TOMY SEBASTIAN v. ELIZABETH PIOUS

3

Rs.3,000/- per month as rent. The building was rented out to the third defendant by defendants 1 & 2 without the knowledge of plaintiff and plaintiff claimed Rs.1,000/- per month towards share in the rent. Hence the suit has been filed claiming 1/3^rdshare out of plaint schedule property together with mesne profits.

4. First defendant filed written statement contending that she transferred her right in the plaint schedule property to the third defendant and plaintiff had not objected the transfer. Hence the suit is not maintainable and it is also contended that if at all it is found that the plaint schedule property is partiable she claims to allot her share in her favour.

5. No written statement has been filed by the 2^nd defendant.

6. Third defendant filed separate written statement denying all the allegations in the plaint. The suit has been filed in collusion between the plaintiff and other defendants to defeat the interest of this defendant and cause loss and hardship to him. The plaint schedule property has been assigned to him as per document No.1531/1/2005 of Melatur S.R.O and he is in absolute possession and enjoyment of the property. Neither the

4

plaintiff nor the defendants have any right over the plaint schedule property. Plaintiff has no cause of action and hence he prayed for dismissal of the suit.

7. There is no oral evidence from either side. Ext.A1 marked from the side of the plaintiff. Ext.B1 marked from the side of the third defendant.

8. Trial court on evaluation of pleadings and documents found that first defendant as guardian of plaintiff and power of attorney holder of the 2^nddefendant sold the plaint schedule property in favour of the third defendant. It is further found that the plaintiff being a minor the sale of property without the permission of the court is voidable and plaintiff can accept it or ignore it. So the suit filed for partition within three years of her attaining majority is maintainable and accordingly preliminary decree for partition was passed allotting 1/3^rdshare to the plaintiff and 2/3^rdshare to the third defendant on his payment of required court fee and mesne profit was also allowed to be recovered.

9. Against the judgment and decree, the third defendant filed A.S.No.98/2012 and by the impugned judgment the first

5

appellate court confirmed the judgment and decree passed by the learned Subordinate Judge and dismissed the appeal. Aggrieved by the same, the third defendant approaches this Court by filing this Regular Second Appeal. The appeal was admitted and the following substantial question of law was formulated:

Has not the court below grossly erred in not adverting to the contention that a suit for partition of the plaint schedule property is not maintainable in law without a prayer to set aside Ext.B1 document?

10. Adv. Sri.G. Krishnakumar appeared on behalf of the first respondent. Lower court records were called for and both sides were heard.

11. According to the learned counsel for the appellant/third defendant, both courts below went wrong in ordering the partition of the plaint schedule property which has been purchased by him for valid consideration. It is contended that, the first defendant, as guardian of the plaintiff and as power attorney holder of the second defendant, sold the property to him on receiving valid consideration and the sale of property by the first defendant as guardian of the plaintiff would bind the

6

plaintiff and being the natural guardian no sanction as contemplated under Section 29 of the Guardians and Wards Act, 1890 (for short, the Act) is necessary. It is further contended that the finding made by the learned Munsiff that the document so executed without the permission of the court is voidable and hence it could be avoided by the plaintiff and the suit filed by the plaintiff without a prayer for setting aside the document is maintainable is against the settled principles of law. The first appellate court has not gone into the issue at all and simply finding that the property has been transferred by the first defendant without the knowledge and belief of the plaintiff and property has not been sold for the welfare of the plaintiff; without resorting to proper course of legal procedure in the matter of share of the minor and found that the plaintiff is entitled to 1/3^rdshare, which is without any discussion of law on the subject, the learned counsel contends.

12. In short, the contention of the third defendant is that, the sale deed executed by the first defendant is to discharge the liability of the deceased husband and that is revealed from Ext.B1 document itself and the first defendant being the natural

7

guardian of the plaintiff no permission as contemplated under Section 29 of the Act is to be complied with and hence the sale so conducted by the first defendant will be voidable and not void and partition claimed with respect to that property without a prayer for setting aside the document is not maintainable in law.

