JUDGMENT
C.A. Vaidialingam, J.
1. In this appeal on behalf of the plaintiff appellants, the learned counsel for the appellants challenges the decree of the learned Additional District Judge of Tellicherry, declining to accept the claim made by them in O. S. 8 of 1960 that
the transaction of mortgage executed by the 2nd defendant, viz., Ext. A-2, as well as the decree obtained by the 1st defendant on the basis of the mortgage in O S. 107/53 and the further proceedings in execution of that decree, are all not valid and binding on the plaintiff appellants.
2. The plaintiffs are the children of the 2nd defendant, 1st plaintiff being her son by a former husband and the 2nd and 3rd plaintiffs being her children by another husband. The 2nd defendant has executed a simple mortgage under Ext. A-2 in favour of the’ 1st defendant on 6-4-1948. The total consideration recited in that document is a sum of Rs. 2650. The 1st defendant instituted a suit, O S. 107/53 on the file of the Subordinate Judge’s Court, Tellicherry, for recovery of the mortgage money, and in default for sale of the properties. The 2nd defendant was impleaded in that suit as karnavathi and manager of the tavazhi concerned It may be stated in passing, that the mortgage Ext A-2 itself was executed by the 2nd defendant in that capacity. AH the present plaintiffs, who were then minors, were parties to O S. 107/53, and inasmuch as their mother, the present 2nd defendant, declined to act as lilies guardian, they were represented in that suit by a Court guardian The 2nd defendant raised certain contests regarding the claim made by the mortgagee in that suit and ultimately those objections were overruled The Court guardian, who was representing the appellants in that suit, filed a written statement putting the mortgagee to strict proof of his claim The main issue that was tried and adjudicated upon by the learned Subordinate Judge in that suit, related to the question as to whether the mortgage was fully supported by consideration. There was no doubt another issue raised regarding the plea of partial discharge set up by the 2nd defendant The learned Subordinate Judge by his judgment dated 29-3-55, copy of which is Ext. B-1 in the present suit, ultimately upheld the claim made by the 1st defendant, who was the plaintiff therein, and held that the mortgage Ext. A-2 was supported by consideration and that the discharge pleaded by the present 2nd defendant was not true. Ultimately a decree for sale of the mortgage properties was passed in that suit under the provisions of Act 1 of 1955.
3. The present suit was instituted by the plaintiffs for setting aside the mortgage Ext. A-2 as welt as the decree Ext, B-1 obtained by the 1st defendant in O. S. 107/53 on the basis of the mortgage and the execution proceedings connected with Ext. B-1 The claim made by the plaintiffs is that the mortgage Ext. A-2 is not supported by consideration and larwad necessity and that the decree Ext. B-1 was obtained by the 1st defendant herein due to the fraud perpetrated upon the 2nd defendant and due to collusion between the 1st defendant and the 2nd defendant. There was also a further claim made by the plaintiffs to the effect that the Court guardian, who represented them in the proceedings in O. S. 107/53, did
not raise proper and valid contentions that were available to him in law and which he ought to have raised in those proceeding Therefore, on all these grounds, the plaintiffs urged that the mortgage transaction Ext A-2 as well as the decree Ext B-l and the further proceedings in execution of the said decree are all void and not binding on the plaintiffs or their properties.
