Omanakutty Pillai v. Krishnan Nair — 1961 DIGILAW 134 (KER)

Judgment :- 1. The second appeal arises out of a suit for setting aside a sale deed, Ext.1 in the case, and for recovery of the suit properties with mesne profits, the plaintiffs being the appellants before me and defendants 1 and 2 the respondents. The plaintiffs are the children of the 2nd defendant, the 1st plaintiff alone being a major representing the other plaintiffs as next friend. The 3rd defendant is the father of the 2nd defendant and the first defendant the alienee under Ext. I. In the year 1116 M. E. when the 2nd defendant was the sole major member of her tarwad, she and her father, the 3rd defendant, executed the sale deed, Ext I, in favour of the first defendant. The properties comprised in the sale deed originally belonged to the 3rd defendant, who made a gift of the same to the 2nd defendant and her children reserving a life interest for him in the properties and therefore the third defendant also seems to have joined in executing Ext. I. The plaintiffs impugned this document as not supported by consideration and tarwad necessity and prayed for the cancellation of the same. The 1st defendant contested the suit, contending, inter alia, that the sale was fully supported by consideration and tarwad necessity. In the end the trial court set aside the document on condition that the plaintiffs paid Rs. 2133-14-8 within two months from the date of the decree, in default of which the suit was to stand dismissed with costs. The trial court decreed mesne profits also at the rate of Rs. 100 per annum from the date of deposit of the aforesaid amount. Both the parties appealed to the lower appellate court and the lower appellate court modified the decree of the trial court in certain respects. It set aside the sale deed, but allowed the plaintiffs to recover the suit properties on behalf of their tarwad from the 1st defendant only on surrender of the properties covered by Exts. IV, V, VI and XI, which are properties purchased with the consideration amount paid by the 1st defendant under Ext. I and also on payment of Rs. 1022-14-8 towards value of improvements due to the 1st defendant. It also authorised the plaintiffs to surrender the rights under Exts. IV, V, VI and XI, which are properties purchased with the consideration amount paid by the 1st defendant under Ext. I and also on payment of Rs. 1022-14-8 towards value of improvements due to the 1st defendant. It also authorised the plaintiffs to surrender the rights under Exts. IV, V, VI, and XI and it further directed that the plaintiffs would get mesne profits at the rate claimed in the plaint from the date of such surrender and deposit of the value of improvements The plaintiffs have filed the second appeal against the aforesaid decision of the lower appellate court disputing mainly the direction of the lower appellate court to surrender the acquisitions covered by Exts IV, V, VI and XI and defendants 1 and 2 have filed a memorandum of cross objections claiming that Ext. I is binding on the plaintiffs and that the 1st defendant is entitled to additional compensation for improvements over and above the amount granted by the lower appellate Court. 2. The recitals regarding consideration in Ext I are: (1) Rs. 115 being the premia for 4 lease deeds in favour of the 1st defendant and a 5th lease deed in the name of Dw. 5; (2) Rs. 685/- being the value assessed of the improvements on the land effected by the 1st defendant as lessee as on the date of Ext. I; (3) Rs. 250 paid in cash on the date of Ext. I for acquiring properties for the 2nd defendant's tarwad and (4) Rs. 1000 reserved with the 1st defendant to be paid after six months for acquiring other properties for the tarwad. The total consideration for Ext. I is thus Rs. 1950. Both the lower courts have concurrently found that consideration passed under item 1 above mentioned to the extent of Rs. 88, there being a failure of consideration under that head to the extent of Rs. 27 and that there was consideration in full under the second head above referred to. Coming to the third item of consideration, namely, Rs. 250 paid in cash on the date of Ext I for the acquisition of other properties for the tarwad, the trial court found that this amount was also paid by the 1st defendant. But the lower appellate court disagreed with this finding and disallowed this item of consideration. Coming to the third item of consideration, namely, Rs. 250 paid in cash on the date of Ext I for the acquisition of other properties for the tarwad, the trial court found that this amount was also paid by the 1st defendant. But the lower appellate court disagreed with this finding and disallowed this item of consideration. Finally, regarding the fourth item, the trial court found that consideration under this head passed to the extent of Rs, 909/-; but the lower appellate court was of the opinion that the alleged acquisitions made from out of this last head of consideration were not to the manifest advantage of the tarwad and therefore not binding on it. In the result, as I have already indicated, the trial court set aside Ext. I on condition that the plaintiffs paid Rs. 2133-14-8 within two months of the date of decree, which decree was modified by the lower appellate court as already indicated. 3. The finding of the trial court as expressed towards the close of Para.9 of its judgment is that "Ext. I is found to be fully supported by necessity and consideration to the extent of Rs. 18:52 only; the paltry amount of Rs. 118 is found to be still due to the plaintiffs; hence these issues are found in favour of the 1st defendant". If this finding were correct, the decision of the trial court setting aside the sale is evidently wrong; the course open to the trial court being to sustain the alienation and direct the first defendant to pay the plaintiffs the balance consideration of Rs. 118. On the other hand, if the finding of the lower appellate court were correct, its decision in setting aside Ext. I is also correct. It may be reiterated in this connection that the lower appellate court has found that Ext I was not supported by binding consideration at least to the extent of Rs. 12.60. 4. 