13. To support the contention, reliance was placed on Soosa Anthony Decosta Nicholos Decosta v. Emakalaperumal Nadar Sivasubramonia Nadar [1956 KLT 177]; Jincy Mary Johns v. K.P Johny & Anr. [2011 (4) KLT 533] and Ramadas Menon v. Sreedevi . [2004

(1) KLT 323 (F.B.)].

14. It is further contended that along with the appeal memorandum he had filed petition under Order XLI Rule 27 of the Code of Civil Procedure to receive additional documents to prove that actual consideration at the time of execution of the deed was Rs.4,25,000/- instead of Rs.2,50,000/- was shown in the document and bank passbook to prove the transaction has also been produced. But without any reason and on a flimsy ground that it was not pressed into service and he did not file application to get those documents marked, it was not looked into by the first appellate court.

8

15. The learned counsel for the plaintiff on the other hand would contend that the transfer was made not for the welfare of the minor plaintiff by the first defendant and there is no pleading in the written statement filed by the third defendant to the effect that the transfer was made for the benefit of minor plaintiff. In the re-joinder filed to the written statement of the third defendant, the plaintiff specifically alleged that there was no necessity or occasion for transferring her 1/3^rdshare out of the plaint schedule property and she has not authorized anybody to do the same. The sale alleged to have been effected is not for his or her interest or welfare. The transfer has been effected without appointing any guardian for and on behalf of her and hence if at all any transfer has been made it is only a sham document and it will not bind her and can be avoided by her. According to the learned counsel, the rejoinder has to be treated as part of plaint and since there is specific plea by the plaintiff to the effect that the transfer made by the first defendant was out of necessity or for the benefit of the minor plaintiff even if there is no specific relief claimed in the plaint for setting aside the document in view of the pleadings in the plaint and the rejoinder the court ought to have moulded relief and ought to have set aside the document

9

though it has not been specifically sought for in the plaint. To substantiate his contention, the learned counsel placed reliance on Malgireddy Venkata Ramana v. Thippana Narsi Reddy. [AIR 2010 AP 114 : 2010 KHC 6353]; Veevi Ummal Maimoonummal v. Salma Ummal [1957 KLT 1211 : 1957 KHC 287]; Firm Srinivas Ram Kumar v. Mahabir Prasad & Ors. [AIR 1951 SC 177 : 1951 KHC 231]; Patil Exhibitors (Pvt.) Ltd. (M/s.) v. Corporation Of The City Of Bangalore [AIR 1986 Kar. 194 : 1986 KHC 1790] and Narayana Pillai v. Raghavan Pillai [1953 KLT 566 : 1953 KHC

174].

16. From the above rival contentions, following points emerge for consideration:

1. Whether the transfer made by the first defendant is hit by Section 29 of the Act?

2. Whether the suit filed for partition without a prayer for setting aside Ext.B1 document is maintainable in law?

3. Whether the court can mould the relief and grant a decree setting aside the

10

document in view of the plea in the rejoinder raised by the plaintiff?

17. Point Nos.1 & 2:

Since discussion of facts and law on these points are overlapping, to avoid repetition, I find it convenient to discuss these points together.

18. According to the plaintiff, transfer of plaint schedule property was made by the first defendant without her permission or authorization and there was no necessity for transfer of the property and further that the transfer was not for her benefit or protecting her interest and also that no sanction was obtained from the court and hence the Sale Deed, Ext.B1, will not bind her.

19. The learned counsel for the third defendant in this context relies on Soosa Anthony Decosta Nicholos Decosta, in which, Christian Succession Act (11 of 1096, Travancore) applies and the intestate left behind his widow and a son who is having only life estate and a son who gets vested alienable interest in widow's estate immediately on father's death as per Section 24

11

of the said Act. Question arose whether the transfer made by the mother as the guardian of the son would bind the son. In that context it was held that as the son gets a vested interest in the properties over which the mother has a life estate, on the death of father it is transferable property which can be dealt with by him if he is a major even during the life time of the mother and by his legal guardian during his minority. Hence it was held that his mother being his legal guardian, the sale deed executed by her on his behalf is only voidable and not void and he is bound to have them set aside within three years of his attaining majority under Article 44 of the Limitation Act.

