KOUMARI AMMA Vs. PARUKUTTY AMMA

JUDGEMENT

(1.) THE property of 62 cents,of which the suit property of 37 cents is a part,belonged to Narayana Panicker.He gave Ex.P -l,a deed of assignment for the property in the year 1076,in favour of his wife Janaki Amma.He died leaving him surviving Janaki Amma and two daughters,the plaintiff and Lakshmi Amma.Janaki Amma married again and Karthiyayani Amma is her daughter by that marriage.Lakshmi Amma died issueless in the year 1093.Defendants 1 to 4 are the children of the plaintiff and defendants 6 to 8 are the children of the second defendant.In the year 1115 by a partition deed Ex.P -2 the property was divided into two shares treating it as the tar wad property of Janaki Amma,the suit property being allotted to the tavazhy of the plaintiff and the remainder of the property being allotted to the group which was constituted by Janaki Amma,Karthiyayani Amma and her two children.Ever since,they have been in separate possession and enjoyment accordingly.The present suit was instituted in the year 1957 alleging,that by Ex.P -l,the property became vested in Janaki Amma,the plaintiff,and Lakshmi Amma,that the recital in Ex.P -2 that it belonged to the tarwad is a mistake,and that the plaintiff realised the mistake only in March 1957,and praying for a declaration that the recital in Ex.P -2 is a mistake and that the suit property belongs to her exclusively.The suit was contested by defendants 2 and 6 to 8.The Munsiff held that though the property became vested in Janaki Amma,the plaintiff,and Lakshmi Amma,Koumari Amma by Ex.P -2 it was treated and partitioned as tarwad property and that the suit is barred by limitation and adverse possession and is not maintainable.In appeal,the Subordinate Judge came to the conclusion,that the suit,as grounded on a mistake of fact,is maintainable,and is not barred,and granted the prayer in the plaint for an 1 /3 share of the suit property.

(2.) IN this second appeal by defendants 2 and 6 to 8,it 'was contended on their behalf,that the plaintiff had not alleged or proved a mistake of fact as to the nature of the property,common to all the parties to Ex.P -2,that the suit is barred by limitation under articles 96 and 144 of the Indian Limitation Act,that there being no prayer to set aside or cancel Ex.P -2,the suit is not maintainable 'and that in any event under Ex.P -1 the property did not vest in Janaki Amma,the plaintiff and Lakshmi Amma,as alleged.The plea of mistake has to be tested by sections 20 and 22 of the Indian Contract Act.Siction 20 has enacted,that "where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement,the agreement is void " and section 22 has enacted that "a contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to a matter of fact."

(3.) THE finding of the Subordinate Judge was,that the plaintiff was under a mistake of fact,that the property belonged to the tarwad.In the plaint the relevant averment is,that the recital in Ex.P -2 that the property belonged to the tarwad,is a mistake.This is hardly sufficient as an allegation,that the plaintiff was under a mistake of fact as to the true character of the property,for it may well be,that all the three parties to Ex.P -2,i.e .,Janaki Amma,Lakshmi Amma and the plaintiff,the others being minors at the time,agreed to treat the property as that of the tarwad.Apart from the above,there is no allegation of a common mistake of fact.There is an averment that the plaintiff realised the mistake only in March,1957,and at best it is an averment of a unilateral mistake.There is no evidence of a common mistake either;Janaki Amma is no more and Karthiyayani Amma is not a party to the suit and was not examined.Oral evidence of the plaintiff and her witnesses,that the statement in Ex.P -2 is a mistake,is for the reason stated earlier,no proof,that the parties laboured under a common mistake of fact.The suit as grounded on mistake under section 20 of the Contract Act is bound to fail.