DEVAKI Vs. SHRI M V KUMARAN

JUDGEMENT

(1.) These two Second Appeals were heard together as they raised a common question. The defendants are the appellants in Second Appeal No. 743 of 1973 and the sole plaintiff is the appellant in the other Second Appeal. We shall first state the facts of Second Appeal No. 43 of 1973. It arises out of a suit for recovery of possession of the A schedule immovable property and B schedule movables, which belonged to the tarwad of the plaintiff and the defendants. The plaintiff was the karnavan of the tarwad, and the defendants are the wife and children of the previous karnavan, one Gopalan who died on 19th August 1965. The courts below held that the A schedule property belonged to the tarwad and granted a decree for recovery of possession: As far as the B schedule is concerned the tarwad's title was found against, and the suit, in so far as it related to the movables, was dismissed.

(2.) Second Appeal No. 1145 of 1973 arises out of a suit by the same karnavan of the tarwad against a son of Gopalan. It was for recovery of possession of an item of property, in respect of which the son claimed a leasehold right under an oral arrangement, later confirmed by the execution of a registered marupat, Ext. A-1, dated 9th October 1956. Both the courts below found against the oral arrangement set up. They also found that no possession passed to the defendant under the registered marupat Ext. A-1, and that the defendant was not entitled to set up any leasehold right on the basis of the said document. Nevertheless, the suit was dismissed on the ground that the defendant was a coowner with the other members of the tarwad, and therefore entitled to remain in possession, and that a suit for recovery of possession against him cannot succeed. The unsuccessful plaintiff in the suit has filed the Second Appeal.

(3.) In both these appeals, on behalf of the defendants in the suits, the argument was that subsequent to the passing of the Hindu Succession Act, 1956 (Act 30 of 1956), there has been a devolution of interest of the deceased karnavan Gopalan on his personal representatives and that therefore they were coowners with the rest of the members of the tarwad. Being so, it was contended that a suit for recovery of possession against them or any of them cannot succeed. S.7(1) of the Hindu Succession Act reads: