THANKAMMA Vs. KUNJULAKSHMI

JUDGEMENT

(1.) THIS appeal is by the plaintiff in a suit in redemption which has been allowed by the Munsiff , but disallowed by the Subordinate Judge.

(2.) THE facts are thus: THE suit property belongs to the thavazhi of plaintiff and defendants 6 to 13, governed by the Travancore Ezhava Act, 1100. It was outstanding on a mortgage with Mathevan Kochan who was the father of the 6th defendant. On his death the mortgage right was divided in moieties between his Makkathayam and Marumakkathayam heirs. By virtue of that partition and another that followed it, the mortgage right in respect of the eastern 321/2 cents of the suit property fell to the share of certain Ananthiravars of Mathevan Kochan charged for fanams 2925. Subsequent to the partition, the 6th defendant has mortgaged the western 33 cents of the suit property to Parvathi Kochu and others for fanams 3000 as per Ext. D3 dated 8-8-1108. Defendants 5 to 8-5th defendant is the husband of the 6th defendant and the father of the plaintiff and defendants 7 to 13 - had assigned the equity of redemption in the property to the 14th defendant as per Ext. P. 1 dated 4-11-1118. THE 14th defendant assigned it under Ext. D1 to defendants 1 to 4, who have redeemed the mortgages from Parvathi Kochu and others and the Ananthiravars of Mathevan Kochan and are in possession thereunder. THE plaintiff seeks to set aside Ext. P1 and Ext. D1, and to redeem the property from the defendants.

(3.) THE Subordinate Judge, finding Ext. P1 supported by consideration has held it to be the onus of the plaintiff to prove that the document was not supported by necessity. He was obviously wrong in that view of law. S. 21 and 22 of the Travancore Ezhava Act, 1100 said:"21. Except for consideration and Tarwad necessity and with the written consent of all the major members of the Tarwad , no Karnavan or other managing member shall sell Tarwad immovable property, or mortgage it with possession for a period of more than twelve years, or lease it for a period of more than twelve years. 22. No mortgage with possession of tarwad property, or lease with premium of such property for a period of twelve years or less, shall be valid, unless it is executed for consideration and Tarwad necessity, and with the consent of all the major members of the Tarwad. Such necessity and consent may be presumed to exist, if the transaction has, the written consent of the senior Anandaravan of the Karnavan's Thavazhee , and of every Thavazhee collateral to the same, if any. " THE latter Section enacts a presumption of necessity and consent on certain event; but the former does not. It is then evident that no presumption of necessity or consent can be drawn by the Court in cases coming within the scope of S. 21, as the instant one is. Joseph, J. , referring to the parallel provisions of the Travancore Nayar Act, 1100, has held in Gourikutty Pilla Thankachy v. Velayudhan Pillai (1957 KLT. 577): "the lower appellate Court upheld the defence case mainly on the ground that when consideration for the sale transaction was found tarwad necessity for the same could be presumed. ( do not think this view is correct. THE presumption may no doubt arise in the case of transaction falling under S. 26 and 28 of the Travancore Nair Act. Sales of tarwad property are covered by S. 25 of the act and this section does not provide for any such presumption. THE vendees are bound to prove consideration as well as necessity. " I am in respectful agreement with this dictum.