IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE K.HARILAL

WEDNESDAY, THE 16TH DAY OF NOVEMBER 2016/25TH KARTHIKA, 1938

SA.No. 354 of 2002 (A)

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AGAINST THE JUDGMENT IN AS 17/1992 of DISTRICT COURT,TRIVANDRUM

AGAINST THE JUDGMENT IN OS 552/1981 of III ADDL.MUNSIFF'S COURT, TRIVANDRUM

APPELLANT(S)/RESPONDENTS 2 TO 4 /DEFENDANTS 3 TO 5:
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1. G.SANTHAKUMARI, T.C.NO.298/1, ICF,

NORTH COLONY, MADRAS.

2. SOMAN SHAJI, T.C.NO.298/1, ICF,

NORTH COLONY, MADRAS.

3. SANTHAKUMARI SHEELA, T.C.NO.298/1, ICF,

NORTH COLONY, MADRAS.

BY ADV. SRI.R.S.KALKURA

RESPONDENT(S)/APPELLANTS 1ST & 5TH RESPONDENTS/PLAINTIFFS:

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1. VASANDHATHI ROHINI, KORAKULANGARA

VADAKKU MURI VEEDU, KLIKUNNAM KIZHAKUMURI VEEDU,
KADAKAMPALLY MURI, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM.

2. VASANTHI RAGINI, KORAKULANGARA VADAKKU MURI VEEDU,

KLIKUNNAM KIZHAKUMURI VEEDU,
KADAKAMPALLY MURI, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM.

3. VASANDHATHI JAYAKUMARI, KORAKULANGARA

VADAKKU MURI VEEDU, KLIKUNNAM KIZHAKUMURI VEEDU,
KADAKAMPALLY MURI, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM.

4. VASANTHI VINODHINI, FORMERLY WRITTEN AS AMBIKA,

KORAKULANGARA VADAKKU MURI VEEDU,
KLIKUNNAM KIZHAKUMURI VEEDU, KADAKAMPALLY MURI,
KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM.
SA.No. 354 of 2002
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5. KARTHYANI VASANTHATHI, VARUVILAKOM VEEDU,

FROM KORAKULANGARA VADAKKUMURI VEEDU,
HAVING ALSO KILIKUNNAM KIZHAKKUMURI VEEDU,
KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM.

6. SOMAN SUDHEER FROM TC.NO.298/1, ICF NORTH COLONY,

MADRAS, NOW RESIDING AT BLOCK 733/04.93,
WOODLANDS CIRCLE, SINGAPORE 730 733.

R, R6 BY ADV. SRI.M.AJAY (IRUMPANAM)

R, R1 TO R3 BY ADV. SRI.L.MOHANAN

THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16-11-2016, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 K. HARILAL, J.

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S.A. No.354 of 2002
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Dated this the 16th day of November, 2016

JUDGMENT
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Appellants are defendants 3 to 5 in O.S.

No.552/1981 on the files of the Additional Munsiff's Court,

Thiruvananthapuram and respondents 2 to 4 in A.S.

No.17/1992 on the files of the District Court,

Thiruvananthapuram. The parties are referred to as in the

original suit. The plaintiffs instituted the suit for declaration

that the plaint schedule properties exclusively belong to

them and the mortgage created by defendants 1 and 2 in

the 7th defendant on 09.11.1996 and the sale deed executed

on 13.02.1970 in favour of deceased Lakshmanan Soman

do not affect the right or title of the plaintiffs and for decree

to set aside the said documents and for recovery of

possession of plaint schedule properties with mesne profit.

2. It is the case of the plaintiffs that the plaint

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schedule property was purchased for the benefit of the

plaintiffs, who were minors on 31.08.1961, as per Ext.A3

sale deed executed in the name of the 1st respondent, the

mother of the plaintiffs, as their guardian and since then, the

plaint schedule properties belong to the plaintiffs. Their

parents, who are defendants 1 and 2, with an intention to

defeat the rights of the plaintiffs, mortgaged the property for

₹500/- in favour of the 7th defendant on 09.11.1996 as per

Ext.A5 and that the transaction is invalid and subsequently,

defendants 1 and 2 sold away the said property to

Lakshmanan Soman, the predecessor of defendants 3 to 6,

as per Ext.A1 sale deed which is void ab initio and which is

not affecting the right or title of the plaintiffs. According to

them, on the death of Soman, his wife and children are not

entitled to claim any right under the document which is void

ab initio. It is further contended that the plaintiffs are Hindus

governed by Hindu Minority and Guardianship Act and the

transaction entered into by defendants 1 and 2 are void ab

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initio as they have not obtained the permission of the District

Court under Section 8 of the Guardian and Wards Act. It is

also contended that the said sale deed was executed by the

mother of the plaintiffs, who is not a natural guardian under

the Guardian and Wards Act and thereby the document is

void ab initio.