20. In Jince Mary Johns, the question arose whether disposal of immovable property of a minor by a guardian who is neither the collector nor a testamentary guardian nor a person appointed or declared by the court to be the guardian of the property of a ward, will not be hit by Section 30 on the ground that previous permission of the court was not obtained in terms of Section 29. The parties in that case were also Christians, in which, father, who had 38 cents of land at the time of his death, which devolved upon his two children and his widow. Para 5 of

12

the said decision is relevant in this context to be extracted, which reads thus:

"5. While S.28 deals with the powers of testamentary guardian and applies to cases where a guardian has been appointed by Will or other instrument, S.29 operates when a person other than the Collector or a testamentary guardian is appointed or declared as a guardian. That limitation of the power of such a guardian of property of a ward in terms of S.29 will stand confined to persons who are appointed or declared by the court to be guardians. S.30 describes the consequences as to voidability of transfers made in contravention of S.28 or S.29. Therefore, Ss.28, 29 and 30 do not have any bearing on a guardian who is neither the Collector nor a testamentary guardian nor a person appointed or declared by the court to be the guardian of the property of a ward. Hence disposal of immovable property of a minor by such a guardian would not be affected by S.30 of the G. & W. Act merely on the ground that previous permission of the Court was not obtained in terms of S.29 of that Act."

Hence ultimately it was found that biological parents have always been recognized as the natural guardians. The concept of 'legal guardian' is understood and Sections 28, 29 and 30 will not have any bearing of a guardian who is neither a Collector nor a testamentary guardian nor a person appointed or declared by the Court to be the guardian of the property of a ward, the

13

minor. Hence disposal of property by a natural guardian will not be hit by Section 30 of the Act merely on the ground that previous permission of the court was not obtained in terms of Section 29 of the Act.

21. In Ramadas Menon while dealing with Section 8 sub clause (3) of the Hindu Minority and Guardianship Act, 1956 a question referred by a Division Bench to Full Bench as to whether the alienation of immovable property by natural guardian without obtaining permission of the court is void or voidable since there were many decisions taking two views. Full Bench made detailed analysis of the case laws on the subject. Ultimately quoted Vishwambhar & Ors vs Laxminarayan (Dead) Through [(2001) 6 SCC 163] wherein it has been held that S.8(2) of the Hindu Minority and Guardianship Act, it is laid down interalia that the natural guardian shall not without previous permission of the court, transfer by sale any part of immovable property of the minor. In sub-section (3) of the said Section it is specifically provided that any disposal of immovable property by a natural guardian in contravention of sub-section 2 is voidable at the instance of the minor or any person claiming under him.

14

Hence, Full Bench answered the reference by holding that there should be a prayer to set aside the alienation effected by the natural guardian without the court's sanction and the plaintiff cannot merely ignore the sale deed.

22. After the Full Bench answered the point referred, Ramadas Menon was ultimately disposed by the Division Bench of this Court as per the judgment dated 06.10.2004 in A.S.No.451/1991, as per which, the Division Bench on the basis of submission by the learned counsel for the appellant that there was no relief to set aside the sale and so far as the fraud is concerned, nothing has been stated and on going through the plaint no averment regarding fraud was also found a place and further taking into account the fact that there was no prayer for setting aside the document the judgment and decree of the court below was set aside and suit was dismissed. Though the learned counsel for the appellant in that case requested to send back the case to the lower court, it was also declined. On going through the facts of the case, it is seen that, that was also a case instituted for partition of plaint schedule property by avoiding a sale deed executed by the plaintiff's mother in that case on her own behalf

