CHERIATHU VARKEY Vs. MEENAKSHI AMMA
HIGH COURT OF KERALA
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(1.)These appeals have arisen from the same decree, A. S. No. 967 being by defendants Nos. 13 to 15, 17 to 19,30, 31,34,35, 37, 40 and the assignees of defendants 7, 17 to 19, 32 and 36, and A. S. No. 985 by defendants 8 to 11.
(2.)The plaint A schedule properties were obtained by the plaintiffs and their mother, the 1st defendant, under a gift by their father as per Ext. P 1 dated 11-10-1937 (1113 M. E.). Under S.22 of the Travancore Nayar Act, II of 1100, the properties belonged to the 1st defendant and the plaintiffs in equal shares. While the plaintiffs were minors, on 8-3-1118 the 1st defendant sold the plaint A Schedule properties to the 2nd defendant as per Ext. P 2. With part of its consideration, the plaint B schedule properties were purchased the same day in the name of the 1st defendant and the plaintiffs. The plaintiffs disown the acquisition of plaint B schedule properties, contend that the sale was for no necessity, and seek to set aside the alienation and recover the plaint A schedule properties, with mesne profits and damages for removal of timber trees.
The defence was that the sale by the mother bound the plaintiffs, that with Rs. 5400 received on the date of execution of the sale the 1st defendant had purchased the plaint B schedule properties and with Rs. 7300 out of Rs. 8850 paid under Ext. D3 receipt dated 10th Makaram 1118, another property nearer home had also been purchased, that the latter had been sold away by the 1st defendant for Rs. 14000 before the institution of the suit, that the alienees and sub-alienees, being defendants 2 onwards, have effected large improvements on the properties which have to be paid for on eviction, and that the mesne profits of the plaint A schedule properties were not above Rs. 50 per annum.
The Additional District Judge found the 1st defendant not the legal guardian of the plaintiffs, and the sale executed by her of the plaintiffs' share in the property incompetent and void and decreed the suit in regard to the plaintiffs' 3/4 share in the plaint A schedule properties to be recovered by them with mesne profits at Rs. 37 1/2 per annum, disallowing the claim for damages for waste.
(3.)Counsel for the appellants in both the appeals contended that the 1st defendant's marriage with Thiruvanatha Sevuka Pandia Thever was not a legal marriage in accordance with the provisions of S.3 of the Nayar Act, 1100, and therefore the 1st defendant, the mother, was the legal guardian competent to deal with the plaintiffs' properties. No contention regarding the legality of the marriage of plaintiffs' mother with their father was taken in the pleadings or at any stage of the trial of the suit in the court below, and it being essentially dependent on evidence as to custom in the community, cannot be allowed to be raised for the first time in appeal, to the surprise of the parties affected. The contention is therefore overruled.
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