PATHUMMA AMINA BEEVI Vs. VASU VASUDEVAN
HIGH COURT OF KERALA
PATHUMMA AMINA BEEVI
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(1.) Both the appeals are from the same decree. A.S. No. 515 of 1951 is by the second defendant while A.S. No. 559 of 1951 is by the first defendant. The suit is for setting aside two sale deeds and for incidental reliefs. The fifth defendant is the mother of the plaintiff and the fourth defendant is the mother of the fifth defendant. Plaintiff and defendants 4 and 5 are members of an Ezhava Marumakkathayam sub tarwad. Plaint schedule items 1 and 2 belonged to the sub tarwad. Item No. 3 is a building in item No. 1 and item No. 4 is a building in item No. 2. Plaint items 1 and 2 were purchased in the name of the fourth defendant under Ext. A dated 8.1.1065 with money advanced by the fourth defendants mother. According to the plaintiff, the acquisition enured to the benefit of the sub tarwad. Defendants 4 and 5 sold item No. 1 to the first defendant under Ext. B dated 20.9.1104 and item No. 2 to the second defendant under Ext. C dated 30.9.1111. It is alleged that these sale deeds are not supported by consideration and necessity binding on the sub tarwad and that defendants 4 and 5 were not competent to execute the same. The building in item No. 1 was put up by the first defendant and that in item No. 2 by the second defendant. According to the plaintiff, defendants 1 and 2 had no right to put up these buildings and the buildings are, therefore, liable to be removed by them at their cost. Plaintiff, however, offered to pay Rs. 25/- for the building in item No. 1 and Rs. 200/- for the other building. Plaintiff brought the suit on behalf of his sub tarwad for cancellation of the sale deeds and for recovery of possession of the properties with mesne profits, past and future, at the rate of Rs. 180/- per year.
(2.) Defendants 1 and 2 filed separate written statements in the case. Their main contentions are identical. They contended that plaint items 1 and 2 were separate properties of the fourth defendant, that the plaintiff or his sub tarwad had no manner of right in the properties, that the sale deeds executed by defendants 4 and 5 were supported by consideration and good faith, and that the plaintiff was not competent to question the same. The first defendant further contended that he had put up a building in item No. 1 and effected other improvements in the property and that in any case he was entitled to get the value of those improvements which he estimated at Rs. 1,425/-. The second defendant contended that he put up item No. 4 building at a cost of Rs. 4,000/- and constructed the foundation of another building at a cost of Rs. 1,200/-. He further contended that out of the consideration for the sale of item No. 2 a mortgage deed was taken in the name of the plaintiff, that that mortgage was accepted by the plaintiff and that, therefore, the plaintiff was estopped from questioning the validity of the sale deed. Both the defendants contended that the rate of mesne profits claimed in the plaint was excessive.
(3.) The main point in dispute between the parties was whether the acquisition under Ext. A enured to the benefit of the sub tarwad of the fourth defendant or whether it was her own acquisition. On this question, the finding of the court below is in favour of the plaintiff. It was held that the acquisition was for the benefit of the sub tarwad. It was, therefore, held that defendants 4 and 5 could alienate the properties only for consideration and necessity binding on the sub tarwad. The court found that the sale deeds, Exts. B and C, were not supported by consideration and necessity binding on the sub tarwad. The sale deeds were accordingly set aside. It was held that defendants 1 and 2 were entitled to the value of the buildings put up by them. Questions relating to the value of the buildings and the rate of mesne profits were left to be determined in the final decree. Plaintiff was given a preliminary decree for recovery of possession of the properties on payment of the value of the buildings and also for recovery of past mesne profits for three years and future mesne profits at the rate to be fixed by the final decree.;
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