KUNJI AMMA Vs. PADMANABHA PILLAI

JUDGEMENT

(1.) This Second Appeal is from the decree in O. S. No. 567 of 1120 a suit filed for cancellation of a sale deed Ext. B dated 1.2.1118, executed by the plaintiff's elder brother Parameswaran Pillai to the defendant. The properties sold under Ext. B originally belonged to the tarwad of the plaintiff and the defendant. A partition was effected in the tarwad in 1092 by which the tarwad became divided into two Sakhas, Parameswaran Pillai and the plaintiff were the senior members of one branch and the defendant in the other. The plaint property which was of Irayili tenure was left undivided and it was provided that Parameswaran Pillai and after his death the plaintiff and thereafter he defendant should perform the services relating to the grant and be in possession of the property. After these persons the next senior male member in the tarwad was to be in possession and to perform the services. While Parameswaran Pillai was thus in possession the property was enfranchised and Parameswaran Pillai mortgaged this property with possession thereby raising funds to deposit Vilayartham due to the Government. He deposited the amount and got the property registered in his name. Thereafter he sold the property to the defendant without the knowledge or consent of other members of the tarwad. According to the plaintiff the registry was for the benefit of the tarwad and the sale deed was unsupported by consideration and tarwad necessity. The plaintiff accordingly instituted this suit for cancellation of the sale deed. The defendant contended that the two sakhas partitioned their properties among the various members and that at the time of such partition this property was given to Parameswaran Pillai absolutely and that it was on that basis that he got registry of the property. It was therefore contended that Parameswaran Pillai was competent to deal with the property as his own and that the sale deed was valid.

(2.) The defendant in O. S. No. 567 of 1120 had instituted another suit O. S. No. 400 of 1120 for redemption of the mortgage executed by Parameswaran Pillai. The mortgagee resisted the suit on the ground that the registry was taken by Parameswaran Pillai on behalf of his tarwad and that the sale deed executed by Parameswaran Pillai was invalid. These two suits were tried by different Munsiffs. It was held by the Trial Court in this case that the registry of the property was for the benefit of the tarwad and that Parameswaran Pillai was incompetent to alienate the property. The sale deed was accordingly set aside. The learned Munsiff who tried O. S. No. 400 of 1120 allowed redemption except as regards 1/17th share of Govinda Pillai the plaintiff in O.S. 567 of 1120. Appeals were filed from both decrees by the vendee and the lower appellate court allowed the appeals dismissing the suit for cancellation of the sale deed and decreeing the suit for redemption. The Second Appeal is filed from the decree of the lower appellate court dismissing the suit for cancellation of the sale deed and decreeing the suit for redemption. This Second Appeal is filed from the decree of the lower appellate court dismissing the suit for cancellation of the sale deed. The defendant in the redemption suit has preferred S. A. No. 103 of 1952. The two Second Appeals were heard together.

(3.) The main point for decision in this case is whether the registry obtained by Parameswaran Pillai conferred absolute title on him or whether the registry could be deemed to be one on behalf of the tarwad. Madhavan Pillai Thirumalayandy Pillai v. Krishna Pillai Mathevan Pillai ( 1953 KLT 794 ) is a decision in point. Following the earlier decisions of the Travancore High Court it was held that there was nothing which precludes the Civil Courts from considering the question whether the person in whose name patta was obtained on enfranchisement of Irayili property had obtained registry in his personal capacity or as representing the tarwad to which he belonged. As the property was held by the tarwad for a long time before enfranchisement and as successive Karnavans were to hold the property and perform the services, it was held that the registry was one in favour of the tarwad. The decision of the High Court of Travancore in Aiyappan Gopalan v. Govindan Aiyappan (28 TLJ 1295) which supports the above view may also be referred to. It was held in that case that the test was whether the decision to grant patta in favour of any member was deliberately passed after contest by rival claimants. It was also held that even when such registry was obtained by a junior member the presumption in the case of acquisition by a junior member that the same was for his individual benefit would not extend to the case of enfranchisement of Viruthi land which was formerly in the possession of the tarwad. Earlier decisions of the Travancore High Court which support this view were referred to. These are Lekshmi Narayani v. Eachooty Mathevi (17 T.L.R. 69), Raman Perumal v. Raman Velayudhan (23 T.L.R. 258); Narayanan Sankaranarayana Panicker v. Travancore Sirkar (A. S. No. 23 of 1085) and Chacko Thommi v. Kuruvilla (2 TLJ 80). In the present case there is the additional fact that Parameswaran Pillai who was authorised by the tarwad to be in possession of the property obtained funds for getting registry by mortgaging the same property. Learned counsel for the respondent relied on the decision of the Privy Council in Musti Venkata Jaganada Sarma v. Musti Veerabhadrayya ( AIR 1922 PC 96 ). This decision was given in a case regarding enfranchisement of Karnam service Inam lands in the State of Madras. It was held that in Madras the Karnam of the village occupied his office not by hereditary or family right but as personal appointee though in certain cases that appointment was primarily exercised in favour of a suitable person who is member of a particular family. It was also held that the lands held or as appurtenant to the office so enjoyed should continue to go with that office. It was pointed out that according to the law as it stood before the enfranchisement of Inams right to the land could be acquired through the right to the office alone, that the power of selection vested with the administrative officials who alone were judges of the eligibility of the Karnam for the time being and that the settled law in Madras was that the emoluments in the shape of lands followed the office. The distinction between Karnam service inams and other inams like Palayam tenure was also pointed out by Their Lordships. This decision is not of much help in deciding this case. The historical background of Irayili lands in Travancore is different from that of Karnam service Inams in the State of Madras and it may be taken as settled law regarding Irayili lands that when such property was in the possession of a Marumakkathayam tarwad, the registry obtained on enfranchisement by a member of the tarwad was to enure for the benefit of the tarwad. Following the decision of this court in Madhavan Pillai Thirumalayandy Pillai v. Krishna Pillai Mathevan Pillai (1953 KLT 794) I hold that the property on enfranchisement belonged to the tarwad and that Parameswaran Pillai was incompetent to sell the same.