Kerala High Court
Antony @ Jijo vs Paul on 21 January, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM CR
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 21ST DAY OF JANUARY 2025 / 1ST MAGHA, 1946
RSA NO. 902 OF 2020
AGAINST THE JUDGMENT & DECREE DATED 18.03.2019 IN AS NO.58 OF 2014
OF ADDITIONAL SUB COURT,IRINJALAKUDA ARISING OUT OF THE JUDGMENT & DECREE
DATED 31.01.2014 IN OS NO.300 OF 1995 OF MUNSIFF COURT, KODUNGALLUR
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 ANTONY @ JIJO
AGED 42 YEARS
S/O. THATTAKATH ANTONY, THATTAKATH HOUSE, POYYA DESOM AND
VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 733
2 SHICY,
AGED 33 YEARS
W/O. LATE JOSEPH, THATTAKATH HOUSE, POYYA DESOM AND VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 733
3 EVERIN,
AGED 12 YEARS
D/O. LATE JOSEPH, THATTAKATH HOUSE, POYYA DESOM AND VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 733(MINOR
REPRESENTED BY THEIR MOTHER AND GUARDIAN,THE 2ND RESPONDENT)
4 ANGEL
AGED 11 YEARS
S/O. LATE JOSEPH, THATTAKATH HOUSE, POYYA DESOM AND VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 733(MINOR
REPRESENTED BY THEIR MOTHER AND GUARDIAN,THE 2ND RESPONDENT)
5 ANTO
AGED 9 YEARS
S/O. LATE JOSEPH, THATTAKATH HOUSE, POYYA DESOM AND VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 733(MINOR
REPRESENTED BY THEIR MOTHER AND GUARDIAN,THE 2ND RESPONDENT)
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BY ADVS.
K.B.PRADEEP
SHRI.HARISANKAR R
SMT.PRIYA MARY P.L.
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 PAUL
AGED 43 YEARS
S/O. PANJIKKARAN KOCHOUSEPH, POYYA DESOM VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 733
2 HARIHARAN,(DIED) LHS IMPLEADED
AGED 54 YEARS
S/O. ARAKKAPARAMBIL GOPALAN MENON, POYYA DESOM VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 733
3 ROSY,
AGED 63 YEARS
W/O. PANJIKKARAN KOCHOUSEPH, POYYA DESOM VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 733
4 JOY
AGED 40 YEARS
S/O. PANJIKKARAN KOCHOUSEPH, POYYA DESOM VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 733
5 ELSY,
AGED 38 YEARS
D/O. PANJIKKARAN KOCHOUSEPH, POYYA DESOM VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 733
6 LISSY,
AGED 34 YEARS
D/O. PANJIKKARAN KOCHOUSEPH, POYYA DESOM VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 733
7 LILLY,
AGED 32 YEARS
D/O. PANJIKKARAN KOCHOUSEPH, POYYA DESOM VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 733
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8 LEENA,
AGED 30 YEARS
D/O. PANJIKKARAN KOCHOUSEPH, POYYA DESOM VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 733
9 JAISON,
AGED 28 YEARS
S/O. PANJIKKARAN KOCHOUSEPH, POYYA DESOM VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 733
10 ALEX,
AGED 24 YEARS
S/O. PANJIKKARAN KOCHOUSEPH, POYYA DESOM VILLAGE,
KODUNGALLUR TALUK, THRISSUR DISTRICT, PIN 680 733
ADDL R11 LATHA
W/O.LATE HARIHARAN,ARAKKAPARAMBIL, POYYA DESOM &
VILLAGE,KODUNGALLUR TALUK,THRISSUR DISTRICT,PIN-680733.
ADDL R12 AKHIL
S/O.LATE HARIHARAN,ARAKKAPARAMBIL, POYYA DESOM &
VILLAGE,KODUNGALLUR TALUK,THRISSUR DISTRICT,PIN-680733.
