THANKAPPAN Vs. NARAYANAN

JUDGEMENT

(1.) THE plaintiff in O. S. No. 1417 of 1109 of the trivandrum Munsiff's Court is the appellant in this case. THE suit is to set aside Ext. I mortgage dated 28. 10. 1100 executed by defendants 2 to 11 in favour of the 1st defendant. THE plaintiff and defendants 2 to 11 are members of an undivided marumakkathayam tarwad. THE 3rd defendant is the karanavan of the tarwad and the 4th defendant is the next senior member. THE mortgage is for fanams 7000 with a term of three years. On the same date on which the mortgage was executed defendants 2 to 11 took the properties back on lease on a monthly rent of Rs. 10/ -. THE plaintiff was a minor on the date of the suit. All the adult members have joined in the execution of the mortgage. On the basis of the lease deed the 1st defendant filed O. S. 1793 of 1102 of the District Munsiff's court of Trivandrum for arrears of rent charged on the equity of redemption and for recovery of the properties, and obtained a decree. Ext. A is the copy of the plaint in that case. In execution of the decree the 1st defendant got delivery of the properties on 15. 6. 1105 and the equity of redemption was proclaimed for sale for the decree amount. THE plaintiff filed this suit for cancellation of the mortgage deed and for setting aside the decree and execution proceedings in O. S. No. 1793 of 1102 and for recovery of the properties with mesne profits and for an injunction restraining the 1st defendant from executing the decree against the properties. THE plaintiff's case is that the mortgage deed is not supported by consideration and tarwad necessity.

(2.) THE 1st defendant alone contested the suit. His main contentions are that the plaintiff is not a member of the sub-tarwad of defendants 2 to 11, that the plaint properties belong to the sub-tarwad of defendants 2 to 11, that the mortgage is supported by consideration and tarwad necessity, that the plaintiff is not competent to impeach the same, and that the decree and execution proceedings in O. S. No. 1793 of 1102 are valid are not liable to be set aside. THE lower court dismissed the suit. When this appeal came up for argument the respondent's learned Advocate stated that he had no instructions and therefore the respondent was not heard.

(3.) THE other item of consideration namely Fs. 3800 was, as stated above, paid in ready cash for a trade intended to be started and conducted for the benefit of the tarwad.