GOTHARU NAMBOODIRIPAD Vs. OUSEPH ANTHRAYOSE

JUDGEMENT

(1.) The respondents in the two appeals are holders of two decrees for money obtained against the assets of Jathavedan Namboodiripad. On his death, during the pendency of the suit, the present appellant, who is a junior member of his illom was impleaded as the 6th defendant. The right of Jathavedan Namboodiripad under a mortgage in his name evidenced by Ext. I dated the 17th Mithunam, 1094, was attached in execution of the two decrees, when the appellant preferred claims on the ground, that it belonged to his illom. The claims were rejected by the execution court as well as by the lower appellate court. Both the courts below have held that the mortgage right did not enure to the illom, but belonged exclusively to Jathavedan Namboodiripad.

(2.) The material finding being concurrently against the appellant, his learned counsel pressed the contention, that the presumption of law in respect of an acquisition standing in the name of a member of the illom, has not been given effect to by the lower courts. I am satisfied, that this contention cannot be sustained.

(3.) On the 7th Vrichigom 1092 an udampadi was executed by the members of the illom, by which Jathavedan Namboodiripad was authorised to manage illom properties in specified desavazhies in the former Travancore State, while Tharathan Namboodiripad, also a member of the illom, was authorised to manage the properties in the former Cochin State as well as in one of the desavazhies of the former Travancore State. On the strength of this, it was contended, that Jathavedan Namboodiripad was constituted a manager of the illom in respect of the properties committed to him. The next step in the argument was, that he had sufficient nucleus in his hands, out of which the mortgage right under Ext. I could have been acquired for a consideration of Rs. 1,950/-. The law as regards the presumption applicable to acquisitions in such cases, has been authoritatively laid down by the Supreme Court in Sreenivas Krishna Rao Kango v. Narayan Devji Kango, AIR 1954 SC 379 , and it is unnecessary to refer to other cases decided by the Travancore-Cochin High Court, which were also cited at the Bar. The law has been stated by the Supreme Court in the aforesaid case, in these terms: