Mohammed Kannu Sainaba Ummal vs Raman Neelacandan and Others

Sankaran, J.—This is an appeal by the Plaintiff whose suit for redemption of the plaint properties was dismissed by the lower Court. The properties belonged to the ''tarwad'' of the third Defendant and had been mortgaged by him along with the other members of the ''tarwad'' to the 1st Defendant under Ex. II dated 19-8-1100. On 4-4-1118 the members of the 3rd Defendant''s tarwad partitioned the properties of the ''tarwad'' as per the partition deed Ex. I. The parties to whose share the equity of redemption over the suit properties had been allotted under Ex. I executed Ex. A sale-deed dated 19-8-1118 assigning their rights to such, equity of redemption in favour of the present Plaintiff. On the strength of such assignment, the Plaintiff instituted the present suit for redemption.

In the written statement filed by the 1st Defendant he contended that he had already released the mortgage in favour of the 3rd Defendant as per the release deed Ex. III dated 11-11-1118 and that on the same date the 3rd Defendant had mortgaged the properties in favour of the 4th Defendant under Ex. IV. The 4th Defendant was accordingly stated to be in possession of the properties. The Plaintiff thereupon impleaded Defendants 3 and 4 also as parties to the suit and filed an amended plaint impeaching Exs. III and IV as fraudulent and collusive and seeking recovery of possession of the properties from the 4th Defendant.

The main ground on which Defendants 1, 3 and 4 resisted the Plaintiff''s suit for redemption is that the partition deed Ex. I is not valid and binding on the 3rd Defendant who has neither joined in its execution nor consented to such an arrangement by agreeing to it at any stage. The trial court upheld this contention and found that the executants of Ex. A assignment deed had not acquired title to the equity of redemption in respect of the plaint properties and that therefore the Plaintiff has no title to sustain the suit for redemption. Hence this appeal.

The question for decision in this appeal is whether the partition arrangement as embodied in Ex. I dated 4-4-1118 is valid and binding on all the members of the ''tarwad'' of the Plaintiff''s assignors including the 3rd Defendant. According to the Plaintiff the arrangement under Ex. I was entered into as per the mutual consent of all these members and that the document Ex. I was prepared on that basis, setting apart separate schedules of properties to the different groups and individuals as had been agreed to by them. It is also stated that at the final stage of the registration of the document, two members refused to affix their signatures to the document. It is further stated that these two members also subsequently came round and consistent with the consent which they had already given to the arrangement under Ex. I, accepted the properties allotted to their share and thus fully acknowledged and ratified the partition arrangement embodied in Ex. I. These allegations have been proved and substantiated by the documentary evidence adduced in the case.

It is seen from Ex. I itself that the partition deed was drawn up on the basis that the partition and the allotments made thereunder had been agreed to by all the adult members of the ''tarwad''. The two persons who did not sign the document are also treated as parties to the document and their names were put down in the appropriate places where their signatures had to be obtained.

These two persons are the sixth and eighth parties to the document. The sixth party is one Narayani representing the group consisting of herself and her minor children. (His Lordship on examination of the evidence held that there was acceptance and ratification of the partition deed by the sixth and the eighth parties as also by the third Defendant. His Lordship then proceeded).

(4. - 5.) The question regarding the validity and binding nature of Ex. I has to be decided in the light of the above mentioned facts and circumstances. It is argued by the learned Advocate for the Respondent that the partition arrangement made under Ext. I cannot bind the 3rd Defendant who has not signified his consent to such an arrangement by signing the document. The ruling in - ''Thanu Pillai v. Mathevan Pillai'' AIR 1951 Trav-C 98 (FB) (A), is relied on in support of this position. That ruling has not gone to the extent of laying down as a general proposition of law that a party who has not signified his consent to a partition arrangement by signing the deed of partition, will under no circumstances be bound by that arrangement, and that the entire arrangement has to be treated as invalid and inoperative. It cannot be said that a valid partition binding on all the members of the ''tarwad'' can be effected only by the execution of a formal deed of partition signed by all of them or by the passing of a decree by a Court of competent jurisdiction. Partition can also be effected by an oral arrangement entered into by all the parties. The ruling in - AIR 1951 Trav-C 98 (FB) (A)'' has also accepted this position.

Where a partition deed alone is relied on in support of a case of partition among the different members of "the ''tarwad'', such partition could be accepted as valid and binding on all such members only if it is shown that all of them are consenting parties to it. In - ''Parvathi Pillai v. Raman Pillai'' 16 Trav LT 231 (B), it was held that where all the members of the ''tarwad'' were shown to have consented to the partition arrangement but only some had joined in the execution of the deed and the Ors. had chosen to withdraw their consent recalcitrantly and unreasonably at the last stage, the partition deed must be held to be valid and binding on such recalcitrant members also. It was pointed out in - ''AIR 1951 KER 98 (FB) (A)'' that this proposition cannot be accepted as a general rule to govern all cases where the partition deed is seen to have been executed by only some members of the ''tarwad''.

On the other hand, the proposition laid down in - ''Devaki Amma v. Kumara pillai'' 25 KERLJ 80 (C), that the omission to obtain the signatures of some of the members of the ''tarwad'' to the deed of partition has to be accepted as ''prima facie'' evidence of dissent or want of consent on their part to the partition arrangement embodied in the document, was preferred to be followed as laying down the correct rule for guidance. It has to be remembered that the omission to obtain the signatures of some of the members of the ''tarwad'' to the partition deed is only ''prima facie'' evidence of their not having given their consent to the partition arrangement and that it will be open to the other parties to prove as a matter of fact that such members have also given their consent to the partition arrangement and have accepted the same by adducing reliable and acceptable evidence.

