KARTHIKEYAN Vs. KUNJAMMA
LAWS(KER)-1967-12-12
HIGH COURT OF KERALA
Decided on December 04,1967

KARTHIKEYAN Appellant
VERSUS
KUNJAMMA Respondents

JUDGEMENT

- (1.) This appeal is by the 2nd defendant in a suit to redeem a mortgage.
(2.) The suit mortgage, Ext. P1 dated Thulam 16, 1084 M. E. (November 1, 1908), was by all the then major members of the tarwad (inclusive of defendants 3 and 4 and their then karnavan) to one Mathevan Kesavan, who assigned that mortgage right to the 1st defendant in 1096 (1920). The 2nd defendant is a non assignee of the 1st defendant. On May 15, 1950, there was a partition in the mortgagor tarwad, leaving out mortgaged properties to be divided later after their redemption. By another instrument, Ext. P3 of even date, the 3rd defendant who had by then become the karnavan of the tarwad, the 4th defendant, and all the other major members of the tarwad, sold plaint item 1 to the plaintiff directing him to redeem the mortgage Ext. P1 and surrender all the properties other than plaint item 1 to the vendors. It is by virtue of that direction that the plaintiff has instituted the present suit. The 2nd defendant contended that the 3rd defendant, as the then karnavan of the tarwad, in conjunction with the 4th defendant, had sold the mortgaged properties to the 1st defendant on Thulam 15, 1119 (November 1, 1943) as per Ext. D3 and that thereafter his father, and himself, had been holding the property as absolute owner thereof and therefore the present suit for redemption is unsustainable. The Munsiff dismissed the suit holding that a stranger to the tarwad, as the plaintiff is, cannot impugn Ext. D3. But the Subordinate Judge has, relying on the dicta in Mathew v. Ayyappankutty ( 1962 KLT 61 F. B.) held that the subsequent alienation under Ext. P3 was tantamount to an avoidance of the earlier alienation under Ext. D3 which was not valid under S.21 of the Travancore Ezhava Act. Hence this second appeal.
(3.) I am afraid that the Subordinate Judge has been misled by my citation from Trevellyan on Minors in Para.58 of the judgment in Mathew v. Ayyappankutty (1962 KLT 61 F. B.). That citation was only in support of my observation in Para.56 "It is not always necessary that a party entitled to avoid a transaction not binding on him should sue for its recission. He can himself avoid it by an unequivocal act repudiating it." After citing Muthukumara Chetty v. Anthony Udayar (ILR 38 Madras 867), Abdul Rahman v. Sukhdaval Singh (ILR 28 Allahabad 30), Jagdamba Prasad Laila v. Anadi Nath Roy (AIR 1938 Patna 337), Sivanmalai Goundan v. Arunachala Goundan) AIR 1938 Mad. 822 ), Trevellyan on Minors. Mulla's Hindu Law, and Bijoy Gopal Mukerji v. Krishna Mahishi Debi (34 IA 87) and also Chekku v. Puliasseri Parvathi ( AIR 1936 Mad. 634 ) I reiterated in Para.61: "It is therefore clear that a junior member can treat an invalid alienation of his tarwad property as void, ignore it and sue to recover the property, and that no suit for its recission as such is needed." Then, I proceeded to adjudge the applicability of that proposition to particular circumstances and in Para.62 posed the question "whether he can do that without any limit of time for its exercise." Reconciling two principles that come into play in the context, viz., "(1) a junior member is entitled to repudiate the transaction, and for the exercise of a legitimate act by a party law has not set any limit of time, and (2) if a party wants the aid of the process of Court to work out his rights, he must necessarily come within the period prescribed by the law of limitation for actions", I discussed three distinct cases, viz.,: "(i) Where possession of the property concerned does not pass to the alienee but continue with the tarwad itself; (ii) Where possession has passed with the alienation; and (iii) Where possession was with the alienee at the time of the alienation and continued with him after the alienation (e. g., sale of the equity of redemption to a possessory mortgagee)." (It may be possible to visualize more cases, e. g. where possession was with a mortgagee, but the equity of redemption was transferred to a third person.) I have then held, with concurrence of Mr. Justice Velu Pillai that in the case (1) no resort to Court to avoid the transaction is needed, and whenever the alienee seeks to enforce possession, a member of the tarwad may defend by avoidance of the alienation under the concerned statute; and that in the other two cases he has to institute a suit to set aside the alienation and to recover possession from the alienee within time allowed by law. The discussion shows clearly that I have followed Chinnaswami Reddi v. Krishnaswami Reddi (ILR 42 Madras 26), Janki Kunwar v. Ajit Singh (14 IA 148). Kandasami v. Irusappa (ILR 41 Madras 102), Palaniappa Goundan v. Nallappa Goundan ( AIR 1951 Mad. 817 ), Gangadhar v. Dattatraya (AIR 1953 Bombay 424) and Rajeswara Dorai v. Arunachellan Chettiar (ILR 38 Madras 321) to hold that if possession accompanied the alienation a suit to set aside, the alienation and recover the land was necessary, avoidance by the party himself would not do, and that was so even if the alienation was of equity of redemption to the mortgagee in possession. Thus, Trevellyan's observation that a later alienation by the quondam minor would be effective avoidance of an earlier alienation by his then guardian was therefore confined to cases where the earlier alienation was not followed by a change of possession and held inapplicable to Other cases. The Subordinate Judge was therefore not right in thinking that that observation is of general application. Here, the alienation under Ext. D3 dated Thulam 15, 1119 was by the karnavan (in conjunction with another member of the tarwad) to the mortgagee in possession of the property. It effected a change of possession what was possession as mortgagee became possession of an owner. In the terminology of law, Ext. D 3 was followed by delivery of 'mediate possession' It then follows that a private avoidance either by the karnavan who executed it or by all the other members who have not joined it, would not be effective in law. If the property had already been transferred by the karnavan, and the same had not been avoided effectively by the members of the tarwad, there was nothing for the karnavan to transfer again in the property as he had done under Ext. P3 in this case. The contention of counsel for the plaintiff that Ext. P3 having been executed by all the major members of the tarwad, most of whom had the right to avoid Ext. D3, and whose junction in Ext. P3 was unequivocal declaration of their avoidance of the prior invalid alienation, Ext. D3 had become void ab initio and therefore the plaintiff has got good title to the property and a right to redeem under Ext. P3, is not in consonance with the dicta in Mathew v. Ayyappankutty (1962 KLT 61 F. B.), and has therefore to be rejected. It is difficult to spell from Ext. P3 whether the avoidance of the earlier transfer was by the karnavan who executed it or by the members who have not joined it. It may not be open to the karnavan himself to derogate from his own act: (See Natvarlal Punjabnat v. Dadubhai Manubhai, AIR 1954 SC 61 ). Even if Ext. P3 be regarded as an avoidance of Ext. D3 by members who have not joined in it and a fresh conveyance by the tarwad, the avoidance of the earlier alienation which was followed by change of possession without recourse to Court cannot be held -effective as per the dicta in Mathew v. Ayyappankutty (1962 KLT 61 FB.). Ext. D3 has therefore to be held to stand today, and so long as it stands, Ext. P3 cannot be of legal effect; and the plaintiff, being a stranger to the tarwad, is not competent to challenge the transfer under Ext. D3 under the provisions of S.21 of the Travancore Ezhava Act. It then follows that the decision of the Munsiff was right, and that of the Subordinate Judge incorrect.;


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