Kerala High Court

R.Hareesh Babu vs Anju Hariharan on 6 February, 2024

              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.
 RSA NO. 392 OF 2022
                                   2


    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:
 RSA NO. 392 OF 2022
                               3



                                                              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.

2. Heard both sides. Perused the lower court

records.

3. I shall refer the parties in this regular second

appeal as 'plaintiff' and 'defendants' for convenience.

4. At the time of admission, this Court formulated the

following substantial questions of law as per order dated

01.07.2022.

RSA NO. 392 OF 2022

"1. When the plaintiff, a minor, who was represented by the mother - the natural guardian is it legal to find that the minor was not properly represented at the time of earlier suit?

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?"

5. This is a suit filed by the plaintiff, Anju Hariharan, RSA NO. 392 OF 2022

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.

6. The first defendant filed written statement and

resisted the suit contending that the entire proceedings in

execution of O.S.No.391/1997 were over and therefore, the

present suit to set aside the decree and judgment in O.S.

No.391/1997 is not sustainable. The second defendant also

filed written statement specifically contending that this is a RSA NO. 392 OF 2022

suit filed in collusion between the plaintiff and the third

defendant.

7. The trial court recorded evidence and ventured the

matter. PW1 examined and Exts.A1 to A6 were marked on

the side of the plaintiff. DW1 examined and Ext.B1 to B6

were marked on the side of the defendants. Ext.C1 series

marked as court exhibits and X1 and X2 series also were

marked.

8. Finally, the trial court decreed the suit, declaring

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.

9. Although appeal filed challenging the said verdict,

the said appeal also was dismissed.

RSA NO. 392 OF 2022

10. The learned counsel for defendants 5 and 6, who

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 RSA NO. 392 OF 2022

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. RSA NO. 392 OF 2022

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."

11. Per contra, it is submitted by the learned counsel

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 RSA NO. 392 OF 2022

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.

12. Order XXXII of CPC deals with suit by or against

minors and persons of unsound mind. Order XXXII Rule 3 of

CPC provides that where the defendant is a minor, the Court,

on being satisfied of the fact of his minority, shall appoint a

proper person to be guardian for the suit for such minor.

Order XXXII Rule 3(2) of CPC provides that an order for the

appointment of a guardian for the suit may be obtained upon

application in the name and on behalf of the minor or by the

plaintiff.

13. Order XXXII Rule 3(3) of CPC provides that such

application shall be supported by an affidavit verifying the

fact that the proposed guardian has no interest in the matters RSA NO. 392 OF 2022

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).

14. Order XXXII Rule 3(4) of CPC provides that no

order shall be made on any application under this rule except

upon notice to any guardian of the minor appointed or

declared by an authority competent in that behalf, or, where

there is no such guardian upon notice to the father or where

there is no father, to the mother, or where there is no father

or mother, to other natural guardian of the minor, or, where

there is no father, mother or other natural guardian, to the

person in whose care the minor is, and after hearing any

objection which may be urged on behalf of any person

served with notice under this sub-rule.

15. Order XXXII Rule 3 (4A) of CPC provides that the

Court may, in any case, if it thinks fit, issue notice under sub-

rule (4) to the minor also.

RSA NO. 392 OF 2022

16. Order XXXII Rule 3(5) of CPC provides that a

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.

17. On a plain reading of Order XXXII Rule 2 CPC, it

provides that an order of appointment of a guardian for the

suit may be obtained on application in the name and on

behalf of the minor or by the plaintiff. Going by the

proceedings of the trial court in O.S.No.391/1997, as borne

out from Ext.A3 judgment and Ext.A4 B diary proceedings, it

could be gathered that soon after filing of O.S.No.391/1997,

notice was issued to the 1st defendant in her capacity as

defendant as well as the guardian of the 2 nd defendant/minor.

But she did not turn up. In such contingency, the court should

have appointed a proper guardian to represent the minor to RSA NO. 392 OF 2022

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.

