Point of Law: Court elevated mother to an equal position as father, bolstering her right as a natural guardian of minor child under Section 6 of Hindu Minority and Adoption Act, 1956.

JUDGMENT :

1. The appellants in this Regular Second Appeal filed under Section 100 r/w Order XLII of the Civil Procedure Code, 1908 (hereinafter referred to as ‘CPC’ for short) are the plaintiffs in O.S.No.142/2006 on the files of the Munsiff’s Court, Parappanangadi. They assail the preliminary decree and judgment of partition dated 30.09.2009 passed by the Munsiff Court in the above suit and the decree and judgment in AS No.129/2009 dated 21.10.2017 passed by the Additional District Court, Tirur, confirming the decree and judgment of the trial court. The respondents herein are the defendants in the above suit.

2. Heard the learned counsel appearing for the appellants as well as the learned senior counsel appearing for respondents 1 and 2, who are the defendants in the above suit.

3. I shall refer the parties in this Regular Second Appeal as ‘plaintiffs’ and ‘defendants’ for convenience.

4. At the time of admission, my predecessor, as per order dated 13.07.2022, formulated the following questions of law:-

“1. Whether the 9th plaintiff is entitled to act as the natural guardian of the minor children under Ext.A3 release deed No.35/1966 in view of the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956, particularly in the light of the fact that the father himself is the transferee under the document and the further fact that the rights of the minor children obtained by them under assignment deed No.290/1952 (Ext.B2) was also held by the 9th plaintiff mother as the natural guardian of the minor children?

2. Whether the fact that Ext.A3 release deed is not shown to be for the welfare of minors would make the document only as voidable?

3. Whether the challenge of release deed executed in the year 1996 is barred by limitation in view of the fact that the defendants attained majority in 1974 and 1971 and their father died in the year 1982?”

5. In this matter, the plaintiffs filed suit with prayer to partition the plaint B schedule property, asserting that originally the property was owned and possessed by one Krishnan, who is the husband of the 9th plaintiff and the father of the other plaintiffs and defendants, on the basis of kanam theeradharam No.3698/1960 marked as Ext.A2. So, according to the plaintiffs, the entire property is liable to be partitioned since Krishnan died intestate in the year 1984. Thereafter, the plaint was amended and contention raised to the effect that as per document No.2907/1953, marked as Ext.A1, Krishnan transferred his right in favour of the plaintiffs and defendants 1 and 2. But Krishnan, subsequently obtained right over the entire plaint B schedule property on the basis of Ext.A3 kanam theeradharam deed No.35/1966 and the said document would recite that Krishnan was in possession and enjoyment of the plaint B schedule property till his death. It is also contended that though Krishnan transferred his right over the property as per Ext.A1, the same got re-conveyed as per Ext.A3 and in such view of the matter also, Krishnan was the owner of the plaint B schedule property till his death. Therefore, the property is liable to be partitioned among the plaintiffs and the defendants equally.

6. The defendants resisted the suit, raising specific contention that originally Krishnan obtained kanam right over the plaint B schedule property on the basis of document No.2952/1949, marked as Ext.B1 and at the time when Krishnan was possessing plaint B schedule property, he transferred his entire right in favour of the first plaintiff -Smt.Chandramathi and defendants 1 and 2 -Smt.Vilasini and Sri.Apputty. It was contended further in the additional written statement that Krishnan not obtained absolute right over the plaint B schedule property on the basis of Ext.A3 and the 1/3rd right obtained by the first plaintiff as per Ext.A1, alone was transferred in the name of Krishnan, since at the time of execution of Ext.A3, the first plaintiff was major. However, Ext.A3, executed for and on behalf of defen