Sivarama Konar v. Thiruvadinatha Pillai — 1956 DIGILAW 54 (KER)

Judgment :- 1. These two appeals arise out of two connected suits O.S. 49 of 1124 and O.S. 247 of 1124 of the District Court of Trivandrum. A.S. 339 of 1953 is the appeal from the former suit and A.S. 543 of 1953 from the latter. The circumstances leading to these appeals are as follows: 2. The two suits were jointly tried by the lower court and the leading judgment is the one in O.S. 49 of 1124. Both the suits are for redemption of identical properties mentioned in the plaints. They belonged to Kadavoor alias Kottarathu Matom, being a family of Oonnies and were outstanding on mortgage and Purakkadoms in favour of the 2nd defendant Lakshmi Pillay, whose rights passed to the 1st defendant Sivarama Konar (being the 2nd defendant in O.S. 247 of 1124). (The reference to parties and Exhibits are those in the leading case when not otherwise indicated). On 8.6.1123, the Karnavan of the Matom executed a sale deed in favour of the plaintiff Thiruvadinatha Pillai (being the 3rd defendant in O.S. 247 of 1124), the consideration being mentioned as Rs. 5000. Only the Karnavan Sankararu was a party to it. Thiruvadinatha Pillai obtained consent deeds executed by some of the other members of the Matom in support of the sale deed, they being filed as Exts. E to G. On 18.3.1124 Sankararu and the seniormost Anandaravan, Govindararu executed another sale deed covering the identical properties in favour of the 3rd defendant Chidambarathanu Pillai, (being the plaintiff in O.S. 247 of 1124) the consideration mentioned being Rs. 12,500. Ext. K is the copy of it (Ext. B in O.S. 247 of 1124 being the original). There it was stated that the sale was in pursuance of an agreement executed on 15.12.1122. The said alleged agreement is filed as Ext. A (O.S. 247 of 1124). After Ext. K, the 3rd defendant obtained Exts. L, M, N, O and P from the rest of the members of the family by way of consent deeds. It may also be mentioned that in Ext. K there is a reference that the assignment in favour of plaintiff as per Ext. D was caused to be executed due to misrepresentation on the part of the executee and was unsupported by consideration. Thus there were two sale deeds with regard to the plaint schedule properties executed on behalf of the Matom. K there is a reference that the assignment in favour of plaintiff as per Ext. D was caused to be executed due to misrepresentation on the part of the executee and was unsupported by consideration. Thus there were two sale deeds with regard to the plaint schedule properties executed on behalf of the Matom. Plaintiff filed his suit for redemption claiming his right under Ext. D on 18.8.1124. He claimed damages for waste also. 3. The 1st defendant standing in the shoes of the mortgagee contended that the sale deed relied upon by the plaintiff was vitiated on account of material alteration by the plaintiff after registration, that is offended the provisions of the Malayalee Brahmin Act, denied waste and thus resisted the suit for redemption. The 3rd defendant raised similar contentions and further put forward his rights under the assignment in his favour and claimed that he alone was entitled to redemption. Meanwhile on 19.12.1124, the 3rd defendant filed O.S. 247 of 1124 claiming redemption basing his right on Ext. K, impleading Lakshmi P. Pillai, Sivarama Konar and Thiruvadinatha Pillai as defendants 1 to 3. There the mortgagee had no objection to redemption but the plaintiff here resisted the suit contending that his sale deed was prior to the sale deed in favour of the 3rd defendant. Thus identical questions arose for consideration in both suits. 4. The lower court found that Kottarathu Matom family followed Marumakkathayam law, that Ext. D was not vitiated by material alteration, that the 3rd defendant, a stranger to the family could not question its validity on the ground that it was not executed by all the members and hence upheld the plaintiff's right for redemption on the basis of Ext. D, the earlier sale deed. It also found that the alleged agreement for sale in favour of Chidambarathanu Pillai was not genuine. The mortgagee was directed to pay Rs. 860 as compensation for waste, value of improvements also being awarded. The mortgagee filed A.S. 339 of 1953 from the decree in O.S. 49 of 1124, questioning the lower court's finding regarding the right of plaintiff for redemption and regarding damages for waste. The 3rd defendant filed A.S. 543 of 1953 from the decree in O.S. 247 of 1124 contending that the lower court was wrong in upholding Thiruvadinatha Pillai title and rejecting his claim. 5. The 3rd defendant filed A.S. 543 of 1953 from the decree in O.S. 247 of 1124 contending that the lower court was wrong in upholding Thiruvadinatha Pillai title and rejecting his claim. 