MADHAVAN PILLAI GOPINATHAN NAIR Vs. SUBBAYYA CHETTIAR KARTHIKAYAN

JUDGEMENT

(1.) Having lost the case before the trial court, the single Judge and Division Bench of the High Court of Kerala, defendants 7 and 8 have filed these appeals assailing the judgment rendered by the Division Bench on 13.8.1992 in AFA No. 44/1992 and 47/1992.

(2.) The suit OS No. 246 of 1978 was instituted by respondents 1 and 2 herein alleging, inter alia, that they, the defendants 1 to 4 and mother of defendant No. 5 are the children of late Muthammal wife of Subbayyan Chettiar. The parties belong to Thelunkchetty caste and are governed by Hindu Mitakshara Law. The suit property as described in the schedule to the plaint is 93 cents of land under survey No. 86/7 in Niyamam village. It was the self-acquired property of Muthammal. She mortgaged the said property with one Velayudhan Pillai for Rs. 2,000/- on 9.8.1956. It was stipulated in the mortgage deed that the mortgagee would not spend more than Rs. 300/- for construction of a house on the mortgage property and he would not claim anything more than Rs. 500/- towards value of the building constructed by him in the property, at the time of redemption. Muthummal died on 13.6.1962. On her death the property devolved on her seven children, the plaintiffs, defendants 1 to 4 and Leelammal, mother of 5th defendant. Leelammal died on 1.5. 1979 and her rights devolved on her only daughter the 5th defendant. Shortly after the death of Muthummal, Subbayyan Chettiar father of the plaintiffs married one Pappammal on 24th November, 1962. Under the influence of his second wife Subbayyan Chettiar neglected the plaintiffs and their brothers and sisters and resided separately along with Pappammal and the 4 children begotten through her. Being neglected by their father the plaintiffs and their brothers and sisters were maintained by their uncle Venkitachalam Chettiar brother of Subbayyan Chettiar. Subbayyan Chettiar died on 6.1.1975. During his life time Subbayyan Chettiar claiming himself as guardian of the plaintiffs and his other minor children through deceased Muthummal got executed a partition deed, on 19.9.1963 under which the plaint schedule property was partitioned amongst the children of Muthummal and Subbayyan Chettiar in equal shares. In the plaint it was alleged that the said partition deed was void and liable to be set aside for various reasons. It was the case of the plaintiffs that Subbayyan Chettiar was neither entitled to a share in the property of Muthmmal nor was he entitled to represent the minor children of Muthummal after his second marriage. It was further alleged in the plaint that division of the property was not effected in an equitable manner and it was prejudicial to the interest of the minors. Subbayyan Chettiar and the 1st defendant Renkaswamy Chettiar who was the only major son at the time, sold 23 cents of property which was allotted to them under the partition deed to one Gopala Krishnan and he had redeemed that property (23 cents) on payment of a portion of the mortgage amount to the original mortgagee. It was the case of the plaintiffs that neither Subbayyan Chettiar nor the 1st defendant had any right to execute sale deed in favour of Gopala Krishnan and the said sale deed was not binding on the plaintiffs. On 1.9.1964 Subbayyan Chettiar as guardian of his minor children mortgaged the remaining 70 cents of property which was allotted to his minor children under the partition deed to one Krishnamurthy for a sum of Rs.5500/-, and the said Krishnamurthy redeemed the prior mortgage of the year 1956 executed by deceased Muthummal and obtained possession of the property. Again on 23.6.1965 Subbayyan Chettiar executed a Purakkadam document in favour of Krishnamurthy for a sum of Rs. 2000. It was the case of the plaintiffs that the aforementioned mortgage deed and Purakkadam document were void and they were liable to be set aside for the reasons that Subbayyan Chettiar was incompetent to act as guardian of the minor; that there was no necessity for mortgaging the property and that there was no consideration for the mortgage deed and the Purakkadam document. It was further alleged by the plaintiffs that the consideration received for execution of these documents was not utilized for the benefit of the minors; though the original mortgagee had agreed that he would not be entitled to spend more than Rs. 500 towards value of improvement, Subbayyan Chettiar had granted a sum of Rs. 2,500/- towards value of improvement effected by the mortgagee; he had no authority to do so; Leelammal, mother of the 5th defendant was shown as a minor on the date of the mortgage deed and Purakkadam document even though she was a major then, and for executing the documents on behalf of the minors Subbayyan Chettiar had not obtained sanction from the Court. The properties covered under the mortgage deed and the Purakkadam document were subsequently transferred to defendants 6, 7 & 8 on different dates. On these allegations the plaintiffs sought the following reliefs:

(3.) The first defendant remained ex-parte. Defendants 2 to 5 filed joint written statement supporting the plaint and claiming partition and separate allotment of their 4/7th share of the plaint schedule property. Defendant No. 6 took the plea that restrictions imposed in the original mortgage deed regarding value of the improvements on the mortgage property was invalid and the mortgagee was entitled to get the value of improvements under the provisions of the Kerala Compensation for Tenanats Improvements Act, 1958. The said defendant generally denied the allegations made in the plaint.