18. In the case at hand, even though the court issued

notice to the 1st defendant, the proposed guardian, the court

never appointed a guardian to protect the interest of the

minor. No court guardian also was appointed. Thus it is

discernible that the proceedings in O.S.No.391/1997 was

proceeded without a proper guardian for and on behalf of the

minor. It is true that Order XXXII Rule 3A of CPC provides

that no decree passed against a minor shall be set aside

merely on the ground that the next friend or guardian for the

suit of the minor had an interest in the subject-matter of the

suit adverse to that of the minor, but the fact that by reason

of such adverse interest of the next friend or guardian for the

suit, prejudice has been caused to the interests of the minor, RSA NO. 392 OF 2022

shall be a ground for setting aside the decree.

19. When an exparte decree is obtained without

appointing a proper guardian for the minor to protect his

interest, it cannot be held that the right of the minor not at all

prejudiced. If so, as per Order XXXII Rule 3A(2) of CPC, the

minor could obtain any relief available under any law by

reason of the misconduct or gross negligence on the part of

the next friend or guardian for the suit, resulting in prejudice

to the interests of the minor. In the case at hand, no guardian

was appointed at all and therefore, decree in

O.S.No.391/1997 is a nullity as far as the minor is concerned.

Be it so, the present suit seeking half share of the minor, in

exclusion of the decree in O.S.No.391/1997 and further

proceedings as granted by the trial court, is perfectly justified.

Therefore, it is held that the plaintiff herein is not bound by

the decree in O.S.No.391/1997 and the execution

proceedings pursuant to the decree in O.S.No.391/1997, for

want of appointment of guardian to the minor and the plaintiff, RSA NO. 392 OF 2022

who was not properly represented either in the suit or in the

execution proceedings.

20. In a suit of this nature, when the decree as against

a minor is set aside, definitely, an opportunity shall be given

to the plaintiff in the earlier suit (i.e., O.S.No.391/1997), who

is the 1st defendant herein, to sue against the minor, now

attained majority, to get a part of the decree debt, which was

not satisfied by the half right he got on court auction sale. In

this context, the learned counsel for the defendants

submitted that the first defendant/decree holder in

O.S.No.391/1997 had discharged liability to the tune of

Rs.61,353/- (Rupees sixty one thousand three hundred and

fifty three only) subsisted with District Co-operative Bank,

Pallippad branch, Alappuzha. Therefore, it is submitted that

since the minor's share is separated from the property

auctioned and delivered in favour of the first

defendant/decree holder, was given in favour of the minor,

the amount due to the first defendant from the father of the RSA NO. 392 OF 2022

minor allowed to be realised by allowing the first defendant to

proceed with the suit, O.S.No.391/1997, against the plaintiff

herein.

21. Whereas it is submitted by the learned counsel for

the plaintiff that going by the evidence of DW1, supported by

Exts.X1 and X2, the property was sold for the decree debt

covered by the decree in O.S.No.391/1997. It is true that,

the first defendant/decree holder discharged the liability of

Rs.61,353/- in favour of the District Co-operative Bank,

Pallippad, Alappuzha. But as per the evidence given by

DW1, the Branch Manager of District Co-operative Bank,

Pallippad, and as per Ext.X2, the valuation done as on

25.02.1995, at the time of availing loan, the value of the

property was Rs.5,20,000/-. On perusal of the evidence of

DW1, DW1 admitted that Hariharan Pillai availed loan CPL

2994-95 as on 25.02.1995 and at the time when property

(plaint schedule property herein) was valued, the same was

Rs.5,20,000/- (Rupees five lakh twenty thousand only) at the RSA NO. 392 OF 2022

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.

22. In view of the discussion, the substantial questions

of law answered as under:

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 RSA NO. 392 OF 2022

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.

23. Accordingly, it is held that the trial court rightly

decreed the suit and the appellate court confirmed the same

on re-appreciation of evidence.

24. In the result, this regular second appeal stands

dismissed.

RSA NO. 392 OF 2022

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/-