SARASWATHI PILLAI Vs. BHARGAVI PILLAI
LAWS(KER)-1974-2-25
HIGH COURT OF KERALA
Decided on February 26,1974

SARASWATHI PILLAI Appellant
VERSUS
BHARGAVI PILLAI Respondents

JUDGEMENT

G.VISWANATHA IYER,J. - (1.) THIS second appeal is filed by the plaintiffs.These plaintiffs are the children of the 3rd defendant.Their mother Lakshmi Pillai died in 1956.Plaint A schedule properties 81 1 / 2 cents in extent were obtained by the plaintiffs 'mother and their grandmother under Ext.D -2 partition.On 26th Thulam 1119 plaintiffs 'mother in her individual capacity and as guardian of plaintiffs 1 and 2 sold the A schedule properties under Ext.P -2 to the 1st defendant for Rs.1,000 and purchased a property under Ext.D -7 in her name and in the names of plaintiffs 1 and 2.The A schedule properties are claimed to be more valuable than the properties purchased under Ext.D -7.The latter pro­perty is at a hilly place and not at all useful for the plaintiffs.The building in item 1 of the A schedule has been dismantled by defendants 1 and 2 for the purpose of constructing another building.The plaintiffs pray for setting aside the sale deed,Ext.P -2,as unsupported by consideration and tarwad necessity and to recover possession of the A schedule properties and to restrain the 1st defendant from constructing any new building thereon.
(2.) DEFENDANTS 1 and 2 contested the case.They dis­puted the tarwad nature of the property and the objections regarding the sale deed in question were also denied.From the date of the marriage of the plaintiffs 'mother she was living with her husband,the 3rd defendant,in his house called Vazhappalli veedu in Panayil Muri,Mavelikkara Taluk.On the date of the sale deed in question the plaintiffs 'mother had,in Karthikappally Taluk,no other property except the A schedule properties.They were not fetching any income.It was not possible to protect them and effect improvements or repair the building in them.Because of their residence in a far off place,it was not possible to obtain even the nominal income.The plaintiffs 'uncle Narayana Pillai had a right of residence in the Pura in it.An attempt was made to collect the income from the properties by leasing them out for a period of 5 years on a rental of Rs.30.Even this was found to be uneconomical.So,it was considered useful and advantageous to sell the plaint A schedule properties and to purchase better properties.So,the properties were sold for the maximum price which can be obtained at that time,the entire consi­deration was received before the Sub Registrar and with that amount 1 acre 88 cents with a building thereon belonging to the 3rd defendant and where the plaintiffs and their mother were living was purchased in the name of the plaintiffs 1 and 2 and their mother.Mutation of names was effected in the names of the vendee and the plaintiffs are residing there.The property so sold by the 3rd defendant would really fetch a larger amount and it has been sold to the plaintiffs at a cheap price and the transaction is to the manifest advantage of plaintiff 's.After Ext.P -2 sale was taken by the 1st defendant the lessee was evicted and the 1st defendant is in absolute possession and enjoyment of the same.There was only an old dilapidated structure in the plaint A schedule property.Plaintiffs 'uncle Narayana Pillai instituted a suit for an injunction restraining the 1st defendant from dismantling the building alleging that he has got a right of residence till his death.His rights were got released under a registered deed dated 14th March 1959.The building was then dismantled and a substantial building has been put up in its place.The 1st defendant is staying there.The property has been substantially improved.The 3rd defendant and the above Narayana Pillai have conspired to file this suit making use of the plaintiff's 'name.The sale deed,Ext.P -2,is fully supported by consideration and tarwad necessity.The plaintiffs are not entitled to get it cancelled or to get recovery of possession from the 1st defendant.If,on any ground,the sale deed in question is liable to be set aside,the defendants further contend that they are entitled to the value of improvements and also to get recovery of possession of 1 acre 88 cents purchased under Ext.D -7. The trial court found that the plaint A schedule properties are tarwad properties and though the sale of them is supported by consideration it is not supported by tarwad necessity.As a consequence,the sale deed was set aside and the plantiffs were allowed to recover possession of the A schedule properties on payment of value of improvements for the trees and the building standing thereon.It was also directed that the plaintiffs