NARAYANAN Vs. GOVINDAN

JUDGEMENT

(1.) THE plaintiff-decree-holder is the appellant, and the matter arises in execution of the decree obtained by the plaintiff. THE suit was on a hypothecation bond and a Purakkadam deed executed by defendants 1 to 3, 7 and 8 in favour of the plaintiff. THE defendants are according to both parties Thandans (tree climbers) governed by the ordinary Marumakkathayam law. Defendants 4 to 6, 9 and 10 are other members of that tarwad. Another executant of this document was one Velayudhan Krishnan a deceased Karnavan of the tarwad. At the time of the suit the 1st defendant was the Karnavan and the plaintiff prayed for a decree against the executants 1 to 3, 7 and 8, the hypothecated items which admittedly belonged to the tarwad, and against the assets of the deceased velayudhan Krishnan. A decree was passed in terms of the plaint in spite of the contest by the 6th defendant that the hypothecation bond and Purakkadam deed were not supported by consideration and tarwad necessity. THE decree-holder executed the decree and purchased the hypotheca in court auction. THE entire amount due under the decree was not realised thereby and so he attached other properties belonging to the tarwad. When he proceeded to sell those properties, the 10th defendant raised an objection that since the decree was not against the tarwad assets, the execution against properties other than the Hypotheca was not to be allowed. This contention found favour with the execution court and the appellate court and hence this appeal by the decree-holder to vacate those orders.

(2.) THE only question for consideration is whether the decree-holder can proceed against other tarwad properties. As there is no specific decree against the assets of the tarwad the decree is allowed to be executed against defendants 1 to 3, 7 and 8. Of these, the 1st defendant is the karnavan of the tarwad. THE tarwad was represented by the 1st defendant and a personal decree against defendants 1 to 3, 7 and 8 was given because they were the executants of the document. Ordinarily, a decree against the Karnavan of a malabar tarwad binds the other members. THE only exception recognised by judicial pronouncements where the decree will not be binding on the tarwad is when the junior members show that the decree was obtained by fraud or collusion. THE decisions of the Travancore High Court in Valli Narayani v. Chakki Kochupennoo (1 T. L. R. 83), Mathevan Velumpan v. Mathevan Kunjan (4 t. L. R. 42), Narayanan Raman v. Kumaran Raman (8 T. L. R. 62 F. B.) and Atchuthan v. Palavesom (18 T. L. R. 20) are all in point. If a decree against the Karnavan alone is binding on the tarwad it is difficult to understand the position taken by the courts below why a decree against all the members of the tarwad will not bind their tarwad. It is true that the decree does not say that the decree-holder can realise the decree amount from the assets of the tarwad other than the hypothecated properties. THE hypothecated properties belonged to the tarwad and the basis for proceeding against those properties would be that the decree passed was against the tarwad and not against any particular item of properties belonging to the tarwad. A similar case came up for consideration before the Travancore High Court in Neelakandan Kesavan v. Krishnan Velayudhan (10 T. L. R. 62 ). It was held there that a decree passed on a mortgage, against the Karnavan of a Marumakkathayam tarwad personally and against the property mortgaged may be executed against that property as well as any other property of the tarwad, and that a sale of such other property under such decree is valid unless the decree is proved to have been fraudulently obtained.