IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 408 of 2005(F)
1. KUNJAMMA, W/O. MOHAN,
... Petitioner
2. JANCY MOHAN, D/O. LATE MOHAN,
3. BODHI P.MOHAN, S/O. LATE MOHAN,
4. KABINI P.MOHAN, D/O. LATE MOHAN,
Vs
1. P.G.THANIA, D/O. GOMATHY AMMA,
... Respondent
For Petitioner :SRI.S.SANAL KUMAR
For Respondent :SRIR.AZAD BABU
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :09/10/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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R.S.A. NO. 408 OF 2005
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Dated this the 9th day of October, 2007
JUDGMENT
Defendants in O.S.No.950/2001 on the file of
Munsiff Court, Alappuzha are the appellants.
Plaintiff is the respondent. Respondent instituted
the suit seeking a decree for mandatory injunction
to vacate the plaint schedule building contending
that plaint schedule property belongs absolutely to
the respondent under Ext.A3 partition deed and
appellants were jointly allotted B schedule
property under Ext.A3 partition deed and they have
no right over the plaint schedule property and
respondent permitted appellants to reside in the
building in the property free of rent, as
respondent was residing outside the State due to
their employment and after the husband of the
respondent retired from service, due to cardiac
surgery he was practically invalid and respondent
is living with the meagre pension and she intends
R.S.A.408/2005 2
to return to the native place and take up
residence in the plaint schedule property and
therefore licence granted to the appellants were
revoked and they were directed to surrender vacant
possession of the building, but they are not
prepared for the same. Suit was instituted for a
mandatory injunction directing appellants to
surrender vacant possession of building. First
appellant filed a separate written statement
contending that she has no authority to bind the
other appellants who were minors at the time of
execution of the partition deed and the partition
deed is not binding on the minor children and
respondent did not pay the amount as directed
under the partition deed and therefore first
appellant is not liable to surrender vacant
possession of the building and respondent is not
entitled to the decree sought for. Appellants 2 to
4 in their joint written statement contended that
Ext.A3 partition deed was not binding on them and
the partition deed is void abinitio and first
R.S.A.408/2005 3
appellant is not entitled to bind the other
appellants, who were only minors at the time of
executing the partition deed or to execute it on
their behalf and first appellant is a lady without
any education and respondent played fraud on her
and created Ext.A3 and respondent is not entitled
to the decree sought for.
2. Learned Munsiff on the evidence of PW1 and
Exts.A1 to A5 rejected the case of the appellants
that Ext.A3 partition deed is not binding on the
appellants 2 to 4 holding that Section 8(2) of
Hindu Minority and Guardianship Act has no
application to a partition entered into by the
co-sharers and under Ext.A3 properties were
allotted to the appellants jointly and Ext.A3 is
binding on the appellants. But it was found that
even if Ext.A3 is voidable at the instance of the
minor children, they should have filed a suit
within three years of attaining majority and as
they did not do so, they are not entitled to
challenge the partition deed. Accepting the
R.S.A.408/2005 4
evidence of PW1 learned Munsiff held that
appellants are residing in the building as
permitted by respondent and as that licence was
terminated, respondent is entitled to the decree
sought for. Holding that respondent did not
establish that she is entitled to get mesne profits
as claimed in the suit, a decree for mandatory
injunction directing appellants to surrender vacant
possession of the building was passed.
3. Appellants challenged the decree and
judgment before Sub Court, Alappuzha in
A.S.135/2004. Appeal was filed after the period of
limitation, along with I.A.2322/2004 an application
to condone the delay of two months and eight days
in filing the appeal. Learned Sub Judge not
satisfied with the grounds shown by the appellants
to condone the delay, dismissed I.A.2322/04 and
consequently dismissed the appeal as barred by
time. This appeal is filed challenging the
dismissal of the appeal contending that first
appellate court should not have dismissed the
R.S.A.408/2005 5
application to condone the delay in filing the
appeal and should have found that Ext.A3 partition
deed is not binding on appellants 2 to 4 who are
minors at the time of execution of the partition
deed.
4. As notice before admission was issued
respondent appeared through a counsel.
5. Learned counsel appearing for appellants
and respondent were heard.
6. The argument of learned counsel appearing
for appellants is that first appellate court should
not have denied an opportunity to the appellants to
have a decision on merits and in the interest of
justice delay of 68 days in filing the appeal
should have been condoned and dismissal of the
appeal is to be set aside. Learned counsel counsel
also argued that when Ext.A3 partition deed was
entered into, appellants 2 to 4 were minors and no
permission of the court was taken for executing
Ext.A3 partition deed and Ext.A3 partition deed was
not for the benefit of appellants 2 to 4 the minor
R.S.A.408/2005 6
children and therefore it should have been found
that Ext.A3 is not binding on the appellants 2 to
4 and if so appellants being co-owners are entitled
to continue their residence in the building and
therefore the decree is unsustainable. Learned
counsel also argued that even if Ext.A3 is taken as
binding on all the appellants, it being the
dwelling house of the appellants, which was
allotted to respondent under Ext.A3, they have a
right of residence in the dwelling house being the
female children or and therefore a decree for
mandatory injunction should not have been granted.
