GOURIKUTTY PILLAI THANKACHY Vs. VELAYUDHAN PILLAI

JUDGEMENT

(1.) The appellants in this Second Appeal are the plaintiffs in 0, S. No. 483 of 1116 of the District Munsiffs Court of Neyyattinkara. They are also the appellants in S. A. No. 78 of 1955 which has been disposed of today by a separate judgment. The subject matter of this litigation is a plot of 10 cents sold by the plaintiffs mother to defendants 1 to 3 in the year 1106. The suit for recovery of this plot on the basis of a lease was dismissed and that decision was confirmed by the judgment in S. A. No. 78 of 1955. The plaintiffs sued for cancellation of the sale deed executed by their mother during their minority in respect of the plaint property in this case. Ext. B is copy of the sale deed dated 27-1-1106. According to the plaintiffs, this property belonged to their sub-tarwad consisting of themselves and their deceased mother. The sale deed in question was sought to be set aside and the property recovered, on the ground that the sale transaction was unsupported by consideration and necessity. The defendants contended that the document was a valid and bona fide one fully supported by consideration and necessity. The Trial Court found that Ext. B was supported by consideration and necessity to the extent of Rs. 25 only. The plaintiffs were accordingly given a decree for recovery of possession of the property on payment of the sum of Rs. 25 and the value of improvements effected by the defendants on the property. The defendants preferred an appeal to the District Court and the plaintiffs objected to the decree by a memorandum of cross objections. The appeal was allowed and the memorandum of cross objections dismissed, holding that Ext. B was fully supported by consideration and necessity. The suit was accordingly dismissed and the plaintiffs have come up in Second Appeal.

(2.) The property was sold for a total consideration of Rs. 100. It is stated in the deed that a portion of the consideration was received in cash and that the balance was reserved for redemption of a mortgage. The finding regarding consideration is concurrent. Both courts have found that the whole consideration was paid by the vendees. As regards necessity for the sale, the Trial Court found that it was supported by tarwad necessity to the extent of Rs. 25/-. This finding stands confirmed by the lower appellate court. This sum of Rs. 25 was reserved with the vendees for payment at the time of redemption of the mortgage. The evidence in the case is that the plaintiffs mother wrote to the defendants that a larger sum was required for redemption and that she urgently required money for the treatment of her children who were ill. The sum of Rs. 25 was thus paid to her husband Mathevan Pillai under Ext. I dated 7-10-1106. The concurrent finding regarding necessity for this sum of Rs. 25 is thus based on evidence and does not call for interference.

(3.) The only point that comes up for decision in this Second Appeal is whether the payment of Rs. 75 as found by the courts below is supported by tarwad necessity. The defence case is that the plaintiffs mother and her husband represented that they required this sum for the purchase of buffaloes for ploughing their paddy field and that the amount was accordingly advanced for purchasing the animals. The Trial Court did not believe the defence case on this point mainly because it was considered unlikely that the vendors would purchase buffaloes from a place forty miles away from the place where they were residing at that time. It was also observed that there were markets near to their residence Dw.l deposed that he sold the buffaloes to the plaintiffs mother and that he was paid the price out of the sum received from the defendants. Dw. 2 stated that he was present when payment was made to Dw. 1. Apart from the reason stated earlier the only other ground relied on by the learned Munsiff for disbelieving these witnesses is that they appeared to have a bias in favour of the 1st defendant. I do not think the reasons relied on by the learned Munsiff are sufficient to disbelieve this part of the defence case viz , that the sum of Rs. 75 paid by defendants 1 to 4 was utilised for the purchase of buffaloes.