IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 798 of 1993()
1. NARAYANANNAMBOOTHIRY MOHANAN NAMBOOTHIRY
... Petitioner
Vs
1. BHAVANI VASUMATHY
... Respondent
For Petitioner :SRI GIRI V.
For Respondent :SRI.G.UNNIKRISHNON
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :20/06/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO. 798 OF 1993
===========================
Dated this the 20th day of June, 2007
JUDGMENT
Plaintiff in O.S.107/1984 on the file of Sub
Court, Cherthala is the appellant. Defendants
10,11,12, 15 and 21 are the respondents. Plaintiff
instituted the suit to set aside Ext.A2 to A7 sale
deeds executed by 21st defendant, his father
contending that the alienations are not for
consideration or for the illom necessity and
therefore are not valid and binding on the
plaintiff or the illom properties. Defendant No.21
was the father of the plaintiff and defendant
No.22, mother of 21st defendant. Defendants 21,
22 and plaintiff were admittedly members of
Pallikkezhil Illom. Plaint schedule properties
originally belonged to the illom. Under schedule C
of Ext.A1 settlement deed dated 6.2.1963, plaint
schedule properties were allotted to the Sakha
consisting of plaintiff and his parents. His
S.A.798/1993 2
mother Saraswathi Antherjanam subsequently
released her right in favour of husband, 21st
defendant and son plaintiff. Subsequently Ext.A4
sale deed was executed on 15.7.1968 in favour of 9th
defendant who in turn assigned it to 15th defendant
under Ext.B11 sale deed. Ext.A4 was executed by
the father for himself and for the minor son
plaintiff. Ext.A5 sale deed was executed on
16.7.1969 in favour of 10th defendant. 10th
defendant later alienated the property in favour of
respondents 16 to 18. Ext.A6 sale deed was
executed on 13-4-1970 in favour of defendants 11
and 12. Similarly Ext.A2 sale deed was executed on
23.5.1966. Ext.A3 sale deed was executed on
8.3.1967 and Ext.A7 dated 27.8.1970. Plaintiff
contended that these alienations are invalid as
they are not supported by consideration and as
they were not for the illom necessity or benefit
and therefore to be set aside and in any case
plaintiff is entitled to get half share in the
plaint schedule property.
S.A.798/1993 3
2.Defendants 1 to 4 filed a joint written
statement and defendants 10 to 15 filed a separate
written statements. Defendants contended that the
alienations were made for illom necessity and for
valid consideration and so they are valid and
binding on the plaintiff and the illom properties
and plaintiff is not entitled to challenge the same
and is not entitled to the decree sought for.
Defendants 13 and 14 who obtained right under
Ext.A7 sale deed also claimed fixity of tenure
under Kerala Land Reforms Act. That question was
referred to the Land Tribunal. Land Tribunal
upheld the claim. Learned Sub Judge on the
evidence of Pws.1 to 3 and Exts.A1 to A16, Exts.B1
to B23 and X1 to X3 found that Ext.A2 and A7 sale
deeds are valid and binding on the plaintiff and he
is not entitled to challenge the same. But holding
that Exts.A3 to A6 sale deeds are valid only in
respect of only the half share of 21st defendant
and are not valid and binding on plaintiff a
preliminary decree for partition was passed.
S.A.798/1993 4
Defendants 10,11,12 and 15 challenged the
preliminary decree and judgment before Additional
District Court, Alappuzha in A.S.78/1990 contending
that learned Sub Judge should have upheld Ext.A4 to
A6 alienations also and should have found that
properties covered thereunder are not available for
partition. Plaintiff on his part challenged the
preliminary decree whereunder Exts.A2 and A7
alienations were upheld by the trial court in
A.S.397/1990 before this court. Similarly
defendants 1 to 8 challenged the preliminary decree
and judgment before this court in A.S.363/1991,
contending that learned Sub Judge should have found
that Ext.A3 sale deed was also valid as it was for
illom necessity and therefore the property covered
under Ext.A3 should have been excluded from
partition.
3. Unfortunately pendancy of A.S.78/1990
before the Sub Court was not brought to the notice
of this court. As a result, the said first appeal
happened to be disposed of by Additional District
S.A.798/1993 5
Judge, Alappuzha independently and that appeal was
not called for to this court to be disposed of with
other connected pending first appeals. Learned
District Judge on reappreciation of evidence upheld
Exts.A4 to A6 alienations holding that those sale
deeds were executed by the father for the minor son
also for valid consideration and for illom
necessity and therefore they are valid and binding
on the plaintiff. The Second Appeal is filed
challenging the decree and judgment passed by
Additional District Judge in A.S.78/1990 under
which Exts.A4 to A6 sale deeds were found valid
and binding on the plaintiff and the properties
covered thereunder not available for partition.
