Narayani Amma v. Dhathiri Antherjanom — 1953 DIGILAW 178 (KER)

Judgment :- 1. This is an appeal from a decree setting aside a sale deed Ext. A dated 9.11.1113, executed by the 1st defendant in favour of the 2nd defendant. The 1st defendant's first wife died in 1107 and he married the plaintiff in 1111. At the time of sale, the properties were outstanding on redeemable kanom or mortgage with the 3rd defendant. Out of the total consideration of Rs. 1870 under the sale deed, Rs. 1000 was to be paid for redeeming the kanom and the balance Rs. 870/-, was stated to have been paid by the 2nd defendant in discharge of a decree debt due from the 1st defendant to the decree-holder in O.S. 1850/1110. The plaintiff alleged that she and the 1st defendant were governed by the Malayala Brahmin Act III of 1106, that the sale deed was unsupported by consideration and necessity binding on the Illom, that it was executed by the 1st defendant as a result of fraud, undue influence and misrepresentation and that it was invalid for want of her consent. She sued for the cancellation of the sale deed and recovery of possession of the properties from the 3rd defendant on payment of the kanom or mortgage amount, after adjusting the arrears of michavaram against such amount. She also prayed for an injunction to restrain the 2nd defendant from recovering possession of these properties from the 3rd defendant, in O.S. 1075/1117 of the Sherthallai Munsiff's Court. The suit was contested by defendants 2 and 3. The 2nd defendant questioned the competency of the plaintiff to challenge the sale deed and contended that the same was valid and supported by consideration and necessity. It was also stated by her that the suit was filed at the instigation of the 3rd defendant. The 3rd defendant contended that michavaram up to and inclusive of 1109 had been paid and that in the event of redemption, he was to get the kanom amount and value of improvements. 2. The trial Court found that the parties were governed by the Malayala Brahmin Act, that though the sale was supported by consideration and necessity it was invalid, as the plaintiff had not given her consent to the same. The suit was decreed, setting aside the sale deed and directing redemption of the properties from the 3rd defendant. 2. The trial Court found that the parties were governed by the Malayala Brahmin Act, that though the sale was supported by consideration and necessity it was invalid, as the plaintiff had not given her consent to the same. The suit was decreed, setting aside the sale deed and directing redemption of the properties from the 3rd defendant. Though various grounds of objection were taken by the 2nd defendant in the court below, Shri. Varadaraja Iyengar, learned counsel for the appellant rested his case on two points viz., (1) that the plaintiff's consent was unnecessary as she was a minor on the date of the sale deed and (2) that she was incompetent to question the consideration for the sale deed. The plaintiff-respondent has filed a memorandum of cross-objections relating to the findings against her on the question of consideration and necessity. It is therefore necessary to examine these objections also. 3. The ground on which the suit was decided against the 2nd defendant viz., that the sale deed was invalid for want of the plaintiff's consent is clearly unsustainable. The plaintiff described herself as 20 years old when the suit was filed in 1120 and so, she could not have been more than 13 years old at the time of the execution of the sale deed. Her consent was therefore unnecessary for the alienation and the finding of the trial court on this point has to be set aside. 4. As regards consideration for the sale deed, there is no dispute regarding the first item viz., the sum of Rs. 1000/- for redemption of the kanom. The controversy centres around the 2nd item viz., the sum of Rs. 870/- paid by the 2nd defendant for discharging the decree debt in O.S. No. 1850/1110. This debt arose in the following manner. The 1st defendant's elder brother Krishnan Elayathu had to get prize amount from a chitty. He executed a hypothecation bond Ext. D in favour of the foreman, but as the security was found insufficient, the whole prize amount was not paid to him. The 1st defendant and Krishnan Elayathu jointly executed another hypothecation bond Ext. M furnishing additional security and charging the future subscriptions payable on certain properties obtained by the 1st defendant in partition. He executed a hypothecation bond Ext. D in favour of the foreman, but as the security was found insufficient, the whole prize amount was not paid to him. The 1st defendant and Krishnan Elayathu jointly executed another hypothecation bond Ext. M furnishing additional security and charging the future subscriptions payable on certain properties obtained by the 1st defendant in partition. After the death of Krishnan Elayathu, the foreman of the chitty sued the 1st defendant and obtained a decree in O.S. No. 1850/1110 of the Sherthallai Munsiff's Court. The equity of redemption conveyed under Ext. A was attached before judgment in that suit in 1110. In execution of that decree, certain properties were sold and purchased by the decree-holder on 30.10.1112. The decree was not fully satisfied and the attached properties as well as other items charged under the decree were brought to sale for realising the balance amount. The date fixed for the sale was 14.11.1113. Ext. A was executed on 9.11.1113 in favour of the 2nd defendant. On the same day a petition was filed in O.S. No. 1850/1110 recording satisfaction of the decree. Exts. V to VIII are copies of the decrees, Execution Diary, attachment list and the petition dated 9.11.1113 respectively in O.S. No. 1850/1110. The plaintiff's case is that since the 1st defendant and Krishnan Elayathu had attained a divided status as early as 1103 by partition deed dated 25.7.1103, the security deed executed in 1107 by the 1st defendant to secure payment of future subscriptions by Krishnan Elayathu could not be viewed as supported by consideration and necessity and as a member of the Illom, she was entitled to question the validity and binding nature of the debt. The 2nd defendant challenged the plaintiff's competency to question the debt which was incurred long before her marriage and at a time when the 1st defendant's first wife was alive. According to the 2nd defendant the first wife could possibly have objected to the same and the infirmity due to want of her consent disappeared on her death. The plaintiff became a member of the Illom only in 1111 and her position is that of a co-parcener born after a debt was incurred. As no other co-parcener or member competent to question the debt existed at the time of her marriage with the 1st defendant, the plaintiff was not entitled to dispute the debt. The plaintiff became a member of the Illom only in 1111 and her position is that of a co-parcener born after a debt was incurred. As no other co-parcener or member competent to question the debt existed at the time of her marriage with the 1st defendant, the plaintiff was not entitled to dispute the debt. In support of this position reliance was placed on the principle of Hindu Law as stated on pages 498 and 499 of Mayne on Hindu Law and Usage (1953 Edition). "Alienations by a sole surviving member of a coparcenary are of course valid, for the joint family property is at his absolute disposal as there is no one who has a joint interest with him in it either by joint acquisition, or by birth. Therefore, a son or other co-parcener cannot object to alienations validity made by his father or other managing member before he was born or begotten, because he could only by birth obtain an interest in property which had not validly passed out of the family before he comes into legal existence. If at the time of the alienation there was no one in existence whose assent was necessary, or if those who were then in existence consented a co-parcener not in existence at that date cannot object on the ground that there was no necessity for the transaction." The recent decision of the Privy Council in Udasi Nirwani v. Surajpal Singh (1944, 2 MLJ 395) has set at rest doubts regarding the proposition stated above. In that case it was held: "It is asserted that a member of a joint family must be content with the family estate as he finds at his birth or at any rate he cannot complain of anything done before the period of gestation. In that case it was held: "It is asserted that a member of a joint family must be content with the family estate as he finds at his birth or at any rate he cannot complain of anything done before the period of gestation. Upon this rule, it is admitted, there is engrafted an exception to the effect that if the child who objects to the alienation of the property comes into existence or is conceived after the alienation, but during the life of a child born or conceived before the alienation, then that overlapping of the two lives enables the later-born child to contest the validity of the father's act." Thus an alienation invalid when it is made on account of the existence of other co-parceners, becomes unassailable on the death of all of them if no new co-parcener is born or begotten before that date. On behalf of the plaintiff respondent, the learned Advocate General argued that the principles of Hindu Law are not applicable and that the case should be guided by rules of Marumakkathayam Law. In Travancore it has been held from very early times that the Malabar Brahmins are governed by principles of Hindu Law as modified by local custom (6 TLR 143,19 TLR 241, 34 TLR 262,19 TLJ 441). In Parameswaran Narayanan v. Nangeli Antharjanam a decision of the Royal Court of Appeal of Travancore (10 TLR 151) and Narayanan Narayanaroo v. Kunjikutty & Ors. (20 TLR 65 FB) it was held that unless Malayala Brahmins can be shown to have deviated in any respect from the interpretation put upon old texts by modern Hindu Sages and adopted different practices, they should be held bound by Hindu Law as now understood and acted upon elsewhere. The main object of the Malayala Brahmin Act III of 1106 was to make provision for the better management of tarwads, to define and limit the powers of a Karnavan, to improve the rights of the junior members and to lay down the rules of intestate succession in respect of their self acquired properties. Appropriate provisions were made in the Act to achieve these objects. We do not feel justified in holding that the plaintiff and 1st defendant are governed by principles of Marumakkathayam Law, merely because such safeguards as are found in Marumakkathayam Law have been incorporated in the Malayala Brahmin Act. Appropriate provisions were made in the Act to achieve these objects. We do not feel justified in holding that the plaintiff and 1st defendant are governed by principles of Marumakkathayam Law, merely because such safeguards as are found in Marumakkathayam Law have been incorporated in the Malayala Brahmin Act. The cases cited by the learned Advocate General, Kochukrishnan v. Lakshmi Amma (23 Cochin Law Reports 495) and Nani Amma Janaki Amma v. Chandi Varghese (1950 Travancore-Cochin Law Reports 476) are not helpful in deciding this question. In the former case a Bench of the Chief Court of Cochin held that property obtained on partition by a female member of a Marumakkathayam Tarwad became thavazhi property by the birth of a child to that member and that such a child could question the validity of a decree, when a liability was sought to be enforced against such property in execution of the decree, for the first time after its birth. Their Lordships made it clear that they were not questioning the correctness of the principles of Hindu Law extracted above and held that in as much as there was no alienation, sale or mortgage before the birth of a child, the child was competent to question the decree when liability was sought to be enforced against the estate. In the latter case, the decision in 23 Cochin 495 that property obtained by a female member of a Marumakkathayam Tarwad became thavazhi property on the birth of a child to that member was followed in the absence of decided cases in Travancore. However, it was observed: "Properties obtained in family partition separately by a childless female member form and continue in her hands as thavazhi properties. No doubt, so long as she remains the sole member of the thavazhi she will have in respect of those properties absolute powers of management and disposal." In our opinion, the 1st plaintiff who was married by the 1st defendant only in 1111 ie., long after the execution of Ext. M, the institution of the suit thereon, and the attachment of properties is not competent to question the debt covered by the decree in O.S. No. 1850/110. 5. In this view, the only question that remains to be considered is that of Illom necessity. M, the institution of the suit thereon, and the attachment of properties is not competent to question the debt covered by the decree in O.S. No. 1850/110. 5. In this view, the only question that remains to be considered is that of Illom necessity. Some properties had already been sold for a very low price in execution of that decree and the properties attached as well as other items covered by Ext. M were coming on for sale. The evidence in the case shows that strenuous efforts were made by the 1st defendant and his well-wishers to raise money to discharge the decree debt and thereby avert the sale, and that all such attempts proved futile. It was only 4 days before the date fixed for court sale that the equity of redemption of these properties was sold under Ext. A to save other properties of the Illom. The present price of the properties is no indication of the value of the equity of redemption in the year 1113, when economic depression in Travancore was very acute. The sale in favour of the 2nd defendant under these circumstances was a prudent act and the plaintiff is not entitled to question the same on the ground of absence of necessity. It may also be stated that there are materials on record to support the conclusion reached by the court below that this suit is the result of a collusion between the 3rd defendant and the plaintiff. There is no satisfactory evidence to support the plaintiff's case that the 1st defendant lacked ability to look after his own affairs or that the sale was the result of fraud, undue influence or misrepresentation. We therefore hold that the sale deed Ext. A is not liable to be set aside. In the result, we reverse the decree of the trial court, allow the appeal and dismiss the suit. The injunction restraining the 2nd defendant from recovering possession of properties in O.S. No. 1075/1117 of Shertallai Munsiff's Court is vacated. The appellant will get costs in both courts from the plaintiff-1st respondent, who will bear her costs. Allowed.