PARAN KONNAN Vs. SANKARAN NAIR

JUDGEMENT

(1.) This appeal is by the 2nd defendant in a suit to cancel a sale and recover property which has been allowed by the court below.

(2.) Plaintiffs 1 to 3 and defendants 3 to 31 are members of an undivided Nair tarwad with their family house in Ayyanthol Village in Trichur Taluk. The plaintiffs 1 and 2 who are respectively the karnavan and senior anandiravan of the tarwad are employed in a workshop at Bombay. In the partition which took place in the main tarwad under Ext. A dated 20-7-1114 the plaintiffs group figured as the fourth thavazhi and got allotted to it among other properties the plaint schedule wet land 57% cents in extent and also four items of common debts amounting to Rs. 712-7-1. Portion of these debts was paid off by execution by the tarwad members inclusive of the plaintiffs 1 and 2 of Ext. B sale deed on 15-4-1115. Subsequently on 12-6-1116 the defendants 3 to 31 by themselves executed Ext. II sale deed of the plaint property in favour of the 1st defendant for a price of Rs. 300/- making provisions for payment of Rs, 199/- towards the balance of common debts, viz, Rs. 115-15-10 to the Manakulam Swaroopam under the decree in 0. S.452 of 1113 of the Trichur Munsiffs Court and Rs. 83-0-2 to the Manpilli Illom. Ext. II sale took in another item belonging to the third thavazhi of the main tarwad and for this purpose the members of that thavazhi were also joined as co-executants in Ext. II and were paid Rs. 50-8-0 as their share of the balance sale consideration of Rs. 101. The remaining sum of Rs. 50-8-0 was reserved with the vendee 1st defendant for payment with 6 per cent interest on the receipt of the plaintiffs 1 to 3. The plaint averred that Ext. II sale deed was incompetent on account, inter alia, of the nonjunction of the plaintiffs 1 and 2 and the want of consideration and necessity therefor. According to the plaintiffs the balance debt had already been paid off with moneys advanced by the plaintiffs and raised otherwise, and the execution of Ext. II had been brought about rather fraudulently. The plaintiffs therefore claimed that Exts. II sale was void and not binding on the tarwad and should be cancelled and they laid this suit accordingly on 24-3-1125 for recovery of the property with mesne profits past and future. The 2nd defendant was impleaded as the subsequent purchaser from the 1st defendant. The suit was resisted by the 2nd defendant on the footing that the debts provided for under Ext. II sale were still outstanding undischarged at its date and that the payment thereof, at any rate of the decree among the debts, by the execution of Ext. II in part avoided the compulsory sale of other valuable property of the tarwad as well. The 2nd defendant pleaded accordingly that the execution of Ext. II even without joining the plaintiffs 1 and 2 therein was in the circumstances properly justifiable. Even so, the plaintiffs 1 and 2 had actually been consulted previous to the sale and they had written letters approving of the transaction and accepting it and Ext. II was therefore not liable to be cancelled. The 2nd defendant expressed his readiness to pay the balance sale consideration of Rs. 50-8-0 left with him. The court below found against the plaintiffs on the question of the prior discharge of the debt and found that Ext. II was supported by consideration except to the extent of Rs. 50-8-0 and also necessity though the circumstances were not really so emergent as the defence wanted to have it. However, Ext. II had to be held invalid under S.53 of the Nayar Act of 1113 because plaintiffs 1 and 2, who constituted two of the adult members of the tarwad had not consented to it in writing. The court below found in this connection that the defence case of consent and ratification was not made out. In the result Ext. II was set aside and the plaintiffs were allowed to recover the plaint item on payment of Rs. 199 with mesne profits at lower rate till such payment and higher rate thereafter. The parties were directed to suffer their respective costs.

(3.) Learned counsel for the 2nd defendant appellant strongly urged before us firstly that the court below was wrong in finding that the plaintiffs 1 and 2 had not consented to the execution of Ext. II and also ratified it in letter written by them, particularly in view of the fact, as the court below itself found that the debts provided for in Ext. II were subsisting at its date and this suit was filed very late after an interval of 9 years. Secondly Ext. II sale should have been upheld by the court below in the light of its findings that there was consideration and also necessity to support it. The nonjunction of the plaintiffs 1 and 2 should in the circumstances not have been considered to be any fatal defect. On the question of fact, we find that no member of the tarwad had been examined in the case to prove the receipt of any letter of either consent or ratification as alleged. Indeed if there were any such letters the 1st defendant would certainly have been careful to get at them and pass on to the 2nd defendant. Above all there was the wording of Ext. II which proceeded as if there was no precedent consent of the plaintiffs 1 and 2. We have therefore perforce to agree with the court below that Ext. II had to be adjudged on its own merits apart from participation therein of the plaintiffs 1 and 2 either expressly or by implication.