RAMAN PILLAI Vs. MATHEWS

JUDGEMENT

(1.) These appeals are directed against the decrees in two suits, O.S. Nos. 125/1120 and 638/1120, which were jointly tried and disposed of by the lower court. The substantial questions involved in both the suits are the same.

(2.) The two suits arose under the following circumstances:-- Plaintiffs 1 to 5 in O.S. No. 125 of 1120 are the children of the 2nd defendant who had a sister by name Parukutty Amma. The 6th defendant is the daughter of this Parukutty Amma who is no more. The 2nd defendant and the deceased Parukutty Amma were both the wives of one Raman Pillai who had obtained the plaint properties to his share as per the partition deed entered into by himself and the other members of his tarwad in the year 1100. Soon after that partition deed, he gifted all these properties in favour of his two wives, under Ext. III dated 10.10.1100. A few years later Parukutty Amma, the second donee under Ext. III, reconveyed all the rights she had obtained under Ext. III, to Raman Pillai and the present 1st plaintiff, by executing the settlement deed Ext. D dated 6.4.1106 in their favour. Raman Pillai died in the year 1115 and his rights in the properties covered by Ext. D devolved on his heirs. On 12.3.1117 the 2nd defendant in her own right and as guardian of these plaintiffs executed the sale deed Ext. I in respect of the plaint properties, in favour of the 1st defendant and his deceased brother. The consideration for the sale was stated to be the amount due to the vendees under a chitty hypothecation bond Ext. II dated 11.10.1102 which the deceased Raman Pillai along with his two wives had executed in favour of the 1st defendant's father. Ext. I states that there was a settlement of the accounts under the chitty transactions and the amount due to the foreman was settled at Rs. 1,000/- which is mentioned as the consideration for the sale under Ext. I. The plaintiffs have instituted the suit O.S. 125/1120 to set aside the sale deed Ext. I which is impeached on the following grounds. According to the plaintiffs, the properties belonged to their sub tarwad and the 2nd defendant had no authority to sell any of those properties. The sale deed is alleged to be lacking in consideration and necessity and as a document vitiated by fraud and collusion. The chitty debt is stated to have been discharged long prior to the date of Ext. I. It was further contended that even if any amount was due under the chitty transactions, the right to recover the same had become barred by limitation even prior to the date of Ext. I and that even otherwise there was no necessity at all to sell the properties, because the income available from the sub tarwad properties was very considerable and the debt could easily have been discharged out of such income.

(3.) Soon after the execution of the sale deed Ext. I, a lease deed is seen to have been brought into existence in respect of these properties on 15.2.1118. Ext. V is that lease deed and copy of it is Ext. F. The lease deed was executed by the 3rd defendant in O.S. No. 638/1120 in favour of the vendees under Ext. I. The 1st defendant, who is the surviving vendee, has admitted that possession did not follow Ext. I and that the 2nd defendant and others continued to be in possession of the properties. According to him the 3rd defendant is only a servant or dependent of the 2nd defendant and the other members of her family, and that it was as their own nominee that the 3rd defendant executed Ext. V. On these allegations the 1st defendant in O.S. 125/1120 has instituted the suit O.S. No. 638/1120 for recovery of possession of these properties from defendants 1 to 3 in that case on the strength of the lease deed. The 1st defendant in that case is the 1st plaintiff in O.S. 125/1120 and the 3rd defendant is the lessee. The 2nd defendant is the 2nd defendant in both the suits and she is the mother of the 1st plaintiff in O.S. 125/1120. The plaintiff in O.S. 125/1120 maintains that the sub tarwad is still in possession of these properties and that the lease deed Ext. V has never come into operation and that it was brought into existence merely to give strength to the sale deed Ext. I. They have also sought to set aside the lease deed. They have prayed that in case the 1st defendant vendee happens to take possession of these properties, they may be allowed to recover back these properties with mesne profits at the rate of Rs.120/- per year.