4. The claim of the plaintiffs was very hotly contested by the 1st defendant, namely the mortgagee under Ext. A-2 and the decree-holder under Ext. B-l. The 2nd defendant, the mother of the plaintiffs, quite naturally remained ex parte in these proceedings. The 1st defendant urged that the mortgage Ext. A-2 is fully supported by consideration and tarwad necessity and that the amount borrowed thereunder was for the purpose of constructing a building in item 2 and for digging a well in the property and also for completing the construction of a shop building which had been begun by the 2nd defendant as karnvathi and manager of the thavazhi All these items of work, according to the 1st defendant had been done by the 2nd defendant from and out of the amount borrowed under Ext. A-2; and therefore, the claim made by the 1st defendant was that the transaction evidenced by Ext. A-2 valid and was executed for purposes binding on the plaintiffs and the properties of the thavazhi concerned The allegation of the plaintiffs that the Court guardian, who represented them in O S. 107/53, did not raise the necessary contentions which ought to have been raised on their behalf, was also contested by the 1st defendant
On the other hand, the 1st defendant urged that every possible contention regarding Ext. A-2 was raised by the 2nd defendant herself in the said suit and that all those contentions were negatived by the judgment Ext. B-1. on the basis of the evidence adduced be the parties. Therefore according to the 1st defendant the plea of the plaintiffs that the proceedings connected with Ext. B-l, are vitiated because of gross negligence of the Court guardians is also not borne out by records. The 1st defendant, in turn, fully supported the validity and binding nature of the transaction evidenced by Ext A-2, as well as the competency of the 2nd defendant to execute the mortgage on behalf of the thavazhi. of which she was karnavalhi and manager at the material time, and that the proceedings connected with Ext. B-l are not in any manner vitiated as alleged by the plaintiffs
5. The learned Subordinate Judge, in the judgment under attack- has considered the question as to whether the decree Ext. B-l in O. S. 107/53 and the further proceedings connected with it are valid and binding on the minor plaintiffs, and whether the mortgage executed by their mother the 2nd defendant, namely Ext A-2, is for purposes binding on the thavazhi of the plaintiffs. In considering this most important issue by the learned Judge, there is a slight mixing “up of ideas,
because the plea of the plaintiffs regarding the transaction Ext. A-2 was that it was not incurred for valid purposes binding on their thavazhi. Regarding the proceedings connect-ed with the decree Ext. B-l, the attack was two-fold, namely (a) that the decree has been obtained by the 1st defendant as a result of fraud and collusion, and (b) that the decree is vitiated because of gross negligence of the Court guardian who represented the plaintiffs in those proceedings. Before the learned Judge it is seen that though the appellants urged that one ground of attack as vitiating the proceedings connected with Ext. B-l was that it had been obtained by collusion and fraud, nevertheless during the course of trial the appellants did not pursue this claim, and they did not in fact press this plea that was taken up by them Therefore the learned Judge had no occasion to consider this aspect.
6. The learned Subordinate Judge then considers the only two other matters, namely as to whether the mortgage Ext. A-2 executed by the 2nd defendant in favour of the 1st defendant was for purposes binding on the thavazhi of the plaintiffs, and secondly as to whether the Court guardian who represented them in the proceedings connected with Ext. B-1 can be considered to have been grossly negligent in not pulling forth the necessary defences which were available to him in behalf of the plaintiffs, who were admittedly parties to the proceedings connected with Ext. B-l The learned Judge in this connection relies upon the materials that were placed before him by the appellants, namely certain transactions evidenced by Exts. A-3 and A-4 dated 7-5-1945 and 1-2-1947 respectively, in support of their plea that on the date when the suit mortgage was executed on 6-5-1948 the mother of the plaintiffs, the 2nd defendant, was possessed of sufficient means which would have enabled her, without making the borrowing under Ext. A-2, to construct the building in item 2 or digging the well or completing the construction of the shop building which was stated to have been begun. They also raised the plea that as a matter of tad none of these items of work was done by the 2nd defendant on the property.
So far as this aspect is concerned. the learned Judge, after referring to the documentary evidence adduced by the appellants, viz.. Exts. A-3, A-4 and A-7, as well as to the oral evidence adduced by one of the plaintiffs as P. W. 1 and of a mason as P. W. 2, has finally come to the conclusion that the plea of the plaintiffs that their mother was possessed of sufficient means on the date of Ext. A-2, which would have independently enabled her to meet the expenses for which the liability under Ext. A-2 was ostensibly incurred, cannot certainly be accepted. On the other hand the learned Judge considers the evidence on the side of the 1st defendant whose son has given evidence as D. W 1 to the effect that prior to making the advance under Ext. A-2 necessary Inquiries were made regarding the necessity for the borrowing and as to the items of work
that were intended to be. D. W. 1 has, according to the learned Judge, spoken to the fact of making those inquiries and also ultimately seeing to the fact that these items of work were really done by the 2nd defendant on the property. Therefore the learned Judge ultimately comes to the conclusion that it cannot certainly he stated that the transaction under Ext. A-2 is not for purposes binding on the thavazhi of the plaintiffs.
7. Then the learned Judge considers the validity, legality and binding nature of the proceedings connected with Ext. B-l, namely the judgment in O. S. 107/53. So far as that is concerned the learned Judge is of the view that the Division Bench decisions of this Court of Sankaran, C. J., and Govinda Menon, J., reported in Narayanan Namboodiripad v. Gopalan Nair, 1960 Ker LJ 663: (AIR 1960 Ker 367) appears to have been very strongly relied upon by the appellants. But so far as that is concerned, the view of the learned Judge is that decision has no application to the facts of the present case. According to the learned Judge, the materials on record in this case clearly show that the mother of the appellants, the 2nd defendant, was very hotly contesting the claim made by the 1st defendant mortgagee in O. S 107/63 for realisation of the mortgage amount, and it was after such hot contest that the defence raised by the mother was negatived ultimately by the Court and a decree passed under Ext. B-l. The learned Judge is also of the view that it cannot certainly be stated that in this case the Court guardian did not take necessary defences that were available to him in O S. 107/53 on behalf of the appellants, who were then minors and who were also defendants to the said suit. Therefore, ultimately the learned Subordinate Judge came to the conclusion that the grievance of the appellants cannot be accepted; and in the result dismissed the plaintiff’s action. It is the decree and judgment of the learned Judge that are under attack in the present appeal at the hands of the learned counsel for the appellants.
8. The learned counsel for the appellants raised two contentions, viz., (I) that the transaction of mortgage Ext. A-2 has not been incurred by the 2nd defendant for valid and binding purposes, and (2) that the proceedings connected with Ext. B-l are all vitiated by gross negligence on the part of the Court guardian who represented them in those proceedings. During the course of the arguments the learned counsel for the appellants raised a new contention, namely that the mother of the appellants, the 2nd defendant, who had executed the mortgage Ext. A-2 as manager and karnavathi of their thavazhi and against whom the decree Ext. B-l was obtained on that footing, is not entitled to represent this thavazhi, inasmuch as according to the learned counsel, at all material times she is not entitled to function as karnavathi and manager of this thavazhi in view of the definition of the expression ‘Karnavan’ obtaining in Section 3, Sub-section (c) of the Madras Marumak-‘
kathayam Act, 1933 (Act 22 of 1933). That, according to the learned counsel for the appellants, though the 1st plaintiff was a minor on the date of Ext. A-2 and at the time when the suit 0. S. 107/53 was instituted, never theless the only person who could represent this thavazhi in law is the 1st plaintiff, and not the mother, the ‘2nd defendant
Therefore, according to the learned counsel the entire mortgage transaction Ext. A-2 as well as the decree obtained on the basis of that mortgage, namely Ext. B-l, are totally void, and have to be ignored by this Court. The last contention of the learned counsel for the appellants, as I mentioned already, is one raised for the first time in this Court, and it is also as I will immediately show, quite contrary to the very stand taken by the appellants in the proceedings that took place before the lower Court as well as to the manner in which they have preferred this appeal in this Court itself. The finding recorded by the learned Subordinate Judge that the debt incurred under Ext. A-2 was incurred for valid and binding purposes is also attacked by the learned counsel for the appellants. The attack as against Ext. B-l is that the Court guardian, except stating that the plaintiff therein (the present 1st defendant) is put to strict proof of his claim, never moved his little finger (o raise any other available pleas on behalf of the minor plaintiffs
9. On behalf of the 1st defendant 1st respondent Mr. Bhaskaran Nambiar, learned counsel has controverted the stand that is taken on behalf of the appellants in this Court. So far as the last contention, taken by the learned counsel for the appellants for the first time in this Court, namely that the 2nd defendant was not entitled in law to represent the thavazhi either on the date of Ext. A-2 or on the date of Ext. B-l, is concerned, the learned counsel for the respondent urged that it is a contention which this Court should not permit him to be raised for the first time in these proceedings. In this connection Mr. Bhaska-ran Nambiar drew my attention to the averments contained in the plaint wherein the plaintiffs have categorically stated that on the date of Ext. A-2, namely the mortgage which is now challenged in these proceedings, the karnavathi and manager of this particular thavazhi was their mother, the 2nd defendant. They have also admitted that at the time when the suit Ext. B-l was instituted, the karnavathi and manager of the thavazhi was the 2nd defendant In fact, the rest of the allegations made in the plaint, according to the learned counsel for the respondent, also proceeded on the basis that what the plaintiffs are challenging in these proceedings are the acts done by the 2nd defendant as karnavathi and manager of the thavazhi either in executing the mortgage Ext. A-2 or in representing the thavazhi in the proceedings connected with O S 107/63.
