Skip to content


Kesavan Namboori Vs. Subhadra and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberA.S. Nos. 584 of 1952 and 551 of 1954
Judge
Reported inAIR1958Ker384
ActsLimitation Act, 1908 - Schedule - Article 12
AppellantKesavan Namboori
RespondentSubhadra and ors.
Appellant Advocate P.M. Oommen, Adv.
Respondent Advocate T.S. Krishnamurthy Iyer and; P. Kochukrishna Pillai, Advs.
Cases Referred(G) and Hadhakrishna Mcnon v. Chandrasekhara Menon
Excerpt:
.....execution thereof must be brought within one year provided for by the corresponding. 78) (h). it follows therefore, that the court below perfectly right in baying that it was too late for the plaintiff to question the court sale in execution of ext. we do not think there is anything wrong in the approach or the conclusion and therefore affirm this part of the decree as well......court below perfectly right in baying that it was too late for the plaintiff to question the court sale in execution of ext. xx decree or otherwise impeach ext. xvi sale in favour of the 11th defendant.6. lastly about the decree in ext. ii case and the court sale therein. the 15th defendant obtained a decree on 22-4-1104 in o. s. 125 of 1104, ext. ii being the file book, on basis of a pronote of 1101 executed by the first defendant and he brought to sale in execution and himself purchased portion of item 4 in satisfaction. the court sale was on 17-11-1105. there was evidence in the case that the pronote amount was utilised for family purposes.it was also in evidence that the 15th defendant surrendered a portion of the property to the prior encumbrancer 18th defendant. the court below.....
Judgment:

Varadaraja Iyengar, J.

1. These two appeals arise out of the judgment and decree in O. S. 92 of 1122 on the file of the District Court of Mavelikara. That was a suit filed by a junior member of a Nambudiri Illom to set aside various alienations made by the seniors while yet the plaintiff was a minor.

The court below after elaborate trial dismissed the suit except in regard to the prayer for setting aside Ext. XIX sale deed as regards item 1 in favour of the 6th defendant's father. A S. 584 of 1952 is by the 6th defendant for upholding Ext. XIX while A. S. 551 of 1954 is by the plaintiff with regard to his prayers disallowed. We will first take up the plaintiffs appeal.

2. A. S. 551 of 1957. This appeal by the plaintiff seeks once again to raise the validity of Ext. IX and Ext. XVI sales by the adult members of the Illom and also of the decree in Ext. II suit and the court sale thereon obtained against those members. We will take them up one by one.

3. First as regards Ext. IX sale deed. This sale was executed on 15-6-1103 by the plaintiff's father and another, viz., the defendants 1 and 2 and also his step-mother Subadra Antharjanam deceased, comprising all the adult members of the illom at that time. It was in favour of defendants 10 and 11 and in respect of items 2 and 3 of the plaint schedule.

The consideration for Ext. IX is Rs. 2066-10-0 and is made up of recitals of a hypothecation and pronote debts, some of which were incurred even before plaintiff was born. The 10th defendant has examined himself as DAY. 7 to prove that binding nature of these debts and the payments thereof. The court below has, on analysis of the evidence, found Ext. IX to be supported by consideration and necessity and upheld it. We have not been shown any reason to differ from that finding. We therefore affirm it.

4. Secondly as regards Ext. XVI sale deed. This sale was on 20-11-1108 by all the adult members of the illom in favour of the ] 1th defendant, and for portion of item 4 of the plaint schedule. It was for a nominal consideration of Rs. 100 only in view to certain prior transactions concerning the item 4. That item in whole had been hypothecated by the defendant on 5-2-1103 for a sum Rs. 4000 in favour of the 8th defendant.

On foot of this hypothecation bond the 8th defendant obtained Ext. XX decree on 7-6-1106 in O. S. 56 of 1105 of the Kottayam District Court against the 1st defendant and also his two wives, viz., the 2nd defendant and Subadra, who were the only other senior members. The property was sold in due course of execution on 17-2-1106 and purchased by the 8th defendant himself.

The 8th defendant gave away the property to the 9th defendant and the 9th defendant in turn sold the property to the 11th defendant on 21-4-1108 the day next after Ext. XVI sale by the illom to the llth defendant. It would appear that the llth defendant rcconveyed to the illom under Ext. XXV dated 5-6-1112 a porlion of the property purchased by him and the illom is even now in possession of the same.

