SAVITRI ANDERJANAM Vs. VALAPAD NAIR BANK LTD

JUDGEMENT

(1.) This civil miscellaneous appeal relates to a matter in execution. The decree schedule properties, 18 in number, belong to the illom of the decree holders. Items 1 to 10 were mortgaged by the illom to defendant 4, and by successive assignments defendant 7 obtained the mortgage interest. Items 11 to 18 were outstanding on a lease granted by the illom arid, on the date of suit, the leasehold interest was vested in defendants 10 and 17. Defendant 1 is the karnavan of the illom and defendant 2, Padmanabhan Nambudiripad, the senior anandiravan. The equity of redemption of items 1 to 10 was sold in execution of a decree obtained against the karnavan of the illom by defendant 4, a joint stock bank, and purchased by the bank itself. Defendant 7 subsequently obtained an assignment of the auction purchasers right. After this, six junior members of the illom - three of whom were adult females, one a minor female named Sreedevi, and two who were minor boys - brought the suit for cancellation of the above mortgage and lease and the decree and execution proceedings, and for a declaration that they were entitled to recover possession of the properties on behalf of their illom, and also for recovery of possession of the same. The Trial Court set aside the decree and execution proceedings but held that the mortgage and the lease were valid and gave a decree to the plaintiff in the following terms: That the plaintiffs be entitled to recover possession of such of the lands as was taken possession of by the fourth defendant in execution of the above decree-That the above declaration be subject to the mortgage rights of the 4th defendant over items 1 to 10 under Exts. B2 and B4 and also subject to the tenancy rights of defendants 10 & 17 for items 11 & 18 under the terms of Ext. A3. In the plaint there was an alternative prayer that, if the mortgage was found to be valid and binding on the plaintiffs illom, plaintiffs should be given a decree for redemption of the same and recovery of possession of the mortgaged properties. This prayer was not allowed by the Trial Court and so the plaintiffs filed an appeal from the Trial Courts decree. The appellate court allowed the plaintiffs to redeem the mortgage and recover possession of the mortgaged properties and also directed in its decree that, if the plaintiffs failed to redeem the mortgage within the time specified by it defendant 7 could apply to the court for a final decree for sale of the mortgaged properties and realisation of the mortgage amount due to him. The present civil miscellaneous appeal relates only to decree schedule items 1 to 10.

(2.) In accordance with the appellate decree the plaintiffs deposited the mortgage amount in court and filed E. P. No. 27 of 1952 for execution praying for recovery of possession of the mortgaged properties. By the time this petition was filed plaintiff 1 had died and the application was therefore made only by the remaining five plaintiffs, two of whom (the boys) were still minors. This execution petition was dated 10-2-1952, and shortly after it was filed in court defendants 1 and 2 and plaintiffs 3 and 4 executed a lease deed, Ex. Bl, in favour of one Madhavan who is the younger brother of defendant 7 for items 1 to 10. This lease deed was executed on 19-4-1952 and provided that the lessee should get himself impleaded in execution as an additional decree holder and should recover possession of the mortgaged properties and that he was to hold the properties for a period of ten years thereafter paying an annual rent of 100 paras of paddy. A sum of Rs. 750/- was also taken from him as security for due payment of the rent. Defendant 1, the karnavan, joined in the execution of the document not only in his own capacity but also as guardian of the minors. On the strength of Ex. Bl Madhavan applied by E. A. No. 497 of 1952 on 19-11-1952 for getting himself impleaded as additional decree holder. Defendant 7 was employed in Colombo at this time. On 23-1-1953 he filed a counter to E P. No. 27 of 1952 filed by the plaintiffs and another counter to E. A. No. 497 of 1952 filed by Madhavan. Both these counters were signed by defendant 7 at Colombo on 10-1-1953 and they were filed in court on 23-1-1953. In the counter to E.P. No. 27 it was stated that Ex. Bl was taken by defendant 7 benami in the name of his younger brother, Madhavan, and for settling the decree and that as the decree has been adjusted it could not be executed. In the counter to E.A. No. 497 also the same statement was repeated and delivery to Madhavan also was objected to. It was stated in both these counters that Ext. B1 was taken benami in the name of Madhavan because defendant 7 was employed and was living at Colombo. The plaintiffs also filed an objection to Madhavans application stating interalia that Sreedevi had not joined in the execution of Ext. B1 and it was therefore an incomplete document since it was intended to be executed by all but was not executed by all the members of the mana. It is also learnt that the persons who have executed it did so in the name of the applicant benami for his brother, Krishnan, who was away in Ceylon at the time. The rights, if any, created in favour of the petitioner have to be worked out and can be worked out after delivery of the properties to the decree holders. On 2-12-53 defendant 7 filed another petition to record satisfaction of the decree on the strength of the adjustment said to have been effected in pursuance of Ext. B1 taken by him benami in the name of his younger brother. This application also was opposed by the plaintiffs on the ground that Sreedevi had not joined in the execution of Ex. Bl and that plaintiffs 2 and 3 were caused to execute it by the fraud and undue influence of the karnavan (defendant 1). After defendant 7 filed his petitions, Madhavan himself filed another petition dated 30-12-1953 stating that he had taken Ext. B1 for and on behalf of defendant 7 and benami for him and that he had no objection to defendant 7s applications being allowed. On 8-11-1954 the execution court recorded satisfaction of the decree on the strength of Ext. B1 and dismissed E. P. 27 and E. A. No. 497 of 1952 holding that Ext. B1 was taken benami by defendant 7 in the name of his brother and rejecting the plaintiffs contention that Ext. B1 was invalid. Plaintiffs have, therefore, filed this appeal against the order of 8-11-1954.

(3.) Mr. Sundara Iyer, the learned advocate for the appellants, urged in this court that Ext. B1 is invalid and cannot be acted upon for the reasons (1) that Sreedevi, one of the plaintiffs, had not joined in executing it, (2) that plaintiffs 2 and 3 were caused to join in its execution by the fraud and misrepresentation practised on them by the male members of the illom, and (3) that the execution of Ext. B1 was beyond the powers of the karnavan and other adult members of the illom who had joined in its execution. He also urged that the adjustment cannot be accepted and acted upon as the same had not been certified to the execution court or an application for recording it made to the execution court under O.21 R.2, Code of Civil Procedure, within the time required by law and no leave also had been obtained from the court under O.32 R.7 for effecting a compromise on behalf of the minor plaintiffs.