EBRAHIM ROWTHER & OTHERS Vs. SYED MOHAMED ROWTHER
LAWS(KER)-1963-8-58
HIGH COURT OF KERALA
Decided on August 30,1963

Ebrahim Rowther And Others Appellant
VERSUS
Syed Mohamed Rowther Respondents

JUDGEMENT

- (1.)THE property in suit, a shop building, belonged to the 1st defendant and his brother Assankunju Rawther (the father of the six plaintiffs and of the 2nd defendant, and the husband of the 3rd defendant) in equal shares. In 1117 M.E. (1941 -42 A. D.) Assankunju Rawther possessorily mortgaged his undivided half share in the property to the 1st defendant for Rs. 780/ -, and he died the following year of cancer for which for more than a year past he had been undergoing treatment in several places like Neyyur, Ernakulam and Nagercoil. About eighteen months after his death, by Ext. A dated 14 -8 -1119(28 -3 -1944), his major son, the 2nd defendant, and his widow, the 3rd defendant, the latter purporting to act also as guardian for the plaintiffs, all of whom were then minors, sold Assankunju's half share to the 1st defendant for Rs. 2,750/ -. According to the recitals in the deed the consideration was made up as follows:
(1) Rs. 780/ - in discharge of the possessory mortgage of 1117 in favor of the 1st defendant;

(2) Rs. 588 -10 -10 for money paid by the 1st defendant in discharge of a debt of the deceased Assankunju;

(3) Rs. 425/ - for money borrowed by the deceased from the 1st defendant for his medical treatment;

(4) Rs. 450/ - for money paid by the 1st defendant under the receipt Ext. 1, in discharge of a loan taken by the deceased from his sister's husband, D. W. 2;

(5) Rs. 306 -5 -2 taken from the 1st defendant for the funeral expenses of the deceased; and

(6) Rs. 200/ - taken in cash for discharging certain sundry debts of the deceased.

Eight years later, the plaintiffs discovered that their mother, the 3rd defendant, had no authority whatsoever to sell their property, and they brought the present suit for setting aside the sale under Ext. A and for partition and separate possession of their 63/88th share of their father's half share in the property. In doing so, they offered to deposit, for payment to the 1st defendant, Rs. 979.81 nP. being their 63/88th share of the liability in respect of items 1 and 2 of the sale consideration which they accepted as genuine and binding; the remaining items they repudiated as fictitious. The first court, accepting their case in entirety, gave them a preliminary decree for partition in terms of their plaint. The 1st defendant appealed; and, the lower appellate court, while affirming the decree of the first court in all other respects, found that the entire sale consideration of Rs. 2,750/ - was genuine and binding and directed the plaintiffs to deposit 63/88th of this sum, namely, Rs. 1,968.74 nP., for payment to the 1st defendant, before taking their share of the property. The plaintiffs have appealed, and the only question is whether they are liable to deposit Rs, 1,968.74 nP. as directed by the lower appellate court or only Rs. 979.81 as directed by the first court and as, indeed, offered by them in their plaint. I think the lower appellate court was right in holding that the entire sale consideration was for purposes binding on Assankunju's estate, in other words, went in discharge of liabilities in which the plaintiffs were bound to share. In addition to the 1st defendant himself, who was examined as D. W. 5, D. W. 1, the brother of the 3rd defendant and an attester to Ext. A who took part in the negotiations preceding that document, D. W. 2, the husband of a sister of both the deceased and the 1st defendant, D. W. 3, a stranger from whom the deceased had taken an advance of Rs. 500/ - on a promise to sell his half share in the property but whose advance was repaid with the aid of a loan of Rs. 450/ - taken from D. W. 2 at whose instance the proposed sale was given up, and D. W. 4 a retired Deputy Tahsildar and a relative of the deceased who had seen him during his illness and to whom the deceased had spoken about his indebtedness to the 1st defendant to D. W. 2 and to others, and of his intention to sell his half share in the property for discharging those debts, gave evidence in support of the 1st defendant's case. From their evidence it would appear that on Assankunju Rawther's death, the 1st defendant undertook the administration of his estate, paid money to meet his funeral expenses, and discharged his debts. Thus, apart from the debt due on the mortgage, the estate became indebted to the 1st defendant, and Assankunju's half share in the property was sold to the 1st defendant by his widow and major son in discharge of the debts. In settling this transaction, D. W. 1, the maternal uncle of the plaintiffs, also took part, and I agree with the lower appellate court that it is too much to say that the brother, mother, and the maternal uncle of the plaintiffs would have been parties to false recitals of consideration in order to deprive the plaintiffs of their property or would have allowed themselves to be overborne by the 1st defendant. Assankunju Rawther had a long and protracted illness for which, as we have seen, he underwent treatment at several places. He had had to borrow Rs. 780/ - from the 1st defendant about a year before his death, and the evidence of the defendants' witnesses that he had to make further borrowings or his medical and other expenses seems very probable. The 1st plaintiff who was 16 years old at time of Ext. A did not get into the box to speak in support of his repudiation of items 3 to 6 of the sale consideration; he sent instead the 2nd plaintiff who was only 13 years old at the time and could obviously have known nothing. I think the lower appellate court was right in accepting the evidence of the 1st defendant and his witnesses and I agree with it that the first court has not appreciated the evidence in the light of broad probabilities but has chosen to reject the evidence of the 1st defendant and his witnesses because of petty discrepancies which are bound to occur when witnesses speak to matters that took place years earlier, in this case more than 12 years earlier.

