SREEDEVI KUTTY Vs. NARAYANASWAMY

JUDGEMENT

(1.) The plaintiff in a suit for recovery of a piece of immovable

(2.) The suit property belonged to Muttathil tarwad. There were three tavazhies in the tarwad. 'For purposes of convenient management and enjoyment of the properties', the three tavazhis entered into an arrangement in 1896 by a document called "Nischayapathram or Karar", under the terms of which the suit property came to the possession of the tavazhi of Padmanabha Menon. The plaintiff was born subsequently in that tavazhi, which will be referred to hereinafter as "the plaintiff's tavazhi". Ramakrishna Iyer, the father of defendants 1 and 2, obtained a decree against Padmanabha Menon in Small Cause Suit No. 1347 of 1907, attached the suit property, brought it to sale in execution and purchased it himself on 7-9-1914. Padmanabha Menon having died, the plaintiff's maternal grandmother, mother and sisters were impleaded to represent the plaintiff's tavazhi before the sale in execution took place. The sale was duly confirmed on 9-10-1914. Ext. B1 is the sale certificate issued to the said Ramakrishna Iyer. Thereafter, Ramakrishna Iyer instituted a suit for possession of the suit property against the plaintiff's tavazhi and their lessee. The plaintiff's tavazhi contended in that suit that they had no saleable interest in the property under the Nischayapathram of 1896, and therefore the plaintiff did not get any right in the property by virtue of his court purchase so as to entitle him to maintain an action for recovery of the property. The case went up in Second Appeal before the High Court of Madras whose judgment is proved in this case as Ext. A2, and is reported in Damodara Menon v. Ramakrishna Iyer ( AIR 1925 Mad. 624 ). It was held therein :

(3.) In 1933, some members of Muttathil tarwad instituted a suit for partition of the tarwad treating the Nischayapathram of 1896 as a maintenance arrangement, and ignoring the court sale in favour of Ramakrishna Iyer. The plaintiff's tavazhi was impleaded as defendants 16 to 24, the plaintiff being the 17th defendant and the present appellant, his sister, being the 18th defendant in that suit. Ramakrishna Iyer, the auction purchaser, was impleaded as the 63rd defendant. The judgment of the Trial Court in that case is proved here as Ext. B3. The learned Subordinate Judge held that the arrangement of 1896 amounted to an outright partition and in that view dismissed the suit. Defendants 25 to 50 appealed to the District Judge, Calicut whose judgment is Ext. A8 in this case. The learned District Judge affirmed the finding that the document of 1896 was a partition and not a mere maintenance arrangement. He however, gave a decree for partition of the properties which were left in common for all the tavazhis by the document of 1896. Defendants 25 to 50 carried the matter in Second Appeal before the High Court of Madras, whose decree is proved as Ext. B6 in this case, and judgment reported in Ammalu Amma v. Vasu Menon ( AIR 1944 Mad. 108 ). The High Court found the Nischayapathram of 1896 to be only a maintenance arrangement not amounting to a partition and therefore passed a preliminary decree for partition of all the properties involved in that suit. The final decree in that case is Ext. Al dated 11-4-1949 as per which the suit property was allotted to the plaintiff's tavazhi. It appears that the plaintiff's tavazhi did not seek to execute that decree. On the other hand, the plaintiff, as representative of his tavazhi, has, in the circumstances mentioned above, instituted this suit for recovery of possession of the suit property with past and future mesne profits from defendants 1 and 2 who are the sons and heirs of Ramakrishna Iyer, and the 3rd defendant who is a lessee of the property under them.