5. We will first of all consider the contention raised on behalf of the 3rd defendant that the plaintiff cannot claim any right on the basis of Ext. D because the said deed was not executed with the consent of all the adult members of the Matom. The finding of the lower court that Kottarathu Matom family are followers of Marumakkathayam law is not now challenged. So Ext. D is with regard to the properties belonging to a Marumakkathayee family. It was executed only by the karnavan. The properties are clearly described as ancestral properties. Thus the tarwad character is pointed out. So the mere fact that there is a statement that it was the executor's right that were purported to be transferred does not affect the nature of the deed. The deed was clearly executed purporting to be on behalf of the family. What is to be considered now is as to whether the 3rd defendant can question the legality of that deed. His counsel pointed out that in a Marumakkathayam family, the Karnavan has got no right to execute a deed like that binding the family properties without the consent of other members and hence the party claiming under Ext. D which is only by the Karnavan cannot contend that equity of redemption is vested in him. Katutha Krishnan v. Thirian Ayppu, 6 TLR 49, Chirian Geevareeth v. Narayanan Raman, 7 TLR 159 Antony Meyyal v. Kanakku Arumukham Peruman, 6 TLJ 474, were cited as authorities in support of the position that a karnavan by himself cannot alienate properties of a Marumakkathayam tarwad without the consent express or implied of the other adult members. This proposition cannot be controverted. In 6 TLJ 474, the Law on that point is summarised in Para.5 of the judgment. But all these cases deal with the right of a junior member of the family to question such alienations affecting his tarwad properties. But here it is a stranger that seeks to question the validity of a document on the basis that it was without the assent of other adult members of the family. But all these cases deal with the right of a junior member of the family to question such alienations affecting his tarwad properties. But here it is a stranger that seeks to question the validity of a document on the basis that it was without the assent of other adult members of the family. In decisions of this Court following earlier cases, it has been held as pointed out by the counsel for the plaintiff that the principle that the validity of deeds executed by Karnavans without the consent of other adult members can be challenged, has been laid down only for the benefit of the members of the tarwad and not for the benefit of the strangers to the family. Thus in Ayidrose v. Abdul Kadir,1952 KLT 695, the question arose as to whether strangers to an Ezhava tarwad can question the validity of a mortgage executed by some members on the ground that it offended the provisions of S.22 of the Ezhava Act III of 1100 (Travancore). Following the earlier decisions of the Travancore Cochin High Court, it was held that the stranger cannot raise such an objection. The following observations in Para.4 of the judgment may be pointed out:- "O.S. 626 of 1112 was dismissed on the ground that Ext. A superior mortgage taken by the plaintiff from the original mortgagor's tarwad was void. The ground alleged was that all the adult members of that tarwad had not joined in executing the Mellotti. What S.22 of the Ezhava Act would provide was that the mortgage with possession, or lease with premium for a period of twelve years or less, would be valid only if it was executed for consideration and tarwad necessity and with the consent of all the major members of the tarwad. The previous section which dealt with the sale or mortgage with possession of lease for more than twelve years provided that the consent must be in writing. But, under S.22, the members of the tarwad need not express their consent in writing. Besides, the 1st defendant who was a stranger to the tarwad could not raise this contention and the law on the point is also well settled. It is admitted that the karnavan of the mortgagor's tarwad is a party to the deed. But, under S.22, the members of the tarwad need not express their consent in writing. Besides, the 1st defendant who was a stranger to the tarwad could not raise this contention and the law on the point is also well settled. It is admitted that the karnavan of the mortgagor's tarwad is a party to the deed. A similar case came up for consideration in Krishna Panicker v. Bhargavi Amma (29 TLJ 1375) and it was held that as the karnavan had executed the deed and as he represented the tarwad so far as the outside world was concerned, it had to be taken that the sale deed impeached in that case was executed by competent persons and that a stranger to the tarwad could not invoke the provisions of S.25 of the Nair Act which was in force then, to defeat a purchaser whose right would be indefeasible in the absence of those provisions. That was the dictum laid down in an earlier case Krishnan Krishnan v. Raman Nilakantan (4 TLJ 134). The above S.25 of the Nair Act corresponds to S.22 of the Ezhava Act. The corresponding provisions in the Marumakkathayam Act of the Cochin State had also come up for consideration and it was held that the strangers to the tarwad were incompetent to question the validity of transactions entered into by the tarwad or by some members of the tarwad including the karnavan. Velayudhan Nair v. Balakrishna Menon (37 CLR 556), Pareeth v. Alavi (37 CLR 96), Meera Rawther v. Kamakshi Amma (15 CLR 143) and Muthukumaraswami v. Kuppuswami (15 CLR 244) lay down these general principles." This decision has been followed in Mangu v. Narayanan Nair, AIR 1953 TC 269 and Damodaran v. Kunju, 1955 KLT 896. So it is clear that the 3rd defendant cannot contend that Ext. D is a void document on the ground that consent of other members has not been proved. Its validity can be questioned only by the other members of the family. Thus he cannot resist the plaintiff's claim on this ground. The mortgagee's position also is the same. Though he can ask the plaintiff in a redemption suit to prove how he traces his right to the mortgagor, still he cannot challenge the validity of an assignment purporting to transfer