must surrender possession of Ext.D -7 property to the 1st defendant as a condition of getting recovery of the plaint A -schedule properties.Both the plaintiffs and the 2nd defendant filed appeals to the District Court,Mavelikkara.2nd defendant's appeal was concerned with the validity of the sale deed Ext.P -2.Plaintiffs ™appeal was against,the direction to pay value of improvements to the defendants.The learned judge was of the view that the consideration for Ext.P -2 was adequate.He was also of the view that the sale deed Ext.P -2 was for the benefit of the tavazhi.He was further of the view that on a consideration of fairness and equity the sale deed Ext.P -2 ought to be upheld,but in view of the statutory provi­sions contained in section 25 of the Travancore Nair Act which requires proof of tarwad necessity for a sale of tarwad property,the transaction cannot be said to satisfy that requirement.The evidence was also not sufficient to hold that there is manifest advantage to the plaintiffs and mani­fest advantage,even if there is,cannot be equated to tarwad necessity.In this view the appeal by the defendants was dismissed.In the appeal by the plaintiffs a direction was issued that the value of the trees will be re -assessed in the light of the directions contained in the judgment.Plaintiffs have come up in second appeal and the respondents 1 and 2 have filed a cross -objection against the decree setting aside the sale deed in their favour.
(3.) IN the nature of the contentions raised before me by the appellants and the respondents,two questions raise for determination.The first question relates to the validity of the sale deed Ext.P -2.Ext.P -2 sale is in respect of items 1 and 3 and the building standing on item 1 of the A schedule.The properties sold were in the hands of a lessee as per the patta chit,Ext.D -3 of the year 1117.It has come out in evidence that after the marriage of the plaintiffs 'mother she was residing with her husband,the 3rd defendant,19 miles away from plaint A schedule properties.Plaint A schedule properties are the only items obtained in the family partition,Ext.D -2,by the plaintiffs 'mother.It was not convenient for the plaintiffs 'mother who was residing elsewhere with her husband to look after the A schedule properties.On account of the right of residence given to her uncle she could not get exclusive control of the house.So it was that a lease was given under Ext.D -3.The lease amount was only Rs.30 per year to begin with and it was increased to Rs.35 in an year later.With this meagre income it was not possible to maintain herself and her children.In these circumstances,she,in consulta­tion with her husband,thought of disposing of these proper­ties and investing the same elsewhere.The property where she was residing belonged to her husband.It has an area of 1 acre and 88 cents with a residential building.Her husband transferred his rights over that property to her and children on receiving the entire consideration obtained under Ext.P -2.Thereafter the plaintiffs and their mother continued to reside in that property.In these circumstances the question for consideration is whether the sale deed can be said to be for tarwad necessity.The concept of necessity cannot be limited to such purposes like saving the property from court sale or purposes like the maintenance or treat­ment of the members of the family.Human needs and mode of life change from time to time.If the expression "necessity "is limited to such purposes as were normally considered as duties to be attended to by the karanavan at the time when the enactment was made,it will be a wrong way of construing statutory provision.In comparatively modern statutes it is reasonable to attribute to legislative body an intention comprehending the future developments as well.As a matter of fact,the rule of construction is stated by Subha Rao,J.( as he then was)in Senior Electric Inspector v. Laxminarayan Chopra A .I.R.1962 S.C.159 at 163.This is what the learned,Judge has stated: "But in a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made,for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social,economic,political and scientific and other fields of human activity.Indeed,unless a contrary intention appears,an interpretation should be given to the words used to take in new facts and situations,if the words are capable of comprehending them." Necessities of marumakkathayam tarwads before 1100 M.E.were different from their necessities in recent years.There was a time when female members of the tarwad always resided in the tarwad house and their husbands only visited them.That system underwent a radical change.A husband,wife