15

and as the guardian of the plaintiff. The property belonged to the father of the plaintiff and on his death the property devolved upon on his heirs, the plaintiff and her mother. Along with Ext.B3 sale deed in that case the possession was also handed over to the defendant and he is in actual possession and enjoyment of the property. The sale deed was attacked by the plaintiff on the ground that the permission of the court under Section 8 of Hindu Minority and Guardianship Act was not obtained by the mother for the alienation and consequently it was invalid and it did not convey her interest over the property to the defendant. It is also alleged that it was brought out by undue influence and there was no necessity for the sale etc. In view of the divergent views in the matter, the question as to whether such a document is void or voidable was referred for the decision of the Full Bench which was ultimately disposed as afore.

23. The learned counsel for the plaintiff bring to my attention Section 28 of the Act which deals with the powers of a testamentary guardian. It has been provided therein that where a guardian has been appointed by will or other instrument, his power to mortgage or charge, or transfer by sale, gift, exchange

16

or otherwise, immovable property belonging to his ward is subject to any restriction which may be imposed by the instrument, unless he has under this Act been declared guardian and the court which made the declaration permits him by an order in writing, notwithstanding the restriction, to dispose of immovable property specified in the order in a manner permitted by the order.

24. Section 29 of the Act deals with limitation of powers of guardian of property appointed or declared by the Court, which provides that where a person other than a Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court,—

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or

(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the

17

date on which the ward will cease to be a minor.

25. Section 30 of the Act deals with the voidability of transfers made in contravention of Section 28 or Section 29 and provides that disposal of immovable property by a guardian in contravention of either of the last two foregoing sections (Sections 28 and 29) is voidable at the instance of any other person affected thereby.

26. In Jince Mary Johns it has been categorically held that Section 28 deals with the powers of testamentary guardian and applies to cases where a guardian has been appointed by Will or other instrument and Section 29 operates when a person other than a Collector or a testamentary guardian is appointed or declared as a guardian. It is also categorically held that limitation of power of such a guardian of a property of a ward in terms of Section 29 is confined to persons who are appointed or declared by the court to be guardians Sections 28, 29 and 30 and will not have any bearing on a guardian who is neither the Collector nor a testamentary guardian nor a person appointed or declared by the court to be the guardian of the property of a

18

ward. So the transfer so effected by the natural guardian as per Section 30 of the Act would be voidable [See: Ramadas Menon, referred above] and the plaintiff cannot merely ignore the sale deed and there should have been a prayer to set aside the alienation effected by the natural guardian without the court's sanction.

27. Admittedly in this case the plaintiff has not sought for cancellation of the document. A simple suit for partition alone has been filed. The learned Munsiff though found that the document is voidable further wrongly found that plaintiff can either accept it or ignore it and if the plaintiff ignore it, she can file suit for partition within three years from the date of her majority and it is found that the suit is within three years from the date of majority and accordingly it was found that the plaint schedule property is partiable and plaintiff is entitled for 1/3^rd share.

28. As per the settled principles above discussed, though the finding of the learned Munsiff that the document executed by the first defendant in favour of the third defendant is voidable is correct the further finding that the plaintiff can avoid it is against the

19

settled principles and is liable to be set aside. The first appellate court, as rightly contended by the learned counsel for the third defendant, did not make any finding as to the nature of the document as to whether it is void or voidable and simply found that the defendants sold the property without resorting to proper course of legal procedure in the matter of share of plaintiff and confirmed the findings of the learned Munsiff.

29. So, from the above, it could be gathered that the first appellate court was also of the view that the permission of the court ought to have been obtained prior to transfer the property of minor plaintiff. The settled principles above discussed would emphatically laid down the proposition of law that in the case of alienation by natural guardian either Sections 28 or 29 of the Act will have no application. On attaining majority, as per Section 30 of the Act, the plaintiff ought to have sought for setting aside the alienation effected by the natural guardian, the first defendant without the court's sanction and she cannot merely ignore the sale deed and sue for partition. So the learned Munsiff as well as the first appellate court have went wrong in deciding the legal issue involved in the transfer of

20

property by the first defendant, being the natural guardian of the plaintiff. Accordingly, point Nos.1 & 2 are answered against the plaintiff.

