A decree against a minor represented by a negligent guardian is voidable, mandating reconsideration to uphold principles of natural justice.

JUDGMENT :

ASHOK S. KINAGI, J.

1. This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 17.07.2013 passed in RA No.130 of 2011 by the I Additional District and Sessions Judge, Tumkur.

2. For convenience, the parties are referred to based on their rankings before the Trial Court. The appellant was defendant No.2, respondent No.1 was defendant No.1 and respondent Nos.2 and 3 were the plaintiffs.

3. Brief facts leading rise to the filing of this appeal are as follows:

4. The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that Narasaiah was the original propositus. He had two sons Nanjundaiah and Basappa. Nanjundaiah had a wife by name Gowramma. Nanjundaiah and Gowramma had two children i.e., Jayalakshmamma and Venkatalakshmamma, the plaintiffs. Bassapa had two wives, namely Narasamma-the first wife and Siddagangamma-the second wife. Basappa has a son by name Narasaiah through his second wife.

5. It is contended that Narasaiah inherited five immovable properties, which are described in the plaint as the suit schedule properties, as a result of devolution of coparcenary. Suit item Nos.2 to 4 have already been acquired for Adi Chunchangiri Trust and the compensation amount was apportioned under the suit. The plaintiffs and defendants are the members of a Hindu undivided family and the plaintiffs demanded for a partition and separate possession, but defendant No.1 refused to effect a partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

6. Defendant No.1 filed a written statement denying the relationship between the parties and the suit schedule properties are the ancestral and joint family properties of Nanjundaiah and Basappa. It is denied that the plaintiffs are the legal representatives of deceased Nanjundaiah. It is contended that defendant No.1 is the wife of Basappa. Since the plaintiffs are not in possession and enjoyment of the suit schedule properties, the suit for partition and separate possession is not maintainable.

7. It is also contended that defendant No.1 filed a suit in O.S. No.446 of 2002 for maintenance and during the pendency of the said suit, Basappa died. As such, it could not be further proceeded or prosecuted as, she herself is the legal heir.

8. It is also contended that defendant No.2 was a minor and was represented by next friend guardian Govindraju. He did not contest the said suit. Hence, prays to dismiss the suit.

9. Defendant No.2 filed a written statement admitting the plaint averments. It is contended that after the death of Nanjundaiah and Basappa, who are the brothers, all the parties to the suit have succeeded to the suit schedule properties and all the members to the suit are in joint possession of the same. Hence, on these grounds, prays to decree the suit.

10. The Trial Court, based on the pleadings of the parties, framed the following issues:

i. Whether the plaintiffs prove their relationship with the defendants as narrated in the plaint?

ii. Whether plaintiffs prove that the suit schedule properties are the joint family properties, out of which suit schedule item No.2 to 4 have been acquired and compensation has been awarded?

iii. Whether defendant No.1 proves that the suit of the plaintiff is not maintainable?

iv. Whether 1^st defendant proves that the contents of paragraph Nos.8 and 9 of her written statement?

v. Whether plaintiffs are entitled for the reliefs as sought by them? vi. What order or decree?

11. The plaintiffs, to substantiate