KALYANI AMMA Vs. SANKARA RAMAN NAMBOODIRI

JUDGEMENT

(1.) The two questions arising for decision in this second appeal by the plaintiffs are-

(2.) The suit was instituted by the 1st plaintiff to set aside Ext. P1 sale deed executed by the plaintiff and defendants 2 to 9 conveying item 1 in the plaint A schedule to the Ist defendant and for recovery of possession of the same. The plaintiff and defendants 5 to 8 were minors represented by their father the 9th defendant as guardian in executing the sale deed Ext. P1, The plaint A schedule item.1 according to the plaintiff, was obtained by the tavazhi of the 2nd defendant and her children in partition of the main tarwad in 1100 ME. The sale deed Ext. P1 is attacked as executed without consideration and family necessity. The plaintiff and defendants 3 to 8 are the children of the 2nd defendant and the 9th defendant is her husband. The 1st defendant contended that the sale as per Ext. P1 is fully supported by consideration and was also for family necessity. He raised a further contention that the entire item 1 in the plaint A schedule did not belong to the tavazhi. What the tavazhi obtained under partition of the main tarwad was only a portion of item 1, 34.75 cents in extent, and the remaining extent of 25.25 cents was the self acquisition of the 2nd defendant. She could therefore convey that part of the property without the junction of the plaintiff and defendants 3 to 8 and the plaintiff is not entitled to challenge the assignment Ext. P1 to the extent it relates to the self acquired property of the 2nd defendant.

(3.) The suit was instituted as early as in 1962. It was at the first instance dismissed by the Trial Court on 8-9-1967 on the finding that the plaintiff had failed to prove that Ext. P1 was not supported by necessity. In appeal by the plaintiff the decree of the Trial Court was set aside and the case remanded for fresh disposal after considering also the Ist defendant's case that an extent of 25.25 cents is the self acquisition of the 2nd defendant. The Trial Court after remand passed a fresh judgment on 20-11-1973 setting aside the sale deed Ext. P1 to the extent it related to the tavazhi property 34.75 cents in extent. The Trial Court found that the remaining extent of 25.25 cents was the self acquisition of the 2nd defendant and the plaintiff has no right to challenge the transfer by the 2nd defendant to the extent it relates to her self acquired property. The 10th defendant impleaded in the suit had claimed a tenancy right under the 1st defendant. His plea of tenancy was found against. There were three appeals against the decision of the Trial Court before the lower appellate court AS 9/1977 by the plaintiff. AS 10/1977 by the Ist defendant and A.S. 12/1977 by the 10th defendant. AS 12/1977 was dismissed confirming the decision of the Trial Court that the appellant (10th defendant) bad not succeeded in proving the tenancy right in the suit property. AS Nos. 9 and 10 of 1977 were allowed setting aside the judgment and decree of the Trial Court and the case was remanded for fresh disposal after considering the effect of the Kerala Joint Hindu Family System (Abolition) Act, 1976. After the second remand as aforesaid the other members of the tavazhi got themselves impleaded as plaintiffs 2 to 25. The Trial Court by judgment dated 31-7-1978 found that only an extent of 34.75 cents in item.1 in the plaint A schedule belonged to the tavazhi of the plaintiffs and defendants 2 to 8. The remaining extent of 25.25 cents belonged to the 2nd defendant separately and she was competent to convey title in that portion of the property to the Ist defendant. It was found that the sale deed Ext. P1 is invalid as regards the aforesaid 34.75 cents for the reason that it is not supported by consideration, nor was there any necessity to effect a sale of the tavazhi property. Since, however, there was no tarwad after the coming into force of Kerala Act 30/ 1976, the Trial Court held that the 1st plaintiff who bad instituted the suit is entitled to recover his 1/26 share in the 34.75 cents of land that belonged to the tavazhi. A preliminary decree was accordingly passed for partition of the aforesaid extent of 34.75 cents into 26 shares and for allotment of one share to the 1st plaintiff. The remaining plaintiffs were found not entitled to any relief for the reason that they were impleaded in the suit more than 12 years after the sale deed Ext. P1 and some of them were born after the date of the sale.