In property disputes, parties cannot retain benefits from voided transactions, and claimants may only recover proportionate shares pertinent to their contributions.

JUDGMENT

The fifth defendant in O.S. 31 of 1984 before the Principal Munsiff's Court, Nedumangad, who suffered a decree at the hands of both the courts below is the appellant. The parties and facts are herein referred to as they are available before the trial court.

2. The suit was framed as one for declaration of title and recovery of possession. Plaint A schedule property initially belonged to one Pathummal Beevi Ummal. After her death it was partitioned by her legal heirs as per Ext.A1 dated 10.4.1974. The respective sharers took possession of the property allotted to them. The first defendant was a minor then. In the partition deed, he was represented by the third defendant, one of his brothers, and plaint B schedule, which is a portion of the A schedule property, was allotted to the first defendant. After Ext.A1 partition deed, S.A.397/1993. 2 the sharers as per Ext.A2 sale deed dated 18.4.1974 assigned their properties to the plaintiff. The third defendant acted as the guardian of the first defendant executed the sale deed on behalf of the first defendant also. It appears that the first defendant acquired another item of property, which is shown as plaint C schedule property soon after the sale in favour of the plaintiff. Later the first defendant, when he attained majority filed O.S.389 of 1977 challenging the partition and also the sale in favour of the plaintiff on his behalf by the third defendant. That suit was decreed and the plaintiff was dispossessed of the share of property of the first defendant. Invoking the indemnity clause in Ext.A2 document, the present suit was filed for the reliefs already made mention of.

3. First and fifth defendant alone contested the suit. It was contended by the first defendant that Ext.A2 sale deed executed on behalf of him by the third defendant is void. If at all any loss is suffered by the plaintiff, he has to recover it from others and not from the first defendant.

S.A.397/1993. 3 At best the plaintiff is entitled to get only Rs.500/- returned with reasonable interest. He cannot claim any right over plaint C schedule property. Moreover, the sale consideration shown in Ext.A2 as far as the first defendant is concerned is only Rs.500/- and the acquisition of plaint C schedule was for Rs.1,200/-. Pointing out that the plaintiff is not entitled to any relief, he prayed for a dismissal of the suit.

4. Fifth defendant contended that he was an unnecessary party and that no reliefs can be sought for against him. He is not a party to either Ext.A2 or in the earlier suit. Plaint C schedule property belongs to him, which he had obtained as per deed No.1158/1109 and that is not liable to be proceeded against by the plaintiff. According to the fifth defendant, the third defendant made him believe that Rs.1200/- will be given as consideration and then got the deed executed by him, but the amount was not paid. Therefore the sale deed relied on by the plaintiff in favour of the first defendant has not come into force and the property is to be deemed to be owned and possessed by the fifth S.A.397/1993. 4 defendant. On the basis of these contentions, he prayed for a dismissal of the suit.

5. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendants did not adduce any evidence at all. On an evaluation of the evidence in the case, the trial court found that the plaintiff is a disappointed alienee and he is entitled to be re-inducted into possession of C schedule and accordingly decreed the suit.

6. The fifth defendant carried the matter in appeal as A.S.47 of 1987 before the District Court, Thiruvananthapuram. The lower appellate court confirmed the judgment and decree of the trial court and hence this Second Appeal.

7. Notice has been issued on the following questions of law:

“(A) Has not the lower appellate court acted illegally in refusing to consider the arg