ATTA KOYA Vs. KUNHI SEETHI KOYA

JUDGEMENT

(1.) THIS is a case arising from the Androt h Islan d in the Centrally administered territory of Lakshadweep . It is an unfortunate feature of this case that the matter is being brought up to this court in one form or another for the fifth time and the parties are yet to get a final determination of a" dispute which was brought before court in a suit filed in 1962 as C. S. No 6 of 196 of the Amin's Court. The plaintiff in that suit is the appellant before us. The appellant-plaintiff and one Muthukoya Thangal (1st defendant) belonged to a common tarwad by name Biyyamada tarwad. Originally the said tarwad consisted of three tavazhies, namely, Biyyamada tavazhy, pokkerkathiyammada tavazhy and Monthrappally Padipura tavazhy but the Biyyamada tavazhy had become extinct long ago. The plaintiff has brought the suit as representing the Monthrappally Padipura tavazhy. The 1st defendant Muthukoya Thangal was the sole surviving member of Pokkerkathiyammada tavazhy. By virtue of an arrangement entered into between the members of the two tavazhies there was an allotment of the common tarwad properties amongst the the two branches subject to the stipulation that the properties allotted to any one branch will on extinction of that branch revert to the other branch and that it shall not be competent for the members of either branch to transfer the properties by way of sale, gift or even by way of mortgage for any period exceeding two years. On 27 71960 the 1st defendant Muthukoya Thangal executed a gift deed purporting to transfer in favour of his wife and children defendants Nos. 2 to 8 thirteen items from out of the properties to the share of his branch. Thereupon the plaintiff filed the suit C. S. No. 6011962 in the Amin's Court for a declaration that the gift deed executed by the 1st defendant in favour of defendants Nos. 2 to 8 was invalid and inoperative and that the properties should revert on the death of the 1st defendant to the Mon-tbrappally Padipura branch of the plaintiff. The suit was subsequently transferred to the administrator's Court in accordance with the provision in that behalf contained in the Laccadive Island s and Minicoy regulation, 1912. On 18 91962 the Administrator decreed the suit granting the plaintiff the relief of declaration prayed for in the plaint. That decree was, however, quashed by this High Court in O. P. No. 29 of 1963 filed by the 1st defendant. This court held that the procedure followed by the Administrator in deciding the suit without the aid of assessors was contrary to the mandatory provisions contained in the Regulation. On that ground that decision of the administrator was set aside by this High Court and the suit was remanded to him for fresh trial. After remand, the suit was renumbered as O. S. No. 2 of 1964 in the Administrator's Court. It was again decreed by the Administrator in favour of the plaintiff on 4th April, 1965. Ext. B3 is a copy of that judgment. In the meantime, after the fresh trial of the suit had been closed and before the date of pronouncement of the judgment Muthukoya Thangal (1st defendant) had died on 1st April, 1965. It would appear that on 4 41965 the plaintiff filed a petition before the Administrator making mention of the fact that Muthkkoya thangal had died on 1st April, 1965 and requesting that in view of the said development it should be declared that the properties comprised in the suit had reverted to the plaintiff's tavazhy on the death of Muthukoya Thangal. On the same day (4th April, 1965) the Administrator pronounced judgment declaring that the plaint schedule properties are tarward properties of the Pokkerkathiyammada branch, that the 1st defendant bad no independent alienable right over those properties, that the properties should revert on the death of the 1st defendant to the Monthrappally Padipura branch of the plaintiff, and that the impugned gift deed executed by the 1st defendant in favour of his wife and children was null and void. The subject-matter of the suit consisted of only thirteen items covered by the gift deed dated 27 71960 executed by the 1st defendant in favour of his wife and children (defendants Nos. 2 to 8), the validity of which was challenged by the plaintiff During the pendency of the suit the 1st defendant had purported to transfer in favour of defendants Nos. 2 to 8 twenty more items of properties by an unregistered gift deed dated 14th March, 1964 After the suit was decreed in his favour by the Administrator as per he judgment Ext. B3, the plaintiff filed a petition dated 5th April, 1965 before the Tahsildar of the Androth Island, who was also the Inspecting Officer for the Island requesting that the legal representatives of Muthukoya Thangal-defendants Nos. 2 to 8-should be restrained from entering into the properties which were the subject matter of the suit O. S. No. 2 of 1964 as well as the twenty other items belonging to the Pokkerkathiyammada branch and in respect of which the deceased muthukoya Thangal had purported to create another document of gift. There was a further prayer in that petition that either the petitioner should be permitted to enter into possession of all those properties or in the alternative that the properties should be committed to the custody of a third party so that pending final disposal of the matter the properties as well as the profits thereof maybe preserved. Ext. B6 is a copy of that petition. It is seen from the averments contained in the petition Ext. B6 that even though it was filed by the plaintiff only on 5 41965 the plaintiff was unaware of the fact that the administrator had decreed the suit on the previous day and the prayer contained in the petition was that the defendants should be restrained from entering into the properties that formed the subject-matter of the suit which was pending decision before the Administrator. On 5-4-1965 itself the Tahsildar passed orders on that petition to the effect that in respect of the properties comprised in the suit pending in the Administrator's court the plaintiff should move the Administrator for getting appropriate reliefs. It was further ordered by the Tahsildar that since there was dispute between the parties regarding the validity of the unregistered gift deed executed by Muthukoya on 14 31964 neither the petitioner (plaintiff) nor the counter-petitioners (defendants Nos. 2 to 8) should enter into the twenty items of properties covered by that document which did not form the subject-matter of O. S. No. 2 of 1964 and that they should be taken into Government custody. Accordingly the twenty items included in the unregistered gift deed dated 14 3 1964 were taken into government custody.

