PARAMESWARA KURUP Vs. OUSEPH

JUDGEMENT

(1.) THE appellant in this second appeal filed an application under S. 11 (2) of Act XXXI of 1958 for recovery of possession of the plaint property outstanding on Otti and puravaippa evidenced by Ext. P2 dated 18-8-1053 and Ext. P3 dated 4-2-1064. THE appellant was a junior member of the tarwad to whom the property belonged and Exts. P2 and P3 were executed by the karanavan of the tarwad. THEre was a partition of the tarwad properties evidenced by Ext. D10 on 12-4-1101. THE appellant claims that the property covered by Exts. P2 and P3 had devolved on him, the 2nd respondent and the father of respondents 3 and 4 on the terms of Ext. D10. THE. 1st respondent raised a contention that the father of respondents 3 and 4 has executed Ext. D4 in respect of his interest in the equity of redemption in favour of the transferees thereunder benami for him. His contention was disputed by the appellant. THE trial Court found that the 1st respondent is not the beneficial owner under Ext. D4. This finding has not been disturbed by the appellate judge. THE position therefore is that the 1st respondent is not in any way interested in the equity of redemption in the property. Ext. D4 is prior to the institution of the proceedings under S. 11, and the transferees under Ext. D4 have not been impleaded in the application filed Under S. 11. Though the learned munsiff allowed the petition, the Subordinate Judge dismissed the same for two reasons. THE first reason is that the appellant being a legal representative of the original mortgagor is not entitled to file the petition under S. 11 of Act xxxi of 1958 in view of the decisions in Vasudevaru v. Idchandy Oommen (1964 klt. 94 FB.) and Varkey v. Sankaran (1965 KLT. 519 ). THE second reason given by the Appellate judge is that even according to the appellant, he is only a co-owner of the property, and he is not competent to file the petition. This appeal is filed against the decision of the appellate judge.

(2.) THOUGH the counsel for the appellant canvassed the correctness of the decision in Varkey v. Sankaran (1965 KLT. 519) before us, it is unnecessary for the purpose of this appeal to decide the same, as we disagree with the view of the learned Subordinate Judge that the appellant is a legal representative or an assignee of the original mortgagor. It is admitted that the appellant is a member of the tarwad to which the property belonged on the date of the execution of Exts. P2 and P3. These documents were executed by the karanavan of the tarwad. The execution of these documents by the karnavan is not on his own behalf alone but as representing all the members of the tarwad, especially because it is nobody's case that these transactions are not binding on the members of the tarwad. The appellant therefore must be deemed to be a constructive party to Exts. P2 and P3, he being represented by the karnavan, the executant thereof. He cannot therefore be considered either as an assignee or the legal representative of the executant of Exts. P2 and P3. In this view it is not necessary to consider the correctness of the decision in 1964 KLT. 519. It is no doubt true that the entire rights in the property have now become crystallised in the three members of the tarwad alone on account of ext. D10 partition deed. The legal effect of a partition, either among the members of a Marumakkathayam tarwad or among the members of a joint Hindu family, is not to transfer the interest of the property from one person to another, but is an adjustment of the rights and a recognition of the vesting of the rights in a sole member of a particular property allotted to him. In this view, we cannot agree with the finding of the lower Court that the appellant is either a legal representative or an assignee of the rights of the mortgagor.