RAJAPPAN PILLAI Vs. BHOOTHALINGAM PILLAI

JUDGEMENT

(1.) The heir of the deceased plaintiff is the appellant. The suit relates to S. Nos. 2505/17 and 2505/18 of Mekkode Pakuthy. These two properties were mortgaged by one Marthanda Pillai to Arulanandam in 1073. The mortgagor then sold the property to the 2nd defendant in 1092. The 2nd defendant is a Vellala woman following the Marumakkathayam system of inheritance. The plaintiff is the 2nd defendant's son. The plaintiff's case is that this acquisition was made for his sub tarwad of which he is the present karnavan. He therefore filed the present suit for redemption of the mortgage of 1073 to Arulanandam which now vested in the 1st defendant by an assignment. Defendants 3 and 4 were impleaded as they were said to be in possession of the property under the 1st defendant.

(2.) The main contention of defendants 3 and 4 was that the present suit relating to S. No. 2505/17 was barred by res judicata because of the decision in O.S. 1507 of 1093 on the file of the Additional District Munsiff's Court, Padmanabhapuram. That was a suit filed by the father of defendants 3 and 4 against the present second defendant, mortgagee - Arulanandam and others for a declaration that they were entitled to S.No. 2505/17. The final result of that suit was that the declaration prayed for was granted.

(3.) The Trial Court allowed the plaintiff to redeem S. No. 2505/18 but held that the suit as regards S. No. 2505/17 was barred by res judicata by reason of the said decision. The plaintiff filed an appeal against this and the District Judge in A.S. 62 of 1119 set aside the Trial Court decree relating to S. No. 2505/17 and remanded the case. Defendants 3 and 4 filed C.M.A. 231 of 1120 before the High Court. The civil miscellaneous appeal was allowed. It was held there that the question of res judicata was not properly considered in the light of all the circumstances in the case, that though the plaintiff attained majority during the course of O.S. 1507 of 1093, it was clearly his duty to have apprised the court that he attained majority, that this circumstance had not been taken into account in considering the binding nature of the final decision in O.S. 1507 of 1093 on the plaintiff and that the lower appellate court had not considered as to how far the decree obtained against the 2nd defendant as the karnavathi of the tarwad would be binding upon the plaintiff also. The Trial Court had found positively that the sale deed for the equity of redemption in favour of the 2nd defendant was taken for and on behalf of the sub tarwad. This was a finding on issue No. 6 raised in the case. This finding had not been objected to by the defendant in appeal filed by the plaintiff. That was also noticed by the lower court and that finding is confirmed. The Trial Court also found that the sub tarwad was represented properly in O.S. 1507 of 1093 and that the decree was binding on the plaintiff. That suit was filed in 1093, when admittedly the plaintiff was a minor, and the 2nd defendant was the Karnavathi of the sub tarwad. The suit was decreed by the Trial Court on 8.3.1105 and Ext. 1 is copy of the judgment in that case. It was evident that the plaintiff had attained majority in 1095, that is ten years before the suit was decreed. In the decision in C.M.A. No. 251 of 1120, Their Lordships had observed that it was the duty of the plaintiff to have apprised the court that he had attained majority. Evidently Their Lordships were under the impression that the plaintiff also was a party to the suit. It was not so. It was the duty of the plaintiff in that case to implead the present plaintiff when he attained majority. It is clear law as would be evident from Kunjayyan Pappu v. Eravi Gangadharan Kartha, reported at page 32 of 25 TLJ and Padmanabha Pillai v. Padmanabha Pillai, reported at page 31 of 51 TLR that a female member of a sub tarwad who was the Karnavathi of that sub tarwad in the absence of adult male members would cease to be Karnavathi when a male member of that sub tarwad attained majority. The powers of the Karnavathi would automatically cease and so the 2nd defendant who had been impleaded in Ext. 1 case had become incompetent to represent her sub tarwad on the plaintiff attaining majority in 1095. Thus after 1095 there was no representation of the tarwad in Ext. 1 suit. Kumaran Aiyanna v. Mallan Raman, reported at page 18 of 17 TLR was a case where a suit for redemption had been filed. The Karnavan and junior members were made defendants. During the progress of the suit the karnavan died. The succeeding karnavan had not been made a party and the suit was decreed with only two junior members as defendants. So the succeeding karnavan sued to set aside the decree. It was held that the karnavan alone can sue and be sued on behalf of the tarwad and that since the karnavan had not been impleaded in the previous suit before the decree, that decree would not be binding on the tarwad. In Raman Kesavan v. Devan Madhavan Kartha, reported at page 386 of 5 TLJ the suit was against a trust under the management of a receiver appointed by court. When the suit was filed the receiver represented the trust, but subsequently it so happened that the receiver was removed. The succeeding trustees were not made parties to that suit before the decree was passed. Pursuant to that decree, the decree holder purchased the properties which were in the possession of the trust. It was held that the sale deed was not binding on the trust since it was not represented when the decree was passed. Thus it goes without saying that the decree in order to be binding on the tarwad should have been obtained against the tarwad and that there should have been a proper person representing that tarwad. So when the sub tarwad of the plaintiff and the 2nd defendant ceased to be represented on the record before the date of the decree, it was not permissible to recognise such decree as the foundation of valid proceedings in execution against the property of the unrepresented party. It follows therefore that the decree passed in Ext. 1 case would not be binding on the sub tarwad. The lower appellate court has conceded this position but tried to explain it away by referring to the principles governing real and ostensible owners of the property. It was stated that though the 2nd defendant could not have represented the sub tarwad after 1095 she must be deemed to be the ostensible owner of the property so that persons who acted bona fide would be protected. The real owner of the property was the sub tarwad and no question of ostensible ownership of any one member of the sub tarwad would arise when the decree was not obtained against the sub tarwad.