RAJASEKHARAN PILLAI Vs. PHILIPOSE

JUDGEMENT

(1.) The plaintiff is the appellant. She is the daughter of the 4th defendant. Her father was one Narayana Pillai a Makavazhi Vellala. The 3rd defendant was the first wife and the 4th defendant, the second wife of Narayana Pillai. Defendants 3 and 4 were cowidows and the 3rd defendant was the elder one. The plaint property was the self acquisition of Narayana Pillai. On 17-11-1101, the 4th defendant on her behalf and as guardian of the plaintiff, who was minor then, had executed Ext.2 sale deed for the plaint property for a total consideration of 20,825 fanams in favour of defendants 1 and 2. It contains four recitals. The first two recitals were for redemption of admitted mortgages and the third redemption of a hypothecation debt of fanams 4,200/- due to one Subramonia Pillai, examined in this case as DW 1. The fourth recital Was a cash consideration of 250 5/8 fanams. It is the plaintiff's case that the 4th defendant was incompetent to execute the sale deed and that it was lacking in consideration and necessity so far as the third and fourth recitals were concerned. The suit was, therefore, for setting aside the sale deed.

(2.) The 1st defendant contended that at the time of Narayana Pillai's death he was in embarrassed circumstances. He had only some properties most of which were outstanding on mortgages. There was hardly any income from other properties for the maintenance of his wives, defendants 3 and 4. As the 3rd defendant was possessed of her Stridhanam properties and as she was childless, she left the management of these properties to the 4th defendant. There were litigations pertaining to the estate of the deceased Narayana Pillai and the 4th defendant's brother was helping these parties in conducting the same. To meet the costs of litigation, the 4th defendant's brother DW 1 had advanced Rs. 400/- and another sum of Rs. 200/- was intended to be spent for setting aside an auction in respect of certain other properties. Thus, the hypothecation bond Ext. I in favour of DW 1 was supported by consideration and necessity. The cash consideration was utilised for discharging the arrears of Sirkar dues. The plaintiff was not a reversioner and so she was not entitled to bring the suit to set aside the sale. He alone was entitled to the property and the 2nd defendant had no right over the same. He pressed for the dismissal of the suit. The plaintiff by a replication reaffirmed her allegations in the plaint.

(3.) The court below found that the sale deed was supported by consideration and necessity, that it was executed by a competent person, that the 3rd defendant was not a necessary party to it, that the suit was not barred by limitation and that the plaintiff was not entitled to any relief. The suit was dismissed directing the plaintiff to pay three fourths of the costs to the 1st defendant.