It was based upon this last consideration and the further fact that the title of the illom at the date of Ext, XVI sale was merely nominal as seen above that the court below upheld Ext. XVI. The court below took into consideration also the fact that the plaintiff had not in this suit sought to set aside Ext. XX decree or the execution sale therein.

And even otherwise a prayer to set aside the court sale would bo barred under Article 9 (a) of the Limitation Act (Travaucore) winch governed the matter. For the plaintiff attained majority on 28-5-1118 and this suit laid only on 4-5-1321 was more than a year thereafter.

5. Mr. T. S. Krishnarmuthy Iyer, learned counsel for the plaintiff-appellant contends that the court below misled itself in placing reliance on Ext. XXV conveyance back to the illom in justification of Ext XVI in the first instance. Learned counsel is no doubt correct. But what the court meant was that Ext, XVI was in respect of only a nominal title and the illom actually gained by Ext. XXV.

The question really is, was Ext. XVI property effectively lost to the family when it was sold in execution of Ext. XX decree earlier. On this aspect learned counsel would say that the court sale in Ext. XX case was not followed by delivery and the 11th defendant obtained possession only under Ext. XVI and it was open therefore for the plaintiff to 1958 Kerala D.F./25 ignore the court saie altogether. But this is obviously incorrect for the llth defendant followed up Ext. XVI sale by Ext, XV assignment of the court sale right and it did not matter to him how he obtained possession whether by process in execution of Ext. XX decree or direct from the judgment-debtor illom under Ext. XVI.

Learned counsel then took the position that so long as his client had impeached the binding nature as against the illom of the debt which led to Ext. XX decree, it was unnecessary for his client to set aside the court sale held in execution of that decree and Article 9 (a) would then be inapplicable and no question of limitation could arise. But this again is wrong. For the debt here had matured into a decree which further had matured into a court sale.

And once the decree is valid as against the illom -- plaintiff has indeed not questioned this aspect nor is it possible for him to do so -- there can be no doubt that the court sale has to be avoided and Article 9 (a) would necessarily have to come in then tor application and it is not denied that if Article 9 (a) applies, the suit as laid is barred by limitation.

It is enough in this connection to refer to the Full Bench cases of Kamakshi Amma v. Ganga-dharan Pilial, 1953 Ker L. T, 706 : (AIR 1954 Trav-Co. 60) (A); Balakrishna v. Gancsh Pai, 1954 Ker LT 87: (AIR 1954 T-C. 209) (FB) (B) and the recent Bench decision in Vanchiswara lyer v. Venkitasubba Iyer, 1956 Ker LT 421; (AIR 1956 Trav-Co. 262) (C). The first of the above cases, viz., 1953 Ker LT 706 : (AIR 1954 Trav-Co. 60) (A), held that if the decree and execution proceedings were null and void it was unnecessary for the members of the tarwad to sue to avoid the court sale within the one year provided for in Article 9 (a) of Limitation Act of 1100 (Travancore).

That ruling left unaffected the position long ago settled and indeed reaffirmed in the second of the cases, viz., 1954 Ker LT 87: (AIR 1954 Trav-Co, 209) (FB) (B), that when the decree is good and not void, a suit to set aside the court auction sale held in execution thereof must be brought within one year provided for by the corresponding. Article 12(a) of the Limitation Act (India).

In the last of the cases 1956 Ker LT 421 : (AIR 1956 Tray-Co. 262) (C), the plaintiff who was a Hindu minor son impeached a hypothecation bond executed by his father on ground of illegality or immorality and contended that the decree based upon the debt was void and the court sale and delivery following were also void and no question of selling aside the court sale under Article 9(a) of the Limitation Act arose.

Following Narayana Naicken v. Venkataswami Naicken, AIR 1926 Mad 1190 (D), it was held that the sale in such circumstances would only be voidable and not a void one. The sale being only a voidable one the prayer for setting aside the sale was necessary and as the suit was brought more than one year after the plaintiff attained majority the same Was barred by limitation. Learned counsel drew our attention to a later Bench decision of this Court in A. S. 269 of 1953 (M) (E) where following Lakshmadu v. Ramudu, AIR 1939 Mad. '867 (F) it was held that where a debt incurred by a Hindu father is found not to have been due or to have been incurred for purposes which are illegal or immoral a decree obtained in respect of such a transaction would not bind the son and that the sale held in execution could not be binding upon him.

