NARAYANANRU Vs. KESHAVA KURUP
HIGH COURT OF KERALA
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(1.) This second appeal is preferred by the plaintiff and is directed against the decision of the District Court Alleppey in A.S. No. 67 of 1125 confirming the judgment of the Trial Court dismissing the suit. This appeal came up for hearing before Mr. Justice Joseph Vithayathil. It has been referred to a Division Bench as it was considered that the question of law involved necessitated the same. The said order of reference is as follows:-
The main questions raised in the second appeal relate to the interpretation of S. 12 of the Travancore Malayala Brahmin Act and the term senior anandravan as used in the Act. These are questions of law of considerable importance and I think that it is desirable that they are considered by a Division Bench of this Court, I, therefore, refer this Second Appeal to a Division Bench.
The circumstances giving rise to this Second Appeal are as follows:- The plaintiff Damodararu Narayanaru comes from a Malayalee Brahmin family. The plaint schedule property belonged to defendants 1 and 2 who mortgaged the same to plaintiffs father as per Ext. A on 18.4.1100. In the tarwad partition of the defendants as per Ext. II dated 16.12.1103 it was allotted to the second defendant. There is a stipulation in the deed that he was to pay certain amounts to the branch of the first defendant for equalisation of shares and that on default the properties allotted to him would be liable for the same. In 1105 as per Ext. B the second defendant assigned his right in the equity of redemption in the plaint schedule property to the plaintiffs father, the mortgagee, who was then karnavan of the Illom also. O.S. No. 796 of 1110 was filed by the first defendant to enforce the claims of his branch against the second defendant for amounts directed to be paid by him. The then karnavan of the plaintiffs Illom, Damodararu, was impleaded as the second defendant as can be seen from Ext. VI, the Trial Court judgment in that case, and a decree was granted in favour of the first defendant which was confirmed by the appellate court as per Ext. VII, judgment. In execution the plaint schedule property was brought to sale and the first defendant purchased it. When he sought delivery the plaintiff obstructed, the rights in the property having devolved on him in the meanwhile as per Ext. D partition. He contended that the decree in O.S. 796 of 1100 was not binding on his Illom and hence on himself as only the then Karnavan was impleaded, there being thus no proper representation of the Illom. The execution court negatived the contention and ordered delivery. Hence the plaintiff filed the present suit to set aside the order and to establish his right. He contended that as the Malayala Brahmin Act (Act III of 1106) of Travancore governed the parties the impleading of the then Karanavan Damodararu was not sufficient in the eye of law to give effective representation to their Illom and hence there was no binding decree as regards himself and his interest in the property. The Trial Court held that the impleading of the managing karnavan was enough to make the decree enforceable against the Illom. The said finding was upheld by the lower appellate court. It is now urged that the interpretation of the law on the point by the lower courts is erroneous and for want of effective representation of the Illom the decree is not executable as regards the plaintiff and his interest in the plaint schedule property.
(2.) The relevant Section in Act III of 1106 with which we are concerned is S.12 being to the following effect:-
No decree shall bind an Illom unless it is obtained against the karnavan as such and the Senior Anandravans of his branch and of every collateral branch, if any.
