AKKU THAMBURATTI Vs. RAMAN

JUDGEMENT

(1.) This second appeal is by the plaintiffs and arises out of a suit instituted by them for recovery of possession of the plaint schedule properties ignoring an otti deed executed by the majority of the senior members in the tarwad, which was allowed by the Trial Court but dismissed by the court below.

(2.) The plaintiffs and defendants 1 to 9 are members of Kakkat Madathil Kovilakam which is an impartible Marumakkathayam tarwad. Under Ext. Al family karar dated 23-2-1909 the management and karnavasthanam of the Kovilakam had been vested permanently in the seniormost female member subject however to the limitation that she had no right by herself to incur debts binding on the Kovilakam, the senior most males and females in the three branches of the Kovilakam could alone together act in the matter. While the management of the Kovilakam was being conducted in manner provided under Ext. Al, Akku Amma Thamburatti, the karnavathi of the Kovilakam for the time being, along with the senior ladies of the two other branches, gave Ext. A2 power-of-attorney dated 15-10-1937 in favour of the 10th defendant for the management of the Kovilakam, with power to spend his own moneys, if necessary, for the purposes of the Kovilakam and recoup the same from the income of its properties. Ext. A2 mentioned that the amount of Rs. 1000 which was being taken as security from the 10th defendant thereunder was utilised for meeting the binding necessities of the Kovilakam. Ext. A2 was, under its terms, to enure for a period of ten years but within two years thereof, viz., on 29-9-1939, the 10th defendant surrendered his management to the karnavathi by Ext. B2 deed and obtained at the same time, Ext. B1 the mortgage deed impugned in the case. Ext. B1 was executed by the defendants l to 4 and 6 and three others comprising the majority of the adult members in the Kovilakam at the time and included the seniormost male and female members from each of the three branches of the Kovilakam as required by Ext. Al karar. The consideration for the deed was Rs. 2950 made up of three items, (i) Rs. 1000 advanced by the 10th defendant at the time of Ext. A2 power-of-attorney, (ii) Rs. 1875 ascertained as due to the 10th defendant on settlement of his accounts of management of the Kovilakam under the power, & (iii) Rs. 75 advance made by the 10th defendant for the expenses in connection with the deed. Ext. B1 provided also for a term of 12 years. The plaintiffs who constituted the minority of the adult members as well as the minors in the Kovilakam, attack in this suit, Ext. B1 as wanting in consideration and necessity and so not binding the Kovilakam. The plaint averred that Ext. A2 power of attorney in 10th defendants favour was invalid as against the terms of Ext. Al family karar and the consideration of Rs. 1000/- recited therein, had neither been paid by the 1st defendant nor utilised for any valid necessities of the Kovilakam. The plaintiffs also denied that the amount of Rs. 1875/- as recited in Ext. B1 mortgage or any portion thereof was due to the 1st defendant from the Kovilakam on settlement of accounts. The assertion was further made that defendants 1 to 4 were made to execute the mortgage deed in question by unlawful and illegal means. The 10th defendant contested the suit on the footing that Ext. B1 was perfectly valid and unimpeachable. In this he was supported by the 6th defendant who was one of the executants of the mortgage deed.

(3.) The courts below found concurrently in the first instance, and against the 10th defendant that Ext. B1 mortgage was unsupported by consideration and necessity binding upon the Kovilakam and accordingly allowed the suit. In second appeal, however, by the 10th defendant before the Madras High Court, the judgment and decree of the Subordinate Judge was reversed and the case was remanded to the first appellate court for fresh consideration and disposal in the light of the principle, specially stressed, that the junction of the majority of the senior members in Ext Bl was presumptive proof in favour of the necessity and the genuineness of the consideration thereunder. After remand the court below found that the prima facie presumption allowed to be raised by the High Court in favour of the 10th defendant had not been in any way rebutted by the plaintiffs and so it dismissed the suit. Hence this second appeal by the plaintiffs as above said.