KRISHNAN GOVINDAN Vs. JANAKI KUNJAMMA KALLIYANI KUNJAMMA

JUDGEMENT

(1.) This is an appeal under S.21(1) of the Travancore-Cochin High Court Act, 1125 against the decision a learned Single Judge gave in S. A. 395 of 1123. The suit giving rise to that Second Appeal was one instituted by a junior member of a marumakkathayam tarwad to set aside an alienation (sale) effected by the karnavan and other adult members at a time when the plaintiff was a minor. .The Trial Court dismissed the plaintiffs suit and in appeal the District Court confirmed that decision. In Second Appeal the learned Single Judge reversed the concurrent decisions and sent the case back to the Trial Court to enquire whether there was legal necessity for an outright sale and if not, to annul the sale at the same time permitting the alienee to remain in possession of the property until the consideration paid for the sale was made good to him. The direction was that in case the Trial Court found that without an out-right sale, that is, by a mortgage, simple or usufructuary, the tarwad could have raised the funds needed, the alienation should be held to be void, but that the consideration paid for the sale will form a charge on the property. When the appeal came up before a Division Bench of which one of us was a member it was considered that it raised an intricate question, namely, the true construction of S.25 of the Travancore Nair Act, 1100 and doubts were also raised whether the learned Single- Judge having reversed and remanded the case, the aggrieved party should move the Division Bench in a regular appeal or in a Civil Miscellaneous Appeal. In view of these two questions the case was referred to a Full Bench.

(2.) Before us both sides, appeared to be agreed that a regular appeal against the learned Single Judges decision was competent. We shall, therefore for the purpose of this case assume it to be so and proceed to give our decision.

(3.) On an examination of the learned Single Judges Judgment and the relevant records it is seen that the remand was made to enquire into a question which was not mooted either before the Trial Court or the first appellate court. The learned Judge himself mentioned in Ins judgment that even the memorandum of Second Appeal did not raise it. The plaintiff came to court with a case that the alienation was absolutely unsupported by consideration and that it was brought about by coercion, fraud, undue influence and misrepresentation. That case entirely failed, concurrently the first two courts found that the document was fully supported by consideration and that it was not vitiated by any of the infirmities set out in the plaint. The learned Single Judge also found that the consideration was true and that the alienation will have to be upheld in case the necessity for an outright sale was made out. In our-view this is seeking to make out a case for the plaintiff which he never himself had. If he had taken that as a ground in his plaint the alienee would have got an opportunity to meet it. Even before the learned Single Judge, learned counsel appearing for the alienee made this position clear. Yet the learned Judge thought that the question should be enquired into by the Trial Court. The alienation was in Chingom 1115, the suit was brought in 1118 and now we are in 1132. To allow a simple suit like this to drag on in this fashion is, in our opinion, thoroughly unjustified. The fault was not that of the courts concerned or of the alienee. If the plaintiff did not put forward a case that was available to him, it is not for the courts to extend to him a fresh opportunity fifteen years after the suit was brought. The burden is no doubt on the alienee to seek to sustain the alienation, but he cannot be found fault with for not meeting a case which he was not called upon to meet.