It has been pointed out that the 1st defendant and his witnesses spoke only to the 1st defendant having paid the several sums in question and that they did not say that the 1st defendant paid these sums by way of loan. But, there is no case that the payments by the 1st defendant were voluntary payments, and the entire suit was contested on the footing that the 1st defendant was entitled to recover whatsoever sums he had paid to the deceased or on his behalf. The plaintiffs' case was only that items 3 to 6 of the sale consideration were fictitious. It was not that, even if they were true, the 1st defendant was not entitled to reimbursement from the deceased's estate.

(2.)IT has been argued on behalf of the plaintiffs that the sale under Ext. A being not merely voidable but void and non -existent so far as they are concerned, there is no principle of law by which they can be asked to pay their share of the liabilities before recovering their share of the property. The relief of a cancellation sought in the plaint was unnecessary and it must be regarded as superfluous. The plaintiffs, are entitled to ignore the sale altogether; the 1st defendant got nothing thereunder so far as the plaintiffs' shares were concerned, and if he paid something for nothing he must be left to bear the loss; it is not as if something he had got was being taken away so as to entitle him to compensation or make the plaintiffs liable to restore any advantage they had obtained; there is nothing for the court to cancel so as to award compensation as a condition of the cancellation; it is as if the 1st defendant had bought property belonging to one person from another; and the true owner cannot be asked to compensate a purchaser, who has foolishly paid money to a person to whom the property does not belong. In so far as this contention raises a pure question of law I have thought it as well to consider it although it was put forward for the first time in the course of the argument before me -it was not taken in the courts below, not even in the present memorandum of appeal -and is, in fact, inconsistent with the offer in the plaint to pay the plaintiffs' share of the genuine liabilities.
(3.)IN my view the contention is unsound. I do not think that a person whose property has been sold by another claiming no authority to sell it so as to bind him is in the same position as a person whose property has been sold by another claiming such authority. The success of the former in a suit in respect of the property does not depend on an adjudication by the court that the sale is void so far as he is concerned and does not bind him; nor can there be any question of his having received any advantage under the transaction. There can therefore be no question of his restoring any advantage he has obtained to the buyer, or of justice requiring that he should make compensation to the buyer. But, the success of the latte in such a suit, whether he figures as a plaintiff or as a defendant, depends on an adjudication by the court that the sale is void as against him and does not bind him; and it is quite possible that, as in the present case, he has received some advantage under the transaction. Therefore, in my view, both section 41 of the Specific Relief Act and section 65 of the Indian Contract Act would apply to enable the court to require him to restore the advantage he has received or to make compensation for it to the person from whom he received it. For, it seems to me, that when a court adjudges an instrument void as against a particular person, it adjudges the cancellation of that instrument so far as that person is concerned. It is not merely when a court sets aside a voidable instrument that it adjudges its cancellation. I see no difference between a court saying that an instrument is void as against a particular person, whether it gives a formal declaration to that effect or not, and its saying that the instrument is set aside or cancelled as against that person.
Nor do I think that section 41 of the Specific Relief Act uses the word, "cancellation" in a sense different from adjudging void or voidable. It is clear from the language of section 39 and the illustrations thereto, that that section applies not merely to voidable but also to void instruments, in fact, even to a forged instrument which has in truth no existence, and that a third party to the instrument can also seek an adjudication thereunder. The section goes on to say that when a court adjudges an instrument void or voidable it may order it to be delivered up and cancelled. If we turn next to section 40 we find that the court may, in a proper case, cancel an instrument in part and allow it to stand for the residue. In such a case, the court cannot order that the instrument itself be defaced or delivered up, and, the cancellation in part can be nothing more than adjudging, in terms of section 39, that the instrument is, in respect of that part, void or voidable. It follows that, when section 41 speaks of adjudging the cancellation of an instrument, it means the adjudging of that instrument void or voidable, and not merely the setting aside of a voidable instrument or a physical cancellation.

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