RAMAN NAMBOORIPAD Vs. NANOO

JUDGEMENT

(1.) THE Plaintiff in O.S. No, 411 of 1120 and O.S. No. 12/1122 of the Vadakkancherri Munsiff's Court is the Appellant in these two second appeals. These suits were instituted by the Plaintiff for recovery of arrears of pattom on the basis of a lease deed. Ex. A, dated 10 -8 -1112 executed in favour of the Plaintiff's illom by one Velu, the deceased karnavan of the tarwad of Defendants 1 to 12. O.S. No. 411 of 1120 was instituted for the rent due for the years 1119 and 1120 and O.S. No. 12 of 1122 for the rent due for the year 1121. S.A. No. 70 of. 1125 is from the decision in O.S. No. 12 of 1122 and S.A No. 71 is from the decision in O.S. No. 411 of 1120. The Plaintiff alleged in the plaints that the lease deed, Ex. A, was executed by Velu on behalf of and for the benefit of his tarwad and that, therefore, the tarwad properties were liable for the arrears of rent. The trial Court held that the lease deed was not executed by Velu on behalf of his tarward and, therefore, no relief was granted against the tarwad properties. The Plaintiff appealed from this portion of the decree and the lower appellate Court held that the lease deed was executed on behalf of the tarwad. The learned Judge, however, held that the tarwad properties of Defendants 9 to 12 were not liable for the plaint claim. These second appeals relate to the portion of the decree of the lower appellate Court refusing relief against the tarwad properties belonging to Defendants 9 to 12, and the only question for decision in these appeals is whether these properties can be made liable for the plaint claim.

(2.) THE executant of the lease deed died in Vrischikam 1114. On 29 -8 -1114 there was a partition in his tarwad. Ex. IV is the partition deed. By that partition Defendants 1 to 6 constituted one branch, Defendants 7 and 8 formed Anr. branch and Defendants 9 to 12 a third branch. The verurnpattam properties, covered by Ex. A were, however, not partitioned under Ex. IV. By a separate arrangement all the verumpattam properties except two items, namely, items 5 and 6 in the plaint schedule, were divided between the two branches of Defendants 1 to 8. The branch of Defendants 9 to 12 did not take any of these properties and was not in possession of any of them. The leasehold right in respect of items 5 and 6 had already been assigned in favour of the 13th Defendant and he was in possession of the same. Defendants 9 to 12 therefore, contended that the properties they got in partition were in no way liable for arrears of rent that accrued due after the date of the partition. It will be noted that the arrears claimed in the two suits relate to the years 1119, 1120 and 1121. It is admitted by the Plaintiff that Defendants 9 to 12 are not in possession of any of the leasehold properties. The Plaintiffs case is that even though they are not in possession of the leasehold properties their tarwad properties are still liable for the rent due to the Plaintiff under the lease deed so long as it is found that the lease deed was executed for and on behalf of the tarwad. It is argued for the Plaintiff that the subsequent partition of the tarwad properties cannot affect the right of the Plaintiff to proceed against these properties for the amount due to him under a lease transaction binding on the tarwad. Reliance is placed on the decision in - 'Kesavanunni Kartha v. Govindan Nayar', 20 Mad 163 (A). In that case the Plaintiff obtained a decree against a thavazhi of a Nayar tarwad. Subsequent to the passing of the decree the thavazhi acquired certain properties and they were partitioned among the members of the thavazhi. The Plaintiff attached those properties in execution of the decree. Objection was taken to the attachment on the ground that at the time of the attachment the properties did not belong to the thavazhi. It was held that the properties were liable to be attached. The learned Judge followed the decision of the Madras High Court in - 'Kunhappa Nambiyar v. Shridevi Kettilamma', 18 Mad 481 (B), in which case the law laid down thus:

(3.) REFERENCE was made by learned Counsel for the Appellant to the decision of the erstwhile Cochin High Court in - 'Innappan v. Kunhinni Menon', 34 Mad 844 (E). What was held in that case is that the long standing custom in the Cochin State has been for treating tenants holding over and praying rent as tenants under the original tenancy. In that case, the Court found that after the expiry of the period of the lease the tenant used to pay, and the jenmi used to accept rent. It was, therefore, held that a summary suit for rent would lie under Section 45, Cochin Tenancy Act, against the tenant. This decision has nothing to do with the facts of this case. The Plaintiff has no case that after the partition in the tarwad the branch of Defendants 9 to 12 paid any rent to his illom.