Janaki Kunjamma Kalliyam Kunjamma vs Krishnan Govindan

Subramonia Iyer, J.—The Plaintiff approaches this Court in Second Appeal, her appeal to the District Judge of Alleppey against the decree of the Munsiff dismissing her suit having failed.

The suit was for setting aside the sale of the property scheduled to the plaint by her mother (D. 4), brother (D. 3) and sister (D. 5) who were all the major members of the Thavazhi. The sale was on 16-1-1115 (Ex. A) for Rs. 294/- and the property sold is a paddy land measuring 1 acre and 12 cents.

This formed part of the properties obtained by the thavazhi at a partition in the tarwad in the year 1103 (Ex. B) whereunder this thavazhi obtained paddy flat measuring about 5 acres (47 paras) and cocoanut garden measuring about 36 cents. The Plaintiff filed the suit after attaining majority and impeached the alienation as neither for consideration nor for necessity.

It was also alleged that the transaction was brought about by undue influence exerted by the 3rd Defendant on the other members. The 1st Defendant is the alienee. The 2nd Defendant is his wife in whom, it is alleged in the plaint, ha had created some interest over the property. Defendants 3 onwards are the other members of the Plaintiff''s thavazhi.

The 1st Defendant contended that the alienation was for full consideration and supported by thavazhi necessity.

The averment of undue influence was repudiated.

The Munsiff settled the following issues:

(i) Whether Defendants 3 to 5 were competent to execute the plaint sale deed? Is it supported by consideration and necessity?

(ii) Whether it was as a result of fraud practised by 1st Defendant?

(iii) Is it liable to be set aside?

The 1st Defendant led the evidence, examined D. Ws. 1 to 3 and 5 and filed certain exhibits. Thereafter the Plaintiff was examined as her only witness and lastly the 4th witness for the defence was examined.

The Munsiff, on a consideration of the evidence, found that the document, Ex. A, was supported by consideration and family necessity.

The District Judge on appeal confirmed the said conclusion particularly relying upon the admission made by the Plaintiff in her chief examination that the impugned assignment was supported by consideration. That admission confirmed the defence evidence which is also referred to by the learned Judge who, on a finding of consideration stated: "I find that Ex. A is also supported by necessity", without any separate consideration of that question.

Learned Counsel for the Appellant contended that neither of the Courts below adverted to the real nature of the several items of consideration whose aggregate was Rs. 294. Regarding the 1st item of consideration he drew the Court''s attention to the fact that the 3rd witness for the defence, who was called to prove it, swore that the advance made by him to the 3rd Defendant evidenced by Ex. I was for his private trade and not for thavazhi purposes.

He having turned hostile the 1st Defendant sought permission to cross-examine him and in doing so confronted him with the receipt granted by him to the 1st Defendant-alienee which showed that he received the money from the alienee from out of the amount of consideration reserved with him under Ex. A.

He admitted as he had to, that the statement contained in the receipt is false.

The next item of consideration is evidenced by a bond dated 14-2-1109, Ex. II, executed by the mother and son (Defendants 4 and 3) in favour of the 3rd witness for the defence. The liability thereunder was discharged by the father (Namboothiri) of Defendants 3 and 5 onwards and husband of the 4th, as evidenced by Ex. II (a). That amount was reserved with the vendee to be paid to the Namboothiri which the 1st Defendant paid and obtained a receipt (Ex. V) on the date of Ex. A.

The third item of consideration reserved in Ex. A was an amount of Rs. 53-14-Chakrams payable to the 4th witness for the defence by way of advance rent paid by him. He swore that the amount was due to him but was set off against the rent of that year. The sum reserved with the vendee in this behalf was, therefore, got back by the 3rd Defendant.

The fourth item of consideration is an amount of Rs. 20/- abated to have been received for purposes of maintenance of the members and other expenses in the family.

The fifth and last item is an amount of Rs. 52-41/2 chakrums reserved with the vendee to be paid to the vendors for the purposes last mentioned in Ex. A, namely purposes for which the fourth item was received. As regards the first item of consideration, Ex. A recites that the amount received was for purposes of effecting certain repairs to the family residence, and for other family purposes.

The comment made by learned Counsel for the Appellant as regards these items of consideration is that the first was not for thavazhi purpose, the second need not have been paid as it was a debt whose recovery was obviously barred by limitation and that the 3rd could have been adjusted from out of the rent as was in fact done. He had nothing to say regarding the fourth or fifth item.

Two points arise for consideration in this second appeal:

(1) whether the consideration for the document is binding upon the thavazhi and

(2) whether the alienation impeached was necessary for the thavazhi.

So far as the first point is concerned, in view of the admission of the Plaintiff which, as already stated, stands supported by other evidence in the case, consideration did pass from the alienee to the alienors. The first item of consideration has been expressly stated by the executants of Ex. A to be for purposes binding upon the thavazhi which representation the alienee could act upon and the only evidence to the contrary attempted is that of the 3rd witness for the defence who stands condemned by his own statement, which is admittedly false, contained in the receipt passed by him to the alienee that he received money from, the alienee whereas he now deposes in the box that he received the amount from the 3rd Defendant.

As regards the second item of consideration the executants directed its payment to the Nampoothiri who, it is not suggested, was otherwise than on friendly terms with his wife and children, and who gave the receipt, Ex. V, receiving the amount from the alienee.

The only point made by learned Counsel Appellant is that the claim was barred by limitation. Whether the claim was so barred will depend upon what exactly was the stipulation between the Namboothiri and the when the Namboothiri was directed to pay debt, under Ex. II which he did. In the above of any contention or evidence to the effects under such a stipulation the amount became to the Namboothiri at a time beyond the petition of limitation available for its recovery before A, it cannot be said that that was a claim (sic) by limitation.

It was not contended before me that the Namboothiri had no claim against the thavazhi, the contention being that it was barred by limitation even, if it would be said that the debt was by limitation, it is competent for the karnavin before the Nair Act and for all adult members thereafter, to pay the creditor and relieve the family of its indebtedness. If the recovery of a debt becomes barred by the law of limitation. It does not mean that the debt is extinguished; it means merely that the remedy through court unavailable. A barred debt will constitute consideration for an agreement to pay and also therefore be good consideration for an alienation. The factum of the consideration having thus established, the question arises whether there was any necessity for the alienation.

The point that was sought to be argument in the second appeal, though not specifically taken in the memorandum, is that was no, necessity for any kind of alienation, (sic) of all, for an outright sale of thavazhi proper.

Reliance was placed upon the fact that thavazhi had, as aforesaid, about 5 acres of land besides a small cocoanut garden. As that there was pressure to pay, the amount necessary could have been raised by either hypothecating or possessorily mortgaging an adequate part to the thavazhi property and resort to an outright sale was not called for nor justified. This aspect of the question had not been raised in either the courts below.

Nevertheless I consider that the alienation by way of outright sale having been impeached being unnecessary, the availability of alienation byway of hypothecation or possessory mortgage to meet the situation should have been con before upholding the outright sale.

Learned Counsel for the Respondent 1st Defendant contends that the Appellant should not permitted to urge this plea in second appeal be cause had it been raised at the trial stage of the case, it would have been open for him to the court that an outright sale of thavazhi property as was made under Ex. A was justified.

Learned Counsel also contended that there is a presumption in his favour that provided an alienation by way of sale is supported by consideration then that alienation is necessary.

Reliance was placed upon the decisions of Travancore High Court rendered in respect transactions before the Nair Act of 1088. That Act as also its successor, Act II of 1100 made provisions restricting the rights of Karnavans of tarwads in the manner prescribed therein. Those Acts also provided for the presumption in of certain alienations. The Act that is applicable to the case is Act II of 1100, Section 25 whereof provides that:

Except for consideration and tarwad necessity and with the written consent of all the major members of the tarwad, no Karnavan or other managing member shall sell tarwad immovable property or mortgage it with possession for a period of more than twelve years, or lease it for a period of more than twelve years.

The next Section 26 relates to transactions other than sales, i.e., leases or mortgages of immovable property for a period of 12 years or less. A presumption is provided therein unlike in the previous section. Section 28 refers to a third class of cases regarding which provisions are less stringent.

The aforesaid statutory provisions indicate that the statute provides for more and more stringent provisions in proportion to the nature and extent of the involvement of the interests of the tarwad. No decision was cited before me relating to a transaction of sale of immovable property after the Nair Acts of 1038 or 1100 wherein necessity was presumed on proof of consideration. In my judgment no such presumption is available and none is contemplated by the statute.

Reliance was placed upon Section 44, Clause (a) of Act II of 1100 which provides that:

Nothing in the Regulation shall-

(a) affect the existing rules of Marumakka- thayam Law, custom, or usage, except to the extent hereinbefore expressly provided for;

and it was contended that the presumption available in respect of transactions before the Nair Act would continue to be available thereafter.