(2.) AGAINST the decision rendered by the Administrator in o. S. No. 2 of 1964 the defendants came up to this court by filing O. P. No. 1630 of 1965 under Art. 226 of the Constitution seeking to quash the order passed by the Administrator. That writ petition was dismissed by a learned single judge of this court on 1st November, 1966 on the preliminary ground that the original petition was not maintainable since the decision of the administrator was that of a civil court. Though a writ appeal (W. A. No. 5 of 1967) was preferred by the defendants against the said judgment the decision of the learned single judge was confirmed by a Division Bench. Thereafter an appeal was filed by the defendants before this court as C. M. A. No. 150 of 1967 calling in question the decree passed by the Administrator in O. S. No. 2 of 1964 under S. 26 of Regulation.) of 1912. That appeal was allowed by a Division bench by judgment dated 19th February, 1969 whereby the decision of the administrator was set aside and the suit was remanded for fresh trial and disposal by the court competent to try it under S. 25 (2) of the Laccadive, minicoy and Amindivi Islands (Civil Courts) Regulation, 1965-Regulation 9 of 1965-which came into force on 1111969. Since the valuation of the suit was admittedly above Rs. 5000 the court competent to try under Regulation. 9 of 1965 was the newly constituted Subordinate Judge's Court for Laccadive and Minicoy islands at Kavaratty which had been established by that time. Accordingly the subordinate Judge's Court at Kavaratty took the remanded suit on its file, tried it afresh and ultimately dismissed it by judgment dated 151970. The plaintiff preferred an appeal to this High Court against the said judgment of the Subordinate Judge but that appeal (C. M. A. 66 of 1970) was dismissed by this court on 3rd November, 1971.

(3.) AFTER the decision of the Administrator was set aside by the High Court by the judgment dated 19 2 1969 in CMA. No. 150 of 1967 the defendants filed E. P. No. 13 of 1969 in the Munsiff's Court at Androth Island under S. 144 of the Civil Procedure Code, praying that all the thirty three items should be re-delivered to them by way of restitution in view of the reversal of the Amin's decision by the judgment of the High Court. In that application which was filed on 5-4-1969 the Munsiff by an order dated 7th april, 1969 directed the issue of notice to the respondent. On receipt of notice the respondent appeared in person before the Munsiff on 10-4-1969. He was directed by the Munsiff to file his counter on the next day 11-4-1969 and the case was finally heard on 11th April itself On 15-4-1969 the Munsiff passed orders directing restitution by re-delivery of all the thirty three items to the defendants with mesne profits at the rate of Rs. 3000/- per year. Pursuant thereto re-delivery was promptly effected. An appeal filed by the plaintiff before the Subordinate Judge's Court complaining against the summary way in which the application for restitution had been disposed of by the Munsiff without even affording a reasonable opportunity to the plaintiff to put forward all his objections was dismissed by the Subordinate Judge. Thereupon the plaintiff filed a second appeal-S. A. No. 1119 of 1969-before this court challenging the orders passed by the courts below. That second appeal was allowed by a learned single judge of this court by judgment dated 23rd October, 1970. This court found that the Munsiff had acted with undue haste in disposing of the petition for re-delivery without affording sufficient opportunity to the plaintiff to get legal advice and to put forward his objections after obtaining professional assistance. It was held that the hurry displayed by the Munsiff had resulted in denying to the plaintiff-appellant a reasonable opportunity to present his contentions before the court and that the principles of natural justice had been violated. This court took note of the fact that the appellant had put forward before the Subordinate Judge's Court as well as in the second appeal various contentions raising inter alia questions as to the competence of the Munsiff's Court to entertain the petition for restitution, whether the plaintiff had come into possession of the thirty three items of properties by a delivery effected in execution of the decree passed by the Administrator in O. S. No. 2 of 1964 wherein only a declaratory decree had been passed in respect of items 1 to 13 alone and whether the prayer for restitution under S. 144, CPC. was at all maintainable. Since none of these points had been properly considered by the lower courts this court allowed the second appeal, set aside the orders of both the lower courts and remanded the petition E. P. No. 13 of 1969 to the Munsiff's Court for fresh disposal after giving an opportunity to both sides to engage counsel and to lead evidence. There was also a direction in the judgment of this court that the appellant should deposit in this court rs. 2,500/-on or before 15-12-1970 as evidence of his bona fides and the remand of the case was made conditional on compliance by the appellant with the said condition. The appellant duly complied with the aforesaid condition and an endorsement to that effect was made in the judgment issued from this court.