This provision was incorporated following analogous provisions in the Nair and Ezhava Acts of Travancore. S. 31 of the Nair Act of 1100 and S. 27 of the Ezhava Act of the same year are identical with the aforesaid provision in the Malayala Brahmin Act. S. 2(5) of the Malayala Brahmin Act defines a Senior Anandravan as follows:-
" "Senior Anandravan means the major anandravan who for the time being is next in the order of succession to Karnavasthanam to the Illom,
The fact that there were several adult senior members in the plaintiffs family at the time of filing of the suit O.S. 796 of 1100 is not challenged on behalf of the contesting defendant. Further, Ext. D the partition deed in the plaintiffs family proves that. So it is clear that there were Anandravans as contemplated under S. 12 of Act III of 1106 and that they were not impleaded in the suit. What the first court says is that impleading of the then karanavan of the plaintiffs illom in the suit was only to give an opportunity for him as a subsequent encumbrancer to redeem the prior charge of the present second defendant and hence the decisions to the effect that decrees against the joint families governed by the Nair Act and Malayala Brahmin Act are not binding unless senior Anandravans are impleaded are not applicable to the present case. The reasoning of the learned Munsiff is clearly fallacious. The legal effect of non impleading the necessary parties as contemplated under S. 31 of the Nair Act (Act II of 1100) of Travancore has come up for consideration in several decisions of the Travancore High Court and this Court. In Parameswaran Pillai v. Govinda Pillai (29 TLJ 1025) dealing with the effect of S. 25 of the Travancore Nair Act of 1088 being identical with S. 31 of the present Act, at page 1026 it is observed as follows:-
It was contended for the special appellant that a decree though not obtained in confirmity with the provisions of S. 25 cannot be considered null and void and a court sale had thereon should, until set aside by a regular suit, be considered valid. The question, therefore, is whether a decree obtained with the Karnavan alone as a party and without impleading the Senior Anandravans should be considered null and void as against the Tarwad. S. 25 of the Nair Act, I of 1088 is as follows:- No decree shall bind a Tarwad unless it be obtained in a suit against the Karnavan as such and the Senior Anandravan of his Thavazhi, and of every Thavazhi collateral to the same, if any. The section says that no decree shall bind the Tarwad. The plain meaning appears to be that no decree shall be deemed to be passed against the Tarwad unless obtained against the Karnavan and the Senior Anandravars. The effect of a decree obtained with the Karnavan alone as a defendant will not be any better than if it was obtained against one of the Senior Anandravars alone as a defendant. When the statute says that for an effective decree to be obtained against the Tarwad such that the Tarwad properties may be liable under it, that the Karnavan and the Senior Anandravars of a certain grade alone can represent the Tarwad, to say that a decree valid until set aside can be obtained without all of them being impleaded as defendants would be an attempt to render nugatory the provisions of S. 25 aforesaid. On a proper construction of S. 25, there appears to be no doubt that a decree obtained without impleading the Senior Anandravars cannot be considered to be a decree obtained against the Tarwad and proceedings held in pursuance of such a decree against Tarwad properties may be ignored as being null and void, as the decree itself has to be considered such.
This is a clear exposition of the legal effect of non compliance with the provisions in the analogous sections in the relevant enactments regarding the impleading of Anandravars apart from the karnavan to make the decree binding on the tarwad or Illom. This decision is followed in Kamakshi Amma v. Gangadharan Pillai ( 1953 KLT 708 ). There at page 717 dealing with decrees in suits where Anandravans were not impleaded as contemplated under S. 31 of the Nair Act of 1100 it is observed as follows:-
These two decrees were not against the plaintiffs sub-tarwad. The decree will not bind the sub-tarwad as they were not obtained in conformity with the provisions of S. 31 of the Nair Act of 1100. The Tarwad is a legal person and the mode of making it liable is laid down in the said section. If the decree is not obtained consistently with the provisions laid down in the statute it will be null and void so far as the Tarwad is concerned.
When a statute lays down that the effective representation of an association, institution or a joint family can be only in a particular way non compliance with the same clearly makes the decree one where a presumption of non impleading of the said party is to be raised as regards its legal effect. As pointed out in Ramunni Menon v. Kavu Amma (XXII Cochin Law Reports 36) here the illom not having been in the eye of the law a party defendant to the suit it must be considered to be a total stranger to the decree resulting from that suit. So the lower courts reasoning that as the impleading of Damodararu was only as a puisne mortgagee, the decree being in favour of a prior mortgagee the plaintiff has no right to obstruct delivery is clearly wrong. Here the property is in the possession of the plaintiff. The decree being not binding as regards his Illom and himself and their interests in the property, in execution of the decree the plaintiff cannot be dispossessed. We are not concerned here with other rights that might have accrued to the decree holder under the decree. The only question here is whether the plaintiff can be directed to deliver possession of the property to the decree holder in O.S. 796 of 1110. That a court cannot do as the decree was not binding on him. So the obstruction petition of the plaintiff had to be allowed. Thus it is seen that the decision of the courts below are based upon an erroneous interpretation of the law on the point.
(3.) In the result, the plaintiffs objection to the delivery is upheld. The plaintiff is not liable to be evicted in execution of the decree in O.S. 796 of 1110, the decree being not binding on him. The plaintiff is also entitled to a permanent injunction restraining the first defendant from taking delivery as per the court sale in the said suit. The lower courts decisions are set aside and the second appeal allowed as pointed out above. The appellant is entitled to his costs in all the courts.;
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