But whatever be the position of a Hindu son vis a vis the transactions of his father regarding joint family properties no case under Malabflr Law has gone to the length of saying that a decree obtained against the tarwad in fulfilment of the formal requisites laid down by law can be ignored by a junior member of the tarwad merely because the debt was not binding on the tarwad for want of consideration and necessity.

The question whether there is at all a valid decree as against the tarwad may be a matter of discussion but if it is clear in particular case that there is such a decree, then the junior member seeking to impeach a court sale on foot of the decree must, to escape Article 9 (a) of the Limitation Act (Travancore) show that the property sold does not belong to the tarwad.

In this case there is the further fact, so far as Ext. XX decree is concerned, that not alone the karanavan executant of the hypothecation bond but other adult members of the illom namely 2nd defendant and Subadra were also parties. The one opportunity rule applicable to junior members in the matter of questioning decrees and court sales obtained against the karanavan is in this context not available to the plaintiff either. See Krishnan v. Geevargese, 30 Trav LJ 872 (G) and Hadhakrishna Mcnon v. Chandrasekhara Menon, ILR 1955 Trav-Co. 918: (AIR 1956 Trav-Co. 78) (H). It follows therefore, that the court below perfectly right in Baying that it was too late for the plaintiff to question the court sale in execution of Ext. XX decree or otherwise impeach Ext. XVI sale in favour of the 11th defendant.

6. Lastly about the decree in Ext. II case and the court sale therein. The 15th defendant obtained a decree on 22-4-1104 in O. S. 125 of 1104, Ext. II being the file book, on basis of a pronote of 1101 executed by the first defendant and he brought to sale in execution and himself purchased portion of item 4 in satisfaction. The court sale was on 17-11-1105. There was evidence in the case that the pronote amount was utilised for family purposes.

It was also in evidence that the 15th defendant surrendered a portion of the property to the prior encumbrancer 18th defendant. The court below held in the circumstances that the court sale of item 4 concerned was not liable to be impeached at the instance of the plaintiff. We do not think there is anything wrong in the approach or the conclusion and therefore affirm this part of the decree as well.

7. In the result, there is no merit in the plaintiff's appeal and it is therefore dismissed with costs.

8. Taking up now the 6th defendant's appeal, A. S. 584 of 1952. Ext. XIX is the sale deed dated 7-9-1103 executed by the plaintiff's father and mother, viz., defendants 1 and 2 and his stepmother who then constituted the adult members of the illom in favour of the 6th defendant's father.

The consideration for the sale deed was Rs. 350, Rs. 130 of which was paid before the registering authority, the balance Rs. 220 being left with the vendee to pay off three pronote debts clue from the 1st defendant to Dw. 1 and his two sisters.

The Gth defendant sought to support Ext. XIX sale by examining D. W. 1 to prove that the plaintiff's illom was already indebted to D. W. 1's family to the extent of Rs. 350, that Rs. 130 thereof was paid in cash and for the balance Rs. 220, three pronotes were executed by the 1st defendant in favour of D.W. land his two sisters for Rs. 100. Rs. 50 and RS. 70 respectively and it was those three pronoto debts that were provided for in Ext. XIX.

D. W 1 further swere that in pursuance to Ext. XIX the 6th defendint's father executed Ms own pronotes far the amounts concerned and these he off. The court below thought that D,W. 1's evidence was by itself not enough and was also unsatisfactory and held therefore that Ext. XIX sale was unsupported by consideration only to the extent of Rs. 220. It accordingly set aside Ext. XIX sale on payment of the cash consideration of Rs. 130.

9. Having heard learned counsel on both sides and gone through the records we do not see any reason why we should not accept D. W. 1's evidence and uphold Ext. XIX sale in entirety. The case of the plaintiff would appear to be not that the pronote debts provided for in Ext. XIX were unreal in any sense but they had been already paid off otherwise.

But there was absolutely no evidence for this previous payment and it is also impossible to accept such position when all the adult members of the illom joined together in Ext. XIX to say that the debts were still outstanding due on the date of the sale deed. We do not think that the non-examination of other two payees also mattered.

For, D. W. 1 swore to the discharge of not alone his pronote debt but also of the other two. There can be no doubt in the circumstances that the suit was inspired by the elders with a view to take advantage of the rise in prices and it was on the whole merely speculative.

10. We accordingly allow the appeal anduphold Ext. XIX sale. The appellant will get hiscosts of both courts from plaintiff.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //