THIRUMALAYANDI PILLAI Vs. MATHEVAN PILLAI

JUDGEMENT

(1.) THIS Second Appeal arises out of a suit to set aside a sale deed, executed in respect of an enfranchised Irayili property. According to the plaint allegations, the property belonged to the plaintiff's tarwad and was set apart in the tarwad partition in 1102 for the possession and enjoyment of the successive karnavans. It was also provided in the partition deed that the karnavan was to conduct the services saddled upon the property and that the property should never be alienated. In 1117, the State enfranchised the land and registered it in the name of the plaintiff's brother who was then the senior-most male member in the tarwad. After obtaining the registry the plaintiffs brother executed a sale deed, copy of which is Ext. C, in favour of the defendant for the plaint property; and the suit, which has given rise to this second appeal, was filed for setting aside Ext. C sale deed on the ground that it was not supported by tarwad necessity and consideration and was executed without the consent of the plaintiff and the other members of the tarwad. There was a prior mortgage in respect of this property, and after obtaining the sale deed the defendant has taken a release of that mortgage. Plaintiff admitted in the plaint that the mortgage was binding upon his tarwad and offered to pay to the defendant the admitted mortgage amount. The defendant contested the suit. He contended that the property was the absolute property of the plaintiff's brother who had obtained patta after the enfranchisement, that the plaintiff and other members of the tarwad were not therefore competent to question the validity of the sale deed, that the sale deed was supported by necessity and consideration, and that as the plaintiff's tarwad itself had become divided in 1102 plaintiff could impeach the sale deed only as regards his share of the property and claim recovery of his share alone. The trial court found against these contentions and gave a decree to the plaintiff setting aside the sale deed and allowing him to recover possession of the property on deposit of the admitted mortgage amount. The appeal which the defendant filed against the trial court's decree was also dismissed by the lower appellate court. The defendant has hence filed this second appeal.

(2.) RELYING upon the decisions in Chacko Thommi v. Kuruvila Varkey XXVII T. L. R. 1, and Velayudhan v. Ramakrishna Pillai. XVI T. L. J. 143, the appellant's learned counsel contended that Irayili property after its enfranchisement was the absolute property of the person in whose favour the sirkar enfranchised it and granted the'patta. " But one of the learned judges who took part in the case in Chacko Thommi v. Kuruvila Varkey has observed: "the only question, in my opinion, that can be raised in Courts of law with respect to the grant of viruthy lands is, as to whom the grant in a particular case was made. The person in whose came the grant runs, may either hold it for himself alone or on behalf of himself and others. When the nominal grantee disputes the right of others who claim him as their representative in obtaining the grant, the Courts have to determine their relative rights; and in doing so, the order of Government that led up to the issue of the grant, has to be looked into. If that order shows that the mind of the officer passing it was directed to the dispute between the rival claimants, and he chose to prefer one of them to the other the choice so made has to be accepted by the Court and given effect to. If, on the other hand, the merits of the rival claims were not intended to be dealt with by the order, and existing rights interse of the members of the grantee's family were left untouched, the courts have a free hand. The Courts may, in the light of the evidence on record decide whether the grant enures for the sole benefit of the nominal grantee, or for him and others whom he must be taken to represent. " That learned judge had also said in another portion of his judgment in the same case: "where, however, Government simply enfranchised and registered the viruthy land in the came of a member of a viruthy tenant's family, without intending to disturb existing mutual rights of the several members, then, on a resort to the Court of law, their respective rights may be determined. " There is nothing in the decision in Velayudhan v. Ramakrishna Pillai which precludes civil courts from considering the question whether the person, in whose name the Irayili was enfranchised, had obtained from Sirkar the enfranchisement and patta in his personal capacity or as representing the tarwad to which he belonged. From Ext. A it is clear that the plaint property in this case was being held by the karnavans of the plaintiff's tarwad for a very long time and that the entire tarwad including the plaintiff and his brother had treated it at the time of the partition as tarwad property. In the partition deed it was provided that the successive karnavans should hold the property and perform the Irayili services and that the property was never to be alienated. It was after this partition that the plaintiff's brother obtained the enfranchisement and patta. In the circumstances the courts below were perfectly right in holding that the plaint property belonged to the entire tarwad and was not the exclusive property of the plaintiff's brother. There is no substance in the contention that from the time of the partition deed the members of the tarwad were entitled to the plaint property only as. tenants-in-common. From the partition deed it would appear that their intention was to prove this property as a joint property and not as a property held by them as tenants-in-common. The second appeal therefore fails and is dismissed with costs. Dismissed.