Important points
" When a transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it and in the latter case, he shall relinquish the benefit so conferred and the benefit so relinquished shall revert to the transferor- Section 64 of the Contract Act provides that the party rescinding a voidable contract shall, if he has received any benefit thereunder from another party to such contract, restore such benefit so far as he may be, to the person for whom it was received
" The minors are bound (through their next friend who had already initiated action) to relinquish all the benefits obtained under the same transaction in relation to the date on which the transaction took place by putting the parties in their original position as far as possible for which the minors, the guardian or the next friend, as the case may be, are bound to preserve the benefits acquired under the same transaction, failure of which would result in forfeiture of right of election under Section 35 of the Transfer of Property Act and extinguishment of right option.

After the death of one Christhumony @ Rajendran, his two minor children came up with the suit in O.S.No.277 of 1999 before the Principal Munsiff's Court, Neyyattinkara through their next friend, the uncle, claiming 3/5th share over the property left out by their deceased father and for setting aside Ext.A1 sale deed executed by their mother representing the minor children in respect of 1 acre 24 cents in favour of defendant Nos.1 and 2. The mother was impleaded in the suit as defendant No.3. During the pendency of the suit, defendant No.1 passed away and the legal heirs were impleaded as additional defendant Nos.4 and 5. Defendant No.2 was recorded as one of the legal heir. The suit was decreed by the trial court and Ext.A1 document was set aside in so far as 3/5th fractional interest of the minor children over the property is concerned and granted a preliminary decree for partition. It was taken up in A.S.No.202 of 2003 before the Sub Court, Neyyattinkara wherein the decree was confirmed by its judgment and decree dated 7.11.2008. Aggrieved by the abovesaid decree and judgment, defendant Nos.2, 4 and 5 came up with this second appeal. Defendant No.3 remained exparte both in the trial court and in the first appellate court.

2. The following questions came up for consideration:

a. What would be the status of a minor child, one of whose parent is a Hindu by profession, for the purpose of intestate succession?

b. Whether the constructive notice under Section 3 of the Transfer of Property Act would operate against a minor when his next friend had opted to challenge a document of alienation of the assets of minor?

c. When a document of alienation is put under challenge either by the minor or through his next friend, are they not bound to return the benefit, if any, obtained under the same transaction?

d. What is the legal consequences of subsequent change in the benefit conferred on a minor under a transaction of document of alienation and whether the subsequent change over the benefit conferred on minor would make any difference in the legal position in the absence of exercise of option either to accept it or to reject it and within what time the option can be exercised?

e. What would be the legal impact of non-preservation of benefit conferred on the minor under a transaction of document of alienation and what would be the legal effect, if the benefit became non-returnable due to the action or inaction either by the minor or by the guardian/next friend, while exercising the option to challenge the document of alienation?

f. What would be the legal effect on acquisition of right, title or interest over immovable property, either fractional or in whole, on an earlier document of transfer asserting full right, title and interest over the property?

3. The dispute centers around execution of Ext.A1 sale deed pertaining to the plaint schedule property having an extent of 1 acre 24 cents. There is no much dispute that the said property originally belonged to and left out by deceased Christhumony @ Rajendran and that the plaintiffs are the two minor children born to him in the wedlock with defendant No.3. Their status as legal heirs of deceased Christhumony @ Rajendran is not in dispute.

4. The dispute is pertaining to the entitlement of plaintiffs to get a fractional interest over the said property and to set aside the said document of transfer Ext.A1 in so far as their fractional interest over the property is concerned. The suit was decreed by the trial court as well as the first appellate court by granting a preliminary decree of partition allowing the plaintiffs 3/5th share over the property.

5. The allotment of 3/5th share is under challenge mainly on the reason that Christhumony @ Rajendran was a Hindu at the time of his death and out of his three sons, Celin passed away. He was also a Hindu by profession at the time of his death.

6. Ext.B1 notification was produced to show that Christhumony @ Rajendran during his life time had reli