A SUBRAMANIAN ASARI Vs. JAYADEVAN NAIR

JUDGEMENT

(1.) This appeal under Letters Patent has been filed against the judgment of a learned single Judge of this court in A.S. 36 of 1970, wherein the learned Judge has confirmed the findings of the trial Judge, that in so far as the purchase of items 10, 11, 35 and 37 of the suit properties by the 9th defendant they were not supported by tarwad necessity. Aggrieved by their judgment, the 9th defendant has preferred this appeal.

(2.) Plaintiffs-respondents 1 to 3 herein filed O.S-9 of 1968 on the file of the District Judge of Kanyakumari at Nagarcoil praying for partition and separate possession of their share in the tarwad properties. In seeking the relief of partition, they assailed the alienations of several items of tarwad properties effected by the adult members during their period of minority. The trial Court sustained the case of the plaintiffs and found that they would be entitled to a 3/10 share in the suit properties and consequently, granted a decree for partition in respect of that share.

(3.) Against the judgment of the trial court, defendants 7, 9, 18, 23, 24, 28, 29, 30, 32, 40, 42 to 44, 34 and 20 preferred A.S. No. 36 of 1970, which was heard by Ramanujam J. Two contentions were raised before the learned Judge; one of them was that a partition had taken place between the branches of the tarwad in the year 1958 under Ex.A. 15 and by reason of that partition, the plaintiffs will not be entitled to claim partition and challenge the alienations of other items of properties, which have not been awarded to the share of their sub-tarwad, under Ex.A 15. Ramanujam J. accepted the contention and held that a distinction has to be made between the pre-partition alienations and the post partition alienations, that in respect of pre-partition alienations, the plaintiffs can challenge the same on the ground that the alienations are not for tarwad necessity and that in respect of the post partition alienations, they can challenge them only if the alienations related to the properties allotted to them. The second contention before the learned Judge related to the merits of the defence put forward by the various alienees in justification of the sales effected by them. For the purpose of this appeal, we are only concerned with the case put forward by the 9th defendant, who, as already stated, is the appellant herein. As has been mentioned above, the 9th defendant had purchased items 10, 11, 35 and 37 under Ex. A.5 sale deed. The consideration for these four items of properties is 10500 fanams. It was recited in Ex. A.5 that 3000 fanams were to be paid for obtaining the release of a mortgage from one Arulanandam, that 1150 fanams were reserved for redeeming a mortgage of item 5,285 fanams were reserved for redeeming a mortgage of item 35, and the balance of 6065 fanams was paid in cash 'for the purpose of acquiring properties' in the names of the vendors and the minors. While the plaintiffs contended that the sale under Ex. A.5, had not been effected for consideration and tarwad necessity, the 9th defendant set up a defence that the sale had been effected for tarwad necessity and therefore, the alienations in his favour were binding on the minors and they could not be set aside.