Where such evidence is available, the partition deed cannot be ignored as an invalid document merely on account of the fact that all the members have not signed it. The deed may be intended merely to evidence the fact of the oral arrangement of partition already entered into as the result of mutual agreement among all the members. Even if some members chose not to sign the document evidencing such an arrangement, it will be still open to them to accept and ratify such arrangement by their subsequent conduct. From the facts of the case in - AIR 1951 Trav-C 98 (A) it is seen that such a test was applied in that case to find out whether the partition deed relied on by the contesting Defendants could be accepted as a valid document binding on the Plaintiffs as well who had not signed the document, and it was found that

"no records were filed indicating the consent of the Plaintiffs to the partition or the acceptance of the properties allotted or any other document indicating that by conduct they had accepted the terms of the partition."

The oral evidence, adduced to show that the Plaintiffs had accepted the partition arrangement was also found to be unreliable. It was under such circumstances that the partition deed put forward in that case was held to be not valid and binding on the members who were not parties to it. So far as the present case is concerned, it has been clearly established by the documentary evidence already referred to that the 3rd Defendant, who was the 8th party in Ex. I, as well Narayani the 6th party in it, who were the only two members who had not signed the document, had by their subsequent conduct accepted the properties set apart to their respective shares under that document and had thus ratified and acknowledged the partition arrangement as embodied in that document. It has therefore to be taken that the partition deed Ex. I evidences the partition arrangement brought into existence as the result of the mutual consent of all the members of the ''tarwad'' and that it is a valid document, binding on all the members of the ''tarwad'' inclusive of the 3rd Defendant. Under this document, the executants of Ex. A had acquired title to the equity of redemption of the suit properties. The Plaintiff, who has purchased such rights under Ex. A, is therefore entitled to maintain the present suit for redemption of the plaint mortgage Ex. II.

How far the release Ex. III executed by the 1st Defendant in favour of the 3rd Defendant and the subsequent mortgage Ex. IV executed by the 3rd Defendant in favour of the 4th Defendant would affect the Plaintiff''s right of redemption in the present suit, may now be considered. Soon after obtaining the sale deed Ex. A in respect of the equity of redemption over these properties, the Plaintiff had issued a notice to the 1st Defendant calling upon him to execute a release in respect of the mortgage Ex. II after accepting the mortgage amount due thereunder. Ex. C is the receipt evidencing the fact of the issue of such notice. The 1st Defendant admits having received that notice. Ex. B dated 6-9-1118 is the reply notice sent by the 1st Defendant to the Plaintiff and therein the 1st Defendant has stated that the 3rd Defendant had also claimed to get a release of the mortgage and that on the Plaintiff making out his title, the 1st Defendant was prepared to execute a release in favour of the Plaintiff.

But it is seen that the 1st Defendant did not act in accordance with such an undertaking made in Ex. B. The Plaintiff had therefore to institute the present suit. He filed the suit on 1-11-1118. A few days later, the 1st Defendant executed the release deed Ex. III in favour of the 3rd Defendant in respect of the rights under the mortgage deed Ex. II and the 3rd Defendant in his turn 3 executed a fresh mortgage as evidenced by Ex. IV to respect of the same properties in favour of the 4th Defendant. Exs. III and IV were executed on the same date i.e., on 11-11-1118. Since these documents came into existence during the pendency of the present suit, it is clear that they are ''affected by the rule of ''lis pendens''. The 4th Defendant cannot therefore put forward Ex. IV as against the present Plaintiff and claim any better or larger rights than those which the 1st Defendant had on the date of the suit by virtue of the mortgage Ex. II in his favour. It is also clear that Ex. III and Ex. IV were brought into existence without any good faith and as a result of the collusion of Defendants 1 to 3.

These documents show that the 3rd Defendant had no funds available with him to obtain a release of Ex. II mortgage. The amount required was 9100 ''fanams''. The 4th Defendant advanced this amount to 3rd Defendant and it was with the funds so obtained that he obtained the release under Ex. III. In return for the consideration obtained from the 4th Defendant, Ex. IV mortgage was executed for the identical consideration of 9100 ''fanams'' in favour of the 4th Defendant. The 4th Defendant was able to induce the 3rd Defendant to fix a period of 10 years in Ex. IV. The 3rd Defendant was obviously made a mere tool in respect of the transaction evidenced by Exs. III and IV. As already stated, the 4th Defendant cannot put forward these documents by way of resistance to the Plaintiff''s suit for redeeming the mortgage under Ex. II. The best that can be said in favour of the 4th Defendant is that he has become an assignee of the mortgage rights under Ex. II as such he is entitled to draw the redemption price tendered by the Plaintiff.

Lastly, there is the question of mesne profits. On the basis of the commission report, Ex. H to which no objection had been raised by the parties, the lower Court has fixed the rate of mesne profits obtainable in respect of the suit properties at 108 ''paras'' of paddy per year. Neither side has questioned the correctness of this rate. Hence that rate is accepted as correct.

In the result this appeal is allowed and in reversal of the decree of the lower Court, the Plaintiff''s suit is allowed and a decree passed in his favour for redemption of the plaint mortgage and for recovery of possession of the suit properties from the Defendants with mesne profits at the rate of 108 ''paras'' of paddy per year from the date of deposit of the mortgage amount of 9100 ''fanams'' in Court. The Plaintiff-Appellant will get his costs throughout from the contesting Defendants.