KRSIHNA PILLAI Vs. SANKARA PILLAI

JUDGEMENT

(1.) This Second Appeal is from concurrent decrees dismissing a suit. As Shri Krishnaswami Iyengar, learned counsel for the appellant confined his arguments to one point, it is not necessary to state the contentions elaborately. The facts as found by the courts below are that the 2nd defendant, a junior member of a Marumakkathayam Tarwad got an assignment of the decree in O. S. No. 462 of 1082 which was obtained by a creditor against the Tarwad and that in execution of the decree she purchased items 1 to 6 in the plaint schedule and got delivery of possession of the same. The plaintiffs case that she was a benamidar for Mathevan Raman, who though a junior member was alleged to have been the de facto manager of the Tarwad, was found against. In view of the concurrent findings, Shri. Krishnaswami Iyengar raised only one point viz., that when a junior member obtains an assignment of a secured decree against the Tarwad and purchases Tarwad properties in execution he should be deemed to have only discharged a debt binding on the tarwad and that he is liable to surrender such properties to the Tarwad on receipt of the amount spent by him, It was urged that the 2nd defendant could not therefore be treated as absolute owner of the properties purchased by her and that the tarwad was entitled to recover possession on payment of the amount for which the properties were sold,

(2.) Shri Krishnaswami Iyengar brought to my notice that this question arose before the High Court of Travancore in Nalla Pillai Parvathi Pillai v. Kanakku Mathevan Ramakrishnan and others (7 TLR App. 46) and that a Division Bench of the court held against the view contended for by him in this case. It was held that a junior member could obtain an assignment of a decree obtained against the tarwad and execute the same. It was however urged on behalf of the appellant that in view of the decision of this court in Krishna Pillai v. Bharathi Amma ( 1957 KLT 732 ), the 2nd defendant should be deemed to be in the position of a junior member who redeems a mortgage of tarwad property, and thereby acquires only a right to continue in possession until his accounts are settled and paid off I do not think that the analogy is applicable. There is nothing either in the customary or Statue Law applicable to Marumakkathayees which prohibits a junior member of a tarwad from obtaining a decree or executing the same against the tarwad. The junior member who redeems a mortgage of Tarwad properties does so only on behalf of the Tarwad and is in the position of one discharging a debt of the Tarwad. Such a junior member is given the benefit of the security which the creditor had. The position here is entirely different. The decree was one validly obtained against the tarwad and in execution of such a decree, properties have been sold and the sale confirmed. The rights of the Tarwad in the properties have thus become totally extinguished and no disability can attach to the auction purchaser by the fact that she is a member of the tarwad. The 2nd defendant cannot be deemed to have obtained assignment of the decree by reason of her status as a member of the tarwad unlike a case where a junior member redeems a mortgage on behalf of the tarwad. In the latter case he is allowed to redeem on behalf of the tarwad because of his position as a member and he holds the property until his claims are settled and paid by the tarwad. The position might be different if the junior member who purchases properties in execution of the decree is manager of the tarwad and he utilises funds belonging to the tarwad for the purchase. The courts below having concurrently found that the 2nd defendant was not a benamidar for Mathevan Raman and that the latter was not in management of the tarwad, it must be held that the 2nd defendant obtained a valid and indefeasible title by the purchase in court sale.

(3.) It may also be pointed out that the contention that the decree was not executable as a member of the tarwad had obtained assignment of the same was not raised in execution. That was the proper stage for raising a plea of this kind, as the contention really is that the decree has been discharged by the assignment. When once the sale has been confirmed it is not open to the tarwad or any member thereof to contend that the auction purchase was on behalf of the plaintiff or his tarwad S.66 of the Code of Civil Procedure is an effective bar to such a suit. The Second Appeal must in these circumstances fail. It is accordingly dismissed with costs.