4. Meanwhile A.S.397/1990 and 363/1991 were
heard and disposed by a common judgment dated
6.2.2002. Even while the said first appeals were
disposed of the fact that this Second Appeal is
pending, was not brought to the notice of the
leanred Single Judge. Consequently the second
appeal was not heard along with the first appeals.
S.A.798/1993 6
In the first appeals the learned single Judge
upheld Ext.A3 sale deed also and confirmed the
alienations under Ext.A2 and A7 sale deeds. As a
result of the findings in A.S.397/1990 and
A.S.363/1991 which has become final except with
regard to the alienations under Exts.A4 to A6 and
availability of the properties covered thereunder,
the other dispute between the parties are now
concluded.
5. Learned single Judge confirmed the finding
of the learned Sub Judge that Ext.A2 and A7
alienations are valid and binding on the
plaintiff and those properties are not available
for partition. In addition, this court held that
Ext.A3 sale deed was also executed for
consideration and for illom necessity and therefore
valid and binding on the plaintiff and the property
covered thereunder is not available for partition.
What remains is whether Ext.A4 to A6 alienations
are valid and binding on the plaintiff and if not,
whether the properties covered thereunder are
S.A.798/1993 7
available for partition.
6. Learned counsel appearing for the appellant
vehemently argued that courts below did not
properly consider the impact of Section 5 and 8 of
Kerala Nambudiri Act, 1958,( hereinafter referred
to as the Act) and the fact that defendants 10,11,
12 and 15 who claim right under Ext.A4 to A6 sale
deeds did not adduce any evidence and even did not
mount the box to depose that they had made any
inquiries with regard to the illom necessity,
should have persuaded courts below to hold that
Exts.A4 to A6 alienations are not for illom
necessity. It was further argued that under Section
5 of the Act, no sale or mortgage of immovable
property of an illom shall be valid unless the sale
deed was executed by the karnavan for consideration
and also for illom necessity or the benefit of
illom and also with the written consent of the
majority of the major members and under section 8
of the Act, the burden is on the alienee to
establish that it was for the Illom necessity or
S.A.798/1993 8
for the benefit of the illom and on the failure of
the alienees to adduce evidence, courts below
should not have interfered with the findings of the
trial court and should have found that the
properties covered under Exts.A4 to A6 sale deeds
are available for partition. Reliance was placed
on the decision of a Full Bench of this Court in
Venkiteswara Kammathi Balakrishna Kammathi v.
Anantha Pai Ganesha Pai (1954 K.L.T. 87).
7.Learned counsel appearing for the contesting
respondents argued that the facts appreciated by
first appellate court establish that the facts are
similar to the alienations which was upheld by this
court in the first appeal A.S.397/1990 and
363/1991. It was pointed out that similar recitals
as in Ext.A2,A3 and A7 are there in Ext.A4 to A6
also and the trial court and this court found that
the alienations are for illom necessity and
therefore the said findings are applicable in
respect of the alienations covered under Exts.A4 to
S.A.798/1993 9
A6 also. Learned counsel also argued that as found
by the learned single Judge in the first appeals,
when 21st defendant the father was the only major
member available in the illom and he executed
Exts.A4 to A6 sale deeds, proviso to Section 8 of
the Act applies and court has to presume that such
necessity were there as stated in Section 5 and
therefore first appellate court rightly upheld
Ext.A4 to A6 and there is no reason to interfere
with the findings of the first appellate court.
8. The Second Appeal was admitted formulating
the following substantial question of law.
On whom the burden of proof lies in a case,
where sale deeds executed by the father for the
memberson also, alienating the properties of the
illom covered under the Act is challenged for want
of consideration and illom necessity, to prove that
the alienations were for consideration and illom
necessity or the benefit of illom and on the
evidence on record whether Ext.A4 to A6 alienations
are valid.
S.A.798/1993 10
9. Ext.A4 sale deed was executed in favour of
9th defendant on 15.7.1968. The consideration was
Rs.1000/-. Ext.A5 sale deed was executed on
16.7.1969. Its consideration was Rs.7000/-. Ext.A6
sale deed was executed on 13.4.1980. The
consideration shown is Rs.300/-. The assignees
under Exts.A4 to A6 were not examined. Infact, no
oral evidence was adduced by the contesting
respondents who seek to uphold Ext.A4 to A6
alienations. On the side of the plaintiff, he was
examined as PW1 and a witness was examined as PW3.
