GOVINDA PILLAI GOPALA PILLAI Vs. AYYAPAN PILLAI

JUDGEMENT

(1.) This is an appeal by special leave from a judgment of the Kerala High Court. The facts may be briefly stated. The property which formed the subject matter of the suit out of which the present appeal has arisen was a part of Parathodu clerical belonging to Palapra Bhagavathi Devaswom. In the year 1058 M.E.-1883 A.D. one Manchukan Musavu Meerannan got an otti deed (mortgage) for the whole of Parathodu clerical from Pichanattu family of defendants 64 to 72 who are the Monusham of the Devaswom, The deed (Exh. A) was executed by Eravi Govindan who was a junior member of the tarwad (family). The amount of mortgage was Rs. 210/-. On May 10, 1905 Meerannan paid another sum of Rs. 400/- and got a puramuri (Exh. B) from Eravi Govindan. Thereafter Eravi Govindan became the manager of fhe tarwad and on July 6, 1908 he obtained a surrender of 20 at res of land from Meerannan. Meerannan died in 1916 leaving a son and a daughter as also a widow. On August 13, 1920 the members of the tarwad filed a suit for getting the two otti deeds set aside, interalia. on the allegation that Eravi Govindan, who was a junior member, could not have created them on behalf of the tarwad. It was also claimed that possession of the mortgaged property had never "been delivered to Meerannan. In this suit only the son and the daughter of Meerannan were impleaded as parties. The suit (No. O.S. 112/1095) was decreed and it is stated that in execution thereof possession was taken of the suit property. On November 1, 1951 the widow of Meerannan, Moosavu Meerannan Pathumma filed the suit out pf which the present appeal has arisen for various reliefs. Ayyappan Pillai was joined as a second plaintiff on the allegation that he had been assigned all the claims the litigation to the suit property. Defendants 5 to 63 were impleaded as cultivators and defendants 64 to 72 as members of the Pichanatty family. The main relief sought in the suit was for declaration of the prior possession and right of Meerannan over the schedule property and for possession by partition by metes and bounds of one-eighth share of the plaintiff. It was prayed that the second plaintiff be given possession of the same. Another relief claimed was one of injunction against defendants 64-76 restraining them from taking possession of any portion of the properties by execution of the decree in O.S. 112/1095.

(2.) In the written statement several defences were raised and as 16 issues were framed. During the first plaintiff the trial the first plaintiff died. The second plaintiff was recorded as her heir being an assignee of all her rights in the litigation. The trial court dismissed the suit. The second plaintiff filed an appeal in the High Court and the 9th respondent filed certain cross objections. The High Court allowed the appeal and granted a preliminary decree in favour of the plaintiff declaring his right to get partition and separate possession of one-eighth share in the suit properties. The cross objections were dismissed. The High Court held that notwithstanding the fact Eravi Govindan was a junior member of the tarwad when he executed the otti deeds they were not only recognised and adopted by the then Karanavan but also by Eravi Govindan when he became the Karanavan later on. The transactions were, therefore, binding on the tarwad. The finding of the trial court that Meerannans possession was under Pullompandaram was set aside and it was observed that whether as a trespasser or otherwise the possession of the properties by Meerannan was accepted by the Pichanattu tarwad. The High Court further held that the decree passed in O.S. 112,1095 did not operate as res judicata. The contentions raised by the present appellant that the suit was barred by limitation and that he had become owner by adverse possession were rejected. As regards the assignment in favour of the second plaintiff the finding of the trial court accepting the assignment was upheld.

(3.) Counsel for the appellant raised four points before us; (1) that there had been substantial representation of Meerannans estate in suit No. O.S. 112/1095 and therefore the decree passed therein was binding on the plaintiff-respondent who derived his rights, title and interest from the widow of Meerannan. The bar of res judicata would also operate and should have been given effect to; (2) Meerannans widow had only a right of maintenance and could not claim one eighth share in his estate because by virtue of the will, Exh. 3, Meerannan had bequeathed his entire estate to his son and daughter and had provided that his widow would be entitled to maintenance only; (3) no oral assignment could have been made in favour of the second plaintiff by the first plaintiff and (4) the suit was barred by limitation.