the mortgagor's right in favour of the plaintiff on the ground in question here. The mortgagee's position also is the same. Though he can ask the plaintiff in a redemption suit to prove how he traces his right to the mortgagor, still he cannot challenge the validity of an assignment purporting to transfer the mortgagor's right in favour of the plaintiff on the ground in question here. Anna v. Mathai, 30 TLJ 415, relied upon by the counsel for the mortgagee only goes to support the position that "a mortgagee is entitled to put the person who by virtue of derivative title from the mortgagor comes forward to redeem him to the proof of his right." So the contention that redemption cannot be claimed on the basis of Ext. D because it is executed only by the karnavan of the family cannot stand as rightly held by the lower court. 6. The next point urged with regard to the enforceability of Ext. D is that it has been materially altered after registration and hence it has become an invalid deed. The alleged alteration is with regard to the description of the survey number in words found on page 4 of Ext. D. There, after giving the survey number in figures as 2186, there is the description in words about the same. But with regard to the description'eight' there is some indication about an erasure and writing over. Plaintiff examined as PW.1 says that it was there at the time of registration. Ext. C (O.S. 247 of 1124) is the attested copy of the deed. There at page 4 the description in words is as 2166. The writer of the document Chellappan Pillai examined as PW.1 (O.S. 247 of 1124) says that the correction or overwriting was not there when he wrote it. On the basis of this, it is argued that there was material alteration in Ext. D after registration and that vitiated the whole deed. In the present case the description of the property in figures, boundaries, etc., are enough to indicate the right item. There is no case that the parties intended to include in Ext. D any survey number other than 2186. It is clear that under such circumstances even if there was any alteration with regard to the description in words bringing it into conformity with the rest of the description, it is not such a material one as to affect the validity of the deed. D any survey number other than 2186. It is clear that under such circumstances even if there was any alteration with regard to the description in words bringing it into conformity with the rest of the description, it is not such a material one as to affect the validity of the deed. Nathu Lal v. Gomti Kuar, AIR 1940 PC 160 cited on behalf of the plaintiff fully supports this position. There at page 163, the principles followed in English Courts with regard to the material alterations in a document are referred to and it is observed as follows: "The rule relating to the effect of material alterations in a deed made after its execution, by or with the consent of any party thereto, as it prevails in English Courts can be briefly summarised as follows:- "If an alteration (by erasure, interlineation or otherwise) is made in a material part of a deed after its execution by or with the consent of any party thereto or person entitled thereunder, but without the consent of the party or parties liable thereunder, the deed is thereby made void. The avoidance however is not ab initio or so as to nullify any conveyancing effect which the deed has already had; but only operates as from the time of such alteration and so as to prevent the person who has made or authorised the alteration and those claiming under him, from putting the deed in suit to enforce, against any party bound thereby who did not consent to the alteration, any obligation, covenant or promise thereby undertaken or made. A material alteration is one which varies the rights, liabilities, or legal position of the parties ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainly some provision which was originally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally executed. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed. The avoidance of the deed is not retrospective and does not revest or reconvey any estate or interest in property which passed under it. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed. The avoidance of the deed is not retrospective and does not revest or reconvey any estate or interest in property which passed under it. And the deed may be put in evidence to prove that such estate or interest so passed or for any other purpose than to maintain an action to enforce some agreement therein contained". 7. It was argued there that the principles followed by English Courts were not applicable to Indian Courts. At page 165, it is observed as follows: "Is there anything in the principle or origin of this rule which makes it inapplicable to condition prevailing in India? Their Lordships have no difficulty in answering the question in the negative. The rule is based on'great good sense'. It is dictated by public policy and is independent of considerations of clime or race. It is consistent with the principles of equity and good conscious which have generally prevailed in India, unless they conflicted with Hindu or Mohomedan Law. In Their Lordship's opinion, there is no such conflict and there is no reason why the rule should not be made applicable to India. Their Lordships are not therefore surprised to find that the rule has in fact been adopted in Indian decisions which are numerous". So Ext. D is not vitiated on account of material alterations. 