Execution of release deed without obtaining permission of court regarding Minor's interest not binding on minor

Citation

CDJ 2007 MHC 2842

Head note

Code of civil procedure, 1908 -Section 100 - The second appeal had been admitted on the following substantial questions of law - 1. When the plaintiff is disputing the right of the 2nd defendant to execute a release deed in favour of the 1st defendant whether the present suit for partition without seeking to set aside the said release deed is maintainable in law - 2. When the plaintiff failed to discharge his burden to prove that the suit II item is an ancestral property or joint family property whether the Courts below are correct in granting the relief of the plaintiff in respect of the said item - In view of such findings by the Courts below, it was held that the plaintiff is entitled to 1/6th share of the second item of the suit schedule property. Once when the release deed executed by the second defendant was held to be not binding on the plaintiff, as the second defendant did not possess the right to execute the release deed in favour of the first defendant, the substantial question of law raised in the second appeal is answered in favour of the plaintiff holding that the suit instituted by the plaintiff is maintainable in law - While both Courts below have found that the second item of the suit schedule property is an ancestral joint family property, based on the oral and documentary evidence available on record, it is not open to the appellant herein to contend that the plaintiff had failed to discharge his burden proving that the said property is an ancestral joint family property - Appreciation of evidence by the Courts below and the findings of the Courts below based on such appreciation of evidence cannot, normally, be a substantial question of law before this Court in the second appeal as held by the Supreme Court in its recent judgment in GURDEV KAUR AND OTHERS Vs. KAKI AND OTHERS (2007 (1) CTC 334) - analysing the rival contentions made on behalf of the parties concerned and on a perusal of the records available, this Court is of the considered view that the Courts below had come to the right conclusion, based on available evidence, that the plaintiff is entitled to 1/6th share of the second item of the suit schedule property - second appeal stands dismissed, confirming the judgment and decree of the Courts below. No costs.

Comparative Citations:
2007 (3) CTC 718; 2007 (4) MLJ 1234

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