SUBRAMANIA IYER Vs. SIVARAMA IYER

JUDGEMENT

(1.) Plaintiffs 1 to 4 are the appellants. At the time of the institution of the suit, plaintiffs 1 to 3 were minors represented by their mother the 4th plaintiff. The 1st defendant is the father of plaintiffs 1 to 3 and the husband of the 4th plaintiff. They are governed by the Hindu Mitakshara Law. They are members of an undivided Hindu family of which the 1st defendant was the manager. The properties described in A schedule were said to belong to the family. The B schedule consists of properties said to have been acquired by the 1st defendant with the income from the ancestral properties. The 1st defendant was stated to have assumed the management of the family affairs in 1089 when the family had immovable properties to the value of Rs. 20,000/- moveables and ornaments estimated to the value of Rs.10,000/-, besides a ready cash of Rs.2000/-. The net income from the family properties then was Rs. 2000 a year. The 1st defendant had also surrendered a mortgage right of the family on 3-10-1094 and received 14,000 fanams. The 1st defendant's father was alive in 1089 and, since the 1st defendant's management proved injurious to the family, there was an arrangement between the father and the son in 1094, as evidenced by Ext. A, by which some properties were given to the 1st defendant for management. After the death of the father, the 1st defendant secured possession of all the family properties, and by his reckless alienations, without consideration and family necessity, disposed of most of the plaint properties. Whatever considerations he had received were misused by him. The alienations effected by him are given in detail in the plaint, and they are evidenced by the documents Ext. E or XLVI to the 3rd defendant, Ext. R or X to the 19th defendant, Ext. B or 2 to the 2nd defendant, Ext. F or IV to the 4th defendant, Ext. 1, and J or XXV to the 6th defendant, Ext. L or 34 to the 9th defendant, Ext. K to the 7th defendant, Ext. P to the 16th defendant and Ext. Q to the 18th defendant. He had also executed Ext. 6 hypothecation bond to defendants 11 and 12 for the future subscriptions of a chitty, and on his default to pay the same, they had obtained a decree in O.S.. 1432 of 1107 of the Addl. Munsiff's Court, Padmanabhapuram, and in execution, got several of the items sold and purchased by them and by a stranger the 17th defendant. The sale sannad to the 17th defendant is Ext. 8, and the sale sannad to defendants 11 and 12 are Exts. XXVI and XXVII. Item 1 in B schedule was a mortgage acquisition with family funds, and this, the 1st defendant had released without receiving consideration by executing Ext. XVI. None of these alienations was supported by consideration and necessity binding on the family. The prayer of the plaintiffs was therefore to have all these documents set aside and to recover possession of such of the properties obtained possession of by the defendants. If all the properties could not be thus delivered over to them, they had also made a prayer that their shares in the family properties might be divided by metes and bounds and that they might be put in possession of the same with past and future mesne profits. The suit itself was filed in forma pauperis,

(2.) Defendants 6, 9, 11, 12, 13, 17, 19, 21 to 27, 28, to 30, 37, 38 to 40 and 45 had entered appearance and contested the suit. Of the defendants, the 2nd defendant died and his legal representatives are defendants 21 to 27. The 3rd defendant became an insolvent and he is represented by defendants 35 and 36. The 7th defendant died and his legal representatives are defendants 31 to 38. Defendants 4 and 27 also died and they are represented by defendants 28 to 30. Defendants 37 to 45 were impleaded as they come in under the Official Receiver. The common contention of all these defendants was that the alienations were supported by consideration and family necessity; that the 1st defendant, by himself, was competent to effect these alienations, that the same were binding on the family, including the shares of the 1st defendant's sons, and that they were not liable to be set aside. The detailed contentions of each of these defendants will be considered when the alienations in respect of which they are interested are dealt with in the following paragraphs.

(3.) The court below found that A schedule items 1 to 29 and 32 to 35 were alone proved to be the ancestral properties, that items 1 to 5 in B schedule were acquired with the funds belonging to the family, that items 6 and 7 in B schedule which stand in the name of the 9th defendant, a brother in law of the 1st defendant, were not shown to have been acquired by the 1st defendant with his funds, that none of the alienations except Exts. K, P and Q is liable to be set aside, that since the properties covered by Exts. K, P and B schedule item 5 in Ext. Q were included in the sale sannad Exts. 8 and 26, the plaintiffs can get no relief regarding those properties, that by an order dated 11-6-1114 the suit had been dismissed as regards defendants 8, 15 and 20 so that the plaintiffs can get no relief relating to A schedule items 13, 14, 16 and 21 to which they were entitled and that they can get delivery of possession of only A schedule items 3 included in Ex. Q sale deed.