SASTHA PILLAI INDIRAMMAL Vs. NARAYANA PILLAI KOCHUPARAVATHI AMMAL

JUDGEMENT

(1.) The second defendant in the suit, one Sastha Pillai, along with his mother, the first defendant executed a simple mortgage of items 2 to 5 and 1 acre 71 cents out of item 1 in the plaint schedule in favour of the 3rd defendant, the Caldian Syrian Bank Limited, Trichur, Sastha Pillai belonged to a family governed by Hindu Mitakshara Law and the properties dealt with by him under this mortgage, Ext. D2 of 8-10-1954 were those obtained by him on the death of his father and therefore were necessarily ancestral properties in his hands. The third defendant bank obtained a decree on Ext. D2 mortgage in O. S. 9 of 1957 of the Sub Court, Tiravalla. This was on 24-8-1957. On 1-2-1961 the second defendant and his mother together executed a sale deed for the entire item 1 in favour of the 4th defendant. Item 1 constituted, besides the 1 acre 71 cents included in the simple mortgage, Ext. D2, comprised in Survey No. 472/2, an extent of 1 acre 12 cents in Survey No. 471/11 also together making 2 acres 83 cents. It was this 2 acres 83 cents that was so sold under Ext. D1. The property comprised in Survey No. 471/11, 1 acre 12 cents was that acquired by the first (second ) defendant in his own name. It is claimed by the plaintiffs in the suit who are the wife and children of the second defendant that all the plaint items are joint family properties, items 2 to 4 and 1 acre 71 cents in item 1 having been obtained from their ancestor and 1 acre 12 cents in item 1 having been purchased in the name of the first (second ) defendant for the joint family while the first (second ) defendant was the manager. The mortgage to the 3rd defendant Bank and the sale deed of item 1 to 4th defendant are challenged in the suit as imprudent acts on the part of Sastha Pillai not binding on the joint family. It is said that the documents were unsupported by consideration as well as any necessity binding on the joint family, that at the time of the death of Narayana Pillai, the grandfather of plaintiffs 2 to 10, the joint family had no debts, but had considerable income from the properties and therefore there was no justification for the manager to incur debts or to alienate properties as had been done by Exts. D2 and D1. On these grounds plaintiffs seek the setting aside of these documents and recovery of item 1. It may also be mentioned that based on Ext. D2 mortgage the third defendant had obtained a decree in O. S. 9 of 1957 and there was a prayer in the plaint to set aside that decree also.

(2.) The suit was resisted by defendants 3 and 4 according to whom the documents taken by them were supported by consideration as well as necessity and they were binding on the joint family of the plaintiffs.

(3.) The evidence in the case indicates that Sastha Pillai, who was an advocate, took interest in many other activities. He began the construction of a cinema theatre and as it appears from the evidence, found that this was not a paying prospect when some rival theatre sprung up near about his own theatre. The evidence also indicates that he ventured into the business of production of motion pictures. It is also seen that contrary to his expectations he did not become prosperous but on the other hand became heavily involved. He had been incurring debts and consequently a number of decrees against him came to be passed. When he executed Ext. D2, the hypothecation deed in 1954, it is said that he had several debts. Ext. D2 was executed on receipt of amount due on prizing a kuri. He received Rs. 15,000/- as prize amount and executed the bond for securing the timely payment of future subscriptions. As to the purpose for which he prized the kuri and received the amount, there is a mention made in Ext. D2.