The learned counsel also referred me to the evidence of the 1st plaintiff as Pw. 1 wherein be has stated that the karnavathi of
the thavazhi is the 2nd defendant, the mother. The learned counsel also drew my attention to another circumstance, namely, that even in the memorandum of appeal filed in this Court in this appeal, the 2nd respondent is shown as the 2nd defendant, the mother of the plaintiffs, and she is described as karnavalhi and manager of their thavazhi. Therefore, whatever merits there may be in law, the learned counsel for the respondent points out, the parties having proceeded on the sole assumption that the 2nd defendant was the karnavathi and manager of the thavazhi at all material times and having fought the litigation under Ext. B-l on that basis, and also having come to this Court only on that assumption, it is not open to the appellants to reside from that position and take up a different line of attack as against the mortgage Ext. A-2 and the decree Ext. B-t.
10. In my opinion there is considerable force in the contention of the learned counsel for the respondent regarding the last aspect. Normally, if this contention involves also an investigation into facts, 1 would have straightway declined to permit the learned counsel for the appellants to raise this contention before me for the first time, especially in view of the fact that this stand will be totally inconsistent with and contrary to the stand taken by the appellants throughout and not raised in the Appeal Memo. But Inasmuch as the question has been posed before me as a pure question of law, I will express my opinion even on merits and reject it for the reason to be mentioned immediately below.
11. The contention of the learned counsel for the appellants that the 1st plaintiff, though he was a minor at the material time, and being the eldest member of the thavazhi, is alone entitled to be the karnavan on the date of Ext. A-2 and to represent the thavazhi in Ext. B-l, is almost exclusively based on the definition of the expression ‘karnavan’ contained in Clause (c) of Section 3 of the Madras Marumak-kathayam Act, 1032, Act 22 of 1933, which is as follows:
“3. (c) ‘karnavan’ means the oldest male member of a tarwad Or thavazhi, as the case may be, in whom the right to management of its properties vests, or, in the absence of a male member, the oldest female member or where by custom or family usage the right to such management vests in the oldest female member, such female member.”
It will also be seen that Clause (d) of Section 3 of the said Act defines ‘major’ as “a person who has attained eighteen years of age’, and ‘minor’ in Clause (g) of Section 3 as “a person who has not attained eighteen years of age. It is based upon these definitions, according to the learned counsel for the appellants, that the first preference or initial right to function as karnavan is given to the oldest male member of the tarwad or thavazhi as the case may be, and it is only in the absence of such a male member that the eldest female member, or in the circumstances mentioned in the latter part of Clause (c) of Section 8 that a female member,
gets the right to function as karnavan. The learned counsel pursued this line of argument by urging that on the date of Ext. A-2, though the 1st plaintiff was a minor, he must be considered to be the ‘oldest male member’, of this thavazhi, and therefore, the transaction of mortgage, Ext. A-2 executed by the 2nd defendant as karnavathi and manager of this thavazhi, is absolutely void. That line of reasoning, according to the learned counsel, also applies to the representation of the thavazhi by the 2nd defendant under Ext. B-l. In this connection learned counsel drew my attention to the definition of the expression ‘karnavan’ occurring in Section 2 (c) of the Madras Nambudiri Act, 1932, Act 21 of 1933. There also, it will be seen that the definition of ‘karnavan’ as contained in Section 2 (c) of the Madras Marumakkathayam Act, is that ‘karnavan’ means the oldest male member of an illom in whom the right to management of its properties vests or in the absence of a male member the senior female member. The learned counsel also drew my attention to the statute enacted by the Kerala Legislature repealing the Madras Nambudiri Act, namely the Kerala Nambudiri Act, 1968, Act No. 27 of 1958.
