BHARGAVI AMMA Vs. SANTHAKUMAR

JUDGEMENT

(1.) THE 1st defendant has preferred this appeal from a decree in a suit to set aside a summary order. THE suit property belonged to the sub-tarwad of the 1st defendant. THEre was a partition in the sub-tarwad and the suit property was allotted to the 1st defendant. THE property was outstanding on a mortgage in favour of the tarwad of the plaintiff and the 2nd defendant from 1094 onwards. THE 2nd defendant is the mother of the plaintiff under the partition in that tarwad the mortgage right was allotted to the 2nd defendant's branch. THE 1st defendant filed a suit for redemption of the mortgage in O. S. 1068/1121 and a decree for redemption was passed on 16 61124. Ext. D is the copy of that decree. THE 2nd defendant was impleaded in that suit as the karnavathi of the sub-tarwad. THE plaintiff had not attained majority on the date of the institution of the suit, and therefore he was not made a party to the suit. In the execution of that decree the plaintiff filed a petition obstructing to the delivery of the property on the ground that he had attained majority and had become the karnavan of the sub-tarwad during the pendency of the suit, that he was not made a party to the suit, and that as he was the karnavan when the decree was passed, the decree was not binding on the sub-tarwad. THE execution court dismissed the obstruction petition. It was to set aside that order that the present suit was filed.

(2.) BOTH the courts below have come to the conclusion that the decree was not binding on the sub-tarwad of the plaintiff for the reason that it was not obtained in conformity with the provisions of S. 27 of the ezhava Act. The courts below have relied on the ruling reported in Rajappan pillai v. Bhoothalingam Pillai (1954 KLT. 755) in support of their conclusion. In that case it was held by Govinda Pillai, J. that if a person became the karnavan of the tarwad during the pendency of a suit against the tarwad, the nonirnpleading of that person as a party to the suit would vitiate the decree and render it void as against the tarwad. Mr. Narayanan Potti appearing for the appellant submitted that the ruling requires reconsideration. His argument was that when a karnavan is impleaded in a suit to represent the tarwad, the suit will not abate even if he is removed from that office or otherwise ceases to hold the karnavanship during the pendency of the suit, and that it is the duty of the person who becomes the karnavan to get himself impleaded, and that if he does not do so, the decree would nevertheless be valid. If a person is impleaded in a suit in a representative capacity, and if during the pendency of the suit he ceases to fill that character, the decree with him on record would nevertheless be valid and binding. In the case of a devolution of interest during the pendency of a suit, the person upon whom the interest has devolved can, with the leave of the court prosecute or defend the suit, and if that person does not come forward and get himself impleaded in the suit, a decree passed would not be open to attack. A person holding the office of a trustee and defending a suit on behalf of the trust, does not become incompetent to represent the trust merely because he ceased to hold office during the pendency of the suit. And even if the person upon whom the office of the trustee has devolved during the pendency of the suit is not impleaded as a party to the suit by the plaintiff, the decree would nevertheless bind the trust. In Sekhara menon v. Narayanan (AIR. 1930 Madras 881) where an appeal was prosecuted against a temple represented by all the Ooralers of it, and one of them died, the fact that the legal representatives of the deceased Ooralen was not made a party was not considered as fatal to the validity of the decree. In this case the suit was properly laid against the sub-tarwad. The plaintiff was a minor on the date of that suit, and the 2nd defendant was the karnavathi, and she was impleaded in that capacity in the suit. She ceased to be the karnavathi when plaintiff, the senior most male member in the sub-tarwad attained majority during the pendency of the suit. This, I think, is a case of devolution of an interest during the pendency of the suit. And if the plaintiff did not come forward to get himself impleaded in that suit, the decree passed with the 2nd defendant on record as karnavathi would bind the tarwad. But it was argued for the respondent that this conclusion ought not to follow in view of the plain language of S. 27 of the Ezhava Act. S. 27 is in the following terms: "no decree shall bind a tarwad, unless it is obtained against the karnavan as such and the senior Anandaravan of his thavazhee and of every Thavazhee collateral to the same, if any. "

(3.) BUT construing the section in the light of the relevant provisions of the Civil Procedure Code, I am inclined to think that the legislature could have intended only that the suit or the other proceedings which resulted in the decree, should be laid against the persons mentioned in the section, and that the subsequent proceedings therein should be governed by the provisions of the Civil Procedure Code. I would set aside the decrees of the courts below and hold that the decree in O. S. 1068/1121 was binding on the sub-tarwad of the plaintiff. If that be so, the plaintiff's suit has to be dismissed. In the result, the decrees of the courts below are set aside, and the appeal is allowed. In the circumstances, I make no order as to costs. Allowed.