3. In the written statement, 3rd defendant contended

that the suit itself is barred by limitation, estoppel, non

joinder and misjoinder of parties. But, the relationship

alleged in the plaint was admitted. So also, they admitted

the purchase of plaint schedule properties under Ext.A1 sale

deed. They would contend that defendants 1 and 2 never

tried to defraud the appellants and the suit was instituted

collusively. According to them, Ext.A1 sale deed is

supported by adequate consideration. It is also contended

that on the date of sale of Ext.A1, the 2nd defendant had

executed Ext.B3 sale deed in favour of the plaintiffs in lieu of

the plaint schedule properties, which was sold away by

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Ext.A1. Thus, the plaintiffs got a valuable property

purchased by using consideration obtained from the

defendants by Ext.A1 sale deed. It is also contended that

after the death of Soman, defendants 3 to 6 have been in

possession of the property and they have effected

improvements as their own property and the plaintiffs have

no right over the said property and they are not entitled to

the decree for declaration and also for recovery of

possession as prayed for.

4. On the above rival pleadings, both parties

adduced evidence and after appreciating the evidence on

record, the trial court partly decreed the suit on a finding that

the suit is barred by limitation with respect to plaintiffs 1 to 3

and allowed as prayed for with respect to the right of the 4th

respondent. Feeling aggrieved, the plaintiffs have filed

appeal before the lower appellate court and the lower

appellate court, after re-appreciating the entire evidence on

record, decreed the suit on a finding that Ext.A1 sale deed

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and Ext.A5 mortgage deed are void as against the plaintiffs

and the plaintiffs have title over the plaint schedule property.

They are entitled to recover possession of the plaint

schedule property. The defendants are directed to surrender

vacant possession of the plaint schedule property to the

appellants within a period of three months from the date of

judgment, failing which they are entitled to take delivery

through the court. The legality and propriety of the

aforesaid finding, whereby the court below decreed the suit,

are under challenge in this appeal.

5. Heard learned counsel for the appellants and

learned counsel for the respondents.

6. Even though this appeal is filed on various

grounds challenging the legality and propriety and

correctness of the entire findings, whereby the court below

decreed the suit, the learned counsel for the appellants fairly

confined to the point that the court below had committed an

error by not granting a decree directing the plaintiffs to

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restore the property, which was covered under Ext.B3 sale

deed and got executed in favour of them in lieu of Ext.A1

sale deed in favour of the husband and father of the

appellant. In other words, the court below ought to have

granted a decree in favour of the appellants directing the

respondents to restore the property to them. In support of

the above argument, the learned counsel for the appellants

cited the decisions of this Court in Cheriathu Varkey v.

Meenakshi Amma [1964 KLT 952] and Padinhare Veettil

Madhavi v. Pachikaran Veettil Balakrishnan and another

[2009 KHC 989].

7. Per contra, the learned counsel for the

respondents advanced arguments contending that even

though Ext.B3 sale deed was executed in favour of the

plaintiffs, thereafter, the 2nd defendant himself executed

another sale deed in favour of his other children with respect

to the very same property covered under Ext.B3 and now,

they are not in possession of the said property.

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8. In view of the submissions made at Bar, the only

point to be considered in this Regular Second Appeal is

whether the appellants are entitled to get a decree for

restoration of the property covered under Ext.B3. I deem it

apposite and profitable to survey the judicial precedence

cited by the learned counsel for the appellants at first. In

Cheriathu Varkey v. Meenakshi Amma [1964 KLT 952],

this Court held as follows:-

“Ordinarily, the benefit which a party

receives when he sells the property is the price
which the vendee pays. Any profits which the
vendor might make with the moneys would be
too remote in estimating what he has to return in
case he is entitled to avoid the sale and elects to
do so. Where however for the protection of a
purchaser contracting with a guardian or a
qualified owner, a particular dealing with the
money was in the direct contemplation of the
parties such as the purchase of other lands with
the consideration and the money is so applied,
the benefit which the other party obtains will be
the land or other property acquired with the
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consideration.... There can de little doubt that if