In that Act, Section 2 (c) defines ‘Karnavan’ as the oldest major male member of an illom in whom the right to management of its properties vests, or in the absence of such male member, the senior major female member. The learned counsel pointed out that while the Madras Marumakkathayam Act and the Madras Nambudiri Act in defining the expression ‘Karnavan’ do not use the expression major’, the Kerala Nambudiri Act has taken care to make it clear that it is only the oldest major male member of an illom, as is seen from the definition of ‘karnavan’ contained in Section 2 (c) thereof. The learned counsel also in this connection referred me to the definition of ‘karnavan’ occurring in another statute, namely the Madras Mappllla Marumakkathayam Act, 1039, Act 17 of 1039. Section 2 (b) of the said Act defines ‘karnavan’ as the oldest major male member of a tarwad or thavazhi …….. Therefore, the learned
counsel pointed out that while in 1033 two enactments passed by the Madras Legislature do not specifically state that the karnavan should be the oldest major male member, the same Legislature while enacting the Madras Mappilla Marumakkathayam Act, 17 of 1039, has taken care to make it very clear that the karnavan can only be the oldest major male member of a tarwad or thavazhi, and the same idea has also been enacted by the Kerala Legislature in Kerala Act 27 of 1958.
12. I am not inclined to accept the contention of the learned counsel for the appellant based upon these provisions contained in the various statutes. On the other hand. It will be seen that various duties and functions have to be discharged by the karnavan, and it has been held consistently by the Madras High Court in several of its decisions rendered under the Madras Marumakkathayam Act that it is
only the karnavan who is entitled to represent the tarwad and that a decree obtained at against a karnavan is binding as against all the members of the tarwad and its properties. It is also seen that the karnavan is a person who is entitled to enter into contracts or agreements on behalf of the tarwad. Under these circumstances, having due regard to the various duties that the karnavan has to discharge on behalf of the tarwad and is representing the tarwad and which transactions are held to be binding on the tarwad, the mere omission of the expression ‘major in the definition of ‘karnavan’ occurring in Section 3(c) of the Madras Marumakkathayam Act, 29 of 1933, is pf no consequence whatsoever. If the contention of the learned counsel for the appellants is accepted It will mean that if there is a male child six months old and a female member aged 60 years in a thavazhl or tarwad, the person who is entitled to function as karnavan and represent the estate, will be the male child of six months old, because he will be the oldest male member of the tarwad or thavazhi at the material time.
The learned counsel for the appellants no doubt urged that under these circumstances the proper thing would be to invoke the provisions of the Guardians and Wards Act and have a guardian appointed for that minor. 1 have no hesitation in rejecting this contention of the learned counsel for the appellants. Therefore, apart from the fact that the appellants are not normally entitled to raise this contention for the first time, which completely gives the go-by to the entire stand taken by them throughout and which is also contrary to and inconsistent with the position taken up by them even as a proposition of law, this contention cannot certainly be accepted. Therefore, it must be held that apart from the question as to whether the transaction under Ext. A-2, and the decree obtained by the 1st respondent under Ext. B-l are valid and binding on the appellants or not, there is proper representation of the thavazhi of these appellants, by their mother the 2nd defendant as manager and karnavathi of the thavazhi, not only when she executed the mortgage Ext. A-2, but also when she contested the litigation O. S. 107 1953.