In my view the statute restricts the power of the Karnavan by rendering it necessary that he should act not alone but in conjunction with or with the consent of such other members of the tarwad as was provided by the statute. Any presumption that there might have been in respect of the Karnavan''s own act before the statute, can hardly apply to a transaction entered into with the restricted powers under the prescribed provisions contained in the various sections of the statute.

Further the fact that a presumption is provided for in Section 26 and none in the previous section shows that the statute does not contemplate that there should be a presumption available in respect of transactions referred to in the previous section, that is, Section 25.

If there is no presumption as contended for on behalf of the Respondents the matter has to depend upon the evidence and the absence of evidence appears to be accounted for by the absence of a specific issue in this matter riveting the parties attention to the precise point for consideration which may also account for the fact that neither the courts below has specially dealt with this aspect of the question.

I would therefore reverse the decisions of both the courts below and remand the case to the trial court for considering the issue as to whether Rs. 294/- which formed the consideration for Ex. A could not have been obtained by dealing with the thavazhi property otherwise than by an out right sale i.e., whether the money could not be obtained upon hypothecation or possessory mortgage of thavazhi property.

If the money could have been found in such a manner, the sale would not be justified. Reference may be made to - Manglu Meher and Others Vs. Sukru Meher and Others, wherein Jaganadhadas J. (as he then was), referring to decisions of the Privy Council, held that:

What has to be judged broadly is whether for raising the amount for which legal necessity has been made out, the particular transaction by way of sale of the extent comprised therein was in fact reasonably and honestly satisfied .that it was so on a bona fide inquiry.

Necessity for a loan will not by itself justify its being incurred at a particular rate of interest. In the words of Krishnaswami Ayyangar J. in - P.E.R.M. Annamalai Chetty Vs. Satyavadivel Muthuswami Maniagaran and Others, "the creditor has to make out a necessity not merely for the loan advanced, but also for the rate of interest charged", that is to say, the onus is on the alienee to prove the necessity for the particular transaction. If a loan at a lower rate of'' interest could have been obtained, one at a higher rate would not be justified. If the amount required could be found by hypothecating or possesserily mortgaging family property, an outright sale would be unjustifiable. (See - ''Nazir Begum v. Raghunath Singh'' AIR 1919 PC 12 (C); - ''. Manna Lal v. Kam Singh'' AIR 1919 PC 108 (2) (D), - ''Ganpat Rao v. Ishwar Singh'' AIR 1938 Nag 476 '' (E), and - ''Ganpatrao Madhorao v. Ishwar Singh'' AIR 1938 Nag 482 (F).

In the last mentioned case, Stone C.J. and Niyogi J., while considering the question of granting leave to appeal to the Privy Council against their decision reported in - '' AIR 1938 Nag 476 (E) '', says:

The purpose of a loan may be necessary, yet the debt may not be necessary if the property was yielding, as in this case, decent income, the alienation would be much less necessary if the amount is so small that it could, as in this case, have been raised on personal security.

These principles which are applicable to cases of Hindu Law are equally applicable to alienations of tarwad or thavazhi property under the Marumakkathayam law. (See - ''23 Trav-Co LR 8 (FB) (G)''.

The decision of the Privy Council in - AIR 1927 121 (Privy Council) (which was not cited or relied upon before me) is not against this view as their Lordships'' decision was rendered in the case of a family business and their observations must be taken as limited to such cases where the matters for consideration are different from those in ordinary cases.

Mulla in his "Principles of Hindu Law," 11th Edition, 1952, page 299 refers to this decision under the heading "Alienation by manager of coparcenary property for purposes of family business." Even in a case where outright alienation is called for, the sale must be limited to such slice as would be sufficient to meet the demand. (See - ''Kunjan Pillai Karunakaran Pillai v. Mani Pillai DevaKi Pillai'' AIR 1953 KER 542 (I).

Should the trial court find that the alienation (Ex. A) cannot be justified but money forming its consideration could have been found by any less thorough-going transaction, the impugned sale will be set aside and the property directed to be surrendered to the Plaintiff on behalf of her thavazhi. The alienee 1st Defendant will however be entitled to retain possession of the property until repayment to him of Rs. 294/- for which he can be and is given a charge over the property. He will not be liable to mesne profits until the said amount is paid. The costs hitherto incurred will abide the result and will be provided for in the decree to be passed by the trial court. Refund court-fee. Leave to appeal is granted.