Learned counsel appearing for respondent pointed
out that for executing Ext.A3 partition deed, no
permission of the court as provided under section 8
(2) of Hindu Minority and Guardianship Act, 1956 is
necessary and as rightly found by courts below,
Ext.A3 cannot be challenged for non-compliance of
Section 8(2) of the Act. Learned counsel also
argued that under Ext.A3, plaint schedule
property was allotted to the share of respondent
R.S.A.408/2005 7
and as respondent was residing outside the State,
appellants were permitted to reside in the building
and their residence in the building could only be
as a licensee and as respondent had to return back
to the native place after retirement of her
husband, intimation given and inspite of
termination of licence, appellants did not
surrender vacant possession and therefore
respondent is entitled to the decree for mandatory
injunction granted by the trial court. It was
further argued that there is no merit in the first
appeal itself and in such circumstance, there is no
necessity to remand the suit for fresh disposal
after condoning the delay as sought for by the
learned counsel for appellants.
7. Appeal was admittedly not filed within
time. Though delay was only 68 days, the reason
shown for condoning the delay was pendency of
settlement talk between the parties, which was
denied by respondent. The decree was passed by the
trial court on 30.10.2003. First appellate court
R.S.A.408/2005 8
found that for execution of the decree, respondent
filed E.P on 16.9.2004 and delivery of the property
was ordered on 9.12.2005. Even then, appeal was
not filed immediately. Appeal was filed only on
20.12.2004. The copy of the judgment of the trial
court establish that carbon copy of the judgment
was received as early as 4.12.2003. The question
is whether in such circumstance dismissal of the
application for condonation on the ground that
there is no satisfactory reason for non filing of
the appeal within time. As rightly pointed out by
first appellate court, when the only reason shown
by appellants to condone the delay is the pendency
of settlment talk between the parties and facts
revealed would establish that there was no
settlement talk and inspite of the decree for
mandatory injunction and filing of execution
petition in September, 2004, it cannot be believed
that appellants did not file an appeal because
of a settlement talk. In such circumstance, it
cannot be said that dismissal of the application
R.S.A.408/2005 9
for condonation of delay was unjustifiable.
8. Even on merits, I do not find that
appellants are entitled to get any relief in the
appeal. As rightly found by the trial court,
Section 8(2) of Hindu Minority and Guardianship Act
cannot apply to the execution of a partition deed
whereunder properties obtained by three children
of Gomathyamma were partitioned between the
daughter and legal heirs of deceased son, the
appellants herein, and mother Gomathyamma.
Therefore appellants are not entitled to challenge
Ext.A3 on the ground that they are minors at the
time of execution of Ext.A3 or on the ground that
no leave of the court was obtained for entering
the partition deed. If that be so, Ext.A3 is
binding on the appellants.
9. Under Ext.A3 plaint schedule property was
allotted to the respondent. Hence respondent has
title to the property. It was argued by learned
counsel appearing for appellants that eventhough
Ext.A3 provides for payment of Rs.20,000/- to the
R.S.A.408/2005 10
appellants it was not paid and therefore respondent
is not entitled to claim title under Ext.A3. Even
if the argument of the learned counsel that
respondent did not perform her obligation is
accepted, remedy of appellants is to realise
Rs.20,000/- due to them under Ext.A3 partition
deed. They are not entitled to challenge the title
of respondent obtained under Ext.A3. Therefore
respondent is entitled to claim possession of the
building, on the strength of the title.
10. Learned counsel appearing for appellants
also argued that under section 23 of Hindu
Succession Act, first appellant and appellants 2
and 4 being the female children of first appellant
have a right of residence in the building which was
the dwelling house separated under Ext.A3 and
therefore respondent is not entitled to a decree
for mandatory injunction. The argument based on
Section 23 advanced by the learned counsel cannot
also be accepted. Section 23 provides that where a
Hindu intestate has left surviving him or her both
R.S.A.408/2005 11
male and female heirs specified in Class I of the
Schedule and his or her property includes a
dwelling house wholly occupied by members of his or
her family, then, notwithstanding anything
contained in the Act, the right of any such female
heir to claim partition of the dwelling house shall
not arise until the male heirs choose to divide
their respective shares therein, but the female
heir shall be entitled to a right of residence
therein. What is provided under section 23 is that
when a property which is left behind by a Hindu
intestate is to be divided between male and female
heirs as provided under Schedule I, and the
property so divided includes a dwelling house
wholly occupied by members of his or her family,
then a female heir is not entitled to seek
partition unless the male heir choose to divide
the property. It has no application in a case
where the property has already been divided as in
the instant case. Moreover, because of the
repealing of section 23, by Amendment Act 39 of
R.S.A.408/2005 12
2005, appellants are not entitled to advance the
plea based on Section 23. In such circumstance, I
find no substantial question of law involved in the
appeal.
The appeal is dismissed.
Learned counsel appearing for appellants then
submitted that a reasonable time may be granted to
the appellants to surrender vacant possession of
the building. Appellants are granted three months
time to surrender vacant possession of the
building.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006