AYIRANAZHI KOVILAKATH KUNCHUKUTTY Vs. AYIRANAZHI KOVILAKATH VEDAPURATTI

JUDGEMENT

(1.) THE facts which have led up to these three revision petitions may be briefly set out.There were three suits for injunction against trespass,O.S.No.292 of 1960 O.S.No.342 of 1961 and O.S.No.177 of 1962,all of which were instituted by the Valiya Thampuratti of the Ayiranazhi Kovilagom to which the Malavaram,which is the subject matter of the suits,belonged.( C.R.P.No.450 of 1967 relates to I.A.No.837 of 1966 in O.S.No.292 of 1906,C.R.P.No.495 of 1967 relates to I.A.No.839/66 in O.S.No.177/62 and C.R.P.No.449/67 relates to I.A.No.838 of 1966 in O.S.No.342 of 1961 ).In each suit junior members of the plaintiff's Kovilagom applied to get themselves impleaded and the defendants,who are joint proprietors of the Kerala Estate and claim ownership and possession of the suit properties,applied for recording of a compromise and decree in terms thereof.

(2.) THE plaintiff's suits were for the protection of the forests belonging to the family known as Chenkode Malavaram alias Kalikavu Malavaram.The defendants disputed the Kovilagom's right and claimed the suit properties as included in their Kerala Estate.During the pendency of these suits a partition deed was executed by members of the Kovilagom on 20 -11 -1962(marked as Ext.R1 in I.A.No.837 of 1966 ).Years rolled by,and the suits were still pending probably in a state of suspended animation.While various items were set apart to the members under the partition arrangement,the Malavaram,portions of which form the subject matter of the three suits,was vested in a specially constituted committee for management thereof.The plaintiff was not a member of the committee and none of the members of the committee came on record in these suits;nor did the other coowners,i.e.the quondam junior members,cared to get themselves impleaded or to disaffirm the act of the Valiya Thampuratti in continuing the litigation.While things stood thus,the three suits were compromised by Ext.A1(in I.A.No.939 of 1966)dated 29 -12 -1955 entered into between the plaintiff i.e.Valiya Thampuratti and the alleged president of the committee on the one part and the defendants,the owners of the Kerala Estate,on the other.It provides, inter alia ,that "the First Party(i.e.the plaintiff and the President of the Committee together)agrees to give up all their claims and to recognise the right of the Second Party(The Kerala Estate,represented by the 5th defendant)to the lands which are subject matter of the........ suits........and get the suits dismissed by filing Razi petitions in consideration for a sum of Rs.15,000/ - which the Second Party agrees to pay to the First Party before the Razi petitions are filed in court " ;.There is reference in Ext.A1 to an.application for the issuance of a permit under S.3(1 )(a)of the M.P.P.F.Act applied for by the First Party to the Collector,as forest lands in Malabar cannot be sold without such permission under S.3(1 )(a)of the M.P.P.F.Act.Before the Collector,the Kerala Estate had raised objections to the grant of permit on the score of rival title and possession.Ext.A1 provides,with reference to this matter,that "the Second Party has withdrawn his objections filed before the Collector " ;.It was represented before me by counsel for the respondents that in obedience to the agreement,Ext.Al,the objection to the grant of permit was withdrawn and the Collector accordingly granted the permit applied for,as per his proceedings dated 9 -2 -1966.It is averred in I.A.No.1294 of 1966(In O.S.No.177 of 1962 ),which is one of the three similarly worded petitions to record settlement of the suits under O.23 R.3 C.P.C.put in by the defendants,that "in pursuance of the said permit the plaintiff and other members of the Kovilagom have sold the Kalikavu Malavaram for a consideration of Rs.3,60,000 in May 1966 " ;.It is also stated in March that petition that the advocates for both parties had represented to the Court in 1966 that the suits had been settled and that razi petitions would be put in on the reopening of the Courts after the summer recess."We have offered several times the sum of Rs.15,000/ - which we have to pay to the plaintiff before filing the razi petitions before the Court " ;,runs the affidavit supporting the petition."Since the plaintiff was postponing to receive the same,a cheque for Rs.15,000/ - was sent by us....... the said cheque has been returned by the plaintiff saying that she could not accept it and act according to the agreement since some members of the kovilagom are objecting to it...... "( Paragraph 4 ).Thus it is seen that after the compromise,Ext.A1 there was some serious hitch and while the defendants stood by Ext.A1,the plaintiff shifted her stand and symptomatic of this volte face some junior members filed three petitions to get themselves impleaded in the three suits to enable them to oppose the recording of the compromise.The defendants contested them with the result that the Trial Court refused to implead the parties and recorded the compromise in all the suits,allowing the petitions of the defendants in that behalf.The three Revision petitions before me are against the orders of the Trial Court refusing to implead the petitioners who,as I have said earlier,are coowners of the Kovilagom Malavaram.The plaintiff,having changed her front,filed Civil Miscellaneous Appeals against the orders recording the compromise to which she admittedly was party.Those appeals are now pending in the District Court,Palghat.She has moved the High Court by C.M.P.Nos.8777 to 8780 of 1968 praying for transfer of those C.M.As.to the High Court so that they may be heard and disposed of along with the C.R.Ps.During the pendency of the suits interim injunctions had been sought by the plaintiff for restraining the defendants from cutting trees and planting rubber.The Trial Court granted the injunction,but,in appeal,the Subordinate judge vacated it directing the defendants to deposit Rs.15,000/ -.Against the order in this appeal C.M.A.No.41 of 1964,C.R.P.No.185 of 1967 has been filed and heard by me along with the three C.R.Ps.I shall deal with it presently,after disposing of the three Revision petitions filed by the junior members.

(3.) COUNSEL for the petitioner argued that the plaintiff had admittedly brought the suit on behalf of the joint family.Therefore,all the junior members of the family were constructively parties to the suit and it was perfectly open to them to come on record if they felt dissatisfied with their representative,particularly because she had sought to scuttle the litigation started for the benefit of the family and at its expense by entering into a compromise with the defendants who had challenged the title of the kovilagom to the Malavaram.When they found that their interests were in jeopardy and the family properties were being bartered away for a song they were entitled to intervene and protect their interests.This right of the junior members became indubitable after the partition in 1962 since the plaintiff had lost her capacity as Karnavathy thereafter and could not enter into a compromise to bind the other coowners or get the said compromise recorded by Court behind the back of those who were really the owners of the suits lands.Even assuming that a karnavan who sues on behalf of the tarwad has the right to represent it,even after partition,in that litigation,such capacity can be put an end to by the others repudiating it.And,in no case can such right to represent extend to extinguishing instead of prosecuting the litigation.Counsel for the respondents,in his turn,urged that the plaintiff and the junior members were playing a big fraud and the Court should not permit it to succeed by allowing them to come on record.According to him,the plaintiff had validly instituted the suit on behalf of the family,that her representative capacity continued notwithstanding the partition,that for years the litigation had persisted without any of the coowners disaffirming her act and that with respect to the transaction of litigation she was entitled to enter into a bona fide compromise binding on all of them.It was further contended that as a fact the compromise was not a hole and corner affair but was effected with the concurrence of the Committee whose President had signed in token thereof,that the junior members were aware of,assented to and obtained benefits under the compromise.