A partition suit filed without challenging the validity of a deed executed by a natural guardian is not maintainable, as the deed is voidable without a specific prayer for cancellation.

JUDGMENT

This Regular Second Appeal has been directed against the judgment and decree in A.S.No.98/2012 on the file of Additional District Court-II, Manjeri which arose out of judgment and decree in O.S.No.275/2009 on the file of Subordinate Judge's Court, Manjeri.

2. Appellant is the third defendant in O.S.No.275/2009.

(The parties would hereinafter be referred as per their status before the trial court).

3. The suit was one for partition filed by the plaintiff, the daughter of the first defendant and sister of the second defendant. Plaint schedule property originally belonged to Pious Sebastian, the father of the plaintiff and the brother of the third defendant, who obtained the same as per Assignment Deed No.534/1988 of Melatur Sub Registry Office. Pious Sebastian died intestate on 11.03.2004 leaving behind the plaintiff and defendants 1 and 2 as his legal heirs. Plaintiff has been residing separately from defendants 1 and 2 and she demanded partition of the scheduled property. There is a residential building in the plaint schedule property, which may fetch not less than Rs.3,000/- per month as rent. The building was rented out to the third defendant by defendants 1 & 2 without the knowledge of plaintiff and plaintiff claimed Rs.1,000/- per month towards share in the rent. Hence the suit has been filed claiming 1/3rd share out of plaint schedule property together with mesne profits.

4. First defendant filed written statement contending that she transferred her right in the plaint schedule property to the third defendant and plaintiff had not objected the transfer. Hence the suit is not maintainable and it is also contended that if at all it is found that the plaint schedule property is partiable she claims to allot her share in her favour.

5. No written statement has been filed by the 2nd defendant.

6. Third defendant filed separate written statement denying all the allegations in the plaint. The suit has been filed in collusion between the plaintiff and other defendants to defeat the interest of this defendant and cause loss and hardship to him. The plaint schedule property has been assigned to him as per document No.1531/1/2005 of Melatur S.R.O and he is in absolute possession and enjoyment of the property. Neither the plaintiff nor the defendants have any right over the plaint schedule property. Plaintiff has no cause of action and hence he prayed for dismissal of the suit.

7. There is no oral evidence from either side. Ext.A1 marked from the side of the plaintiff. Ext.B1 marked from the side of the third defendant.

8. Trial court on evaluation of pleadings and documents found that first defendant as guardian of plaintiff and power of attorney holder of the 2nd defendant sold the plaint schedule property in favour of the third defendant. It is further found that the plaintiff being a minor the sale of property without the permission of the court is voidable and plaintiff can accept it or ignore it. So the suit filed for partition within three years of her attaining majority is maintainable and accordingly preliminary decree for partition was passed allotting 1/3rd share to the plaintiff and 2/3rd share to the third defendant on his payment of required court fee and mesne profit was also allowed to be recovered.

9. Against the judgment and decree, the third defendant filed A.S.No.98/2012 and by the impugned judgment the first appellate court confirmed the judgment and decree passed by the learned Subordinate Judge and dismissed the appeal. Aggrieved by the same, the third defendant approaches this Court by filing this