THRIVIKREMAN NAIR Vs. GOPALA PILLAI

JUDGEMENT

(1.) Plaintiffs who are two in number are the appellants. The suit is for setting aside alienations relating to the plaint properties and for partition of plaintiffs' 2/11 share in them. It was instituted in forma pauperis. Plaintiffs and defendants 1 to 9 are members of an undivided Nair Tarwad. Plaint schedule properties which are 13 in number belong to the tarwad. Defendants 1, 2, 3, 4 and 5 are the children of deceased Karthiayani Amma. They had another brother Bhaskaran by name who died in 1116. Defendants 6 and 7 are the children of the 4th defendant. The 6th defendant died after the institution of the suit. Defendants 8 and 9 are the children of the 5th defendant. The alienations impeached are those covered by Exts. C, D, E, G, Q, R, II, XIII, XV, XXIII and XXIV. Ext. C is a mortgage relating to item No. 11 for Rs. 140 executed defendants 1, 2, 4 and deceased Karthiayani Amma in favour of the 10th defendant on 8.9.1101. Ext. D is another mortgage relating to item No. 5 for Rs. 190 executed by the same persons in favour of the 17th defendant on 15.2.1102. Ext. E is a sale deed for item No. 13 for Rs. 15 executed by them in favour of the 22nd defendant on 31.9.1105. Ext. G is a sale deed for item No. 12 executed by them for Rs. 150 in favour of the 18th defendant on 13.6.1102. Ext. Q is another sale deed for item No. 11 for Rs. 150 executed by them in favour of the 20th defendant on 16.11.1103. Ext. R is a sale deed relating to item No. 6 executed by them in favour of the 23rd defendant for Rs. 54 on 2.5.1103. Ext. 2 is a sale deed for item No. 1 for Rs. 1,800 executed by them in favour of the 19th defendant on 30.9.1102. Ext. 13 is another sale deed for items 8,9 and 10 executed by them in favour of the 19th defendant for Rs. 620 on 21.11.1103. Ext. 15 is a mortgage relating to item No. 7 for Rs. 558 executed by the same persons in favour of the 11th defendant and Madhavi Amma, deceased mother of defendants 11 to 15, on 25.10.1101. This mortgage right was sub mortgaged to DW 8 and another who assigned the sub mortgage right to the 24th defendant. Ext. 23 is a sale deed for item No. 3 for Rs. 98 executed by defendants 1, 2, 4 and Karthiayani Amma in favour of the 21st defendant on 5.9.1104. Ext. 24 is another sale deed for items 2 and 4 for Rs. 244 executed by defendants 1 to 5 in favour of the 21st defendant on 23.6.1103. It is alleged that these documents were executed without consideration and tarwad necessity and that they are not binding on the plaintiffs' 2/11 share in the properties covered by them. Plaintiffs, therefore, seek for recovery of possession of their 2/11 share in the plaint properties with mesne profits.

(2.) Defendants 3, 8 and 9 filed a joint written statement supporting the plaintiffs and claiming their share in the properties. Defendants 6 and 7 also filed a joint written statement supporting the plaintiffs and claiming their share. The 19th defendant contended that Exts. 2 and 13 executed in his favour were fully supported by consideration and tarwad necessity and that they were not liable to be set aside. The 21st defendant contended that Exts. 23 and 24 executed in his favour were also supported by consideration and tarwad necessity and that those documents were not liable to be set aside. The 24th defendant contended that the mortgage, Ext. 15, relating to item No. 7 was supported by consideration and necessity and that the suit was barred by limitation.

(3.) The other alienees did not contest the suit. On that ground the court below set aside Ext. C (in favour of the 10th defendant), Ext. D (in favour of the 17th defendant), Ext. E (in favour of the 22nd defendant), Ext. G (in favour of the 18th defendant), Ext. Q (in favour of the 20th defendant) and Ext. R (in favour of the 23rd defendant) and allowed the plaintiffs to recover possession of 2/11 share in the properties covered by those documents. As regards the remaining documents, namely, Exts. 2 and 13 (in favour of the 19th defendant) Exts. 23 and 24 (in favour of the 21st defendant) and Ext. 15 in favour of the 11th defendant and his mother, it was held that they were fully supported by consideration and tarwad necessity. It was also held that the suit for setting aside those documents was not maintainable by reason of the fact that other members of the tarwad who were minors at the time of the execution of the documents had not sued for setting aside the same within the statutory period of limitation. The suit was, therefore, dismissed with costs as regards those alienations.