ADDL R13 ASHWATHI,
D/O.LATE HARIHARAN,ARAKKAPARAMBIL, POYYA DESOM &
VILLAGE,KODUNGALLUR TALUK,THRISSUR DISTRICT,PIN-680733. (ARE
IMPLEADED AS LEGAL HEIRS OF DECEASED R2 AS ADDITIONAL
RESPONDENTS R11 TO R13 AS PER ORDER DATED 22.10.2021 IN
IA.NO.4/2021)
R2 AND ADDL R11 TO R13 BY ADV V.M.KRISHNAKUMAR
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21.01.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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CR
JUDGMENT
1. Appellants are the plaintiffs in O.S No.300/1995 of the Munsiff's
Court, Kodungalloor. The plaintiffs are brothers. They challenge
the concurrent judgments and decrees of the Trial Court and First
Appellate Court dismissing their suit.
2. The suit was originally filed against three defendants. During the
pendency of the suit, the 1st defendant died, and his legal heirs
were impleaded as additional defendants 4 to 11. The suit was filed
for declaring that Ext.B2 Sale deed executed by the father of the
plaintiffs on behalf of them during their minority with respect to B
schedule Item No.1 property having an extent of 55 ¼ cents in
favour of the 1st defendant and Ext.B3 Sale deed executed by the
father of the plaintiffs on behalf of them during their minority, with
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respect to Plaint B schedule Item No.2 property having an extent
of 6.37 cents in favour of the 2nd defendant, Ext.B4 and B5
documents executed by the 1st and 2nd defendants with respect to
those properties in favour of the 3rd defendant are void and not
binding on the plaintiffs and the plaint Schedule properties; for
consequential relief of setting aside the said documents; for
allowing recovery of possession of Plaint B schedule properties
from the 3rd defendant on the strength of title with mesne profits.
Plaint B Schedule Item Nos 1 and 2 properties are parts of Plaint
A schedule property having an extent of 2 acres 15 cents obtained
by the plaintiffs represented by their father Antony as their natural
guardian as per Ext.A1 Sale deed of the year 1979 during their
minority. As per the plaint allegations on the basis of Ext B4 and
B5 sale deeds executed by defendants 1 and 2, the plaint B
schedule properties are in possession and enjoyment of the 3rd
defendant; the plaintiffs did not enjoy the consideration of the
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above sale deeds; the father of the plaintiffs did not obtain sanction
from the District court Thrissur for Ext.B2 and B3 alienations.
3. Defendants 1 and 2 filed a joint Written Statement, and the 3rd
defendant filed a separate Written Statement opposing the suit
prayers. Defendants 1 to 3 admitted that the plaintiff derived the
title of the plaint schedule property as per Ext.A1, that the father of
the plaintiff transferred plaint B schedule properties in favour of
defendants 1 and 2 as per Ext.B2 and B3 and that the 3rd
defendant purchased the Plaint B schedule properties from
defendants 1 and 2 as per Ext.B4 and B5 Sale Deeds. According
to them, Antony, father of the plaintiffs, transferred plaint B
schedule properties in favour of defendants 1 and 2 for and on
behalf of the plaintiffs upon valid consideration and in good faith.
While executing those Sale deeds, Plaint B schedule properties
were barren land without any cultivation and irrigation facilities.
The plaintiffs did not obtain any usufructs from it. The father of the
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plaintiff did not have the financial capability to cultivate the said
properties. Hence, the father of the plaintiff and relatives formed
an opinion to purchase another cultivating land for the best interest
of the minors. By using the sale consideration received from the
2nd defendant as per Ext.B2, the father of the plaintiffs immediately
purchased 1 acre 42 cents of paddy land for and on behalf of the
plaintiffs from one Anandan through Ext.B1 sale deed using the
sale consideration of Rs.8000 received from the 2nd defendant.
The sale consideration received from the 1st defendant as per
Ext.B3 was utilized for the educational expenses of the plaintiffs
and their family expenses. Every guardian has the right to alienate
the property of the minors for their benefit. The guardian need not
approach the civil court for permission.
4. Originally from the side of the plaintiff, PWs 1 to 5 were examined,
and Ext.A1 to A6 documents were marked, and from the side of
the defendants, DW 1 was examined, and Exts. B1 to B8 were
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marked. The Commission Report and Rough Sketch prepared by
the Advocate Commissioner were marked as Exts.C1 and C1(a).