The evidence of PW3 was not at all helpful to
decide the question whether the alienations are for
illom necessity or for the benefit or and whether
they were for consideration. Exts.A4 to A6 show
that consideration thereunder was received by the
21st defendant who executed the sale deed on behalf
of the plaintiff also. As rightly pointed out by
learned counsel appeaing for the contesting
respondents, apart from the recitals about the
passing of consideration in Exts.A4 to A6,
S.A.798/1993 11
plaintiff as PW1 admitted that his father had
received the consideration shown therein.
Therefore first appellate court rightly found that
Ext.A4 to A6 were supported by consideration. The
only question is whether the alienations are for
illom necessity or benefit.
10. Section 5 of the Act reads:-
“(1) No sale or
mortgage of any
immovable property of
an illom and no lease
of any such property
shall be valid, unless
it is executed by the
karnavan for
consideration, for
illom necessity or
benefit, and with the
written consent of the
majority of the major
members of the illom.
S.A.798/1993 12
(2)Nothing contained in
sub-section (1) shall
be deemed to affect the
validity of any sale,
mortgage or lease
executed before the
commencement of this
Act in accordance with
the law in force at the
time of such
execution.”
Section 7 provides that it shall be lawful for the
karnavan to contract, or enter into debts or
transaction other than those falling under section
5, without the written consent of the majority of
the members of the illom. The proviso mandates
that the debts or transactions so contracted or
entered into are for illom necessity or benefit.
11.Section 8 reads:-
“The burden of proving illom
necessity or benefit shall
S.A.798/1993 13
be on the purchaser,
mortgagee, pledgee, or other
alienee, or creditor, as the
case may be. But the court
may presume such necessity
where the majority of the
major members of the illom
are parties to or have given
their written consent to the
transaction.”
A combined reading of Section 5 and Section 8
establish that the burden of proving illom
necessity or benefit shall be on the purchaser,
mortgagee, pledgee, or other alienee. But the
proviso mandates that where the majority of the
major members of the illom are parties to or have
given their written consent to the transaction,
the court may presume that the alienations are for
illom necessity as provided under section 5.
Section 5 provides that no sale or mortgage of any
immovable property of illom shall be valid, unless
S.A.798/1993 14
it is executed by the karnavan and the alienation
is for considertion and for illom necessity or
benefit and also with the written consent of the
majority of major members. Because of the proviso
to Section 8, if an alienation is made by the
karnavan with the written consent of the majority
of the major members and for consideration, then
court may presume that it is for the illom
necessity.
12. When Ext.A4 to A6 alienations were made the
only members of the illom were defendant No.21 and
the plaintiff. Admittedly Saraswathi Antherjanam
the other member of the illom the mother of
plaintiff, had released all her rights in favour
of her husband and son the plaintiff and 21st
defendant under Ext.B2. Therefore when Ext.A4 to
A6 alienations were made, the only major member of
the illom was 21st defendant. The question is
when the only members of the illom are a major and
a minor and the alienations are made by the major
for the minor also, can it be said that the
S.A.798/1993 15
alienations are made with the consent of the
majority of the major members so as to attract
section 8 of the Act. This question was considered
by the learned single Judge in the first appeal
referred to earlier and held that as 21st defendant
was the only major member of the illom and he
executed the sale deeds, proviso to Section 8
applies.That decision was rendered in the same
suit. Hence at least as against the plaintiff who
was the appellant in one of the appeals and that
too against the very same preliminary decree of
this case, the finding is binding. In such
circumstances, I do not find it necessary to go
further on that question. Exts.A4 to A6 alienations
also attract the provisions of proviso to Section
8.
13. Similar recitals in Exts.A2, A3 and A7
were considered by this court in the first appeals
and it was held that the alienations are for illom
necessity. In the light of the said finding, the
factual finding of the first appellate court that
S.A.798/1993 16
Exts.A4 to A6 alienations are for illom necessity
cannot be challenged. In any event, that factual
finding cannot be reconsidered by this court in
exercise of the limited scope of the powers
provided under section 100 of the Civil Procedure
Code. Therefore as it is proved that Ext.A4 to A6
sale deeds were executed for consideration and the
alienations are for illom necessity, they are valid
and binding on the plaintiff. Therefore the
properties covered under Exts.A4 to A6 are also not
available for partition.
Second appeal is dismissed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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S.A.NO.798 /03
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JUDGMENT
20TH JUNE ,2007