PATTI Vs. KUNHI RAMAN NAIR

JUDGEMENT

(1.) This second appeal is by the 19th defendant and arises out of a suit for specific performance.

(2.) On 13-1-1950 the defendants 1 to 18 acting through the majors among them, executed Ext. A1 agreement for sale to the plaintiffs covenanting to sell 20/27 shares in the A schedule property. These 20/27 shares were alleged to belong to the defendants 1 to 18 and 2 other members Raman and Raghavan of their two thavazhis. However by subsequent sale deed dated 30-5-1950 defendants 1 and 8 conveyed their shares to the 19th defendant and similarly the defendants 2 to 7 and 9 to 18 acting by the majors among them conveyed their shares to the 20th defendant under Ext. B7 sale deed dated 1-6-1950. The plaintiffs therefore filed this suit for specific performance soon later on 1-12-50. The courts below concurrently found against the bona fides of Exts. B1 & B7 but nevertheless they disallowed specific performance to the plaintiffs and while the Trial Court dismissed the suit in toto, the lower appellate court granted the plaintiffs a decree limited to recovery of the purchase price under Ext. A1 with interest as against the majors among the defendants 1 to 18, viz. defendants 1 to 5 and 8 to 11 and also their interests in the property covered by Ext. A1. The plaintiffs have acquiesced in the decree but the 19th defendant is dissatisfied with the grant of charge under the decree in favour of the plaintiffs and hence this appeal.

(3.) Learned counsel for the appellant contends that the court below was wrong in assuming that the partible interest of a marumakkathayee is without more an alienable interest and so granting charge as regards the major members shares. This is certainly a large and difficult question. But we are relieved from considering it here because, as learned counsel for the plaintiffs points out, the case of the 19th defendant in his written statement was that the property belonged exclusively to the defendants 1 & 8 and not to their thavazhis. Indeed according to the written statement of the defendants 1 & 8 themselves they alone were owners and the names of the defendants 2 to 7 & 9 to 18 had been included in the agreement Ext. A1 just only to satisfy the vendees thereunder. The defendants 2 to 7 and 9 to 18 by separate written statement had also disclaimed any title in themselves.