5. The Trial Court decreed the suit as per judgment and Decree dated
29.08.1998 declaring that Exts.B2 to B5 alienations are not valid
and binding on the plaintiffs, cancelling them and directing the
defendants to reconvey the Plaint B Schedule properties and to
surrender possession of the same to the plaintiffs. The Trial Court
found that the alienations made by the father of the plaintiffs during
the minority of the plaintiffs are invalid for want of sanction under
S.29 of the Guardian and Wards Act, 1890; that Ext.B2 and B3
sale deeds are void; and that the defendants are not entitled to
claim value of improvements as they purchased the property with
the knowledge that it belonged to the minors and that their father
has no right to alienate the property.
6. The defendants challenged the judgment and decree passed by
the Trial Court in A.S.No.163/2003 before the First Appellate
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Court, and the said appeal was dismissed, confirming the
judgment and decree of the Trial Court.
7. The defendants filed a Second Appeal in this court as R.S.A
No.371/2004, and this Court, as per judgment dt 06.04.2011,
allowed the Second Appeal and remanded the matter for fresh
consideration before the Trial Court.
8. The decretal part of the judgment of this Court dt 06.04.2011 in
RSA No.371/2004 is extracted below.
"The appeal is allowed. The decree and judgment passed by the
Munsiff court Kodungallur in OS 300/1995, as confirmed by the
District Judge, Thrissur in AS 161/2003, is set aside. OS
300/1995 is remanded to the Munsiff Court Kodungallur for fresh
disposal. Learned Munsiff to consider whether Ext.B2 and B3
alienations made by Antony, the natural guardian was as prudent
man dealing with his own property and where for the necessity
and benefit of the respondents and if not whether Ext.B2 and B3
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and subsequent transactions are liable to be set aside. If it is to
be found that the alienations are liable to be set aside, appellants
are entitled to the value of improvements, which shall be fixed by
the learned Munsiff or left open to be decided in the execution
proceedings. The learned Munsiff shall necessarily consider
whether the respondents who claimed the benefit under Ext.B1
Sale Deed obtained by the natural guardian in their name
utilizing the consideration received under Ext.B2, can avoid
Ext.B2 assignment deed".
9. This Court held that no permission under the Guardian and Wards
Act is required for alienations by natural guardians, and hence
Ext.B2 and B3 alienations are not bad for want of sanction. It is
also held that if it is found that the alienations are not for the legal
necessity and were not made as a prudent man and, therefore, are
liable to be set aside, the defendants are definitely entitled to the
value of improvements.
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10. After remand, PW1 was examined further and Exts.A7 to A12
were marked. PW2 was further examined, and two other
witnesses, PW6 and 7, were examined from the side of the
plaintiffs. On the side of the defendant, DW1 was further
examined, and Exts. B9 to B14 additional documents were
marked.
11. The Trial Court dismissed the suit as per judgment dt. 31.01.2014
holding that the alienations made by the father of the plaintiffs as
per Exts.B2 and B3 documents were not against the interest of the
minors; that since the minors claimed right and title over the
property covered by Ext.B1 and they obtained delivery of the
property as per the proceedings in OS No.897/1997 instituted by
them as revealed from Exts.B9 to B12, the plaintiffs virtually ratified
the alienations made by their father under Ext.B2 and B3 Sale
Deeds; that the plaintiffs are no adversely affected by the
alienations of the properties by their father; that alienations as per
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Ext.B2 to B5 are for the benefit of the minors; that the plaintiffs who
claimed benefit under Ext.B1 Sale Deed which was obtained by
their father as natural guardian in their name by utilising the
confirmation received under Ext.B2 cannot avoid Ext B2
assignment deed; that Ext.B2 to B5 transactions are binding on
the plaintiffs ; that the plaintiffs are not entitled to recover plaint B
schedule properties from the 3rd defendant; that the question of
improvement does not arise since the right of the 3rd respondent
over the plaint B schedule properties is unaffected by the judgment
and decree and that the suit is not barred by limitation as the suit
was filed within three years from the dates of attaining majority by
the plaintiffs.
12. The plaintiffs filed A.S. No.58/2014 before the First Appellate
Court, and the First Appellate Court dismissed the appeal as per
judgment dt. 18.03.2019 with costs.
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13. The plaintiffs have filed the present Regular Second Appeal
seeking to set aside the judgment and decree passed by the Trial
court, which is confirmed by the First Appellate Court, and to
decree the suit as prayed for.
