SANKARA PILLAI Vs. CHANDRAN PILLAI

JUDGEMENT

(1.) These second appeals arise out of the same suit. The first case is by the first defendant; and the second one is by plaintiffs 2 and 3. There is a memorandum of cross objections in the first case by the same plaintiffs 2 and 3, so that the memorandum of cross objections and the second of these cases involve the same questions. The suit was dismissed by the Trial Court, but decreed by the lower appellate court in part.

(2.) The suit properties originally belonged to the father of the second defendant, who was the grandfather of the first plaintiff. The third defendant is the wife of the second defendant. The grandfather executed Ex. P1 in 1114, a gift deed, by which the suit properties were given to the second defendant, the first plaintiff, who was then a minor, and the children to be born thereafter to the second defendant. Plaintiffs 2 and 3 are the children subsequently born to the second defendant. I may also mention at this stage that the parties are Nairs. The donor reserved a life interest with him; and after his death the second defendant for himself and the third defendant as guardian of the first plaintiff, who was still a minor, executed Ex. P2 in 1117 selling the properties to the first defendant. The suit was filed by the three plaintiffs to set aside the alienation arid to recover possession of the properties from the alienee, the first defendant. The Trial Court, as already stated, dismissed the suit, while the lower appellate court held that since the gift was to two living persons and also to other unborn persons, the gift in favour of the unborn persons was invalid and the gift enured only for the benefit of the two living persons, namely, the second defendant and the first plaintiff. The lower appellate court further held that they held the entire properties as tenants-in-common, so that under Ex. P2 the second defendant's half share passed to the first defendant and the half share of the first plaintiff did not pass, as he was not represented by his legal guardian. It is against this decision of the lower appellate court that both the second appeals have been filed.

(3.) The counsel of the appellant in the first of these cases argues that the lower appellate court should have considered the effect of the fact that the second defendant, the father of the first plaintiff, was also a party to Ex. P2, though not as the guardian of the first plaintiff. The counsel also argues that the lower appellate court should have considered whether there was binding consideration and necessity for the sale.