GOPALAN NAIR Vs. KARTHIYANI AMMA

JUDGEMENT

(1.) The plaintiffs are the appellants. They were members of an undivided Nair tarwad, which became split into several branches by the partition deed Ext. A of 1st Mithunam 1102. The plaint properties were obtained by the plaintiff's branch. The common Karnavan of the plaintiffs' branched had executed a chitty hypothecation bond pledging the plaint properties to the predecessor in interest of the 2nd defendant. It was directed in Ext. A that this debt should be discharged by a branch collateral to that of the plaintiffs. The information of the plaintiffs was that the debt had been discharged by that branch. The 2nd defendant as the plaintiff, filed a suit O.S. 307 of 1109 in the Munsiff's court, Thiruvella for the amount due under that bond. He purchased the plaint schedule properties along with other properties on 17.6.1115 in execution of the decree in that suit. The decree in that case, Ext. B, was not valid and binding on the plaintiff's branch, as the Karnavan and the senior Anandaravan of the plaintiff's branch had not been impleaded in that case, as provided for in S.31 of the Nair Act. The decree and the execution proceedings were, therefore, sought to be set aside.

(2.) The auction purchaser in execution of the decree Ext. B, in O.S. 307 of 1109 is the 1st defendant and her contention was that she was not aware of Ext. A partition deed of 1102. The hypothecation bond, which was the subject matter of Ext. B decree, had been executed by the common Karnavan of the tarwad. It was also contended that the debt was binding on the whole tarwad, that the decree Ext. B, was obtained against the common Karnavan and the senior member of every Thavazhi in the tarwad, that the said decree and execution proceedings, were, therefore, valid and binding on the plaintiffs and their branch, that the creditor was not to take into account any partition deed effected in the tarwad of the debtor as long as the debtor continued to be the common tarwad, that this debt was acknowledged to be a tarwad debt in the partition deed of 1102 and that the decree and the execution proceedings were, therefore, valid, and regular and not liable to be set aside. The suit, which was brought in 1118 to set aside the execution sale held in 1115, was contended to be barred by limitation.

(3.) The courts below have concurrently found that Ext. B decree and the proceedings taken out in execution were not liable to be set aside, that Ext. B decree was binding on the tarwad of the plaintiffs, that the same had been obtained in conformity with the provisions of S.31 of the Nair Act, and that the plaintiffs were not entitled to any relief. The Trial Court held that the suit was not barred by limitation whereas the lower appellate court took a different view, that, as the suit was filed more than one year after the execution sale, it was barred under Art. 9 of the Limitation Act.