KALLIYANI KUNJ AMNIA Vs. GOVINDAN

JUDGEMENT

(1.) The plaintiff approaches this court in Second Appeal, her appeal to the District Judge of Alleppey against the decree of the Munsiff dismissing her suit having failed. The suit was for setting aside the sale of the property scheduled to the plaint by her mother (D. 4), brother (D. 3) and sister (D. 5) who were all the major members of the Thavazhi. The sale was on 16.1.1115 (Ext. A) for Rs. 294/- and the property sold is a paddy land measuring 1 acre and 12 cents. This formed part of the properties obtained by the thavazhi at a partition in the tarwad in the year 1103 (Ext. B) whereunder this thavazhi obtained paddy flat measuring about 5 acres (47 paras) and coconut garden measuring about 36 cents. The plaintiff filed the suit after attaining majority and impeached the alienation as neither for consideration nor for necessity. It was also alleged that the transaction was brought about by undue influence exerted by the 3rd defendant on the other members. The 1st defendant is the alienee. The 2nd defendant is his wife in whom, it is alleged in the plaint, he had created some interest over the property. Defendants 3 onwards are the other members of the plaintiff's thavazhi. The 1st defendant contended that the alienation was for full consideration and supported by thavazhi necessity. The averment of undue influence was repudiated.

(2.) The Munsiff settled the following issues:-

(3.) Learned counsel for the appellant contended that neither of the courts below adverted to the real nature of the several items of consideration whose aggregate was Rs. 294. Regarding the 1st item of consideration he drew the Court's attention to the fact that the 3rd witness for the defence, who was called to prove it, swore that the advance made by him to the 3rd defendant evidenced by Ext. 1 was for his private trade and not for thavazhi purposes. He having turned hostile the 1st defendant sought permission to cross examine him and in doing so confronted him with the receipt granted by him to the 1st defendant alienee which showed that he received the money from the alienee from out of the amount of consideration reserved with him under Ext. A. He admitted as he had to, that the statement contained in the receipt is false. The next item of consideration is evidenced by a bond dated 14.2.1109, Ext. 11, executed by the mother and son (Defendants 4 and 3) in favour of the 3rd witness for the defence. The liability thereunder was discharged by the father (Nampoothiri) of defendants 3 and 5 onwards and husband of the 4th, as evidenced by Ext. 2(a). That amount was reserved with the vendee to be paid to the Nampoothiri which the 1st defendant paid and obtained a receipt (Ext. 5) on the date of Ext. A. The third item of consideration reserved in Ext. A was an amount of Rs. 53-14-Chakrams payable to the 4th witness for the defence by way of advance rent paid by him. He swore that the amount was due to him but was set off against the rent of that year. The sum reserved with the vendee in this behalf was, therefore, got back by the 3rd defendant. The fourth item of consideration is an amount of Rs. 20/- stated to have been received for purposes of maintenance of the members and other expenses in the family. The fifth and last item is an amount of Rs. 52-4 1/2 chakrums reserved with the vendee to be paid to the vendors for the purposes last mentioned in Ext. A, namely purposes for which the fourth item was received. As regards the first item of consideration, Ext. A recites that the amount received was for purposes of effecting certain repairs to the family residence and for other family purposes. The comment made by learned counsel for the appellant as regards these items of consideration is that the first was not for thavazhi purpose, the second need not have been paid as it was a debt whose recovery was obviously barred by limitation and that the 3rd could have been adjusted from out of the rent as was in fact done. He had nothing to say regarding the fourth or fifth item. Two points arise for consideration in this second appeal: (1) whether the consideration for the document is binding upon the thavazhi and (2) whether the alienation impeached was necessary for the thavazhi. So far as the first point is concerned, in view of the admission of the plaintiff which, as already stated, stands supported by other evidence in the case, consideration did pass from the alienee to the alienors. The first item of consideration has been expressly stated by the executants of Ext. A to be for purposes binding upon the thavazhi which representation the alienee could act upon and the only evidence to the contrary attempted is that of the 3rd witness for the defence who stands condemned by his own statement, which is admittedly false, contained in the receipt passed by him to the alienee that he received money from the alienee whereas he now deposes in the box that he received the amount from the 3rd defendant. As regards the second item of consideration the executants directed its payment to the Nampoothiri who, it is not suggested, was otherwise than on friendly terms with his wife and children, and who gave the receipt, Ext. 5, receiving the amount from the alienee. The only point made by learned counsel for the appellant is that the claim was barred by limitation. Whether the claim was so barred or not will depend upon what exactly was the stipulation between the Namboothiri and the thavazhi when the Namboothiri was directed to pay the debt, under Ext. 11 which he did. In the absence of any contention or evidence to the effect that under such a stipulation the amount became due to the Namboothiri at a time beyond the period of limitation available for its recovery before Ext. A, it cannot be said that that was a claim barred by limitation. It was not contended before me that the Namboothiri had no claim against the thavazhi, the only contention being that it was barred by limitation. Even if it would be said that the debt was barred by limitation, it is competent for the Karnavan before the Nair Act and for all adult members thereafter, to pay the creditor and relieve the family of its indebtedness. If the recovery of a debt becomes barred by the law of limitation, it does not mean that the debt is extinguished; it means merely that the remedy through court is unavailable. A barred debt will constitute good consideration for an agreement to pay and will also therefore be good consideration for an alienation. The factum of the consideration having been thus established, the question arises whether there was any necessity for the alienation.