MANIKKAN NAIR Vs. MADHAVAN NAIR

JUDGEMENT

(1.) THIS second appeal is by the plaintiffs 1-3 against the dismissal of their suit by the court below in reversal of the decree in their favour passed by the trial court. The question turned upon the validity or otherwise of Ext. 1 sale of the plaint schedule property belonging to the tarwad of the plaintiffs 1 and 2, by their mother the 2nd defendant on her own behalf and as guardian of the plaintiffs 1 and 2 alleging them to be minors, jointly with their uncle Kunju Nair, (died) and in favour of the latter's son-in-law, the 1st defendant in the case. According to the plaint the plaintiffs 1 and 2 were at date of Ext. 1, viz, 12-1-117 majors aged 22 and 19 and intended as such to be co-executants thereof and had indeed on such basis joined in Ext. 1 and signed in the first sheet. Before registration however the 2nd plaintiff's husband Raman Nair, deceased who was not satisfied with the necessity for the transaction had intervened and struck out their names from the document and taken them away. But Kunju Nair and the 1st defendant had gone on with the execution and registration of Ext. 1 as if the plaintiffs 1 and 2 were minors aged 17 and 15 and got the illiterate 2nd defendant to co-operate with them in the matter. Anyhow Ext. 1 must be deemed to be void in its inception and could not validly convey the property. The plaintiffs had an alternative case that Ext. 1 was invalid on the ground of want of consideration and necessity. THIS depended on the fact that the extra consideration of Rs. 100 alleged to have been received in cash on the date of sale did not according to the plaintiffs actually pass and again Ext. 1 being for the very inadequate return of Rs. 200 was totally uncalled for on any principle of necessity. On the questions above as to the age of the plaintiffs 1 and 2 and the necessity for Ext. 1 (apart from the aspect of consideration which they both found for 1st defendant) the Courts below differed among themselves and had their conflicting decrees. It is these 2 aspects again that formed the main subjects of controversy before me.

(2.) TAKING up first the question of age, the case of the 1st defendant is that the plaintiffs 1 and 2 were really minors aged 17 and 15 as mentioned in Ext. 1 and also in Ext. V partition deed executed in the family on the same date in respect of the balance properties. His explanation for the initial entry as to their being majors and the subsequent connection was that the Sub-Registrar Dw. 4 before whom the parties appeared for registration of ext. 1 found plaintiffs 1 and 2 to be too young to join in the document personally and thereupon a prior document Ext. II dated 3-9-1108 in which the plaintiffs had been described by the 2nd defendant and Kunju Nair to be 9 and 6 was resurrected and conformance thereto was had both as regards Ext. 1 and V. This explanation was accepted by the learned judge but discarded by the munsiff. Having heard learned counsel and gone through the records I may say at once that this explanation seems to be more consistent than the allegation made by the plaintiffs in this connection. For Ext. II is dated 3-9-1108 when there was no controversy and the parties could be trusted to say correctly. The plaintiff's strong point was Ext. A entry in the admission Register of St. Joseph's Primary School at Perambra, Chalakudi as to the date of birth of one "ammini" as 12-6-1097, this Ammini according to the plaintiffs being the 2nd plaintiff. I agree however with the learned judge that there is no proper or sufficient proof as to the reference in Ext. A to the 2nd plaintiff or the correctness of the entry. And again if this age were correct, the 2nd plaintiff would be 11 at date of Ext. II and no mother would mistake a child of 11 as aged 6 only which we found mentioned in Ext. II. The oral evidence in the case of the 2nd defendant as Pw-3 nor her elder sister as Pw. 4 nor again or her brother as Pw. 7 that the 2nd plaintiff was really major at Ext. 1 date does not convey conviction, particularly as the horoscope of the 2nd plaintiff or the Talakuris of the plaintiffs 1 and 2 said to be available are not produced. Dw. 4 Sub-Registrar does not remember what happened exactly at time of registration of Ext. 1 but he is clear that if he felt doubt as to age on the appearance of parties before him he would certainly have insisted on proper proof. There was also the evidence of Dw-5 scribe of V to speak of the circumstances in favour of the 1st defendant's case. I therefore hold that plaintiffs 1 and 2 were properly described as minors in Ext. 1 and there is no want of validity in Ext. 1 on account solely of its execution by the 2nd defendant as guardian on their behalf as well.

(3.) THE result is that the appeal fails and it is dismissed with costs. Dismissed.