SANKARAN NADAR Vs. GOVINDAN NAIR

JUDGEMENT

(1.) The main controversy in this appeal raised by Mr. S. Subramonia Iyer, learned counsel for the first defendant appellant is as to whether the plaintiff is entitled to ask for a declaration that an intermediate charge has got extinguished. The plaintiff claims rights by virtue of a transaction, Ext. B dated 14-10-1124, under which the 4th defendant, one of the grandchildren of the original owner Mama Perumal assigns his 1/3 rights in the suit properties.

(2.) The main contesting defendant was the first defendant, who claimed to have obtained the entire rights in the suit properties by virtue of a purchase from the second defendant, who is the granddaughter (daughters daughter) of this Mama Perumal, under Ext VII dated 21-1-1124. The first defendant set up a special custom that the parties belong to a community known as Thala Nairs & that there is a custom among this community under which the separate properties of a female enure only to the female heirs and that the males have no rights in those properties. On a pure question of fact, both the courts have come to the conclusion that this custom is not in any way established But the appellant raised a contention that there was a prior litigation among the members of the same family to which the original owner, Mama Perumal was a party and in that litigation, the question as to whether the female children alone inherit the properties of a female, or whether the male issues have got also a right, was no doubt, considered. The judgment of the Trial Court in 0. S.576/1093 is Ext. III and the judgment of the appellate court is Ext. IV. Both the judgments are to the effect that the female children alone are entitled to succeed to the properties of a female in this Thala Nair community.

(3.) It was contended on behalf of the first defendant that the judgment Ext. III as confirmed by Ext. IV operates as res judicata in these proceedings. But the Trial Court has explained away these two decisions on the ground that the said decisions are erroneous in law & therefore, they cannot operate as res judicata. That this reasoning is not sound in law will be clear from the decision of the Supreme Court reported in Mohanlal v. Benoy Kishna, ( AIR 1953 SC 65 ). The appellate Judge, on the other hand, again declined to accept the plea of res judicata on the ground that the decision was given more on the basis of consent of parties and that there was really no contest. This again, is not sound in law as will be clear by the several decisions on the point to the effect that even a decree obtained by compromise will operate as res judicata in respect of the claims made by parties claiming under the persons who were parties to the compromise. If these two decisions can be considered to be res judicata and can be relied upon, the appellant will have to succeed. But the appellant is faced with another difficulty namely, the decision of the Travancore High Court and also that of the Travancore-Cochin High Court to the effect that Thala Nairs are members of the Nair community and that they are governed by the provisions of the Nair Act. The decision of the Travancore High Court is that of a Full Bench of that Court reported in 16 TLJ 583 and the decision of the Travancore-Cochin High Court, approving the Travancore decision is that of Mr. Justice Sankaran (as he then was) reported in AIR 1953 TC 125. These decisions as such, are not really attacked by the learned counsel for the appellant. Therefore, one has to proceed on the basis that the law governing these Thala Nairs is contained in the provisions of the Nair Act.