JOSEPH Vs. PARAMESWARAN PILLAI

JUDGEMENT

(1.) THE suit that has given rise to this second appeal by the 4th defendant was to set aside a sale deed Ext. B, executed by all the adult members of the main tarwad of the plaintiffs, defendants 5 to 10 and others, governed by the customary marumakkathayam law. THE properties in suit, two in number, belonged to that tarwad. THEre was an udampady Ext. A. in the tarwad in the year 1088, by which its properties were grouped in four schedules, schedule A comprising properties allotted to Krishnan, and schedules b, C, and D comprising properties allotted to the three tavazhies of the tarwad represented by his three sisters, the plaintiffs and defendants 5 to 10 being the members of the tavazhi which took the properties in schedule D. THE suit properties are among those allotted to Krishnan for maintenance, subject to the provision, that on his death they would be taken by the tavazhies. Pursuant to-a power conferred by Ext. A Krishnan gave a mortgage Ext. III for item 1 of the suit properties in the year 1109, for Rs. 98/ -. On the 18th Medom, 1116, the adult members of the tarwad gave Ext. B in favour of defendants 1 and 2 and of the deceased father of defendants 3 and 4, for the suit properties and another property, for Rs. 1034/-, of which Rs. 144/- was paid to one of the members of the tarwad, Rs. 98/- was reserved for redemption of Ext. III, and rs. 792/- was reserved for the payment of Rs. 264/- to each tavazhi for acquisition of properties with the stipulation, that interest at 3% per annum on the amount reserved for each tavazhi shall be paid to Krishnan until acquisition of properties, when the properties, themselves shall be taken possession of by Krishnan for maintenance. On the same day, affirming Ext. B, and excluding the properties sold thereby, the adult members of the tarwad also entered into a partition deed Ext. I, dividing its properties between the tavazhies absolutely. In pursuance of Ext. B, the vendees redeemed Ext. III, and paid the amounts reserved for the other two tavazhies, and a sum of Rs. 51/- to the 5th defendant out of the amount reserved for plaintiff's tavazhi and also paid a sum of Rs. 52/- odd to Krishnan by way of interest on the amount reserved. Alleging that Ext. B is lacking in consideration and necessity, and on the footing that the tarwad has become divided into three tavazhies, the plaintiffs have sued to cancel Ext. B to the extent of the 1/3 share of their tavazhi in the suit properties. THE 4th defendant contested the suit. THE court of first instance holding Ext. B to be supported by consideration and necessity dismissed the suit, and the appellate court finding it to be unsupported by consideration so far as the plaintiff's share was concerned except to the extent of Rs. 98/- decreed the suit, for partition and recovery of the 1/3 share on payment of Rs. 32. 66 and the value of improvements.

(2.) THE first contention of learned counsel for the 4th defendant was, that Exts. B and Ext. I must be considered to be parts of a family arrangement entered into by all the adult members of the tarwad on that day, and so Ext. B must be viewed differently from a sale deed simpliciter by the members of a tarwad untrammelled by any of the statutory provisions applicable to certain communities governed by marumakkathayam law. Though it cannot be said that the courts below have viewed the case in this perspective, this approach seems justified by the averments in Para. 9 to 11,17 and 25 of the written statement of the 4th defendant and the provisions of Exts. B and I and cannot be ruled out.

(3.) IF the validity of Ext. B depends on the simple issue as to consideration and necessity, it has to be held, for the reasons stated in the preceding paragraph, that it was supported by consideration to the extent of Rs. 51/- and unsupported by consideration to the extent of Rs. 213/-; the vendees had atleast a duty to call upon the vendors to acquire property and in the event of such acquisition to make payment. Necessity has to be judged with reference to that of the tarwad which gave Ext. B, though the plaintiffs are competent to impeach it only to the extent of their interest in consequence of their divided status. . However that be, even the payment of Rs. 51/- was not supported by necessity. As observed by me, the validity of Ext. B has to be judged on considerations adverted to earlier in this judgment; so judged, Ext. B has to be held to be valid and binding, subject to the condition to be imposed presently.