GOPALA MENON Vs. KALYANI AMMA
HIGH COURT OF KERALA
Click here to view full judgement.
(1.)THE plaintiff is the appellant. THE suit was for redemption of Ext. A-l mortgage, dated 24th May 1880 executed by Krishna Menon, who was a karnavan of the tarwad of the plaintiff and defendants 26 to 28, to one Cherotti Amma and two others for Rs. 1,500. THEre was a partition among the mortgagees. Cherotti Amma's rights under the mortgage became vested in the 28th defendant and others. Defendants 1 to 16 are the legal representatives of the original mortgagees
(2.)THE plaintiffs case was that he was entitled to redeem the mortgage as the karnavan of the tarwad, Sekhara Menon, assigned the right to redeem the mortgage to him and also on the ground that he was a co-owner of the property sought to be redeemed.
The defendants contended that the plaintiff was incompetent to represent the tarwad and claim relief on behalf of the tarwad, that there was no assignment of the right to redeem by the karnavan as alleged, that the tarwad consisted of the descendants of one Ittirivu Amma also, that the karnavan of the tarwad was one Sankara Menon of Ittirivu Amma's branch, that he alone was competent to institute a suit for redemption and that the suit was bad for non-joinder of the other members of the tarwad.
The trial court found that Ittirivu Amma's descendants also were members of the tarwad, that there was no assignment by the karnavan of the right to redeem the mortgage to the plaintiff, that Sankara Menon was the karnavan of the tarwad on the date of the institution of the suit, and that the plaintiff had no locus standi to file the suit; and dismissed the suit.
(3.)THE plaintiff filed an appeal against the decree and the lower appellate court confirmed the findings of the trial court and dismissed the appeal.
In this second appeal, counsel for the appellant submitted that the plaintiff was entitled to redeem the mortgage although he was not the karnavan at the time of the institution of the suit. He submitted that the plaintiff being a co-owner of the property was in any view entitled to file the suit for redemption of the mortgage executed by the tarwad. His argument was that the members of the tarwad are the owners of the property belonging to the tarwad and the tarwad itself not being a juristic person, any member of the tarwad can institute a suit for redemption without reference to the karnavan. In support of this position, counsel drew my attention to that observations in the course of the judgment in Parukutty Nethiaramma v, Kesava Menon 1962 KLJ. 688. In that case, it was said that the tarwad is not a juristic person, that the members of the tarwad are the owners of the properties belonging to the tarwad and that any member of the tarwad can institute a suit for redemption of a mortgage executed by the tarwad.
"The tarwad has been understood as a group of persons and not a juristic person different from the group. The rights of the tarwad are the rights of the members collectively; in other words, the rights of the tarwad inhere in every member of the tarwad in part....as a part-owner, he is entitled to exercise the rights of the tarwad in relation to tarwad properties demised to strangers, when the karnavan is not a competitor with him in the field." In paragraph 7, it is observed: "For many purposes 'the tarwad' is recognised as a legal entity. It is capable of owning properties and owing debts. Decrees can be obtained against tarwad, executable against its properties only. But the tarwad is not recognised as 'a corporation' in the legal sense."
In a later case, it is observed:
"The tarwad, though not a legal person as such, is a legal entity, a corporate body, to adopt the expression used by the Supreme Court in AIR. 1962 SC. 287, capable of holding rights and liabilities as other legal entities not being legal persons (e. g. firms) are conceded to do. The difference between a legal person and a legal entity not being a legal person is that while a legal person is independent of the natural persons who constitute it, the other legal entity is not so independent but is only the group of persons taken collectively. Junior members of tarwad have therefore been described as co-proprietors of its properties having equal rights with all other members of the tarwad, subject of course to well-known restrictions in the exercise of such rights in the common interest of all concerned. The tarwad or family properties are those that belong to the tarwad or family as a corporate body."
(See the observations in Kunhammed v. Narayanan Namboodiri ILR. 1963 (2) Kerala 487.) If the tarwad is a legal entity for many purposes why it is not a distinct entity for those purposes, apart from the members of the tarwad? For the distinction between an entity in fact & an entity in law, see Denning, L. J. in Bonsor v. Musicians Union (1954) 1 All E.R. 822 at 833. It is said that the property of the tarwad is owned by the members as co-proprietors. What kind of co-proprietorship is that which prevents the supposed co-proprietor from transferring his interest in the property? Or what kind of property the co-proprietor has if it is incapable of being taken in execution for his debt, and if it does not pass on his insolvency to the trustee in bankruptcy? Is it joint ownership or co-ownership as tenants-in-common and why if it is either the one or the other, a member cannot transfer his interest? The fact that on partition or dissolution of a tarwad, a member may get a share in the property of the tarwad is hardly to the point. That only illustrates the truth of what Jhering said that the beneficiary of every right or property is man. The nature of an entity has to be understood by looking at it when it is alive and functioning.
"A group itself is something which cannot be analysed into the mere sum of its parts. The sum of the parts may survive the destruction of the group but could no more explain the group than the dead material of a murdered organism will explain the organism. (See XXI Law Quarterly Review 365 at 379 - "The Personality of Corporation and State" by Jethro Brown.) If the tarwad or family properties are those that belong to the tarwad or family as a corporate body, I do not know how that would be consistent with the part ownership or the co- proprietorship of the members.
Copyright © Regent Computronics Pvt.Ltd.