KARTHIKEYAN Vs. KUNJAMMA

JUDGEMENT

(1.) This appeal is by the 2nd defendant in a suit to redeem a mortgage.

(2.) The suit mortgage, Ext. P1 dated Thulam 16, 1084 M. E. (November 1, 1908), was by all the then major members of the tarwad (inclusive of defendants 3 and 4 and their then karnavan) to one Mathevan Kesavan, who assigned that mortgage right to the 1st defendant in 1096 (1920). The 2nd defendant is a non assignee of the 1st defendant. On May 15, 1950, there was a partition in the mortgagor tarwad, leaving out mortgaged properties to be divided later after their redemption. By another instrument, Ext. P3 of even date, the 3rd defendant who had by then become the karnavan of the tarwad, the 4th defendant, and all the other major members of the tarwad, sold plaint item 1 to the plaintiff directing him to redeem the mortgage Ext. P1 and surrender all the properties other than plaint item 1 to the vendors. It is by virtue of that direction that the plaintiff has instituted the present suit.

(3.) I am afraid that the Subordinate Judge has been misled by my citation from Trevellyan on Minors in Para.58 of the judgment in Mathew v. Ayyappankutty (1962 KLT 61 F. B.). That citation was only in support of my observation in Para.56 "It is not always necessary that a party entitled to avoid a transaction not binding on him should sue for its recission. He can himself avoid it by an unequivocal act repudiating it." After citing Muthukumara Chetty v. Anthony Udayar (ILR 38 Madras 867), Abdul Rahman v. Sukhdaval Singh (ILR 28 Allahabad 30), Jagdamba Prasad Laila v. Anadi Nath Roy (AIR 1938 Patna 337), Sivanmalai Goundan v. Arunachala Goundan) AIR 1938 Mad. 822 ), Trevellyan on Minors. Mulla's Hindu Law, and Bijoy Gopal Mukerji v. Krishna Mahishi Debi (34 IA 87) and also Chekku v. Puliasseri Parvathi ( AIR 1936 Mad. 634 ) I reiterated in Para.61: