SIVARAMA KONAR Vs. THIRUVADINATHA PILLAI

JUDGEMENT

(1.) THESE two appeals arise out of two connected suits o. S. 49 of 1124 and O. S. 247 of 1124 of the District Court of Trivandrum. A. S. 339 of 1953 is the appeal from the former suit and A. S. 543 of 1953 from the latter. The circumstances leading to these appeals are as follows:

(2.) THE two suits were jointly tried by the lower court and the leading judgment is the one in O. S. 49 of 1124. Both the suits are for redemption of identical properties mentioned in the plaints. THEy belonged to kadavoor alias Kottarathu Matom, being a family of Oonnies and were outstanding on mortgage and Purakkadoms in favour of the 2nd defendant Lakshmi Pillay, whose rights passed to the 1st defendant Sivarama Konar (being the 2nd defendant in O. S. 247 of 1124 ). (THE reference to parties and Exhibits are those in the leading case when not otherwise indicated ). On 8. 6. 1123, the karnavan of the Matom executed a sale deed in favour of the plaintiff thiruvadinatha Pillai (being the 3rd defendant in O. S. 247 of 1124), the consideration being mentioned as Rs. 5000. Only the Karnavan Sankararu was a party to it. Thiruvadinatha Pillai obtained consent deeds executed by some of the other members of the Matom in support of the sale deed, they being filed as exts. E to G. On 18. 3. 1124 Sankararu and the seniormost Anandaravan, govindararu executed another sale deed covering the identical properties in favour of the 3rd defendant Chidambarathanu Pillai, (being the plaintiff in o. S. 247 of 1124) the consideration mentioned being Rs. 12,500. Ext. K is the copy of it (Ext. B in O. S. 247 of 1124 being the original ). THEre it was stated that the sale was in pursuance of an agreement executed on 15. 12. 1122. THE said alleged agreement is filed as Ext. A (O. S. 247 of 1124 ). After Ext. K, the 3rd defendant obtained Exts. L, M, N, O and P from the rest of the members of the family by way of consent deeds. It may also be mentioned that in Ext. K there is a reference that the assignment in favour of plaintiff as per Ext. D was caused to be executed due to misrepresentation on the part of the executee and was unsupported by consideration. Thus there were two sale deeds with regard to the plaint schedule properties executed on behalf of the Matom. Plaintiff filed his suit for redemption claiming his right under Ext. D on 18. 8. 1124. He claimed damages for waste also.

(3.) WE will first of all consider the contention raised on behalf of the 3rd defendant that the plaintiff cannot claim any right on the basis of Ext. D because the said deed was not executed with the consent of all the adult members of the Matom. The finding of the lower court that Kottarathu matom family are followers of Marumakkathayam law is not now challenged. So ext. D is with regard to the properties belonging to a Marumakkathayee family. It was executed only by the karnavan. The properties are clearly described as ancestral properties. Thus the tarwad character is pointed out. So the mere fact that there is a statement that it was the executor's right that were purported to be transferred does not affect the nature of the deed. The deed was clearly executed purporting to be on behalf of the family. What is to be considered now is as to whether the 3rd defendant can question the legality of that deed. His counsel pointed out that in a Marumakkathayam family, the karnavan has got no right to execute a deed like that binding the family properties without the consent of other members and hence the party claiming under Ext. D which is only by the Karnavan cannot contend that equity of redemption is vested in him. Katutha Krishnan v. Thirian Ayppu, 6 TLR 49, chirian Geevareeth v. Narayanan Raman, 7 TLR 159 Antony Meyyal v. Kanakku arumukham Peruman, 6 TLJ 474, were cited as authorities in support of the position that a karnavan by himself cannot alienate properties of a marumakkathayam tarwad without the consent express or implied of the other adult members. This proposition cannot be controverted. In 6 TLJ 474, the Law on that point is summarised in Para. 5 of the judgment. But all these cases deal with the right of a junior member of the family to question such alienations affecting his tarwad properties. But here it is a stranger that seeks to question the validity of a document on the basis that it was without the assent of other adult members of the family. In decisions of this Court following earlier cases, it has been held as pointed out by the counsel for the plaintiff that the principle that the validity of deeds executed by Karnavans without the consent of other adult members can be challenged, has been laid down only for the benefit of the members of the tarwad and not for the benefit of the strangers to the family. Thus in Ayidrose v. Abdul Kadir,1952 KLT 695, the question arose as to whether strangers to an Ezhava tarwad can question the validity of a mortgage executed by some members on the ground that it offended the provisions of S. 22 of the Ezhava Act III of 1100 (Travancore ). Following the earlier decisions of the Travancore Cochin High Court, it was held that the stranger cannot raise such an objection. The following observations in Para. 4 of the judgment may be pointed out:- "o. S. 626 of 1112 was dismissed on the ground that ext. A superior mortgage taken by the plaintiff from the original mortgagor's tarwad was void. The ground alleged was that all the adult members of that tarwad had not joined in executing the Mellotti. What S. 22 of the Ezhava Act would provide was that the mortgage with possession, or lease with premium for a period of twelve years or less, would be valid only if it was executed for consideration and tarwad necessity and with the consent of all the major members of the tarwad. The previous section which dealt with the sale or mortgage with possession of lease for more than twelve years provided that the consent must be in writing. But, under S. 22, the members of the tarwad need not express their consent in writing. Besides, the 1st defendant who was a stranger to the tarwad could not raise this contention and the law on the point is also well settled. It is admitted that the karnavan of the mortgagor's tarwad is a party to the deed. A similar case came up for consideration in Krishna Panicker v. Bhargavi Amma (29 TLJ 1375) and it was held that as the karnavan had executed the deed and as he represented the tarwad so far as the outside world was concerned, it had to be taken that the sale deed impeached in that case was executed by competent persons and that a stranger to the tarwad could not invoke the provisions of S. 25 of the Nair Act which was in force then, to defeat a purchaser whose right would be indefeasible in the absence of those provisions. That was the dictum laid down in an earlier case Krishnan Krishnan v. Raman Nilakantan (4 TLJ 134 ). The above S. 25 of the Nair Act corresponds to s. 22 of the Ezhava Act. The corresponding provisions in the Marumakkathayam Act of the Cochin State had also come up for consideration and it was held that the strangers to the tarwad were incompetent to question the validity of transactions entered into by the tarwad or by some members of the tarwad including the karnavan. Velayudhan Nair v. Balakrishna Menon (37 CLR 556), Pareeth v. Alavi (37 CLR 96), Meera Rawther v. Kamakshi Amma (15 CLR 143) and Muthukumaraswami v. Kuppuswami (15 CLR 244) lay down these general principles. " This decision has been followed in Mangu v. Narayanan nair, AIR 1953 TC 269 and Damodaran v. Kunju, 1955 KLT 896. So it is clear that the 3rd defendant cannot contend that Ext. D is a void document on the ground that consent of other members has not been proved. Its validity can be questioned only by the other members of the family. Thus he cannot resist the plaintiff's claim on this ground. The mortgagee's position also is the same. Though he can ask the plaintiff in a redemption suit to prove how he traces his right to the mortgagor, still he cannot challenge the validity of an assignment purporting to transfer the mortgagor's right in favour of the plaintiff on the ground in question here. Anna v. Mathai, 30 TLJ 415, relied upon by the counsel for the mortgagee only goes to support the position that "a mortgagee is entitled to put the person who by virtue of derivative title from the mortgagor comes forward to redeem him to the proof of his right. " So the contention that redemption cannot be claimed on the basis of Ext. D because it is executed only by the karnavan of the family cannot stand as rightly held by the lower court.