Raman Pillai v. Mathews — 1954 DIGILAW 72 (KER)

Judgment :- 1. These appeals are directed against the decrees in two suits, O.S. Nos. 125/1120 and 638/1120, which were jointly tried and disposed of by the lower court. The substantial questions involved in both the suits are the same. 2. The two suits arose under the following circumstances:- Plaintiffs 1 to 5 in O.S. No. 125 of 1120 are the children of the 2nd defendant who had a sister by name Parukutty Amma. The 6th defendant is the daughter of this Parukutty Amma who is no more. The 2nd defendant and the deceased Parukutty Amma were both the wives of one Raman Pillai who had obtained the plaint properties to his share as per the partition deed entered into by himself and the other members of his tarwad in the year 1100. Soon after that partition deed, he gifted all these properties in favour of his two wives, under Ext. III dated 10.10.1100. A few years later Parukutty Amma, the second donee under Ext. III, reconveyed all the rights she had obtained under Ext. III, to Raman Pillai and the present 1st plaintiff, by executing the settlement deed Ext. D dated 6.4.1106 in their favour. Raman Pillai died in the year 1115 and his rights in the properties covered by Ext. D devolved on his heirs. On 12.3.1117 the 2nd defendant in her own right and as guardian of these plaintiffs executed the sale deed Ext. I in respect of the plaint properties, in favour of the 1st defendant and his deceased brother. The consideration for the sale was stated to be the amount of them was born on the date of the gift deed. Apart from this aspect of the matter, it is clear from the language of the gift deed Ext. III that the demise made under it was absolute in favour of the two donees, who were the 2nd defendant and her sister Parukutty Amma. It follows, therefore, that each of them became entitled to a half share in the properties covered by the gift deed. The half share of Parukutty Amma was conveyed by her to the donor Raman Pillai and his son the present Ist plaintiff, under Ext. D dated 6.4.1106. Thus Raman Pillai and the 1st plaintiff each became entitled to 1/4 share in the properties. The 2nd defendant continued to be owner of the half share she had obtained under Ext. III. The half share of Parukutty Amma was conveyed by her to the donor Raman Pillai and his son the present Ist plaintiff, under Ext. D dated 6.4.1106. Thus Raman Pillai and the 1st plaintiff each became entitled to 1/4 share in the properties. The 2nd defendant continued to be owner of the half share she had obtained under Ext. III. On the death of Raman Pillai, his 1/4 share devolved in equal shares on the 2nd defendant and plaintiffs 1 to 6 as his legal representatives, i.e., each of them became entitled to 1/7 of the 1/4 share which Raman Pillai had. In other words, each of the plaintiffs and the 2nd defendant became entitled to 1/28 share in the plaint properties. When the half share which the 2nd defendant already had under the gift deed is added to the 1/28 share which she got as legal representatives of her deceased husband, she became entitled in all to 15/28 share in the properties. Since she was the absolute owner of this 15/28 share, she was perfectly competent to execute the sale deed Ext. I in respect of that share, and the plaintiffs are not entitled to impeach the sale deed in respect of that share. The suit must necessarily fail to the extent of the said 15/28 share which belonged to the 2nd defendant. 7. Coming to the remaining 13/28 share which belonged to these plaintiffs, the 2nd defendant is seen to have functioned as the guardian of these plaintiffs, who were minors on the date of Ext. I, in conveying their share also under the document. The law defining the guardian's powers of alienation of the ward's properties, is firmly settled. When such alienations are impeached by the minors, the alienee has to establish that the alienations were justified by pressing necessity and that the alienations were to the manifest advantage of the minors. No such evidence has been adduced in this case by the contesting defendants. The 1st defendant alone has been examined as a witness on his side, and his evidence does not go to show that there was any pressing necessity to sell away the minors' properties under Ext. I even if his version that the chitty debt mentioned in the document was really due is accepted as true. The 1st defendant alone has been examined as a witness on his side, and his evidence does not go to show that there was any pressing necessity to sell away the minors' properties under Ext. I even if his version that the chitty debt mentioned in the document was really due is accepted as true. He has not stated that he had pressed for the discharge of that debt and had threatened to institute a suit in case the transaction was not closed immediately. It is not also suggested that it was not possible to have the debt discharged by other arrangements, short of an outright sale. It is seen from Ext. III itself that large extent of properties were obtained under it. Over 11 acres of garden land and over 8 acres of paddy land had been obtained under that document and the income of these properties was available with the 2nd defendant to be utilised for the discharge of the chitty debt. Pws.1 to 3 have stated that the annual income from the plaint properties alone, consisting of an extent of 2 acres of garden land and 1 acre and 58 cents of paddy land, would be 100 paras of paddy and over Rs. 100/-. Calculated on that basis the total income from the properties covered by Ext. III would easily be over 400 paras of paddy and Rs. 500/- per year. These circumstances clearly indicate that the situation did not at all justify an outright alienation of the minors' share in the properties, even assuming that the chitty debt mentioned in Ext. I was subsisting. It follows, therefore, that the sale deed cannot be allowed to stand so far as the minors' shares are concerned and that it has to be set aside in respect of the 13/28 share belonging to these plaintiffs. 8. Regarding the debt due under Ext. II the plaintiffs have a case that it has already been discharged and that even otherwise the claim had become barred by limitation prior to the date of Ext. I. The plea of limitation is clearly unsustainable. Ext. A, the notice demanding the amount by the chitty foreman, is dated 11.10.1105. 