8. The next objection raised is that it is unsupported by consideration. These are clearly contentions which the third party cannot raise. Ext.D. was not a sham document. Even Govindararu the seniormost Anandaravan of the family and the party to Ext. K admits when examined as DW.1 after remand that as per Ext. D his brother the Karnavan and executant of it had received some amount. Exts. E, F and G show that further amounts were paid by the plaintiff to the other members of the family, all being prior to Ext. K. It is not for the third party to question the sufficiency of consideration. It is pointed out in Pazhaniappan v. S.I.P. & I.Co. Ltd., 1953 TC 161, at page 163 as follows: "A sale will be none-the-less a sale whether the price be paid down or the price be promised to be paid. K. It is not for the third party to question the sufficiency of consideration. It is pointed out in Pazhaniappan v. S.I.P. & I.Co. Ltd., 1953 TC 161, at page 163 as follows: "A sale will be none-the-less a sale whether the price be paid down or the price be promised to be paid. The definition of sale in the Transfer of Property Act is to the effect that 'sale' is a transfer of ownership in exchange for a price paid or promised, or part-paid and part-promised". 9. Now we come to the question regarding the alleged agreement in favour of the 3rd defendant as per Ext. A (O.S. 247 of 1124). Before considering the question as to whether it is a genuine document as contended by him or antedated document brought into existence to defraud the plaintiff, we will deal with the contention raised on behalf of the plaintiff, that even assuming that the agreement was a genuine one it did not affect the plaintiff's right for redemption. It is urged that an agreement for sale does not vest any interest on the property and if a third party obtains an assignment of the properties in question, the party in whose favour the agreement has been executed has to seek specific performance but cannot challenge the right of the subsequent assignee on the basis of the prior agreement and a second sale in his favour of a subsequent date. It is pointed out that when there has been a sale in favour of the plaintiff valid rights can pass to the 3rd defendant in the properties by way of subsequent assignment only if the plaintiff was also a party to it. Otherwise specific performance is the only remedy that was left to him. Various authorities were cited in support of this position. In Appa Rao v. Veeranna, AIR 1953 Mad. 409, the question as to whether an agreement to sell immovable property created any interest in the said property, came up for consideration. In Para.7 of the judgment it is stated as follows: "The legal position may, therefore, be put thus: An agreement to sell immovable property does not create any interest in the said property unless a sale deed is executed conveying the said property. In Para.7 of the judgment it is stated as follows: "The legal position may, therefore, be put thus: An agreement to sell immovable property does not create any interest in the said property unless a sale deed is executed conveying the said property. The vendor, who has not transferred his interest in the property, though he entered into an agreement with another to sell the same, can certainly confer title on a third party by executing a sale deed in his favour. As between the vendor and the subsequent purchaser, there can be little doubt that there is a transfer of ownership and, therefore the title to the property vests in the latter". Other decisions relied upon on behalf of the 3rd defendant also support the said position. Thus in Kochuvareed v. Mariappa, AIR 1954 TC 10, referring to the effect of an agreement for sale in Para.45, it is observed as follows: "This position is made clear by the last clause to S.54, T.P. Act where it is stated that a contract for sale of immovable properties does not, of itself, create any interest in or charge on such properties. In this respect the Indian Law is different from the English Law which recognises an equitable estate in favour of a party who has entered into a contract for the sale of immovable property. Under the Indian Law such a person gets only a right to compel the other party to execute a sale deed in respect of the property and unless and until such a sale deed is actually brought into existence by act of parties or under a decree of court, the party who has contracted for the purchase cannot be said to have acquired an ownership over the property". This decision has been followed in Sankaran v. Neelakanta, AIR 1955 TC 1951. So it is clear even if there was an agreement as alleged as per Ext. A, valid title did not pass to the 3rd defendant as per Ext. K and the subsequent consent deed relied upon by him, in view of the prior sale deed as per Ext. D in favour of the plaintiff. It has already been pointed out that the validity of Ext. D cannot be questioned by the 3rd defendant on the ground that it is executed only by some members of the family or otherwise. So the fact that Ext. D in favour of the plaintiff. It has already been pointed out that the validity of Ext. D cannot be questioned by the 3rd defendant on the ground that it is executed only by some members of the family or otherwise. So the fact that Ext. D and the subsequent consent deeds relied upon by the 3rd defendant do not evidence the consent of all members of the Kottarathu Matom, whereas Ext. K and the subsequent consent deeds represent all the adult members, does not help the 3rd defendant. So irrespective of the question as to whether Ext. A is genuine or not, valid title passes to the 3rd defendant and his title to redemption cannot be challenged by the mortgagee or the 3rd defendant. 