A partition deed executed concerning minors' property without district court approval under the Hindu Minority and Guardianship Act is invalid.

J U D G M E N T

The appellant is the 5th defendant in O.S.

No.269 of 2006 of the Principal Munsiff Court, Cherthala. The plaintiffs are the children of the 2nd defendant and the 1st defendant is the brother of the 2nd defendant and defendants 3 and 4 are the sisters of the 2nd defendant. The 5th defendant is the wife of the 1st defendant.

2. The property having an extent of 81 cents, including the plaint schedule property, originally belonged to the predecessors of the plaintiffs Sri. Damodara Vadhyar and Sri. Venketeswara Vadhyar and thereafter, Damodara Vadhyar executed Will No.49/1989, with respect to his one half right over the property. As per the Will, the plaint schedule property is allotted to the plaintiffs. On 10/1/1991 the said Damodara Vadhyar died and the property exclusively devolved upon the plaintiffs. After the death of Damodara Vadhyar, the 3rd defendant filed a suit for partition with respect to the property covered by the Will against defendants 1, 2 and 4 and Sri. Venketeswara Vadhyar, who is her father, as O.S. No.370/1992. The suit was decreed and a preliminary decree was passed. Thereafter, the 1st defendant influenced defendants 2, 3, 4 and Sri. Venketeswara Vadhyar for executing a partition deed with respect to the properties, including the plaint schedule property and a partition deed was executed at the instigation of the 1st defendant without the knowledge and consent of the 2nd defendant. As per the partition deed, the plaint schedule property was allotted to the 1st defendant and thereafter, he alienated the property to his wife, the 5th defendant. According to the plaintiffs, the said partition deed and the subsequent deeds with respect to the plaint schedule property are not binding on the plaintiffs as they were minors and the said document was executed without obtaining permission from the District Court. Hence the plaintiffs constrained to file a suit for declaring the right and title over the property and for recovery of possession.

3. In the written statement, the defendant contended that the suit is barred by res judicata and limitation. According to them, the suit is a collusive one between the plaintiff and the 2nd defendant, who is the father of the plaintiffs. It is also contended that the partition deed was executed for the benefit of the members of the family. Prior to the present suit, the plaintiffs filed O.S. No.755 of 2000 through their father as next friend and guardian and thereafter they filed O.S. No.663 of 2002 through their mother, as next friend and guardian and both suits were dismissed. The preliminary decree passed in O.S. No.370 of 1992 was challenged in Appeal and during the pendency of Appeal, entire disputes were settled in Lok Adalath and a compromise was entered in the Adalath. Since the execution of the partition deed and the proceedings in the Lok Adalath were for the benefit of the plaintiffs, they are incompetent to file the present suit and the suit is not maintainable at all. Now, the 5th defendant is the absolute owner in possession of the property and the plaintiff have neither right nor possession over the plaint schedule property and the document in favour of the

5th defendant is binding on the plaintiffs.

4. On the aforesaid pleadings, both parties adduced evidence and after appreciating the evidence on record, the trial court decreed the suit and in Appeal the appellate court upheld the findings of the trial court and dismissed the suit. Thus, the concurrent findings, whereby the courts below declared the plaintiffs' title over the property, are challenged in this Regular Second Appeal.

5. Heard the learned counsel for the appellant.

6. The first question to be considered is, whether the courts below are justified in finding that the suit is not barred by res judicata or limitation? According to the defendants, the father of the plaintiffs filed suit as O.S. No.755 of 2000 and after the dismissal of the same, the mother of the plaintiffs filed O.S. No.663