KARUNAKARAN PILLAI Vs. DEVAKI PILLAI

JUDGEMENT

(1.) This appeal has been preferred by the plaintiff in O. S. No. 39 of 1121 on the file of the Krishnapuram District Munsiffs Court. Himself and defendants 2 and 3 are the children of the 1st defendant. The suit properties belonged to their common tarwad and as per the partition deed executed by the members of the tarwad in the year 1103, these properties along with other items were set apart to the share of these parties who constituted a thavazhi or sub tarwad with the 1st defendant as its head. Until the plaintiff attained majority, his mother the 1st defendant was the only adult member in this sub tarwad. On 30-9-1117 she sold the plaint items, which are paddy lands covering an extent of 62 cents, to the 4th defendant for a consideration of Rs. 675/-. On the same day she took Ext. 2 assignment of a mortgage right charged on certain other items of properties. On the plaintiff attaining majority, he instituted the present suit to have the sale deed Ext. 3 set aside and for recovery of the plaint items from the 4th defendant with mesne profits at the rate of 90 paras of paddy per year. The sale was impeached as a transaction unsupported by consideration and necessity binding on his sub tarwad. It was also contended that the sale was highly prejudicial to the interests of the sub tarwad. All these allegations were denied by the 4th defendant who resisted the suit. She in her turn contended that the sale deed Ext. 3 is fully supported by consideration and necessity and that the sale was of undoubted benefit and advantage to the sub tarwad. The Trial Court upheld these contentions and dismissed the suit. Hence this appeal.

(2.) On the question whether the sale deed Ext. 3 is supported by consideration, the finding recorded by the court below in favour of the 4th defendant respondent does not call for any interference. DW 2 swears to the payment of consideration under this document. Such payment was made before the sub registrar who had certified the fact of such payment on the back of the document itself. There is also the further statement in Ext. 2 that the sum of Rs. 675/- obtained under the sale deed Ext. 3 formed the bulk of the consideration for obtaining the assignment under Ext. 2. In the face of such evidence it is idle to contend that Ext 3 is lacking in consideration.

(3.) The next and the more important question for determination in this appeal is whether the 1st defendant was acting within her rights when she executed the sale deed Ext. III. At the time of the execution of the document, she was undoubtedly the manager of the sub tarwad, consisting of herself and her children. In that capacity she could execute a sale deed like Ext. 3 so as to bind the sub tarwad, provided it is found that the sale is supported by consideration and necessity binding on the sub tarwad. Since it has been proved that the sale has been for valuable consideration, the next aspect to be considered is whether it was to the benefit of the sub tarwad, so that it may be said that sale is supported by necessity binding on the sub tarwad. Some more facts relating to the particular transaction have to be borne in mind in approaching this question.