10. Though in view of the aforesaid finding it may not be necessary to go into the question of genuineness of Ext. A, as there is a finding by the lower court and that question has been argued at length, we will go into that also. Though Ext. A is written on a stamp paper, the endorsement on which is to the effect that it was sold to the 3rd defendant on 15.12.1122, in the face of the evidence in this case there is no ground to hold that the lower court's finding that it is not a genuine document executed on the date shown therein is wrong. The executant of that deed namely Sankararu has not been examined. When these appeals came up for hearing on 2.12.1955 in view of the specific prayer contained in the Memorandum of Appeal for remand and pressed on behalf of the 3rd defendant, it being pointed out that he had not sufficient opportunity to examine the executant Sankararu or any other member of the family, this Court remanded it in order to give opportunity to the 3rd defendant to examine members of the Matom. After remand, Govindararu was examined as DW.1. But when the plaintiff filed before the lower court CMP No. 684 of 1956 dated 25.1.1956, praying for the examination of Sankararu who was present in court, the order on that petition shows that it was objected to on behalf of the 3rd defendant and the petition was rejected and Sankararu not allowed to be examined even by the plaintiff. Thus, it is seen after obtaining remand the plaintiff-purposefully refrained from examining the executant of Ext. Thus, it is seen after obtaining remand the plaintiff-purposefully refrained from examining the executant of Ext. A (O.S. 247 of 1124). So apart from the evidence of the 3rd defendant there is only the evidence of DW.1 Govindararu to support the genuineness of this agreement. It is not possible to believe their version. The 3rd defendant's case is that the draft was prepared by Chellappan Pillai being PW.1 in O.S. 247 of 1124 as per Ext. E and Ext. A (O.S. 247 of 1124) was written on the basis of it. When Chellappan Pillai was examined on behalf of the 3rd defendant not even a suggestion was made to him about the preparation of such a draft and he was not confronted with Ext. E. This draft was got marked only on 25.1.1956 after remand, though filed on 15.12.1952 which itself was after the examination of Chellappan Pillai. When examined on behalf of the 3rd defendant while admitting that he is the writer of Ext. D as well as Ext. K and several other deeds involved in this case, he says that he knew of the agreement only after Ext. D and when informed about it by the 3rd defendant. Thus his evidence is directly against the 3rd defendant's case of the agreement being drawn up on the basis of a draft prepared by Chellappan Pillai. The consideration mentioned in Ext. A for the sale deed is Rs. 12,500. The advance mentioned is only the nominal amount of Rs. 101. This agreement is referred to in Ext. K. But Sankararu was the executant of Ext. D where there is no reference at all to it. Ext. E is the consent deed executed by DW.1 Govindararu in favour of the plaintiff. That deed is inconsistent with the existence of an agreement like Ext. A (O.S. 247 of 1124) in which he figures as an attestor. So it has to be held that genuineness of Ext. A (O.S. 247 of 1124) has not been proved. So the question whether there was notice or not about it does not arise. Further, the question of notice may be relevant only when a suit for specific performance is brought. From the conclusion arrived at above it follows that the lower court was quite right in upholding the right of the plaintiff, Thiruvadinatha Pillai to redeem the mortgage in question. Further, the question of notice may be relevant only when a suit for specific performance is brought. From the conclusion arrived at above it follows that the lower court was quite right in upholding the right of the plaintiff, Thiruvadinatha Pillai to redeem the mortgage in question. The only question that remains to be considered is the contention of the mortgagee-appellant in A.S. 339 of 1953 that he is not liable for waste, the compensation for which has now been fixed by the lower court at Rs. 860. This is the value of timber of trees found missing. What is contended is that there is no proof of active waste and the mortgagee cannot be made liable under such circumstances. Durga Shanker v. Ganga Sahair, AIR 1932 All. 500 is cited as an authority to show that when active waste is not proved there is no liability on the part of the mortgagee as he is entitled to appropriate trees falling down due to natural causes. This position cannot be accepted. A mortgagee under an Otti deed does not get a right to appropriate fallen trees. His right is restricted to taking the income of the properties. Here there is no explanation even by the mortgagee to how the trees have disappeared. He has not even chosen to go into the box. The Commissioner has not been examined. So objections to the quantum fixed or the liability cannot stand. Thus it follows that there is no merit at all in either of these appeals. In the result, A.S. 339 of 1953 is dismissed. The appellant is liable for the costs of the 1st respondent Thiruvadinatha Pillai. A.S. 543 of 1953 is also dismissed with costs of Thiruvadinatha Pillai who is the 3rd respondent in it.