30. Point No.3:

The next question would be whether the contention of the learned counsel for the plaintiff that the court should mould the relief in view of the pleadings in the rejoinder and has to set aside the document with a direction to pay the court fee since there is already a specific allegation in the rejoinder that the transfer was not effected for the benefit or to safeguard the interest of the minor. In this context, the learned counsel for the third defendant would vehemently contend that the father of the plaintiff was highly indebted and hence the first defendant wanted to sell the property in order to clear the liabilities and even though the sale consideration has been shown as Rs.2,50,000/- in Ext.B1 document, the actual consideration for the sale deed was Rs.4,25,000/-. To substantiate that contention, along with the appeal memorandum, he had filed a petition under Order XL1 Rule 27 of C.P.C. to receive the additional documents which include the receipt issued by the first plaintiff

21

for Rs.4,25,000/- paid by him at the time of sale of property and also the bank passbook to show the payment so effected by him on that day by closing the account in the bank. So according to him, it was due to dire necessity the first defendant sold the property and probably for the purpose of evading stamp duty only Rs.2,50,000/- has been shown in Ext.B1 as the value of property.

31. On going through the records, it is seen that the appeal was originally filed before the High Court and subsequently it was returned for presentation before the proper court. The records in this case also would go to show that the appeal has been filed as unnumbered RFA. ...../2012 before this Court and as per the order dated 05.12.2012 this Court returned the appeal for presentation before the proper court. Along with that appeal memorandum, appellant/third defendant had filed an interlocutory application for receiving additional documents which is the receipt issued by the first defendant for Rs.4,25,000/- and also the passbook issued from Nilambur Co- operative Urban Bank standing in the name of Pious Sebastian, the husband of the first defendant, which would show that a

22

deposit of Rs.4,24,652/- was made on 21.03.2005 and account was closed. The receipt issued from Nilambur Co-operative Urban Bank for Rs.4,24,652/- has also been produced. But, the first appellate court, as rightly contended by the learned counsel for the third defendant, had found that appellant did not press into service those documents nor did file any application to get those documents marked. It is borne out from the appeal memorandum itself that those documents were produced along with a petition filed under Order XLI Rule 27 of the Code of Civil Procedure to receive those documents. Whatever it be, the documents have not been received and brought in evidence.

32. Now the question is whether on the ground that such a contention has been raised in the rejoinder by the plaintiff to the effect that the sale was not for the welfare or for the benefit or to protect the interest of the minor plaintiff the court is empowered to set aside the document even though there is no specific prayer in that regard in the plaint. The learned counsel relies on Malgireddy Venkata Ramana, to support his contention that the averments in the rejoinder can be read as additional facts and plaintiff can be permitted to file rejoinder to explain the additional facts which has been incorporated in the written

23

statement.

33. In the present case, the records also will go to show that the petition to receive the rejoinder has been allowed without objection. To support the contention regarding moulding of relief, learned counsel relies on Firm Sriniwas Ram Kumar, referred above. But that was a case in which suit was filed for specific performance of contract and in part performance of which plaintiff alleged to have paid some money to the defendant and defendant denies the contract and pleaded that money was taken by him as a loan. In the said circumstances, it was held by the Apex Court that court can pass a decree for recovery of the loan in favour of the plaintiff on his failure to prove the contract even though the plaintiff had failed to plead and claim relief on that relief alternatively for recovery of loan. But the recovery of amount on failure to get the relief of specific performance of contract is a plea which used to be alternatively pleaded and is a one which goes with the main pleadings in the plaint.

