OMANAKUTTY PILLAI Vs. KRISHNAN NAIR

JUDGEMENT

(1.) THE second appeal arises out of a suit for setting aside a sale deed, Ext. 1 in the case, and for recovery of the suit properties with mesne profits, the plaintiffs being the appellants before me and defendants 1 and 2 the respondents. THE plaintiffs are the children of the 2nd defendant, the 1st plaintiff alone being a major representing the other plaintiffs as next friend. THE 3rd defendant is the father of the 2nd defendant and the first defendant the alienee under Ext. I. In the year 1116 M. E. when the 2nd defendant was the sole major member of her tarwad, she and her father, the 3rd defendant, executed the sale deed, Ext I, in favour of the first defendant. THE properties comprised in the sale deed originally belonged to the 3rd defendant, who made a gift of the same to the 2nd defendant and her children reserving a life interest for him in the properties and therefore the third defendant also seems to have joined in executing Ext. I. THE plaintiffs impugned this document as not supported by consideration and tarwad necessity and prayed for the cancellation of the same. THE 1st defendant contested the suit, contending, inter alia, that the sale was fully supported by consideration and tarwad necessity. In the end the trial court set aside the document on condition that the plaintiffs paid Rs. 2133-14-8 within two months from the date of the decree, in default of which the suit was to stand dismissed with costs. THE trial court decreed mesne profits also at the rate of rs. 100 per annum from the date of deposit of the aforesaid amount. Both the parties appealed to the lower appellate court and the lower appellate court modified the decree of the trial court in certain respects. It set aside the sale deed, but allowed the plaintiffs to recover the suit properties on behalf of their tarwad from the 1st defendant only on surrender of the properties covered by Exts. IV, V, VI and XI, which are properties purchased with the consideration amount paid by the 1st defendant under Ext. I and also on payment of Rs. 1022-14-8 towards value of improvements due to the 1st defendant. It also authorised the plaintiffs to surrender the rights under Exts. IV, V, VI, and XI and it further directed that the plaintiffs would get mesne profits at the rate claimed in the plaint from the date of such surrender and deposit of the value of improvements THE plaintiffs have filed the second appeal against the aforesaid decision of the lower appellate court disputing mainly the direction of the lower appellate court to surrender the acquisitions covered by exts IV, V, VI and XI and defendants 1 and 2 have filed a memorandum of cross objections claiming that Ext. I is binding on the plaintiffs and that the 1st defendant is entitled to additional compensation for improvements over and above the amount granted by the lower appellate Court.

(2.) THE recitals regarding consideration in Ext I are: (1)Rs. 115 being the premia for 4 lease deeds in favour of the 1st defendant and a 5th lease deed in the name of Dw. 5; (2) Rs. 685/- being the value assessed of the improvements on the land effected by the 1st defendant as lessee as on the date of Ext. I; (3) Rs. 250 paid in cash on the date of Ext. I for acquiring properties for the 2nd defendant's tarwad and (4) Rs. 1000 reserved with the 1st defendant to be paid after six months for acquiring other properties for the tarwad. THE total consideration for Ext. I is thus Rs. 1950. Both the lower courts have concurrently found that consideration passed under item 1 above mentioned to the extent of Rs. 88, there being a failure of consideration under that head to the extent of Rs. 27 and that there was consideration in full under the second head above referred to. Coming to the third item of consideration, namely, Rs. 250 paid in cash on the date of Ext I for the acquisition of other properties for the tarwad, the trial court found that this amount was also paid by the 1st defendant. But the lower appellate court disagreed with this finding and disallowed this item of consideration. Finally, regarding the fourth item, the trial court found that consideration under this head passed to the extent of Rs, 909/-; but the lower appellate court was of the opinion that the alleged acquisitions made from out of this last head of consideration were not to the manifest advantage of the tarwad and therefore not binding on it. In the result, as I have already indicated, the trial court set aside Ext. I on condition that the plaintiffs paid Rs. 2133-14-8 within two months of the date of decree, which decree was modified by the lower appellate court as already indicated.

(3.) NOW I would consider the third and fourth items of consideration recited in Ex. I. The third item of consideration, namely, Rs. 250 alleged to have been paid on the date of Ex. I, does not appear to have been utilised for the purpose of any acquisition in the name of the 2nd defendant or the tarwad. The learned District Munsiff may be right in a general way in his observation, which he makes in Para. 8 of his judgment, that the real application of the money is not the concern of the vendee if reasonable enquiry is made by him. But, when there is a recital in the document that the amount is paid in cash for the purpose of making an acquisition for the tarwad, the vendee should make reasonable enquiries regarding the said acquisition. In this case there is no evidence to show that he made any such reasonable enquiry, nor is there any evidence regarding any acquisition made with the said amount. Therefore, I agree with the learned District Judge on this point and hold that the tarwad had not the benefit of this amount of Rs. 250.