NARAYANI AMMA Vs. DHATHIRI ANTHERJANOM

JUDGEMENT

(1.) THIS is an appeal from a decree setting aside a sale deed Ext. A dated 9. 11. 1113, executed by the 1st defendant in favour of the 2nd defendant. The 1st defendant's first wife died in 1107 and he married the plaintiff in 1111. At the time of sale, the properties were outstanding on redeemable kanom or mortgage with the 3rd defendant. Out of the total consideration of Rs. 1870 under the sale deed, Rs. 1000 was to be paid for redeeming the kanom and the balance Rs. 870/-, was stated to have been paid by the 2nd defendant in discharge of a decree debt due from the 1st defendant to the decree-holder in O. S. 1850/1110. The plaintiff alleged that she and the 1st defendant were governed by the Malayala Brahmin Act III of 1106, that the sale deed was unsupported by consideration and necessity binding on the Illom, that it was executed by the 1st defendant as a result of fraud, undue influence and misrepresentation and that it was invalid for want of her consent. She sued for the cancellation of the sale deed and recovery of possession of the properties from the 3rd defendant on payment of the kanom or mortgage amount, after adjusting the arrears of michavaram against such amount. She also prayed for an injunction to restrain the 2nd defendant from recovering possession of these properties from the 3rd defendant, in O. S. 1075/1117 of the Sherthallai munsiff's Court. The suit was contested by defendants 2 and 3. The 2nd defendant questioned the competency of the plaintiff to challenge the sale deed and contended that the same was valid and supported by consideration and necessity. It was also stated by her that the suit was filed at the instigation of the 3rd defendant. The 3rd defendant contended that michavaram up to and inclusive of 1109 had been paid and that in the event of redemption, he was to get the kanom amount and value of improvements.

(2.) THE trial Court found that the parties were governed by the Malayala Brahmin Act, that though the sale was supported by consideration and necessity it was invalid, as the plaintiff had not given her consent to the same. THE suit was decreed, setting aside the sale deed and directing redemption of the properties from the 3rd defendant. Though various grounds of objection were taken by the 2nd defendant in the court below, Shri. Varadaraja Iyengar, learned counsel for the appellant rested his case on two points viz. , (1) that the plaintiff's consent was unnecessary as she was a minor on the date of the sale deed and (2) that she was incompetent to question the consideration for the sale deed. THE plaintiff-respondent has filed a memorandum of cross-objections relating to the findings against her on the question of consideration and necessity. It is therefore necessary to examine these objections also.

(3.) IN this view, the only question that remains to be considered is that of Illom necessity. Some properties had already been sold for a very low price in execution of that decree and the properties attached as well as other items covered by Ext. M were coming on for sale. The evidence in the case shows that strenuous efforts were made by the 1st defendant and his well-wishers to raise money to discharge the decree debt and thereby avert the sale, and that all such attempts proved futile. It was only 4 days before the date fixed for court sale that the equity of redemption of these properties was sold under Ext. A to save other properties of the Illom. The present price of the properties is no indication of the value of the equity of redemption in the year 1113, when economic depression in Travancore was very acute. The sale in favour of the 2nd defendant under these circumstances was a prudent act and the plaintiff is not entitled to question the same on the ground of absence of necessity. It may also be stated that there are materials on record to support the conclusion reached by the court below that this suit is the result of a collusion between the 3rd defendant and the plaintiff. There is no satisfactory evidence to support the plaintiff's case that the 1st defendant lacked ability to look after his own affairs or that the sale was the result of fraud, undue influence or misrepresentation. We therefore hold that the sale deed Ext. A is not liable to be set aside. IN the result, we reverse the decree of the trial court, allow the appeal and dismiss the suit. The injunction restraining the 2nd defendant from recovering possession of properties in O. S. No. 1075/1117 of shertallai Munsiff's Court is vacated. The appellant will get costs in both courts from the plaintiff-1st respondent, who will bear her costs. Allowed.