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Mullankandiyil Kundangat Chalil Krishnan and ors. Vs. Kandangat Chalil Rama Maran and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported inAIR1935Mad38; 152Ind.Cas.17
AppellantMullankandiyil Kundangat Chalil Krishnan and ors.
RespondentKandangat Chalil Rama Maran and ors.
Excerpt:
- - and i am not satisfied that the lower appellate court was justified in upholding the assignment under ex. 5. there is good reason to believe that when there was such a chorus of representation on behalf of all the adult members, the assignee acted bona fide, in advancing this amount......in the plaint are covered by exs. iii, iv-a, and v. all these mortgages were created over the othi right which the tavazhi possessed in certain immovable property. the tavazhi had to get a sum of rs. 500 as the mortgage money, besides rs. 100 together with interest thereon, as purangadam and also the value of the improvements effected on the property, in case of redemption of the mortgage by the original owner. both the courts below have found that the aforesaid mortgages are valid and binding on the tavazhi tarwad, and in respect of those mortgages the declaration sought for by the plaintiffs cannot be given. the last of the alienations attacked by the plaintiffs is evidenced by ex. viii, which is a deed of assignment of the othi right possessed by the tavazhi in favour of.....
Judgment:

Sundaram Chetty, J.

1. This second appeal arises out of a suit brought by the plaintiffs-appellants for the setting aside of certain alienations made by the adult members of the tavazhi mentioned in the plaint and for certain incidental reliefs. One set of alienations attacked in the plaint are covered by Exs. III, IV-a, and V. All these mortgages were created over the othi right which the tavazhi possessed in certain immovable property. The tavazhi had to get a sum of Rs. 500 as the mortgage money, besides Rs. 100 together with interest thereon, as purangadam and also the value of the improvements effected on the property, in case of redemption of the mortgage by the original owner. Both the Courts below have found that the aforesaid mortgages are valid and binding on the tavazhi tarwad, and in respect of those mortgages the declaration sought for by the plaintiffs cannot be given. The last of the alienations attacked by the plaintiffs is evidenced by Ex. VIII, which is a deed of assignment of the othi right possessed by the tavazhi in favour of defendant 8 for a consideration of Rs. 1,000. The trial Court held that this assignment, which is virtually an out and out sale of the othi right, is not valid and binding on the tavazhi; whereas the lower appellate Court found that even this alienation is binding on the tavazhi, and on the strength of that finding dismissed the plaintiffs' suit.

2. In this second appeal, there is no valid ground to interfere with the concurrent findings of fact arrived at by both the Courts below as regards the truth and validity of the mortgages under Exs. Ill, IV series and V. No useful purpose can be served by adverting to the reasons given by the Courts below in support of the concurrent finding arrived at by them. The only important question for consideration is, whether the lower appellate Court was correct in finding that the assignment of the othi right under Ex. VIII in favour of defendant 8 is valid and binding on the tavazhi, as an alienation of an interest in immovable property possessed by it. One circumstance which must be conceded in favour of defendant 8 is that this assignment deed has been executed by all the adult members of the tavazhi. There is some discussion of the legal effect of this circumstance on the binding character of the alienation in the judgments of the Courts below. So far as I could see, the general trend of the decisions bearing upon this question seems to be that the fact of the execution of this assignment deed by all the adult members of the tavazhi leads to a presumption in favour of the propriety of the alienation, and it may safely be taken that it is prima facie evidence of the transaction being for the benefit of the tavazhi or for meeting the prime necessities thereof. But to contend that this circumstance alone is sufficient by itself to treat the alienation as binding on the tavazhi, ignoring any evidence to the contrary, would, in my opinion, be going too far. The circumstance above mentioned would not create an irrefutable presumption. All that can be safely said is that the propriety of the alienation can prima facie be presumed, but it is open to the other side to adduce rebutting proof, and the decision to be arrived at must be on a due consideration of the entire evidence; available in a particular case. One of the tests usually applied in determining the binding character of an alienation of this kind is, whether the assignment of the othi right was for a fair price or an adequate consideration.

