 35 of the Transfer of Property Act. It is true that while the plaintiff was a minor there cannot be any application of Section 35 of the Transfer of Property Act due to incompetency to elect being a minor. But, when attaining majority he/she should relinquish all the benefits acquired, enjoyed over the property acquired under the family necessity so as to have an election either of the benefit obtained under the transfer or to avoid the transfer. In other words, the plaintiff cannot avoid the transfer unless she had relinquished all the benefits - right, title and interest enjoyed by her over the

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A.F.A. Nos.61 of 1999 & 4/2000

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immovable property acquired under the guise of family necessity. So, in both the grounds that (1) the sale was for the purpose of family necessity, and (2) the plaintiff has not opted to relinquish her right over the property acquired under the family necessity so as to have an election of avoidance of transfer, the case advanced by the plaintiff would not stand. Hence, we are of the view that there is no sufficient ground for any interference in the decree and judgment of the learned Single Judge of this Court and both the appeals lack in merit, deserve only dismissal and we do so.

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In the result, both the appeals are dismissed.

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Sd/-

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A.M.SHAFFIQUE (JUDGE)

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Sd/-

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P. SOMARAJAN (JUDGE)

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DMR/-

Syamalakumari Amma v. Kucheria Varghese

Case brief

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Syamalakumari Amma v. Kucheria Varghese

Case brief

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