14. Since there was a delay in filing the Appeal, the respondents were
given notice, and the 2nd respondent appeared through Counsel.
After condoning the delay, the learned Single Judge of this Court
found it better to consider the Appeal after calling for Trial Court
records, and accordingly, the Trial Court and First Appellate Court
records are available before this Court.
15. I heard the learned Counsel for the appellants, Sri. K.B.Pradeep
and the learned Senior Counsel for the 2nd respondent, Sri. Renjith
Thampan, instructed by Adv. Sri V.M Krishna Kumar.
16. The learned Counsel for the appellant contended that the Trial
Court, as well as the First Appellate Court, did not consider
whether the alienations were made by the father of the plaintiffs as
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per Ext.B2 and B3 in accordance with S 27 of the Guardian and
Wards Act, 1890. As per Section 27, the guardian has to do all acts
which are reasonable and proper for the realization, protection, or
benefit of the property. In order to sustain Ext.B2 and B3
alienations there should be specific findings that the alienations
are made for the realization, protection, or benefit of the property
of the minors. The learned Counsel further contended that as per
S.64 and 65 of the Indian Contract Act, the plaintiffs are bound to
restore the benefit derived by them when it is found that Ext.B2
and B3 sale deeds are void and OS No.897/1997 was filed to
obtain Ext.B1 property in order to give back the advantages
derived by them under Ext.B2. The learned counsel cited the
decision of this Court in Susheela N and others v. R.S. Dilin and
others [(2019) 2 KHC 364] in which it is held that when a
document of alienation is put under challenge either by a minor or
through his next friend, they are bound to return the benefit if any
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obtained under the said transaction. Learned Counsel contended
that substantial questions of law are involved in the matter
requiring admission and hearing of the Appeal.
17. On the other hand, the learned Senior Counsel for the 2nd
respondent contended that the remand made by this Court as per
judgment in R.S.A. No.371/2004 is a limited remand to consider
whether Ext.B2 and B3 alienations made by the natural guardian
were as a prudent man dealing with his own property and were for
the necessity and benefit of respondents and if not whether Ext.B2
and B3 and subsequent transactions are liable to be set aside. The
Trial Court, as well as the First Appellate Court, considered the
issues directed to be considered by this Court in the remand order
with reference to the pleadings and evidence in the case and
arrived at the right conclusion that Ext.B2 and B3 and the
subsequent transactions are not liable to be set aside. The findings
of the Trial Court, as well as the First Appellate Court, are only
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findings of fact that could not be interfered with in a second appeal
under S.100 of the Code of Civil Procedure. The learned senior
counsel cited the decision of the Hon'ble Supreme Court in
Thatchara Brothers and another v. M K Mary Mol and others
[(1999) 1 SCC 298] and the decision of this Court in Soosa
Anthony Decosta Nicholos Decosts v. Emakala Perumal
Nadar Siva Subramonia Nadar [1956 KLT 177] to substantiate
the point that in the case of a Christian minor, the father is the
natural guardian. Learned Senior Counsel cited the decision of
the Hon'ble Supreme Court in Mohanlal Goyenka v. Benoy
Krishna Mukherjee and others [AIR 1953 SC 65] to substantiate
the point that even erroneous decision on a question of law
operates as resjudicata between the parties to it and hence the
parties are bound by the remand order passed by this court in
R.S.A No. 371/2004. Learned Senior Counsel cited the decision
of the Madras High Court in Vemul Pallai Seetharamanna and
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others v. Maganti Appiah and another [AIR 1926 Madras 457]
to substantiate the point that the alienation by defacto guardian
even if for necessity of the minor is only voidable and therefore it
can be ratified by the minor on attaining his age of majority. On the
strength of the said decision, the learned Senior Counsel
contended that the plaintiffs ratified Ext.B2 and B3 sale deeds
executed by the natural guardian for and on behalf of them when
they accepted Ext.B1 Sale Deed and obtained delivery of the said
property after setting aside the Sale Deed by which Ext.B1
property was sold. The Regular Second appeal is liable to be
dismissed in limine.
18. I have considered the rival contentions.
19. On going through the Remand Order of this Court in
R.S.A.No.371/2004, it could be gathered that this Court remanded
the matter back to the Trial Court only for a limited purpose. This
Court directed the Trial Court to consider whether Exts.B2 and B3
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alienations made by the father of the plaintiffs were as a prudent
man dealing with his own property and whether the said
alienations were for the necessity and benefit of the plaintiffs. This
refers to the duties of the father of the plaintiffs as a natural
guardian mandated under Section 27 of the Guardian and Wards
Act of 1890. Even though the question of the value of
improvements made by the defendants was also remanded for
consideration, it would arise only if it is found that Exts.B2 to B5
transactions are liable to be set aside. The further direction was to
consider whether the plaintiffs who claimed benefit under Ext.B1
Sale Deed can avoid Ext.B2 Sale Deed. So, the principal question
to be answered by the Trial court is whether the father of the
plaintiffs had discharged his duties as provided under Section 27
of the Guardian and Wards Act, 1890.
20. As per Section 27, a guardian of the property of a ward is bound
to deal therewith as carefully as a man of ordinary prudence would
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deal with it, if it were his own and, subject to the provisions of this
chapter, he may do all acts which are reasonable and proper for
the realization, protection or benefit of the property. Guardian and
Wards Act deals with three types of guardians - natural guardians,
testamentary guardians, and court guardians. The term 'natural
guardian' is not referred to in the Guardian and Wards Act. Section
4(2) defines 'guardian' as a person having the care of the person
of a minor or of his property, or both his person and property. Court
guardian is appointed under Section 7 of the said Act. A
testamentary guardian is appointed by a Will or other instrument.
Though the term 'natural guardian' is not referred to in the
Guardian and Wards Act, natural guardian is also included in the
definition of guardian. Chapter III deals with the duties, rights, and
liabilities of guardians. Section 27 comes under the head
'Guardian of property.' It is of general application to all types of
guardians. But in the case of a testamentary guardian, he has to
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exercise the power subject to the restriction imposed by the
instrument. In the case of a court guardian, he has the power to
make alienation only after getting previous permission of the court
as required under Section 29. In the case of court guardian, the
court shall permit alienation only in the case of necessity or for an
evident advantage of the ward as required under Section 31.
Section 29 is not applicable to natural guardians; hence, previous
permission from the Court is not required for a natural guardian to
sell a minor's property. This issue is well settled in the Division
Bench decision of Jince Mary Johns v. K.P Johny and another
[2011 (4) KHC 343]. Of course, the natural guardian is also bound
to obtain previous permission in case he is declared a Court
Guardian. It makes it clear that in the case of a natural guardian,
the only check is whether he has discharged his duties under
Section 27 while dealing with the property of the minors. In effect,
the remand order of this Court is to verify whether the father of the
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plaintiffs had discharged his duties under Section 27 while making
Exts.B2 and B3 alienations.
21. The learned counsel for the appellant emphasized the words
'realization, protection or benefit of the property' that occurred in
Section 27 and advanced the argument that all the acts of the
guardian should be 'for the realization, protection or benefit of the
property.' The learned counsel contended that the benefit of the
property means the benefit of the properties which are sold as per
Exts.B2 and B3 by the father of the plaintiffs. I am unable to accept
the said contention of the learned counsel for the appellant. The
realization, protection, or benefit of the property referred to in
Section 27 is with respect to the entire property of the minor and
not with reference to a particular property of the minor. The first
part of the Section mandates that the guardian shall deal with the
property of the minor as a man of ordinary prudence dealing with
his own property. Sometimes, certain properties may not be useful
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or useful to the property owner and it is for the property owner to
take a decision to purchase another property by alienating the
former property. In such a case, the land owner would be selling
his property and purchasing another property with the sale
proceeds of the former property for the protection and benefit of
his property. Likewise, in the case of minors' property also it is well
within the powers of the natural guardian to sell the properties
which are not useful or beneficial to the minor and purchase
another property which is useful or beneficial to the minor using
the sale proceeds of the minor's property. Hence, the substitution
of immovable property of a minor for better advantage and use of
the minor would come within the scope of 'protection or benefit of
the property' included in Section 27. It is true that neither the Trial
Court nor the First Appellate Court has made a specific finding that
the sale of Exts.B2 and B3 properties are for the protection or
benefit of the property. Nevertheless, verbatim reproduction of the
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ingredients of the provision under Section 27 is not required while
considering the question of compliance with Section 27 by the
guardian. The Trial Court, as well as the First Appellate Court,
have extensively considered the question of compliance with
Section 27 by the father of the plaintiffs as a natural guardian.
22. As rightly pointed out by the learned Senior Counsel for the
contesting respondents, it is a finding of fact, and this Court would
not be justified in interfering with the said finding of fact in a Second
Appeal under Section 100 CPC unless there is perversity in such
findings.
23. Admittedly, the father of the plaintiffs purchased 1 acre 42 cents of
paddy land for the minors as per Ext.B1 Sale Deed by making a
payment of Rs.8,000/- on the date of alienation of 55¼ cents of
barren land belonged to the minors as per Ext.B2 Sale deed for a
sale consideration of Rs.8,000/-. It is clear that the father of the
plaintiffs purchased Ext.B1 property fully utilizing the sale
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consideration of Ext.B2 property. Though the plaintiffs contended
that their father was a drunkard and had been leading a wayward
life, the Trial Court, as well as the First Appellate Court, found that
the said contention was incorrect in view of the oral evidence
adduced before it. The facts remain that he did not take any part
of Ext.B2 sale consideration for him. It is admitted by PW 2, who
is the mother of the plaintiffs, that during the time when Ext.B2 was
sold, paddy land had more value than dry land. Admittedly, the
property sold as per Ext.B2 is barren land. The plaintiffs do not
have a case that income had been generated from it before Ext.B2.
There is evidence on record that it is a barren land, and the
improvements therein are made by the defendants.
24. With respect to Ext.B3 property, there are clear recitals in Ext.B3
that the sale consideration of Rs.2,000/- is already received by the
father of the plaintiffs for meeting the educational expenses of the
minors and to meet his family expenses. It is admitted by PW2
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mother of the plaintiffs that the father of the plaintiffs had been
meeting the educational expenses of the plaintiffs.
25. Though it is alleged in the plaint that the plaintiffs never enjoyed
the consideration received from the above two transactions, there
is no pleading in the plaint that the above transactions were made
not for the benefit of the plaintiffs.
26. Admittedly, the plaintiffs filed O.S.No.897/1997 before the
Munsiff's Court, Kodungallur, for avoiding the Sale Deed by which
Ext.B1 property was sold by their father during their minority. The
contention of the plaintiffs is that they instituted O.S.No.897/1997
for recovering Ext.B1 property as they are bound to return the
benefit derived by them on the sale of Ext.B2 property when the
said sale is set aside by the court. True, in view of Section 64 of
the Indian Contract Act, the minors are bound to return the benefits
derived by them on cancellation of the voidable contract executed
on their behalf. In the case on hand, if the plaintiffs intend to avoid
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Ext.B2 alienation, they cannot claim any right or title over Ext.B1
property, which is purchased using the sale consideration received
as per Ext.B2. Ext.B9 is the plaint in O.S.No.897/1997. In Ext.B9
the only allegations are that their father sold the property covered
under Ext.B1 without obtaining previous sanction of the court and
that the alienation was not for their benefit. There is no averment
in Ext.B9 that the said suit was instituted for recovering Ext.B1
property for the purpose of restoring the benefit derived by them
back on cancellation of Ext.B2 document. That apart, it is the
specific case of the plaintiffs that they did not get any benefit when
Ext.B2 and B3 properties were alienated by the father. In such a
case, there is no duty on the plaintiffs to restore the benefits
obtained by the natural guardian as they did not derive any benefit.
27. The Trial Court, as well as the First Appellate, have arrived at the
right conclusion that the sale of Ext.B2 and B3 properties of the
minors and the purchase of Ext.B1 property for the minors were
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for the benefit of the minor plaintiffs. The father of the plaintiffs did
these acts in the capacity of natural guardian of the minors as a
prudent man dealing with his own property.
28. The aforesaid discussion would reveal that there is no perversity
in the factual findings entered into by the Trial Court, which is
confirmed by the First Appellate Court. No substantial question of
law arises in the matter, and hence, the above Regular Second
Appeal does not require admission.
29. The Regular Second Appeal is dismissed without costs.
Sd/-
M A ABDUL HAKHIM,
JUDGE
Jma/shg