3. As I have already said, even if the owner of the mortgaged property seeks to redeem the mortgage, in which case the tavazhi as the mortgagee cannot prevent the redemption of the mortgage, there is every prospect of the tavazhi realising Rs. 600 on account of the mortgage money together with the interest on Rs. 100 due as purangadam and also a sum of Rs. 772 odd which, according to the report of the Commissioner, was due to the mortgagee on account of the improvements effected in respect of the mortgaged property. Thus a sum of Rs. 1,400 or so was legitimately due to the tavazhi in case of redemption of the mortgage. This is also the finding of the learned District Munsif in para. 22 of his judgment; whereas the amount of consideration payable for the assignment of this othi right under Ex. VIII was only Rs. 1,000. Obviously, there was no need for an out and out sale of this othi right by means of this assignment for a consideration of Rs. 1,000, when, as a matter of fact, a sum of nearly Rs. 1,400 was realisable in case of redemption of the mortgage by the original owner. It is difficult to understand why the learned Subordinate Judge says that the sum of Rs. 1,000 would be a fair price for this property. Beyond an expression of this opinion, he has not given any reasons in support of the soundness of that opinion. There is no proof that there was such pressure as to justify the assignment of this othi right for such an inadequate consideration. In this view of the matter, I would agree with the finding arrived at by the trial Court; and I am not satisfied that the lower appellate Court was justified in upholding the assignment under Ex. VIII as a transaction valid and binding on the tavazhi.

4. It follows that the plaintiffs are entitled to a declaration that the assignment under Ex. VIII executed in favour of defendant 8 is not valid and binding on the plaint-mentioned tavazhi. If this declaration is given, it is practically restoring the decision of the trial Court. There is however one difficulty in leaving that declaration as it is. It has to be considered what the rights of defendant 8 are by way of adjustment of equities consequent on the aforesaid declaration. The evidence shows that a sum of Rs. 448 was paid by defendant 8 in cash as part of the consideration for the assignment under Ex. VIII, and the remaining portion of the consideration was to be paid in discharge of the prior mortgage debts. Those 'mortgage debts have been found to be binding on the tavazhi, and therefore if defendant 8 has paid any amount towards the discharge of those mortgages, she must be reimbursed to that extent by the tavazhi. There seems to be no evidence on this point. But as regards the payment of Rs. 448 the lower appellate Court has not only found this payment to be true, but also held that it was received to discharge the debts contracted for the daily expenses of the tavazhi and for other purposes. The question for consideration is whether defendant 8 is not even entitled to be paid this sum from out of the assets of the tavazhi, if the necessity and binding character of the assignment as such have not been made out. There is no doubt that this sum of Rs. 448 was actually paid by defendant 8, and all the adult members of the tavazhi who joined in the execution of Ex. VIII have received it not only on their behalf but also on behalf of the minor members of the family. The benefit of this sum must be taken to have gone to the tavazhi, and it is clear that defendant 8 bona fide believed the representations made by all the adult members as to the purposes for which this amount was required.

5. There is good reason to believe that when there was such a chorus of representation on behalf of all the adult members, the assignee acted bona fide, in advancing this amount. I would therefore set aside the decree of the lower appellate Court and restore the decree of the District Munsif with this modification, viz., that in consequence of the assignment under Ex. VIII having been found to be not valid and binding on the tavazhi, defendant 8 is entitled to be reimbursed the sum of Rs. 448 from out of the tavazhi properties and also any sum which is shown by her to have been paid in discharge of the prior mortgages mentioned in Ex. III. On the strength of this declaration defendant 8 can seek her relief for the realisation of the amount due to her by a separate suit, if her demand for payment is not complied with by the members of the tavazhi. As regards costs, in the circumstances, the parties will bear their own costs throughout.


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