KAVALAPPARA KOTTARATHIL KOCHUNNI ALIAS MOOPIL NAYAR RAVUNNIARATH UNNIMALU AMMA ALIAS DEVAKI AMMAL RAVUNNIARATH RAJAN MENON K C GOPALAN UNNI THATHUNNI NAIR P KOCHUNNI RAJA Vs. STATE OF MADRAS

JUDGEMENT

(1.) The circumstances leading up to the presentation of the above noted three petitions under Art. 32, which have been heard together, may be shortly stated:

(2.) In pre-British times the Kavalappara Moopil Nair, who was the seniormost male member of Kavalappara Swaroopam of dynastic family, was the ruler of the Kavalappara territory situate in Walluvanad Talluk in the district of South Malabar. He was an independent prince or chieftain having sovereign rights over his territory and as such was the holder of the Kavalappara sthanam, that is to say, "the status and the attendant property of the senior Raja," Apart from the Kavalappara sthanam, which was a Rajasthanam, the Kavalappara Moopil Nair held five other sthanams in the same district granted to his ancestors by the superior overlord, the Raja of Palghat, as reward for military services rendered to the latter. He also held two other sthanams in Cochin granted to his ancestors by another overlord, the Raja of Cochin, for military services. Each of them sthanams has also properties attached to it and such properties belong to the Kavalappara Moopil Nair who is the sthanee thereof. On the death in 1925 of his immediate predecessor the petitioner in Petition No. 443 of 1955 became the Moopil Nair of Kavalappara and as such the holder of the Kavalappara sthanam to which is attached the Kavalappara estate and also the holder of the various other sthanams in Malabar and Cochin held by the Kavalappara Moopil Nair. The petitioner in Petition No. 443 of l955 will hereafter be referred to as "the sthanee petitioner." According to him all the properties attached to all the sthanams belong to him and respondents 2 to 17, who are the junior members of the Kavalappara family or tarwad, have. no interest in them.

(3.) The Madras Marumakkathayam Act (Mad. XXII of 1932) passed by the Madras Legislature came into force on 1-8-1933 this Act applied to tarwads and not to sthanams and Sec. 42 of the Act gave to the members of a Malabar tarwad a right to enforce partition of tarwad properties or to have them registered as impartible. In March, 1934 respondents 10 to 17, then constituting the entire Kavalappara tarwad, applied under Sec. 42 of the said Act for registration of their family as an impartible tarwad. In spite of the objection raised by the sthanee petitioner, the Sub-Collector ordered the registration of the Kavalappara tarwad as impartible. The sthanee petitioner applied to the High Court of Madras for the issue of a writ to quash the order of the sub-Collector, but the High Court declined to do so on the ground that the sthanee petitioner had no real grievance as the said order did not specify any particular property as impartible property. While this decision served the purpose of the sthanee petitioner, it completely frustrated the object of respondents 10 to 17. On 10-4-1934, therefore, respondents 10 to 17 filed O. S. No. 46 of 1934 in the court of the Subordinate Judge of Ottapalam for a declaration that all the properties under the management of the defendant (meaning the sthanee petitioner) were tarwad properties belonging equally and jointly to the plaintiffs (meaning the respondents 10 to 17 herein) and the defendant, i.e., the sthanee petitioner, and that the latter was in management thereof only as the Karnavan and manager of the tarwad. The sthanee petitioner contested the suit asserting that he was the Kavalappara Moopil Nair and as such a sthanee and that the properties belonged to him exclusively and that the plaintiffs (the respondents 10 to 17 herein) had no interest in the suit properties. By his judgment pronounced on 26-2-1938, the Subordinate Judge dismissed the O. S. No. 46 of 1934. The plaintiffs (the respondents 10 to 17 herein) went up in appeal to the Madras High Court, which, on 9-4-1943, allowed the appeal and reversed the decision of the Subordinate Judge and decreed the suit. That judgment will be found reported in Kuttan Unni v. Kochunni, ILR (1944) Mad 515: (AIR 1944 Mad 378). The defendant, i.e. the sthanee petitioner herein carried the matter to the Privy Council and the Privy Council by its judgment, pronounced on 29-7-1947, reversed the judgment of the High Court and restored the decree of dismissal of the suit passed by the Subordinate Judge. In the meantime in 1946 respondents 10 to 17 had filed a suit (O. S. 77 of 1121) in the Cochin Court claiming similar reliefs in respect of the Cochin sthanam. After the judgment of the Privy Council was announced, respondents 10 to 17 withdrew the Cochin suit. The matter rested here for the time being.