PADMANABHAN NAIR Vs. VASUDEVAN NAIR

JUDGEMENT

(1.) THE present second appeal arises out of a suit filed by the plaintiff for a declaration that the proceedings connected with O. S. No. 999 of 1112, District Munsiff's Court, Sherthalai, and the other delivery proceedings which resulted in consequence of that decree, are not valid and binding as against the plaintiff. In consequence, the plaintiff prayed for recovery of possession of the properties and also claimed mesne profits.

(2.) THE suit was contested on the ground that the decree obtained in O. S. 999 of 1112 was really against the tarwad of the defendants and also proceedings were properly taken as against the plaint properties which were admittedly tarwad properties and, therefore, the decree and other proceedings are valid and binding as against the present plaintiff. THE trial court accepted the contentions of the first defendant that the relief asked for in O. S. 999 of 1112 was in substance against the tarwad properties and the persons competent to represent the tarwad, namely, the karanavan and the senior anandiravan, as required under S. 31 of the Nair Act, were on the party array. THE trial court also considered the various recitals in the plaint and came to the conclusion that the suit itself as framed was in substance only as against the tarwad of the defendants and its properties. In this view, the trial court dismissed the suit holding that the proceedings challenged by the plaintiff are binding on him.

(3.) THE first defendant has filed this appeal and on his behalf Mr. M. Madhavan Nair, learned counsel, has contended that though the learned Subordinate Judge has correctly set out the position under S. 31 of the nair Act of 1100, he has really misconstrued the plaint. THE learned counsel has taken me through the various statements contained in the plaint, Ext. A. Mr. Madhavan Nair has fairly and frankly stated that the word 'tarwad' is not mentioned in the plaint. THE plaint could have been more scientifically or more clearly drafted. But, according to the learned counsel, the whole tenor of the plaint will clearly show that the relief asked for is against the tarwad and the properties of the tarwad. On the other hand, Mr. Varghese, learned counsel appearing for the plaintiff, contended that the first defendant, as plaintiff in O. S. 999 of 1112, has only proceeded on the basis that defendants 1, 2 and 3 in that litigation, who are defendants 3 to 5 in the present proceedings are solely entitled to the properties and therefore there was never a tarwad in the contemplation of the plaintiff therein nor did he ask for any relief against the tarwad as such. This assumes importance, according to the learned counsel, because the plaintiff is also a member of the tarwad and if the decree is not passed against the tarwad as such it could not be executed against the properties of the tarwad in which he is interested as a member of the tarwad.