NARAYANA PILLAI Vs. NARAYANA PILLAI

JUDGEMENT

(1.) The appellants sued to set aside a melpattom Ext. I, and a mortgage Ext. B, with respect to the suit property The property was allotted to the first plaintiff on a family partition and was gifted by him in the year 1122 to his wife, the 4th defendant, reserving his right to enjoy for his lifetime. The 4th defendant then gave Ext. I on the 15th Kumbhom, 1115, to Thresia and another, who assigned their right to defendants 1 and 2 by Ext. II on the 7th Edavom 1115. On the same day, the 4th defendant mortgaged the property with possession by Ext. B to defendants 1 & 2, who assigned the mortgage to the 3rd defendant by Ext. III in the year 1116. The 3rd defendant assigned the right to defendants 3 and 6 by Ext. IV. Alleging that Exts. I and B are invalid, the first plaintiff and his son, the second plaintiff, sued to set them aside. Defendants 5 and 6 resisted the suit. The two courts have dismissed the suit, as barred by limitation.

(2.) Ext. B has been found to be unsupported by consideration and necessity so far as the 4th defendants tavazhi, to whom the property was alleged to belong, was concerned; the 4th defendant was not competent to grant the mortgage. The suit was within time to set aside Ext. B, and the decree of the lower court refusing to set it aside cannot be supported. The plaintiffs are entitled to the declaration that Ext. B is not valid and is not binding on them.

(3.) The Subordinate Judge in appeal has also held, that by the execution of Ext. B, the right under Ext. I became merged in it; this is so. But once Ext. B is found or declared to be invalid, Ext. I revived. This has been held in Ramunni v. Kerala Varma Valia Raja ILR 15 Madras 166. In Mulla on Transfer of Property Act, 4th edition, it is observed thus, at page 584: