GOVINDAN KURUP Vs. BHASKARA PILLAI

JUDGEMENT

(1.) The Second Appeal is by the 1st defendant in a suit for the redemption of a mortgage after setting aside an alienation. The property originally belonged to one Madhava Kurup and was outstanding on a mortgage of 1105 M.E. Madhava Kurup died leaving his widow, the 2nd defendant, and his six children, the plaintiffs, who were all minors at the time of his death. The 2nd defendant executed the sale deed, Ext. A, in 1117 M.E. for self and as guardian of the minors in favour of the 1st defendant for 300 fanams regarding the equity of redemption of the property. By the said document, the 1st defendant was directed to pay off the mortgage amount of 200 fanams under Ext. B, the mortgage of 1105 M.E. The document further recited that the 2nd defendant had already taken 100 fanams on a promissory note from the 1st defendant, which was also shown as part of the consideration for Ext. A. The result was that on the date of Ext. A no cash consideration passed. In pursuance of the direction contained in Ext. A the 1st defendant redeemed Ext. B and recovered possession of the property. The plaintiffs alleged in the plaint that Ext. A was not supported by consideration or by binding necessity and therefore, the document was liable to be set aside on payment of the mortgage money and value of improvements due to the 1st defendant. The 1st defendant, on the other hand, contended that the sale deed was fully supported by consideration and binding necessity and therefore, the document was not liable to be avoided by the minors. He further contended that, at any rate, the sale regarding the share of the 2nd defendant, namely one-seventh, was not liable to be set aside. He had another contention that the suit having been brought more than three years after the attainment of majority by the first three plaintiffs, the suit was barred by limitation under Art.44 of the Limitation Act regarding the shares of plaintiffs 1 to 3. In the result the 1st defendant contended that the sale deed was not liable to be set aside at all; if it were liable to be avoided, it was only to be set aside regarding the three shares of plaintiffs 4 to 6 and it could not be set aside regarding the shares of plaintiffs 1 to 3 and the 2nd defendant. Both the lower courts concurrently held that there was no consideration for the sale, the courts having found that the alleged consideration of 100 fanams based on a previous promissory note was false. The result was they concurrently held that no consideration passed under Ext. A. The Trial Court held further that Ext. A was a void transaction as there was no consideration. Consistent with that view it granted a decree in favour of the plaintiffs declaring Ext. A as void; allowing redemption of the plaint property on deposit of the mortgage amount of 200 fanams and value of improvements, Rs. 202-10-6; allowing Rs. 30/- as damages; and also granting mesne profits at the rate of Rs. 50/- per annum from the date of deposit of the mortgage amount and the value of improvements.

(2.) The 1st defendant appealed to the lower appellate court, which also held that

(3.) The first contention raised by the learned advocate of the appellant is that the decision of the lower courts, that the transaction covered by Ext.A was void, is incorrect. According to the learned counsel the transaction is only voidable, which the plaintiffs could have avoided if they so chose. The learned advocate goes further and contends that in that case the Article applicable would be Art.44 of the Limitation Act, under which the plaintiffs had only a period of three years within which they should have brought the suit. He further elaborates his argument and urges that plaintiffs 1 to 3 became majors more than 3 years prior to the institution of the suit and therefore, their remedy was barred by limitation under Art.44 of the Limitation Act with the consequence that the plaintiffs were entitled to recover possession of only three out of seven shares on payment of the proportionate mortgage amount and value of improvements. They were also entitled only to proportionate damages and mesne profits.