NOCHAT KIZHAKKE MADATHIL VENKATESWARA AIYAR;MANATTILPARKUM EACHARATHIL ACHUTHAN NAIR Vs. KALLOOR ILLATH RAMAN NAMBUDRI; KOTALI RAMUNNY NAIR AND ANR; RAMAN ALIASTHEK KETATH NAIR ALIAS KOMATPIUNNAVAL; THALIYIL VELIYANCHERI ALIAS VELUTHETATH MODHATHIL THAMAS

JUDGEMENT

(1.) The facts out of which these appeals arise are as follows: In 1887 Nanu Pattar obtained a money-decree in the Subordinate Judge s Court of Tellicherry against Thekkedath Nair and his tarwad. Nanu Pattar died and his elder son Ananthanarayana Iyer executed the decree by bringing to sale some of the properties belonging to Thekkedath Nair s tarwad, and at the sale Ananthanarayana Iyer himself bought these properties. Shortly afterwards, Thekkedath Nair presented a petition to have the sale set aside, alleging various irregularities leading up to it. In the result a compromise was effected, the petition was withdrawn and the sale of most of the lands was confirmed on terms which the parties reduced to writing in a registered karar, dated the 4th July 1901. By that document, while the sale to Ananthanarayana Iyer was confirmed, it was agreed that within ten years Thekkedath Nair, on payment of the price of the lands or of any part of them, should be entitled to have the whole or such part of the lands as he paid for reconveyed to him. During the currency of the ten years fixed by the karar, Thekkedath Nair assigned his interest under the karar to the various plaintiffs in Second Appeals Nos. 1509, 1510, 1511 of 1914; and still within ten years the plaintiffs filed these three suits asking for specific performance of the karar of the 4th July 1901 as assignees of Thekkedath Nair s rights under that instrument. The position of the plaintiff in Second Appeal No 843 is rather more complicated, and will be dealt with separately in relation to that suit. But most of the issues are common to all the four suits. The defendants are (1) Venkateawara Iyer, who is the undivided brother of Ananthanarayana Iyer, who died before the institution of the suit, and (2) Thekkedath Nair, who is merely a formal defendant. The learned Subordinate Judge has given decrees to the plaintiffs in Second Appeals Nos. 1509, 1510 and 1511, from which the 1st defendant appeals to this Court.

(2.) Two points taken by the appellants may be disposed of at once. In the first place, it was contended that there was no consideration for the karar giving the option of repurchase to Theksedath Nair, on the ground that, even if the objections of Thekkedath Nair to the. Court sale which bad taken place proved valid, that could only be due to irregularities of procedure attending that sale, and there was nothing to prevent Ananthanarayana Iyer from obtaining another sale untainted by such irregularities the very next day. This contention is really unarguable. We do not know how far Thekkedath Nair s objections were valid, or how far they might or might not have been got over by a fresh sale. It is quite clear that Ananthanarayana Iyer bona fide believed they were sufficiently serious to make it worth his while to dispose at them by compromise. Nor is there any suggestion made that Thekkedath Nair put forward these objections in bad faith, knowing full well that they were bad. It seems impossible to me to hold that the compromise effected in these circumstances was not supported by ample consideration, namely, the withdrawal of Thekkedath Nair s objections to the sale. Ananthanarayana Iyer undoubtedly entered into the karar as manager of his family; and it is not disputed that if there was consideration for the karar, as its effect was to preserve rights which the family had acquired in the properties, it would be binding on the family. Had the effect of the karar, therefore, been to alienate a portion of the properties to Thekkedath Nair there and then, no question could have arisen. In fact what Thekkedath Nair then obtained was not a present conveyance of any of the properties, but an executory right to have them conveyed to him at some future date on the fulfillment of certain conditions; and it is contended that as this was a conveyance of property within the meaning of the Transfer of Property Act, the date of the contract is not the date which must be looked at to determine the question of the propriety and necessity of the arrangement, but that the proper date to apply the test is the date when the agreement was sought to be enforced. If that be so, it is undoubtedly correct to say that no evidence has been given in this case to prove the existence of any necessity at that time. For the proposition in question reliance is placed upon the judgment of the High Court of Bombay in Jamsetji N. Tata v. Kashinath Jivan Manglia 26 B. 326 at p. 328 : 3 Bom. L.R. 898. If Thekkedath Nair had been the plaintiff in this case, it would have been necessary to decide this question and to consider whether we are prepared to act upon the observations of Jenkins, C.J., in that case. In my opinion the question does not arise in this case as the suits are brought not by Thekkedath Nair but by his assignees, who undoubtedly took the assignments for valuable consideration and in good faith.

(3.) There remain three further contentions of the appellant which raise more serious difficulties. In the first place, it is contended that the plaintiff s suit will not lie inasmuch as the option under the karar was not capable of being assigned in law; secondly, it is contended that even if the assignee has a right to sue, that right is only exercisable against the original covenantor; thirdly, that by Hindu Law there was no transmission of interest from Ananthanarayana Iyer to the 1st defendant.