LAKSHMANAN Vs. KAMAL

JUDGEMENT

(1.) These five civil miscellaneous appeals, which arise out of five applications for re-delivery made under O. XXI, R.100 of the Code of Civil Procedure in the execution proceedings in O.S. No. 65 of 1943 of the court of the Subordinate Judge of Tellicherry, first came before us oh a reference on certain questions of law made by a learned Judge of the High Court of Madras. Four questions were referred by him to the Full Bench, but, atter hearing both sides, we considered that a decision on the last of those questions alone was sufficient for the disposal of four of the civil miscellaneous appeals and that, as a remand was necessary in the fifth to ascertain relevant facts, the other questions need be decided only if the findings of the lower court after the remand required a decision on those questions also for its disposal. Accordingly the learned Chief Justice, who also is a member of this Full Bench, ordered the appeals to be posted again before us for hearing the entire case, as distinguished from the mere questions of law referred; and in pursuance of His Lordships order we have heard the cases again.

(2.) A Mappila marumakkathayam tarwad, known as Aruvampalli Puthiyapurayil tarwad and referred to hereinafter as Aruvampalli tarwad was holding under a kanom demise of the year 1928 certain properties, the jenmom right in which belongs to Kalarivathukkal Devaswam of Chirakkal Kovilakam. On 20-9-1937 the members of Aruvampalli tarwad effected a partition by Ext. B1 under which the tarwad split up into five separate branches or thavazhis. As per the provisions of the partition deed there were to be two joint managers for each of the first three tavazhies, referred to in Ext. B1 as thavazhis Nos. 1, 2 and 3, and one manager for each of the other two thavazhis, namely, thavazhis Nos. 4 and 5. The managers of each of the first three thavazhis were to be the two seniormost male members of that thavazhi and they were to jointly manage all the thavazhi affairs and prosecute all suits in respect of the thavazhi properties. So far as thavazhis Nos. 4 and 5 were concerned, the sole manager of reach thavazhi was to be the seniormost male member of that thavazhi or the seniormost female member if there was no adult male member, and the manager was to manage all the thavazhi affairs and prosecute all suits relating to thavazhi properties. It was also provided in Ext. B1 that management by two joint managers should be continued in the case of thavazhis Nos. 1, 2 and 3 even after the death of the managers appointed by the partition deed for those thavazhies. The provision reads :

(3.) After the above partition, the Chirakkal Kovilakam granted a melkanom to plaintiffs 2 to 8 on 3-1-1943 authorising them to redeem the kanom granted to Aruvampalli tarwad, and then the Kovilakam and plaintiffs 2 to 8 jointly brought O. S. No. 65 of 1943 for redemption of the kanom of 1928 and recovery of possession of the kanom properties. As Aruvampalli tarwad had been split up by Ext. B1 into five separate thavazhis even before the institution of the suit, the managers of the five thavazhis were impleaded therein as defendants 1 to 8 to represent their respective thavazhis. Defendants 1 and 2 were impleaded as managers of thavazhi No. 1, defendants 3 and 4 as managers of thavazhi No. 2, defendants 5 and 6 as managers of thavazhi No. 3, defendant 7 as manager of thavazhi No. 4, and defendant 8 as manager of thavazhi No. 5; and these defendants also filed written statements in the suit in their representative capacity-defendants 1 and 2 as managers of tavazhi No. 1 and representing that thavazhi and so on. The suit was decreed on 7-3-1945 allowing the melkanomdars to recover possession of the properties But before the date of the decree two of the thavazhis, namely, thavazhis Nos. 1 and 4, effected partitions between the members of each thavazhi dividing the properties which it got under Ext. B1. Ext. A1 dated 8-9-1944 is the partition deed executed by the members of thavazhi No. 1 and Ext. A, 16 dated 20-2-1945 is the partition deed in thavazhi No. 4. Before the decree defendants 1, 2 and 6 also died Defendant 2 was the first to die among these defendants, and on his death defendants 42 to 46 were impleaded as his legal representatives Defendant 45 is Adamkutty, brother of defendants 1 and 2, who was the male member in their thavazhi, next in age to them. On defendant 1s death defendants 47 to 51, who are his widow and children, were impleaded as his legal representatives On the death of defendant 6 defendant 52, who is the male member in the thavazhi No. 3 next in age to defendant 6, was impleaded as his legal representative.