8. Regarding the debt due under Ext. II the plaintiffs have a case that it has already been discharged and that even otherwise the claim had become barred by limitation prior to the date of Ext. I. The plea of limitation is clearly unsustainable. Ext. A, the notice demanding the amount by the chitty foreman, is dated 11.10.1105. Even if the cause of action for the recovery of the chitty debt is deemed to have arisen on 11.10.1105, the creditor had a period of 12 years for enforcing the claim based on the chitty hypothecation bond Ext. II charged on immovable properties. That period had not expired when the sale deed Ext. I was executed. The plea of discharge also cannot be accepted in the nature of the evidence in the case. The point urged on behalf of the plaintiffs is that the production of the chitty records by the 1st defendant would have made out that the plea of discharge is well founded. The 1st defendant, who is the legal representative of the original foreman of the chitty, is in custody of these chitty records, and it was obligatory on his part to produce them. As D.W.1 he has admitted that such records are in his possession and no explanation has been offered for their non-production. He has also not been able to give an idea as to how much amount had been paid towards the discharge of the liability under Ext. II. All these, no doubt, are circumstances against the bona fides of the claim for the chitty debt. All the same there is the outstanding fact that in the sale deed Ext. I the 2nd defendant had admitted that on a settlement of accounts a sum of Rs. 1,000 was found due to the foreman. We see no reason to discard this admission as baseless, and hence we hold that the plaintiffs are also liable for their proportionate share of this debt. The result is that the plaintiffs' 13/28 share in the suit properties must be made liable for 13/28 share of the debt of Rs. 100/-. Such as proportionate amount of the debt is accordingly declared a charge on the plaintiff's 13/28 share in the plaint properties, even though the sale deed Ext. I is set aside in respect of that share. 100/-. Such as proportionate amount of the debt is accordingly declared a charge on the plaintiff's 13/28 share in the plaint properties, even though the sale deed Ext. I is set aside in respect of that share. Since this debt is a debt to which the provisions of the Travancore Debt Relief Act are attracted, we direct that the proportionate amount of the debt charged on the properties will carry interest only at the rate of 4 per cent per annum, from the date of Ext. I. 9. A.S. 495/1950. As already stated, this appeal is directed against the decree in O.S. 638/1120. That decree is based on the lease deed Ext. F executed by the 3rd defendant. Admittedly the 3rd defendant had not possession of the properties when the lease deed was executed. The lessor-plaintiff admits that possession was with the 2nd defendant and her children in spite of the sale deed Ext. I. Excepting the lessor's interested evidence, there is no independent evidence on his side to substantiate his case that the lessee 3rd defendant executed Ext. V for and on behalf of the 2nd defendant and her children. The lease deed also does not lend any support to such a theory. Under these circumstances it is clear that the lessee-plaintiff is not entitled to recover possession of the properties from defendants 1 and 2 on the strength of Ext. V to which they are not parties. The lessor's right would only be to recover the 2nd defendant's share in these properties which she had validly conveyed to him under Ext. I. In the nature and circumstances of the litigations as fought out in these two connected cases, there appears to be no necessity to drive the parties to another suit for adjusting their claims. In fact both sides agreed at the time of the arguments in this court that in case the sale deed Ext. I is upheld only to the extent of the 2nd defendant's 15/28 share of the suit properties, the vendee (who is the plaintiff in O.S. 638/1120) may be given a decree on the strength of his title to that share, for recovery of 15/28 share of the properties, after partition by metes and bounds. I is upheld only to the extent of the 2nd defendant's 15/28 share of the suit properties, the vendee (who is the plaintiff in O.S. 638/1120) may be given a decree on the strength of his title to that share, for recovery of 15/28 share of the properties, after partition by metes and bounds. On a consideration of all these aspects we think that it is only just and proper to allow O.S. 638/1120 to be treated as a title suit, so that the plaintiff in that case may be given a decree as indicated above. 10. In the result the two appeals are allowed only to the extent indicated above, and in modification of the decrees passed in these two suits, the plaintiffs in the respective suits are given a decree in the following terms: The plaintiffs' prayer in O.S. 125/110 to have the sale deed Ext. I set aside, is allowed only to the extent of the plaintiffs' 13/28 share of the plaint properties. Ext. I is upheld as valid to the extent of the remaining 15/28 share which belonged to the 2nd defendant. 13/28 share of the chitty debt of Rs. 1,000 mentioned in the sale deed Ext. I, is declared a charge on the plaintiffs' 13/28 share in the suit properties and the proportionate amount of that debt will carry interest at 4 per cent per annum from 12.3.1117, the date of Ext. I. In O.S. No. 638/1120 the plaintiffs title to 15/28 share in the suit properties is upheld and a preliminary decree is passed in his favour for partition and recovery of that share, with mesne profits from the date of the sale deed Ext. I. The rate of mesne profits is admitted in the connected suit, O.S. 125/1120, to be Rs. 120 per year for the entire properties. The plaintiff in O.S. 638/1120 will get 15/28 share of Rs.120/- as annual mesne profits for his 15/28 share of the properties. Since this suit is allowed to be treated as a title suit, the plaintiff will pay the balance of the court fee payable on such a suit on the basis that the market value of the whole of the properties is Rs. 1,200/- as estimated in O.S. 125/1120. The balance of such court fee will be paid in the lower court within such time as the lower court may fix. 1,200/- as estimated in O.S. 125/1120. The balance of such court fee will be paid in the lower court within such time as the lower court may fix. On payment of such fee, the plaintiff will be allowed to take out a commission for effecting a partition by metes and bounds and for allotting his 15/28 share, so that a final decree may be passed in the case. In the nature and circumstances of the two suits and also of the decrees now passed by this Court, we think that the proper order for costs would be to direct both sides to bear their own costs incurred till now.