and children began to be taken as a unit for seperate treatment.Right of inheritance to the husband's properties were given to his wife and children.Separate residence of husband and wife and their children together became a reality or mode of life as in this case.The 3rd defendant took his wife to his place of residence and they began to reside there alone.The children were admitted to the school there and for every purpose the plaintiffs and their mother were cut off from the place of their original tarwad.If they are to retain the property obtained on tarwad partition they will have to spend a large amount disproportionate to the income that they were getting from the properties.Even an exclusive right of residence was not available to them.In such circumstances,the best that any prudent karnavan or karnavathy can do is to sell that property and invest the amount in such a way that it can be made use of by them.It had become a necessity for them to do that and that is exactly what has been done by the plaintiffs 'mother in selling the A -schedule properties and purchasing the property where she was residing.The fact that the vendor of Ext.D -7 property was her own husband does not make the position different.What was till then the property of the husband became the property of the sub -tarwad consisting of the plaintiffs 'mother and her children.The prudent step taken by the plaintiffs 'mother in selling the A -schedule properties and going in to purchase the Ext.D -7 properties was to the manifest advantage of the tarwad and as such a necessity to the tarwad.A sale of tarwad property which is to the manifest advantage of the tarwad has been recognised as justifiable and as coming within the concept of 'necessity 'in Kunjan Pillai Karunakaran Pillai v .Nani Pillai Devaki Pillai 1953 K.L.T.452.Again,a Division Bench of this Court in Madhava Karnavar v. Rama Karnavar I.L.R.1971(1)Kerala 356 has held following the earlier decision that a fresh acquisition shown to be to the manifest advantage of the tarwad will be a proper purpose for sale of a tarwad property.This Court said thus at page 363:" If a tarwad karnavan thinks that one item of tarwad property should be sold and another should be purchased to the manifest advantage of the tarwad,could he not do so in the exercise of his rights of management? We feel that a tarwad karnavan has that power;and if,by such purchase of another property the tarwad is benefited,we do not know why the alienation by the karnavan should not bind the tarwad." The lower appellate court has taken the view that the tran­saction evidenced by Ext.P -2 was fair and was of benefit to the tavazhi.The learned Judge said in paragraph 15 thus:" "Thus I find it difficult to agree with the view of the learned Munsiff that the consideration of Rs.1,000 shown in Exhibit D -6 is inadequate.The fact that for the consideration of Rs.1,000 received under Exhibit D -6 which was paid before the Sub Registrar,an item of property standing in the name of the 3rd defendant happened to be assigned in favour of Lakshmi Pillai does not seem to me an important factor to hold that the transaction was not of any advantage to Lekshmi Pillai and her children.The 1st plaintiff who is examined as P.W.1 except starting that the property covered by Exhibits D -6 and D -7 were of unequal value and giving some sort of evidence regarding the value of the suit properties,did not let in any evidence to show that Exhibit D -6 was not executed for the benefit of the thavazhy.If on conside­ration of fairness and equity alone,I could decide the suit,I would have had no hesitation to dismiss it." But the learned Judge after so holding felt that he was bound by the decision Gangadharan Pillai v . Narayana Pillai 1962 K.L.T.952 and so held that the sale is not supported by tarwad necessity.Really Justice Madhavan Nair in the above case had recognised that a transaction which is to the manifest advantage of the tarwad can be a tarwad necessity though in a qualified sense.Whatever be the scope of that decision,the later decision in Madhava Karnavar v. Rama Karnavar I.L.R.1971(1)Kerala 356 is an authority for the position that a transaction which is to the manifest advantage of the tarwad is a transaction supported by tarwad necessity.I respectfully follow the principle laid down in Madhava Karnavar v. Rama Karnavar I.L.R.1971(1)Kerala 356 and held that in this case the transaction evidenced by Ext.P -2 was to the manifest advantage of the tarwad and is a necessity binding on the tarwad.The concurrent findings of the courts below cannot be supported.I set aside them.;


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