PARU Vs. AMBUJ AKSHY

JUDGEMENT

(1.) The 1st defendant is the appellant. The plaintiffs who are minors and defendants 2 to 4 are members of an undivided Nair tarwad. Defendants 3 and 4 are the children of the 2nd defendant. Plaintiffs 1 to 3 are the children of the 3rd defendant and the 4th plaintiff is the son of the 4th defendant. On 15.10.1107 defendants 2 to 4 executed Ext. II sale deed in favour of the 1st defendant in respect of the plaint schedule properties which admittedly belonged to the tarwad of plaintiffs and defendants 2 to 4. Plaintiffs have brought the present suit to set aside Ext. II and to recover possession of the plaint properties with past and future mesne profits on behalf of their tarwad on the grounds that the document was brought about by misrepresentation and fraud, that it is not supported by consideration and tarwad necessity and is not valid and binding on the tarwad. The 1st defendant denied these allegations and resisted the plaintiffs suit. The Trial Court gave a decree to the plaintiffs as prayed for with the modification that they would be entitled to mesne profits only at the rate of Rs. 225/- per annum.

(2.) It is contended by the learned advocate for the appellant that the sale deed in question being one executed by all the adult members of the tarwad, the court ought to have under S. 31 of the Cochin Nair (Act XIII of 1095) drawn a presumption that it is supported by tarwad necessity and that it acted improperly in refusing to draw such presumption in this case. S. 31 of the Nair Act provides that:- The burden of proving tarwad necessity shall be on the purchaser ........ But the Court may presume such necessity where the transaction is in accordance with the provisions of S. 28. It is significant that the words used are only may presume. However apart from the question whether in all cases where the document is executed by all the adult members of the tarwad or by a majority of them, the court is bound to draw a presumption of tarwad necessity for the debt, we are clear that the essential prerequisite, for drawing any presumption of tarwad necessity, is the proof of consideration for the document impugned. Undoubtedly, in a case like this, where the minor members of the tarwad impeach the alienation by the adult members, the burden of proving consideration is clearly on the alienee. Any question of tarwad necessity or of the availability of any presumption regarding tarwad necessity can arise only on proof of consideration for the document. The 1st defendant has failed to let in any evidence regarding consideration and therefore the further question of tarwad necessity or of presumption regarding tarwad necessity does not at all arise for consideration. But the learned advocate for the 1st defendant contends that consideration for Ext. II is admitted in the plaint and that the plaintiffs have impeached the document only on the ground of want of tarwad necessity and not on the ground of absence of consideration. We do not think that this contention is well founded. The allegations in paragraph 4 of the plaint show that the plaintiffs have questioned the consideration for the document as well. It is further argued that at any rate the 1st defendant has misunderstood the position taken up by the plaintiffs on account of want of clarity in their pleadings and also on account of the fact that no specific issue regarding consideration was framed in the case. No doubt the allegations in the plaint could have been clearer. It is also unfortunate that the Trial Court did not frame any issue regarding consideration and tarwad necessity for Ext. II. Though we are not prepared to absolve the 1st defendant altogether from any responsibility in getting necessary and proper issues framed in the case, in the circumstances of this case we are inclined to think that there is some force in the argument of the learned advocate for the appellant that his client was labouring under a mistaken impression that the question of consideration was not in dispute between the parties. In view of this we think that in the interests of substantial justice an issue whether Ext. II is supported by consideration and tarwad necessity ought to be raised in the case and the parties allowed to let in their evidence before the case is decided finally.

(3.) Accordingly we set aside the decree appealed against and send back the case to the lower court for trial and decision de novo. The court below will frame an additional issue in the case whether Ext. II is supported by consideration and tarwad necessity and allow the parties to let in all the evidence that they wish to adduce in respect of that issue. The appeal is thus allowed and the case is remanded to the court below for fresh trial and disposal in accordance with law and in the light of the foregoing observations. The appellant will pay one-half of the costs of the plaintiffs in this Court irrespective of the final results of the suit. The appellant will get a refund of the institution fee paid on the appeal memorandum. The other costs in this Court will be borne by the parties.