118. On the other hand, if the finding of the lower appellate court were correct, its decision in setting aside Ext. I is also correct. It may be reiterated in this connection that the lower appellate court has found that Ext I was not supported by binding consideration at least to the extent of Rs. 12.60. 4. At this stage it would be of advantage to refer to S.25 of the Travancore Nair Act II of 1100, which reads: "Except for consideration and tarwad necessity and with the written consent of all the major members of the tarwad, no karnavan or other managing member shall sell tarwad immovable property or mortgage it with possession for a period of more than 12 years or lease it for a period of more than 12 years." Under this section for an alienation by the karnavan or managing member of a tarwad to be valid three requirements are essential: (1) consideration, (2) tarwad necessity and (3) the written consent of all the major members of the tarwad. The lack of any one of these conditions will necessarily make the transaction void, ineffective and not binding on the tarwad. In the case before me the 2nd defendant being the sole major member at the time of Ext. I it may be said that the third requirement is technically complied with. But in a case like this, where the alienation is effected by a single member, even though such single member happens to be the only adult member in the tarwad at the time, it cannot be presumed that there was any necessity for the alienation. On the other hand, when the alienation is effected with the written consent of all the adult members of the tarwad and is also supported by consideration a presumption of necessity may arise, for, the consensus of opinion among the several major members of the tarwad has to be presumed to mean that the transaction is to the advantage and benefit of the tarwad. If any authority is required for this proposition, Kunjan Pillai Karunakaran Pillai v. Mani Pillai Devaki Pillai (1953 KLT. 452) may be usefully referred to. If any authority is required for this proposition, Kunjan Pillai Karunakaran Pillai v. Mani Pillai Devaki Pillai (1953 KLT. 452) may be usefully referred to. This decision is useful in the present case on another point also, namely, that though an alienation of immovable property of the tarwad for acquiring other properties does not normally come within the usual course of management of the tarwad, it may be upheld where the fresh acquisitions are shown to have been to the manifest advantage of the tarwad; but the fresh acquisitions themselves should necessarily be immovable properties, so that the alienation of such properties also could be made subject only to the limitations imposed by S.25 of the Nair Act. 5. Now I would consider the third and fourth items of consideration recited in Ex. I. The third item of consideration, namely, Rs. 250 alleged to have been paid on the date of Ex. I, does not appear to have been utilised for the purpose of any acquisition in the name of the 2nd defendant or the tarwad. The learned District Munsiff may be right in a general way in his observation, which he makes in Para.8 of his judgment, that the real application of the money is not the concern of the vendee if reasonable enquiry is made by him. But, when there is a recital in the document that the amount is paid in cash for the purpose of making an acquisition for the tarwad, the vendee should make reasonable enquiries regarding the said acquisition. In this case there is no evidence to show that he made any such reasonable enquiry, nor is there any evidence regarding any acquisition made with the said amount. Therefore, I agree with the learned District Judge on this point and hold that the tarwad had not the benefit of this amount of Rs. 250. 6. Coming to the fourth item of consideration, namely, Rs. 1000 reserved to be paid six months thereafter for the purpose of acquiring other properties for the tarwad, it has to be observed that the evidence regarding these acquisitions is also against the 1st defendant. For one thing, the so called acquisitions are of leasehold rights and secondly, for one payment at least of Rs. 154 under Ex. VIII no property has been acquired. Moreover, some other acquisitions, for example, those covered by Exs. For one thing, the so called acquisitions are of leasehold rights and secondly, for one payment at least of Rs. 154 under Ex. VIII no property has been acquired. Moreover, some other acquisitions, for example, those covered by Exs. V and VI, relate only to the 2nd defendant's own property. These acquisitions therefore cannot properly be called bona fide acquisitions for the benefit of the tarwad. In that view, I am satisfied that the so-called acquisitions were not to the manifest advantage of the tarwad. If that were so, there is no consideration for Ext. I binding on the tarwad to the extent of another Rs. 1000 and there cannot be any tarwad necessity either to this extent. The result is, I agree with the finding of the lower appellate court on this point also. 7. In the foregoing circumstances Ex. I is liable to be set aside as not supported by consideration and tarwad necessity. 8. Now the further question arises as to what are the benefits the tarwad of the plaintiffs is bound to disgorge before it can get possession of the plaint properties. The sum of Rs. 88 under the 1st head of consideration in Ex. I was the balance of premia for certain leases, which amount was to be adjusted by the 1st defendant from the income of the properties and since he has been in possession of the properties all these years this sum need not be paid by the plaintiffs. But they are bound to surrender the rights under Exts. IV, V, VI and XI to the first defendant. The 1st defendant is also entitled to get the value of all the improvements effected by him both prior and subsequent to Ex. I under Kerala Act 29 of 1958. The plaintiffs are authorised to surrender the properties covered by Exs. IV, V, VI and XI. The value of improvements will be assessed in execution and the plaintiffs will be entitled to mesne profits as claimed in the plaint on surrender of the properties covered by Exts. IV, V, VI and XI and deposit of the value of improvements. 9. In the result, the second appeal is dismissed and the memorandum of cross-objections is allowed in part as indicated above. The parties are directed to bear their respective costs throughout. Dismissed.