13. Then the question is as to whether the findings of the learned District Judge on the 1st two aspects adverted to above, which are questions of fact, require interference by this Court. Even in this connection it is seen that the learned Judge has adverted to the Division Bench decision of this Court reported in 1960 Ker LJ 663: (AIR 1960 Ker 367) wherein by and large the proposition has been laid down that when a minor whose interests are affected by a litigation launched as against him, challenges the said decision in later proceedings, the ground that the proceedings are vitiated by gross negligence of the guardian is available to him. The position ultimately so far as the present appellants are concerned is in my opinion, entirely different. As pointed out by Mr. Bhaskaran Nambiar. learned coun-
sel for the 1st respondent, the principle laid down by this Court in the Division Bench decision referred to above, which has no doubt been elaborately discussed by the lower Court, has absolutely’ no bearing so far as these appellants are concerned. In this case, ‘it will be seen that the thavazhi of the plaintiffs was properly represented by their mother the 2nd defendant, both when she executed the mortgage Ext. A-2, as well as when she contested the claim of the mortgagee 1st respondent based upon that mortgage in the suit O. S. 107 63. It will also be seen that the contest was not one exclusively for herself, but was one for and on behalf of the entire thavazhi including the plaintiff-appellants.
Under those circumstances the appellants will be able to attack the proceedings connected with the decree Ext. B-l in O. S. 107/53, not on the ground that the decree is vitiated by gross negligence of the guardian who represented them in that suit, but really if they are able to succeed otherwise on the ground that the decree itself was obtained by fraud and collusion. So far as that is concerned, I have already indicated that one ground of attack raised by the appellants in the pleadings is that the said decree is vitiated by fraud and collusion, but that contest was not pressed before the trial Court and that claim was given up, and they concentrated their attack only as against the validity and binding nature of Ext. B-l, on the ground that it is vitiated by gross negligence of the guardian who represented them in that suit. So far as the latter aspect is concerned, it will be seen that it was not obligatory at all for the 1st defendant respondent to have impleaded these appellants as additional defendants in O. S. 107/53. It has been held uniformly by the Madras High Court in cases arising under the Madras Marumakkathayam Act that it is the karnavan and the karnavan alone who is entitled to represent the tarwad or thavazhi and that a decree obtained lawfully as against such a karnavan is valid and binding as against all the members of the tarwad or thavazhi and the properties belonging to it, because a litigation for and on behalf of the tarwad is not an individual litigation, but a litigation for himself and all the other members of the tarwad or thavazhi concerned. Under these circumstances, the mere fact that the appellants were also made parties to O. S. 107’53 and a Court guardian was also appointed for them in that litigation will not assist the appellants in their contention that the decree Ex. B-l in O. S’. 107/53 is vitiated by gross negligence of the Court guardian in the said litigation
That position is established by a Division Bench decision of the Madras High Court report ed in Krishnamurthi v. Chidambaram Chettiar, AIR 1946 Mad 243. In that decision, it will be seen that the father of the minor plaintiffs who was the Kartha had earlier instituted a suit and ultimately failed. The minors later on filed a suit for declaration that the decree in the previous litigation was vitiated by fraud and collusion and also on the ground that the
guardian failed to represent their interest properly In the said suit. This ground of attack was held to be not available to the minor plaintiffs, by Leach, C. J., speaking on behalf of the Bench. The learned Chief Justice observes that the principle laid down by ‘he Madras High Court in an earlier decision reported in Egappa v. Ramanathan. ILR (1942) Mad 526 : (AIR 1942 Mad 384) will apply only to suits which concern property held by a minor in his own right and in which a decree was passed against the minor also; and it is only under those circumstances that the minor can raise a ground of attack on the ground of gross negligence on the pan of the guardian in the previous proceedings. But, if I may say so with great respect, the learned Chief Justice takes considerable care to state that the said principle cannot be extended to cover cases like the one which they had to deal with, where the suit instituted by the father, who was the manager of the joint family, or against whom a suit had been instituted and a decree obtained as representing the family, and which are binding on all the members of the family including the minor members.
