KESAVA PILLAI Vs. GOVINDAN NAIR

JUDGEMENT

(1.) THE sole question for determination in this appeal would sound strange and it is whether the decree in O. S. No. 41 of 1117 on the file of the court below which was reversed by the High Court in A. S. 741 of 1119 is nevertheless available for execution. THE facts are these: THE suit was brought by the karnavan of a Nair tarwad as the first and his senior anandiravan as the second plaintiff for declaration of their tarwad's title to and recovery of possession by redemption of certain items of immovable property. THE suit was resisted by defendants 1 and 4 who claimed the property as belonging to their tarwad (defendants 1 to 37) and not liable to be redeemed for the said and other reasons set out in their written statements. THE first plaintiff died during the pendency of the suit and the second, the succeeding karnavan, continued it and obtained a decree in his favour, having meanwhile got the 38th defendant (the next senior anandiravan) impleaded as the legal representative of the deceased karnavan besides himself, a curious procedure whose only consequence is this unnecessary and vexatious proceeding in execution of a defunct decree as the sequel will show. THE defeated contestants appealed to the High Court (A. S. No. 741 of 1119) impleading the surviving plaintiff the decree-holder, as the first and the 38th defendant as the second respondents unaware of the latter's death. On discovery of that fact the appellants applied to the High Court stating that the suit was brought on behalf of the tarwad of the plaintiffs and that the first respondent is the legal representative of the deceased and can effectually represent the tarwad, there being no other person to be impleaded in the place of the second respondent and praying that it may be so recorded (C. M. P. No. 931 of 1120 ). THE high Court passed and order 'recorded' thereon accordingly. THE appeal succeeded. THE High Court set aside the decree appealed against and dismissed the suit with costs in both the courts.

(2.) THE appellants applied to execute the decree for costs personally against the respondent. His next senior anandiravan applied for execution of the decree of the District Court in favour of the tarwad on the basis that the appellate decree should be regarded as void as the tarwad was not the respondent, the only person impleaded having been the karnavan. Alleging default of the karnavan to execute the decree on behalf of the tarwad owing to his embarrassment as party to the appeal and as the person liable for costs, the junior anandiravan filed the application for execution showing the names of both the original plaintiffs, noting the first as dead, in the column allotted therefor, with his own name as petitioner who alone signed the petition. THE second plaintiff has not signed it nor does it appear to have been meant for his signature. Having been shown as a plaintiff the karnavan was not arrayed as a defendant as he could not be, for the same person cannot both the plaintiff and defendant, even in different capacities. THE 4th defendant contended that there was no decree for execution, the one sought to be executed having been reversed in appeal. THE court below accepted the plea and dismissed the petition for execution. THE appeal challenges that order.

(3.) MARUMAKKATHAYAM is customary law. The first legislative interference with it was by Travancore Act I/1088 which does not purport to be a complete Code as it was meant only to define and amend the law of marriage, succession and family management. The last and 26th section of the act saved the operation of the rest of the law by enacting in its second clause that: "nothing in this section shall 1. x x x x x x x x x 2. affect the existing rules of marumakkathayam law, custom or usage except to the extent hereinbefore provided for" and the provision relevant to the context is the 25th section which enacted that: "no decree shall bind a tarwad unless it be obtained in a suit against the karnavan as such and the senior anandiravan of his thavazhi and of every thavazhi collateral to the same if any. " The Cochin Legislature followed, and brought on the statute Book the Cochin Nayar Act, XXII/1095, enacting the 53rd section in terms of the 26th section of the Travancore Act but slightly departing from the terms of the 25th section of that Act in S. 32 which reads: "no decree shall bind a tarwad unless it be obtained in a suit against the karnavan as such and all the members of the tarwad". In Travancore the law was re-enacted by Act II/1100 and in Cochin by Act, XXIV/1113. The applicability of the pre-existing marumakkathayam law was saved as before by Ss. 44 (a) and 74 (b) of the respective new Acts in the same terms as in the repealed ones. S. 31 of the travancore Act has been read. The corresponding section in the amended Cochin act is 56 which provides that: "no decree shall bind a tarwad unless it be obtained against all the members thereof. But the mere omission to implead any member other than the karnavan shall not be taken to invalidate it if the decree-holder proves that such omission was not due to his negligence and the tarwad was liable for the claim upon which it is based. " In the Cochin Namboodiri Act, XVII of 1114, S. 12 is in the same words. The Cochin MARUMAKKATHAYAM Act XXIII of 1113 which applies to marumakkathayees who are not Nairs provided for this matter in S. 36 thus: "in a suit against the tarwad, all the major members thereof should be made parties. But the omission to implead any member other than the karnavan as such shall not by itself invalidate a decree obtained against the tarwad if it is otherwise shown to be one properly binding on it. "