KOROTH TANICHERI KUNHIKANNAN NAMBIAR Vs. CHERIATH CHEERU

JUDGEMENT

(1.) PLAINTIFF is the appellant in this second appeal. His suit for recovery of arrears of rent by sale of the kuzhikanam and other rights of the defendant -tenant in the property described in the schedule to the plaint has been dismissed by the Courts below. The property of which the rent is now claimed was leased onkuzhiltanam by the karnavan of a tarwad to the predecessor -in -inteiest of the defendant. As the result of the decree in a suit for partition filed under the Madras Marumakattayam Act, VII [7] of 1933 the members of the tarwad which granted the lease became divided. Nevertheless, the plaintiff, the karnavan of the disrupted tarwad, claimed rent from the defendant on the footing that he retained his status as karnavan to represent the members of the tarwad in respect of the property of which the rent is now claimed because this property had not been partitioned among the members of the tarwad by the dncree. The defend ant tenant, resisted the claim on the ground that the property had been allotted under a maintenance arrangement to a tavazhi and that he had paid the rent to the tavazhi karnavan. He also pleaded that after the partition of the tarwad the plaintiff had no right to represent the tarwad and sue by himself for the rent due. The Courts below have accepted the latter contention of the defendant and dismissed the plaintiff's suit. Hence this sacond appeal.

(2.) MR . Achuthan Nambiat for the appellant contends that since the item of property in respect of which the rent is now claimed was left out of the partition decree, it continues to be tarwad property and the plaintiff continues to be the karnavan so far as this property is concerned and therefore, his suit for rent was maintainable. It may be stated at the outset that the property in question was not included in the decree for partition by an accidental omission and not as the result of any concensual arrangement between the parties to the suit.

(3.) IN my opinion, where there has been a decree for partition in respect of the properties of a Malabar tarwad or a joint Hindu family, there is a severance of status among all the members of the joint family or the tarwad who express a desire for partition by their pleadings in the suit or among whom the decree effects a paitition. If by an accidental omission, one item of the joint family or tarwad property happens to remain undivided by the decree, it cannot be maintained that the members of the joint family or the tarwad continue to remain undivided in status quoad that item or that the erstwhile manager of the joint family or karnavan of the Malabar tarwad continues to represent the family and would be in a position to exercise those rights which he could haveexercised before the institution of the suit in respect of the omitted item. Unless the decree itself provides to the contrary, it must be held that the suit and the desree effect a complete division in the status among the members desiring a partition and a division by metes and bounds in respect of those properties which are actually divided under the decree. In this view, the conclusion of the lower appellate Court that it was no longer open to the plaintiff to represent the tarwad after the passing of a decree for partition is correct.