Decided on August 30,1963



- (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 Nagarcoil. 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. 2750/-. 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 favour 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, Dw. 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 80nP. 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. 2750/- was genuine and binding and directed the plaintiffs to deposit 63/88th of this sum, namely, Rs. 1968-74 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. 1968.74 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.

(2.)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 Dw. 5, Dw. 1, the brother of the 3rd defendant and an attestor to Ext. A who took part in the negotiations preceding that document, Dw. 2, the husband of a sister of both the deceased and the 1st defendant Dw. 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 Dw. 2 at whose instance the proposed sale was given up, and Dw. 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 Dw. 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 & major son in discharge of the debts. In settling this transaction, Dw. 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 & 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 along 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 1st defendant's witnesses that he had to make further borrowings for his medical and other expenses seems very probable. The 1st plaintiff who was 16 years old at the 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 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.
(3.)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.

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