Rajan And Anr @APPELLANT@Hash Renjitha And Ors

Heard the learned counsel for the appellants and the respondents.

Additional defendants 2 and 3 in O.S No.696 of 1998 on the file of the II Additional Munsiff's Court, Neyyattinkara are the appellants. Plaintiffs and other defendants are the respondents. The suit was originally one for injunction and later amended for a declaration of title in respect of plaint schedule property and for setting aside Ext.B1 sale deed executed in favour of the appellants.

Short facts are as follows :

Plaintiffs 1 and 2 are the children of deceased Ramadevi and the first defendant. Plaint schedule item Nos.1 and 2 belonged to the father of deceased Ramadevi. At the time of Ramadevi's marriage with the first defendant, her father executed a gift deed in favour of Ramadevi and first defendant in respect of item No.1. Item No.2 stood in the name of deceased Ramadevi. She died and the her rights over the properties devolved on her children (minor plaintiffs) and the first defendant (husband). First defendant assigned the properties in favour of the appellants as per Ext.B1 document. Therefore, the suit was laid for declaring that Ext.B1 document was null and void and for other reliefs.

In the suit, the appellants filed a written statement contending that the minor plaintiffs were under the care and custody of the first defendant. Minors' property was assigned for their benefit. The appellants purchased the property for Rs.60,000/- and the amount was remitted in a Co-operative Bank in order to clear off a loan amount availed by the first defendant and minors' mother. Challenge against Ext.B1 document is legally unsustainable.

Before the trial court, two documents were marked on the side of the plaintiffs and six on the side of the defendants. One witness was examined on the side of the plaintiffs and two on the side of the defendants. Ext.X1 is a third party document and Commission reports, Ext.C1 series, were also considered by the court below.

After considering the rival contentions and with reference to the evidence adduced before the court below, it set aside Ext.B1 document to the extent it affected the minors' share.

Aggrieved by the judgment and decree of the trial court, the appellants preferred first appeal before the court of Subordinate Judge, Neyyattinkara as A.S No.37 of 2002. After considering the case of the contesting parties, the lower appellate court expressed a view that the first defendant (father of the minor plaintiffs) could have claimed only 1/3rd share in the entire property and with this observation, the appeal was dismissed.

Learned counsel for the appellants contended that the courts below misdirected themselves to arrive at a conclusion that Ext.B1 document did not bind the minors. It is contended that the document was executed by their natural guardian (first defendant) for the pressing necessity of the minors. It is also contended that the suit filed through the grandmother of the minor plaintiffs is not maintainable since they get cause of action only on attainment of majority, for the reason that they have a right to elect whether to avoid the document or to affirm the same.

This contention cannot be accepted in the light of the settled legal position that a next friend, who has no adverse interest against a minor can lay a suit for and on behalf of the minor and for the benefit of the minor even during his minority. This proposition is well laid by a line of decisions of this Court. The other contention raised by the learned counsel that the sale was made for a necessity of the minors also cannot hold good for the reason that the natural guardian (first defendant) did not seek and obtain permission from a competent court. Based on Article 60 of the Limitation Act 1963, it was contended that going by the scheme of the Article, a ward alone has a right to file a suit within three years when he attains majority. The other contingencies referred to in Article 60 relate to the death of a ward within three years from the date of attaining majority and the ward dies before attaining majority, which we are not concerned. This Court in a catena of decisions have considered this issue and held that the next friend, who is acting in the interest of the minor and who is having no adverse interest against the minor is entitled to lay a suit on the equitable principles to safeguard the property rights of the minors. Therefore, this contention cannot be upheld.

The lower appellate court misdirected itself by entering a finding that the first defendant (father of the minors) can claim only 1/3rd share over the entire property. It is brought to the notice of this Court by the learned counsel for the appellants that in respect of item No.1 having an extent of 35 cents, half right belonged to the first defendant and remaining half right was with his deceased wife. Therefore, on the death of the first defendant's wife, he gets 1/3rd right over the other ½ right held by his deceased wife. In respect of item No.2, it has to be stated that it exclusively belonged to deceased wife of the first defendant and therefore he would get only 1/3rd right over the property. In this way, this has to be clarified in the light of the fact that the parties are said to be fighting another litigation for partition.

In the result, the appeal is disposed of setting aside the lower appellate court's judgment and decree and restoring that of the trial court subject to the above clarification in respect of the shares. It is also made clear that the assignees from the first defendant (appellants) are entitled to the shares belonged to the first defendant as indicated above.