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1951 DIGILAW 85 (KER)

Thankappan v. Narayanan

1951-08-10

GANGADHARA MENON, VITHAYATHIL

body1951
Judgment :- 1. The plaintiff in O.S. No. 1417 of 1109 of the Trivandrum Munsiff's Court is the appellant in this case. The suit is to set aside Ext. I mortgage dated 28.10.1100 executed by defendants 2 to 11 in favour of the 1st defendant. The plaintiff and defendants 2 to 11 are members of an undivided marumakkathayam tarwad. The 3rd defendant is the karanavan of the tarwad and the 4th defendant is the next senior member. The mortgage is for fanams 7000 with a term of three years. On the same date on which the mortgage was executed defendants 2 to 11 took the properties back on lease on a monthly rent of Rs. 10/-. The plaintiff was a minor on the date of the suit. All the adult members have joined in the execution of the mortgage. On the basis of the lease deed the 1st defendant filed O.S. 1793 of 1102 of the District Munsiff's Court of Trivandrum for arrears of rent charged on the equity of redemption and for recovery of the properties, and obtained a decree. Ext. A is the copy of the plaint in that case. In execution of the decree the 1st defendant got delivery of the properties on 15.6.1105 and the equity of redemption was proclaimed for sale for the decree amount. The plaintiff filed this suit for cancellation of the mortgage deed and for setting aside the decree and execution proceedings in O.S. No. 1793 of 1102 and for recovery of the properties with mesne profits and for an injunction restraining the 1st defendant from executing the decree against the properties. The plaintiff's case is that the mortgage deed is not supported by consideration and tarwad necessity. 2. The 1st defendant alone contested the suit. His main contentions are that the plaintiff is not a member of the sub-tarwad of defendants 2 to 11, that the plaint properties belong to the sub-tarwad of defendants 2 to 11, that the mortgage is supported by consideration and tarwad necessity, that the plaintiff is not competent to impeach the same, and that the decree and execution proceedings in O.S. No. 1793 of 1102 are valid are not liable to be set aside. The lower court dismissed the suit. When this appeal came up for argument the respondent's learned Advocate stated that he had no instructions and therefore the respondent was not heard. 3. The lower court dismissed the suit. When this appeal came up for argument the respondent's learned Advocate stated that he had no instructions and therefore the respondent was not heard. 3. On the question whether the plaintiff is a member of the tarwad of defendants 2 to 11 the finding of the lower court is in favour of the plaintiff. The 1st defendant has not objected to that finding and therefore that finding has become final. 4. The important question for consideration in this case is whether Ext.1 mortgage is supported by consideration and tarwad necessity. Ext.1 is for Fs. 7000. The properties mortgaged are those which the sub-tarwad of plaintiff and defendants 2 to 11 got under Ext. D partition dated 9.8.1097. The consideration of Fs. 7000 is made up of 3200 fanams reserved with the 1st defendant for payment to D.W. 2 for discharging the decree debt in O.S. No. 1234 of 1099 of the Trivandrum Munsiff's Court and Fs. 3800 paid in ready cash before the sub-registrar for a trade intended to be started for the benefit of the tarwad. The decree in O.S. No. 1234 of 1099 was based on a debt due to D.W. 2 and which is admitted in Ext. D partition deed. Therefore it cannot be denied that that debt is one binding on the tarwad. That debt was discharged by the 1st defendant on 29.10.1100 under Ext. 11 receipt which is admitted by D.W. 2, Therefore there can be no doubt that Ext.1 is supported by consideration and tarwad necessity to this extent. 5. The other item of consideration namely Fs. 3800 was, as stated above, paid in ready cash for a trade intended to be started and conducted for the benefit of the tarwad. 6. It is clear from the evidence in the case that this amount was actually advanced by the 1st defendant on the date of the document. The question for consideration is whether there was tarwad necessity so far as this item of consideration is concerned or in other words whether the starting of a new trade or business is a tarwad necessity. 7. The question for consideration is whether there was tarwad necessity so far as this item of consideration is concerned or in other words whether the starting of a new trade or business is a tarwad necessity. 7. Relying on the ruling reported in 28 T.L.J. 27 F.B. Swaminatha Sastrial v. Sankaran Ninaru the lower court held that the trade in question which was started for the benefit of the tarwad with the consent of all the adult members is a tarwad necessity. What was laid down in 28 T.L.J. 27 was that "unless the business was one started and continued as a tarwad concern with the knowledge and consent of all the adult members of the tarwad and unless the said business being not of a speculative or hazardous nature attended with unforeseen risks and liabilities, was considered necessary to promote the general welfare of the tarwad as a whole or for the better and more efficient management of tarwad affairs, the debts arising from such transactions could not be treated as binding on the minors in the tarwad." It was also laid down in that case that it is "foreign to the recognised principles of Marumakkathayam law that the corpus of the tarwad should be charged with liability for anything other than what is strictly understood in law as tarwad necessity, that is to say, purposes within the scope of the ordinary management of the tarwad, and transactions which are attendant with grave risks or of a speculative nature cannot be classified as acts of management to the manifest advantage of the tarwad." 8. This question came up for consideration in another Full Bench case of the Travancore High Court reported in 31 T.L.J. 358 (Nedungadi Bank Ltd. v. Govindan Potti) In that case the law was laid down in the following terms by Their Lordships: "Although the consent of all the adult members of a tarwad may give validity to a permanent alienation of tarwad property it does not appear that such consent would in any way raise a presumption that an alienation was for a tarwad necessity when the purpose for which the alienation was made is known. It is the duty in such circumstances of the court to see whether the particular purpose amounts to a tarwad necessity. It is the duty in such circumstances of the court to see whether the particular purpose amounts to a tarwad necessity. An alienation by a karnavan to be held valid must be found supported, (a) by consideration, and (b) by tarwad necessity and if the alienation is a permanent alienation consent of all the adult members must also be found. The consent of the adult members therefore cannot be considered sufficient to be a conclusive indication of tarwad necessity. Whether an alienation is for necessity or not would depend upon the specific purpose for which the alienation was made and the court has to find whether such purpose would come under the category of necessities recognised by law. The starting of a new trade or business has been held not to be a family necessity under the Hindu Law in non-trading communities. Even if all the adult members join in the starting of the business or trade the minors cannot be bound. See Sanyasi Charan Mandal v. Krishnandan Banerji, 49 Cal. 560 and Benares Bank Ltd. v. Hari Narain 54 All. 564." 9. In the light of the principles laid down in the above cases we must hold that the starting of a new trade was not a family necessity so far as the tarwad of plaintiff and defendants 2 to 11 was concerned. It is not the 1st defendant's case that the plaintiff and defendants 2 to 11 belong to a trading community or that they had any trade of their own before the date of Ext. 1. It is true that P.Ws.1, 2 and 3 swear that some of the members of the tarwad conducted a shop for some time after the date of Ext. 1. But that does not show that trade was the family business of the members of the tarwad. The 1st defendant's evidence is to the effect that to his knowledge the trade lasted for two years. There is nothing to show that the tarwad made any profit out of it. In these circumstances it cannot be held that the starting of the trade was a tarwad necessity for which tarwad properties could be alienated. 10. We therefore hold that the consideration for Ext.1 to the extent of 3800 fanams is not supported by tarwad necessity and that therefore Ext.1 is not binding on the tarwad to that extent. In these circumstances it cannot be held that the starting of the trade was a tarwad necessity for which tarwad properties could be alienated. 10. We therefore hold that the consideration for Ext.1 to the extent of 3800 fanams is not supported by tarwad necessity and that therefore Ext.1 is not binding on the tarwad to that extent. Ext.1 has therefore to be set aside to that extent. In view of the fact that Ext.1 is set aside the decree in O.S. No. 1793 of 1102 of the Trivandrum Munsiff's Court which is virtually for arrears of interest on the mortgage amount and for recovery of properties on the basis of Ext.1 mortgage and the lease deed based on it has also to be set aside. Since Ext.1 is found to be supported by consideration and tarwad necessity to the extent of fanams 3200 the 1st defendant is entitled to that amount and interest on it till the date of his obtaining possession of the properties, i.e. 15.8.1106. The annual pattom fixed in the lease deed is Rs. 120/-. The proportionate pattom for Fs. 3200 will be 12002/70. Calculated on that basis the 1st deft. will be entitled to Rs. 263 as interest from 28.10.1100 to 15.8.1106 on the amount of Fs. 3200. As this is more than a moiety of the principal only 1600 fanams can be allowed as interest. The plaintiff can be allowed to recover possession of the properties only on payment of Fs. 4800 to the 1st defendant. 11. We therefore set aside Ext.1 mortgage and the decree and execution proceedings in O.S. No. 1793 of 1102 of the Trivandrum Munsiff's Court and allow the plaintiff to recover possession of the plaint properties on behalf of his tarwad on deposit in Court for payment to the 1st defendant fanams 4800. From the date of deposit of that amount with notice to the 1st defendant the plaintiff will be entitled to get mesne profits from the 1st defendant at the rate of Rs. 120/- per year till the date of recovery of the properties or for three years whichever is earlier. In the circumstances of this case we direct the parties to suffer their respective costs both here and and in the lower court. The decree of the lower court is set aside and the appeal allowed in the manner stated above. Allowed.