The learned Chief Justice emphasises that the only ground on which such decree could be challenged by the minors later on will be that the said decree has been obtained by fraud and collusion, and the plea of gross negligence is not available at all to the minors. That is the principle laid down by the learned Chief Justice. [ am in respectful agreement with this decision of the Manias High Court. My learned brother Raghavan, J., had also to consider a similar position, and the learned Judge in the decision reported in Arya v. Joseph, 1962 Ker LJ 1251 had adopted the same view and has distinguished the Division Bench decision of this Court in 1960 Ker LJ 663 : (AIR 1960 Ker 367). Therefore, having due regard to the principles referred to above, in my opinion the plea that the decree Ext. B-l is vitiated by gross negligence of the Court guardian who represented the appellants in those proceedings, is not available to them at all. No doubt the plea that the said decree was obtained by fraud and collusion is one available to the appellants, which they did raise and gave up later in the suit. Therefore, in my opinion, the discussion by the lower Court about the gross negligence of the Court guardian, was not at all necessary for giving an adjudication in these proceedings.
14. But, even on facts I am satisfied that the contention of the learned counsel for the appellants cannot be sustained. It is seen, by reference to Ext. B-l, that the mother of the appellants, the 2nd defendant, very hotly contested the claim of the mortgage in O. S 107/ 53, and it is after considering the evidence that was adduced by her in those proceedings that the learned Judge ultimately overruled all those objections and decreed the claim as pray ed for by the 1st defendant, who was the plaintiff in that suit The Court guardian no doubt Died a written statement in that suit
putting the plaintiff to strict proof. But as to whether Ext. A-2 was supported by consideration and the incidental matters were put in issue in O. S. 107/53 at the instance of the 2nd defendant who was representing the tha-vazhi of the appellants and all those contentions were overruled, and a final decree was passed under Ext. B-l. Therefore, the decree Ext. B-l, in my opinion, does not suffer from any of the infirmities as alleged by the appellants.
15. The only other question that requires to he considered in this appeal is as to whether the transaction Ext. A is binding on the appellants. So far as that is concerned, here again the position has been made difficult for the appellants, because once I have held that there has been a judgment passed on the basis of Ext. A-2, the position in law is that the mortgage Ext. A-2 has merged in the decree Ext. B-l No grounds of attack, that the mortgage is not supported by consideration or tarwad necessity, are any longer available to the appellants. That this is the position, is also laid down in the Division Bench decision of the Madras High Court in AIR 1946 Mad 243, referred to above. But whatever it is, even on facts, it will be seen that the only attempt that was made by the appellants was to file certain documents, namely, Exts. A-3 and A-4, and also to examine a mason as Pw. 2. The learned District Judge has considered the recitals in Exts. A-3 and A-4, and is ultimately of the view that in the absence of any other evidence placed by the appellants before Court to show that on the date of Ext. A-2 the 2nd defendant, their mother, had in her possession funds of the thavazhi or tarwad, the mere recitals in Exts. A-3 and A-4 are of no consequence. In fact, the appellants have also stated that they are challenging the transactions evidenced by Exts. A-3 and A-4. If that is so, when they are challenging the transactions under those documents, it is no longer open to them to rely on the recitals contained in those documents.
16. Coming to the recitals of consideration in the mortgage Ext. A-2, they are threefold; namely, a sum of Rs. 2,650 borrowed (a) for purposes of constructing a building in item 2, (2) for digging well in the property, and (3) for completing the shop building that was stated to have been already begun. Dw. I the son of the 1st defendant, has given evidence. Though it may be stated that the nature of the inquiries stated to have been made at the time of Ext. A-2 is rather defective, and that too, probably because of considerable lapse of time after Dw. 1 gave evidence in these proceedings, there is absolutely no positive evidence on the side of the appellants to show that none of these items of work was done by the 2nd defendant. On the other hand, the learned District Judge has found that all those items of work were done by the 2nd defendant on the property and that Ext. A-2 is fully supported by consideration and thavazhi necessity.
17. In the result, all the grounds of attack taken by the appellants fail. The appeal
is accordingly dismissed with costs of the 1st
defendant contesting respondent.