A second appeal over a partition suit by a plaintiff who, as a minor, was not represented in an earlier ex parte decree and its execution sale. The High Court held that failure to appoint a guardian rendered the decree a nullity against the minor and dismissed the appeal, upholding the preliminary decree granting her half share.
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 A. BADHARUDEEN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
RSA NO. 392 OF 2022
AGAINST THE DECREE AND JUDGMENT DATED 22.12.2021 IN AS 78/2017 OF
ADDITIONAL DISTRICT COURT-I,MAVELIKKARA
ARISING FROM THE DECREE AND JUDGMENT DATED 27.03.2017 IN OS
83/2012 OF MUNSIFF COURT, HARIPAD
APPELLANTS/APPELLANTS 2 AND 3 IN AS 78/2017 /DEFENDANTS 5 & 6 IN OS 83/2012:
1 R.HAREESH BABU, AGED 51 YEARS S/O. N. RETNAN, KAILAS , PILAPPUZHA, HARIPAD VILLAGE, ALAPPUZHA 690 512.
2 R. KAILASANATH, AGED 46 YEARS S/O. N. RETNAN, KAILAS, PILAPPUZHA, HARIPAD VILLAGE, ALAPPUZHA 690 512.
BY ADVS. R.PARTHASARATHY SEEMA PARTHASARATHY
RESPONDENTS/RESPONDENTS IN AS 78/2017/PLAINTIFF & DEFENDANTS 2 & 3 IN OS 83/2012:
1 ANJU HARIHARAN, AGED 28 YEARS D/O. JAYASREE, PUTHUPARAMBIL, THEKKATHIL HOUSE, THATTARAMBALAM P.O, MATTOM NORTH MURI, KANNAMANGALAM VILLAGE, FROM KONDOOR VEETTIL, NEENDOOR MURI, PALLIPPAD, ALAPPUZHA 690 512.
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2 P.G. PURUSHOTHAMMAN PILLAI, AGED 69 YEARS S/O. GOPALAKRISHNA PILLAI, PERUMPRAL HOUSE, PULLAMBARA MURI, PALLIPPAD VILLAGE, ALAPPUZHA 690 512.
3 JAYASREE , D/O. CHELLAMMA, PUTHUPARAMBIL, THEKKATHIL HOUSE, THATTARAMBALAM P.O, MATTOM NORTH MURI, KANNAMANGALAM VILLAGE, FROM KONDOOR VEETTIL, NEENDOOR MURI, PALLIPPAD , ALAPPUZHA 690 512. BY ADVS. T.KABIL CHANDRAN FOR R1 R.ANJALI FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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CR
JUDGMENT
Dated this the 6th day of February, 2024
This regular second appeal has been filed under
Section 100 and Order XLII Rule I of the Code of Civil Procedure, 1908 by defendants 5 and 6 in O.S.No.83/2012 on the files of the Munsiff’s Court, Haripad and they impugn verdict in the above suit as well as the verdict in A.S.No. 78/2017 on the files of the Additional District Court-I, Mavelikkara. The respondents are the plaintiff and defendants 2 and 3 in the above suit.
records.
following substantial questions of law as per order dated 01.07.2022.
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2. Whether it is legal and proper to find that there is no service of summons in the previous suit when service of summons to mother has been declared in the former suit and when the plaintiff has no case that notice to the mother was not proper?
3. Is it legal to find that the plaintiff is not bound by the execution proceedings pursuant to O.S.No.391/1997 when execution is as against the property of the father for his liability?
4. Is it legal and proper in decreeing partition of half right of the plaintiff without directing the plaintiff to pay the proportional liability with interest towards the amount due from the father?”
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seeking the relief to set aside the decree in O.S.No.391/1997 and the sale in execution of the said decree, recovery of possession, partition and permanent prohibitory injunction. According to the plaintiff, O.S.No.391/1997 filed by the plaintiff therein was decreed after declaring defendants 1 and 2 therein as ex parte . Thereafter, the decree was executed and the entire plaint schedule property was sold in court auction and subsequently, the first defendant herein/decree holder in O.S.No.391/1997 got delivery of the same. The plaintiff herein was a minor at the time of the proceedings and on attaining majority at the age of 19, she filed the present suit seeking the above prayers.
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suit filed in collusion between the plaintiff and the third defendant.
that the decree in O.S.No.391/1997 on the files of the Munsiff's court, Haripad, the sale in execution of the said decree and subsequent transfer of property would not bind the plaintiff and her half share over the plaint schedule property. Accordingly, preliminary decree was passed declaring half title of the plaintiff over the plaint schedule property.
the said appeal also was dismissed.
