SREEDHARAN PILLAI Vs. NARAYANA PILLAI

JUDGEMENT

(1.) The only question for decision in this Second Appeal is whether Ext. C, a sale deed dated the 13th Edavom 1117 is supported by consideration and necessity, binding on the tarwad of the plaintiff and of defendants 2 to 4. They are members of Pattariar Community and are stated in the plaint in the description of the parties, to be followers of Marumakkathayam Law. The 3rd defendant is the mother of the plaintiff and of defendants 2 and 4. The 2nd defendant is now no more. Defendants 2, 3 and 4 executed a mortgage, Ext. B, dated the 29th Mithunam 1114 for the suit property in favour of the 1st defendant for Rs. 40/-. They then executed Ext. C, for the equity of redemption, for a total consideration of Rs. 80/- out of which, Rs. 40/- was reserved for taking a release of Ext. B. Rs. 24/- was stated to have been received in cash from the 1st defendant, and Rs. 16/- was reserved to be paid with interest by him, to the plaintiff and to the 4th defendants daughter, on their attaining majority. The plaintiff instituted the suit out of which this Second Appeal arises, for setting aside both Exts. B and C, on the ground that they are unsupported by consideration and tarwad necessity. The District Munsiff at Vaikom by whom the suit was tried, held that Ext. B is valid and binding on the plaintiff, but that Ext. C is not supported by tarwad necessity, and set aside Ext. C, and gave the plaintiff a decree for the recovery of the suit property, on deposit of the mortgage amount of Rs. 40/-, with mesne profits at Rs. 5/- per annum, from the date of the notice of deposit. The 1st defendant preferred an appeal against the decree, which was allowed by the Subordinate Judge at Vaikom, who dismissed the suit with costs in both the courts. The plaintiff has come up in appeal to this Court.

(2.) On the question of consideration for Ext. C the only point is whether the sum of Rs. 24/- was paid by the 1st defendant. The learned Munsiff did not find against the 1st defendant on this issue. The view taken by the Judge was, that Ext. C is supported by consideration. The husband of the 3rd defendant and the husband of the 4th defendant had attested Ext. C. All the adult members of the tarwad were parties to it. The 1st defendant has sworn, that he paid the sum of Rs. 24/. The testimony of defendants 3 and 4, as Dws. 1 and 2 can never be acted upon. It is quite clear, that they are now supporting the plaintiff in order to defeat the 1st defendant. The 3rd defendant has overstated the case by pretending in the witness-box that she was misled into executing Ext. C, as if it was a melotti document. I believe Dw. 3, the first defendant, and hold, that Ext. C is supported by consideration in respect of the recital of Rs. 24/-. The recital of Rs. 40/- was for the redemption of Ext. B, and the 3rd recital of Rs. 16/- was future payment. Though the 1st defendant had a plea, that a sum of Rs. 4/- out of Rs. 16/- had been paid by him, there was no evidence worth the name in support of it, and it was found against. The first defendant is prepared to pay Rs. 16/- in accordance with the recital. It may therefore be deemed, that Ext. C is supported by consideration. This position was not seriously contested on behalf of the plaintiff. It was urged on behalf of the plaintiff, that there was no necessity for executing an outright sale deed like Ext. C, when a sum of Rs.24/- could have been raised by a transaction, short of a sale of tarwad property. This raises also a question of fact, for which there is no foundation in the plaint or in the replication. The grounds for impeaching Ext. C laid in the pleadings was, that both Exts. B and C were not supported by consideration and tarwad necessity. The present argument was advanced, on the strength of the decision in Janaki Kunjamma Kalyani Kunjamma v. Krishnan Govindan 1954 KLT 171 . This decision of a single Judge of the Travancore-Cochin High Court was reversed on appeal by a Full Bench of this Court in Krishnan Govindan v. Janaki Kunjamma Kalyani Kunjamma 1957 KLT 806 , on the very ground, that the pleadings in the case did not admit of the question being raised in Second Appeal. I am of the view, that the point now under consideration cannot be entertained, in the state of the pleadings.

(3.) The remaining question for consideration is whether the recital of Rs. 24/- is supported by adequate tarwad necessity. Though the document itself did not satisfy the purpose of this advance, the 1st defendant specified it in the written statement, as being the expenses to be incurred for a proposed partition in the plaintiffs tarwad. As Dw. 3 he gave evidence, that in the year 1117, within a week of Ext. C, there was a mediation concerning the partition, and a survey of some of the items of properties, in which certain persons, who were mentioned, by names, took part. True, the efforts did not culminate in an actual partition, and no deed was executed Even the 4th defendant who was bent on supporting the plaintiffs case admitted, as Dw. 2 that after the birth of her child, which was about 8 years old at the time of her deposition, she had asked her mother for a partition of her share of the tarwad properties and that the mother postponed giving effect to it. The 3rd defendant as Dw. 1 of course repudiated the suggestion put to her, that there was no proposal for a partition; so also, the plaintiff as Pw. 1. The question is, whether a presumption of tarwad necessity may be raised in favour of the 1st defendant. It has been held, in Akku Thamburatti v. Raman 1957 KLT 1026 that the consent of all the adult members of the tarwad, will give rise to a reasonable presumption of tarwad necessity, which if unrebutted will favour the creditor, though consent and tarwad necessity are not synonymous terms, nor are they interchangeable. In the present case, Ext. C was executed by all the adult members of the tarwad, and as observed earlier, it was attested by the father of the plaintiff and defendants 2 to 4 & by the husband of the 4th defendant. This is sufficient to raise a presumption of tarwad necessity in favour of the 1st defendant. There is no doubt in my mind, that the transaction was a bona fide one, and it strikes me that the learned Subordinate Judge had good reason to think that the plaintiff is now seeking to set aside Ext. C, because during the interval of time between the date of Ext. C and the date on which the suit was instituted, the property had risen in value. I consider, that the presumption of tarwad necessity arising in favour of the 1st defendant has not been rebutted by the plaintiff. It may be noted as observed already, that in the description of the parties set out in the plaint the plaintiff and defendants 2 to 4 were described as following the Marumakkathayam Law. On the findings which have now become final, the redemption of Ext. B provided for in Ext. C, constitutes a valid necessity. The payment of Rs. 16/- has to be made to the plaintiff and the 4th defendants doughtier in pursuance of the recital in Ext. C, and no question arises with respect to it, in this suit.