34. In Patil Exhibitors (Pvt.) Ltd., it has been held that, if a relief, either interlocutory or final, is consistent with and flows from the very case of the opposite side or what must be held necessarily consistent with it, and does not take the opposite

24

side by surprise, then court can mould the relief accordingly.

35. Veevi Ummal Maimoonummal, it has been held that amendment of the plaint is not necessary to grant proper relief to the plaintiff in excess of the plaint claimed. That was a suit for partition and Munsiff had no pecuniary jurisdiction to try the suit when it was filed and subsequently the jurisdiction was raised pending the proceedings. In the said circumstances, it was held that amendment of the plaint is not necessary to grant proper relief to the plaintiff. It is further found that the plaintiff should have been directed to pay the court fee on the enhanced claim before the decree was passed. So, according to the learned counsel, though prayer for setting aside the document was not sought for in the plaint, in view of the averments in the rejoinder that the sale deed was not executed for the benefit or for the welfare of the minor plaintiff the court ought to have set aside the document since there is no evidence to substantiate that the property was sold for the benefit of the minor plaintiff. It is also his contention that the burden to prove that the document was executed for the benefit of the minor plaintiff is upon the third defendant.

36. It is true that this is a case in which either side did not

25

adduce any oral evidence. Plaintiff produced Ext.A1, the certified copy of sale deed by which her father purchased the property and defendant produced Ext.B1 the attested copy of the Jenmom Assignment Deed stating that the original is mortgaged with the bank. So neither side adduced any evidence. But, according to the learned counsel for the third defendant, Ext.B1 document itself would go to show that the title document was mortgaged with Nilambur Co-operative Urban Bank and money was taken as over draft by the deceased and subsequently he died and since the interest is enhancing day-by-day in order to clear off the liabilities there is no other way than to sell the property and in the presence of mediators including the 3^rddefendant, who is the brother of the deceased husband of the first defendant the third defendant agreed to purchase the property and accordingly the property was sold to him. So on a bare reading of Ext.B1 would make it clear that the property was sold out of dire necessity to clear off the debt of the deceased. Though the third defendant produced additional documents to prove the actual amount given by him to clear off the debt that has not been accepted by the first appellate court also. The transfer was in the year 2005 and the plaint schedule property is 3.5 cents and a

26

building. The first defendant-mother, who sold the property to the third defendant, filed written statement contending that she sold the property bonafide to the third defendant believing that the plaintiff will not have any objection with regard to the same and hence the suit is not maintainable and has to be dismissed. It is further categorically stated that the property has been given possession to the third defendant. So Ext.B1 document reveals the liabilities of the deceased Pious Sebastian and that the third defendant agreed to purchase the property as per a mediation talk. So such a transfer bonafide made by the natural guardian of the plaintiff would bind the plaintiff and there is nothing in evidence to show that the transfer was effected not for the benefit of the minor plaintiff. Since plaintiff has not made a specific plea for cancellation of the document in the plaint the third defendant is not expected to adduce further evidence to prove that the transfer was for the benefit of the minor plaintiff.

37. It is to be noted that this is a case filed by the plaintiff seeking for partition of the plaint schedule property alone. It has already been found that in order to claim partition plaintiff ought to have sought for cancellation of the document. None of the decisions relied on by the learned counsel would go to the

27

extent of holding that in a suit filed for partition the court can mould the relief to the extent of cancelling a document without a prayer for cancellation of the document especially when the defendant claims right and title based on that document. The relief for partition and setting aside a document cannot be taken as an alternative relief or additional relief which goes in consonance with the plaint relief already claimed as has been held in the decisions relied on by the learned counsel. So the contention of the learned counsel that the court can mould the relief and grant a decree for cancelling Ext.B1 document in view of the averments in the rejoinder filed by the plaintiff is not sustainable and is hereby negatived.

In the result, the judgment and decree passed by the courts below are hereby set aside and appeal allowed dismissing the suit. Considering the facts and circumstances and relationship between the parties, there is no order as to costs. Sd/-

M.R.ANITHA

SHG JUDGE