KAMAKSHI AMMA Vs. GANGADHARAN PILLAI

JUDGEMENT

(1.) PLAINTIFFS 1 and 2 are the appellants. The 2nd defendant is the mother of the Ist plaintiff and the 1st defendant. The 2nd plaintiff is the 1st plaintiff's daughter. PLAINTIFFS and defendants 1 and 2 are members of a Nair sub-tarwad. The plaintiffs stated that the plaint properties belonged to that subtarwad and that certain encumbrances were created on the same by the 2nd defendant. Though the 1st defendant was the de jure Karnavan, two decrees had been obtained on two of the debts created by the 2nd defendant. In execution of these decrees tarwad properties, had been sold and delivered over to the auction-purchasers. The suit was to avoid the alienations, the encumbrances and the decrees and execution proceedings. The plaintiff's allegations were as follows: The 1st defendant became the Karnavan of their sub-tarwad in 1096. The 2nd defendant the mother was in management before that. The 1st defendant was a man of extravagant habits and of bad character. The 2nd defendant was under his influence and control. Since the 1st plaintiff's marriage in 1098 was conducted without the approval of defendants 1 and 2, the latter persons began to encumber or alienate the tarwad properties so as to defeat the plaintiff's claim to the same. The alienations were:- (i) Ext. A dated 2-10-1106 , a mortgage by the 2nd defendant to the 3rd defendant for 700 fanams, for a portion of plaint item 1. (ii) Ext. B dated 30-11-1106 , a mortgage by the 2nd defendant to the 4th defendant for 700 fanams for another portion of item 1. (iii) Ext. C dated 1-10-1106 , a hypothecation bond by the 2nd defendant to the 5th defendant for 2100 fanams for portions of items 1 and 2. This was recited in a subsequent mortgage deed ext. D dated 24-12-1107 for 2550 fanams. (iv) A hypothecation bond had been executed by 2nd defendant in 1099 for 1000 fanams for portions of items 1 and 2 in favour of the 6th defendant, and the 6th defendant had obtained a decree in O. S. 1104 of 1105 of the Padmanabhapuram Munsiffs Court. Ext. E is the copy of the File Book in that case. The hypotheca, the extent of which was 3 acres and 23 cents, had been sold in court auction and the sale was confirmed on 18-4-1110 and obtained delivery of possession on 12-7-1110. Ext. XVIII is the sale certificate and Ext. XXV the delivery Kychit. (v)Defendants 1 and 2 had executed a promissory note in favour of Thanuvan parameswaran Thampi, for the benefit of the 7th defendant. Parameswaran Thampi obtained a decree in O. S. 1698 of 1104 on that promissory note. The decree was assigned over to the 7th defendant who got herself impleaded in execution and attached and brought to sale items 1 and 2 for Rs. 376 Chs. 12 on 13-7-1110. She obtained delivery of possession of the properties on 28-5-1111. Ext. XIX is the decree and Ext. XX is the delivery Kychit. (vi) Ext. J dated 8-10-1109 a mortgage deed by the 2nd defendant to the 9th defendant for portions of the plaint properties for 400 fanams.

(2.) THE plaintiffs stated that the 2nd defendant was not competent to execute the mortgages mentioned above, that they were also not supported by consideration and tarwad necessity, that the decrees in O. S. 1104 of 1105 and 1698 of 1104 were not binding on the tarwad, that the documents on which they were obtained were not supported by consideration and tarwad necessity and that the decrees and execution proceedings were to be set aside. THE yield from the plaint properties would be fanams. THE plaintiffs therefore prayed for avoiding the alienations and execution proceedings mentioned above and for recovery of possession of the properties with mesne profits from the parties in possession.

(3.) THE 6th defendant stated that the plaint properties were the separate properties of the 2nd defendant, that the others had no right to the same, that the 2nd defendant was fully competent to alienate or encumber the properties, that the plaintiffs were not competent to question the same, that the decree obtained by him was valid, that there was no necessity to implead the 1st defendant or the plaintiffs in that case, that the amount was advanced for proper necessity, that he was prepared to give up his auction right over the property in case he was given the auction amount and discount and that he was in no way liable for the plaintiffs' suit.