RAJALAKSHMI Vs. MINOR RAMACHANDRAN

JUDGEMENT

(1.) THE defendants in a suit for declaration of title to properties and possession of the same with claim for mesne profits, are the appellants in this second appeal. The facts relevant and material for the second appeal may be briefly set out.

(2.) THE suit properties originally belonged to one Anjalai Ammal wife of Arumugha padayachi, the putative father of the plaintiffs in the suit. They are the children of arumugha Padayachi by his concubine Marimuthu Ammal. Anjalai Ammal having no male issue, under the deed of settlement Ex. A. 1 dated 25-10-1955, settled the suit properties on the minor plaintiffs. The deed of settlement refers to Arumugha padayachi as their protector, father and guardian and is recited therein that the properties which had been settled on them are on their behalf placed in possession of their guardian, the said Arumugha Padaychi. Certain conditions are imposed under the deed enjoining the settles to maintain Arumugha Padayachi during his lifetime, the properties to be taken by the plaintiffs after his lifetime with absolute rights. A charge is provided in favour of Arumugha Padayachi for his maintenance. The settlement deed referring to a mortgage over the properties in favour of one subramania Pillai and directing payment of Rs. 880 towards that mortgage provides that to extent of the said sum of Rs. 880 if it becomes necessary for its discharge, the guardian will have power to mortgage the properties and borrow or sell a portion properties. The properties are valued at Rs. 1500 and there is specific prohibition against any alienation of the properties except to the extent of and for the purposes provided in the deed as above set out. The settlor, it may be stated, has, under the settlement deed, parted only with a share in the items she owned retaining to herself the remaining share. Arumugha Padayachi did not pay the mortgage the sum of Rs. 880 as provided under the settlement deed and the mortgagee filed the suit O. S. 334 of 1956 on the file of District Munsif Court, chidambaram, for recovery of the mortgage amount. The plaintiffs were parties to that suit and a preliminary decree for the full mortgage amount had been passed against the plaintiffs and Anjalai Ammal. The guardian, despite the injunction in the settlement deed first mortgaged items 3 and 4 of the suit properties to the second defendant for a sum of Rs. 220 on 2-6-1956 and later on 1-12-1956 along with Anjalai Ammal he sold the items for a sum of Rs. 500 under Ex. B. 2. it is finding that no portion of the consideration went in discharge of the mortgage in favour of Subramania Pillai. Again with Anjalai Ammal as co-vender, under Ex. B. 3 dated 1-12-1956 the remaining properties settled on the minor plaintiffs that is items 1 and 2 were conveyed to the first defendant for a sum of Rs. 3500. Anjalai ammal had joined in these two conveyances as co-vender, since the share in the properties which she had retained has also been the subject of the conveyances. The consideration for the latter sale deed is made up of four items (1) a sum of rs. 880 payable by the plaintiffs towards the mortgage in favour of Subramania pillai, (2) a sum of Rs. 1620 the balance payable for the mortgage as paid by anjalai Ammal (3) a sum of Rs. 130 cash received by Anjalai Ammal and (4) Rs. 870 left with the vendees to be paid on the minor settles be coming majors and executing a registered deed of release.

(3.) THE trial court refused to accept that it would not have been possible for arumugha Padayachi to dispose of part only of the properties settled and pay off the mortgage to the extent of Rs. 880. There is a finding by the trial court that the vendees have not acted in good faith at all. As regards the sale under Ex. B-2, there can be no question at all about its validity. It is wholly beyond the powers of the guardian. As regards the sale for Rs. 3500 evidenced by Ex. B-3 the appellate court is of the view that Arumugha Padayachi would be well within bounds to sell items 1 and 2 and he had authority to sell the properties if needed for paying off the sum of Rs. 880 towards the mortgage. The appellate court has not considered the reasoning of the trial court in this regard that there was no necessity to sell the entirely of the properties. But the appellate court concurred with the trial court is holding that the alienation evidenced by Exs. B-2 and B-3 being both subsequent to the coming in to force of the Hindu Minority and Guardianship Act of 1956, the sale by Arumugha Padayachi who was not the legal guardian of the minor plaintiffs is invalid under the provisions of the said Act.