the purchase of the land at Sriperumbudur was
the benefit contemplated by the parties and
arose in connection with the same transaction as
the sale of ancestral properties by the minors’
mother, the plaintiff would be entitled to a
conveyance of the properties so purchased.”
We think the identical relief might well have
followed S.41 of the Specific Relief Act, 1877.
7. Applying the equitable principle
embodied in the 3 Sections quoted above to the
instant case, the plaint B schedule properties, the
purchase of which has been mentioned as an
item of consideration in the impugned alienation
and was made the same day, have to be held as
the benefit that accrued to the estate of the
plaintiffs under the impugned alienation; and
therefore they must be directed to be given to the
disappointed alienees, defendants 2 onwards. It
may be noted here that the plaintiffs have in the
plaint disowned the acquisition of plaint B
schedule properties in their names.”

9. Thereafter, this Court considered the above

question in Padinhare Veettil Madhavi v. Pachikaran

SA.354/2002
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Veettil Balakrishnan and another [2009 KHC 989] and the

Court held as follows:-

“17. Under S.33 of the Specific Relief

Act, on adjudging the cancellation of an
instrument, the Court may require the party, to
whom such relief is granted, to make any
compensation to the other which justice may
require. The learned counsel for the appellant
invited my attention to the decision reported in
Chacko v. Sreeja, 1991 KHC 76 : 1991 (1) KLT
191 : 1991 (1) KLT 686 in which it was held:
'In cancelling the documents, the plaintiff
need only surrender benefits received as justice
may require. Such benefit required by the
justice is the actual benefit received under the
impugned transaction, which is avoided. It may
not be conducive to justice to allow the minor to
have double advantage by avoiding the
transaction and at the same time retaining its
benefits. “Benefit' or 'advantage' referred to in
S.64 and 65 of the Contract Act, do not relate to
profit derived from the investment of the benefit.
Sometimes the investment may result in loss
also. In a given case, the benefit may be only
SA.354/2002
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the actual consideration and its interest. But,

where the consideration for the impugned
transaction itself is the purchase of another
property in the name of the minor that property
must be taken as the benefit derived by the
minor and it must be directed to be returned.
Value of properties might have gone up and
return of the consideration is money alone may
work out injustice to the defendant purchaser
and undue gain to the minor.'
18. Therefore, the legal postilion is that
whether the Sale Deed is void or voidable, the
minor seeking to set aside it cannot claim
interference of a Court of law without making
restitution. The law is clear that if a person sells
or mortgages another's property having no legal
or equitable right to do so and that other
benefits by transaction the latter cannot have it
set aside without making restitution to the
person whose money has been applied for the
benefit of the estate. The principle of restitution
in such cases is based on the equitable maxim
'he who seeks equity must do equity'. No
person who is entitled to avoid a transaction
ought to be allowed to do so in such a manner
SA.354/2002
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as to enable him to recover the property which

would be otherwise lost to him and at the same
time to keep the money or other advantages
which he has obtained under it. Therefore, if a
transfer by a guardian is set aside as having
been made without previous permission of the
Court, equity requires that the minor should
restore to the transferee any benefit he may
have received under the transfer before the
minor can take the benefit of any decree in his
favour. “

10. The proposition that can be culled out from the

aforesaid decision is that if the transfer of the guardian is set

aside as having been made without previous permission of

the court, equity requires that the minors should restore the

property which they have acquired in lieu of sale to the

disappointed alienees of that property. When applying the

above proposition in the instant case, I have no hesitation to

hold that the appellants herein are entitled to get restored

the property conveyed to the plaintiffs under Ext.B3 by the

2nd defendant to them. I do so. This Court is not interfering

SA.354/2002
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with the decree granted by the lower appellate court in

favour of respondents 1 to 4 herein. But, at the same time,

this Court is inclined to pass a decree in favour of the

appellants in view of the aforesaid finding. Hence, it is

declared that respondents 1 to 4 are liable to surrender the

property conveyed to them, under Ext.B3 by the 2nd

defendant, to the appellants herein within a period of three

months from the date of receipt of a copy of this judgment,

failing which the appellants are entitled to take delivery of

the said property through court and the decree is passed

accordingly.

The Second Appeal is allowed in part as above. All

pending interlocutory applications in this Appeal are

dismissed.

Sd/-
(K. HARILAL, JUDGE)

aks/17/11
// True Copy //
PA to Judge