KAMALAKSHI AMMA Vs. CHANDAPPAN

JUDGEMENT

(1.) THIS Second Appeal,arising out of proceedings in execution of a decree in O.S.No.733/1950,Munsiff's Court,Quilandy has been referred to a Division Bench.The execution proceedings were for attachment and sale of immovable property.Respondents 2 to 5 in the execution petition have filed the Second Appeal.The suit was one for recovery of possession with arrears of rent and future rent.The plaintiff was a melkamdar,from the 12th Defendant who was the karnavan of his tavazhi.Arrears of rent from 1118 to 1124 were claimed.The suit was originally decreed on 31st October 1956 for rent for the years 1123 to 1125 against the 12th Defendant personally and as karnavan of his tavazhi.R.I.A.No.430/1957 filed by the plaintiff for review of judgment,was allowed,and a decree against the 12th Defend­ant followed even in respect of the arrears of rent,originally disallowed.Execution was levied for satisfaction of the said decree.Objection was raised that by Ext.B -1 karar,dated 6th November 1951,the 12th Defendant's tavazhi had been partitioned and that the pro­perty sought to be attached and sold had been allotted to Respondents 2 to 5,( appellants ),and that even before the decree there had thus been a cessation of the representative capacity of the 12th Defendant.The decree was there­fore claimed to be not valid and binding.The objection was overruled by both the courts below and has been repeated before us in this Second Appeal.

(2.) THERE is no dispute that at the stage of execution Respondents 2 to 5 who are interested in the property,were made parties,and that the execution proceedings are therefore valid.Counsel for the appellant contended that this would not save the decree which was still open to attack at the stage of execution,as the karnavan had lost his representative character,prior to it.In Lakshmanan v. Kamal 1958 K.L.T.851 a Full Bench of this Court held: "That in a suit or proceeding in which any right to immovable property is directly and specifically in question(which would include the right to recover property)brought against the manager of a Hindu joint family on the karnavan of a Marumakkathayam tarwad in his representative capacity,which is not collusive,the plaintiff,or the decree -holder in the execution proceedings,is not bound to implead either in the suit or in the execution proceedings any person to whom the suit property has been allotted under a partition effected subsequent to the institution of the suit and that all proceedings in such a suit,whether on the trial,appellate or execution side,would be binding on all the members of the tarwad or joint family,including the persons who had obtained title to any part of the suit property under the subsequent partition,if they are valid and binding against the original defendant and the persons whom the plaintiff or decree -holder was bound to implead on the death of such defendant.It will,of course,he open to persons who have obtained rights to the suit properties by the subsequent partition to apply to get themselves impleaded in the suit or execution proceedings to protect their legitimate rights,if any,and courts have the power to implead them on their applications if their presence in the party array is necessary in the interests of justice.But the plaintiff and the decree -holder are not bound to implead them,and no proceeding can be held to be invalid merely because the plaintiff and the decree -holder have omitted to implead them."

(3.) In Pareekutty Haji v. Parameswaran Nambudiri 1959 K.L.J.766,a Division Bench of this Court recognis­ed that a karnavan continuing to be in manage­ment of the tarwad properties pending a suit for partition in which no order had been passed to dispossess him of the management is competent to represent the entire tarwad in execution pro­ceedings against it and the proceedings taken after notice to him would be binding on all the members unless any case of fraud or collusion had been made out.The decision certainly seems to recognise that the division of a status of the tarwad does not automatically spell a cessation of the representative capacity of the karnavan for all purposes.