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are the legal heirs of the first defendant, argued that when O.S.No.3971/1997 was filed, the mother of the present plaintiff got arrayed as the first defendant and the plaintiff herein got arrayed as the second defendant, with prayer to appoint the first defendant, the mother of the plaintiff herein, as the guardian of the minor. Since, on notice, the first defendant did not turn up, the trial court declared both defendants ex parte and thereafter, an ex parte decree was passed. Then the same was put into execution and the sale certificate issued and delivery was also effected. According to the learned counsel for defendants 5 and 6, even though a minor on attaining majority could challenge an adverse decree against him, the grant of the said relief shall be subject to satisfaction of Order XXXII Rule 3A of CPC. He also placed the decision of this Court in Abdul Salam v. Chalil Sajitha and Another , reported in 2017(2) KHC 757 in support of the said contention. Paragraph No.19 of the
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judgment has been given emphasis on this point and the same is extracted hereunder:
“19. However the position may be different in a case where the fraud or negligence is alleged against the guardian. What amounts to negligence must depend on the facts of each case. What has to be considered is whether by reason of the conduct of the guardian the minor has been prejudiced and lost a valuable right. It was held by this court in Gangadharan v.Narayanan (AIR 1959 Kerala 169), that the mere fact that the guardian remained ex parte is not sufficient to establish negligence. It must further be shown that there was a real defence to the action. Once it is held that the minor was represented by the Guardian/mother and had become ex parte, and it is found that there is negligence on the part of the mother in prosecuting the case, the question is whether such a decree against the minor requires to be set aside. As already indicated, Order XXXII Rule 3A clearly indicates that no decree passed against a minor shall be set aside merely on the ground that the Guardian had an interest in the subject matter of the suit whereas it has to be shown that prejudice has been caused to the interest of the minor.
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Though in the case on hand, guardian ad litem has not been appointed by the Court, the mother represented the minor and had appeared, contested and filed objection on her behalf and on behalf of the minor, opposing the claim of the petitioner in the case. She had no interest adverse to that of the minor. But she did not prosecute the case and remained ex parte. She did not take any steps to set aside the ex parte decree on behalf of the minor within a reasonable period. Materials placed on record would show that the petitioner does not have a valid defence in that case especially in the light of the DNA report. What purpose will be served in reopening the matter is also not explained. Under such circumstances, we are of the view that condoning the delay of such a long period and setting aside the ex parte decree was unwarranted.”
for the plaintiff that in O.S.No.391/1997, no person appointed as guardian of the minor at any point of time and when notice was issued to the proposed guardian, the first defendant, she
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did not turn up and accordingly, the trial court declared defendants 1 and 2 in O.S.No.391/1997 without opting the procedure of appointing a court guardian to protect the interest of the minor. Therefore, the said decree shall not affect the half right of the minor in respect of the plaint schedule property.
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in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed. The affidavit shall further state the name of the person or persons on whom notice has to be served under the provision of sub-rule(4).
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person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.
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save the minor's interest in the said suit. In the decision in Tresa Xavier & Others v. Mary Simon & Others, reported in 2022 (2) KHC 708, a Division Bench of this Court held that a party may fail in appointing a guardian but the court cannot fail in its duty to appoint a guardian.
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shall be a ground for setting aside the decree.
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who was not properly represented either in the suit or in the execution proceedings.
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minor allowed to be realised by allowing the first defendant to proceed with the suit, O.S.No.391/1997, against the plaintiff herein.
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rate of Rs.10,000/- per cent. In this matter, evidently, the property was sold for the decree debt and the decree debt is Rs.50,000/- as the principal amount. Thus, it is discernible that the property was sold in execution of decree in O.S.No.391/1997 for a much lesser price than the valuation done during 1995. Therefore, there is no reason to hold that the amount due from the father of the defendant was not fully realised by adjusting half right over the plaint schedule property. In view of the matter, I am of the view that further opportunity need not be given to the 1st defendant/plaintiff in O.S.No.391/1997 to sue against the plaintiff herein, as the first defendant had satisfied the decree debt due from the father of the minor in toto.
It is held that even though service of summons to the mother had been declared in O.S.No.391/1997 (former suit), when the mother was exparte, it could not be held that the
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minor was represented by a proper guardian. Therefore, it is held that nobody represented the minor in the proceedings. Since the decree passed against the minor is a nullity, the execution proceedings pursuant to the said decree also not binding on the plaintiff in order to discharge the liability of her father. Since it is found that by adjusting the half share obtained by the first defendant, who is the decree holder in O.S.No.391/1997, the decree debt and the amount he spent to discharge the liability towards the District Co-operative Bank was discharged, there is no illegality or impropriety in partitioning the half right of the plaintiff over the plaint schedule property after allotting half share alone to the first defendant/decree holder in O.S.No.391/1997.
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All interlocutory orders stand vacated and all interlocutory applications pending in this regular second appeal stand dismissed.
Registry is directed to forward a copy of this judgment to the trial court as well as the appellate court forthwith.
Sd/A. BADHARUDEEN JUDGE
nkr
3 issues framed by the court
Is a minor bound by an ex parte decree passed without appointing a court-appointed guardian for the suit?
Are the decree and execution sale in the former suit binding on the plaintiff's half share in the property?
Should the plaintiff be directed to pay proportional liability before her half share is partitioned?
Colour shows how this judgement treated each authority
Abdul Salam v. Chalil Sajitha and AnotherReferred
2017(2) KHC 757
Tresa Xavier & Others v. Mary Simon & OthersRelied on¶17
2022 (2) KHC 708
6 provisions across 1 enactments
R. Hareesh Babu
R. Kailasanath
Anju Hariharan
P.G. Purushothamman Pillai
Jayasree
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
