MATHAMANGALATH ANANTHANARAYANA SUBRAMANIA IYERS ELDEST Vs. ABDUL KHADERS CHILDREN KANHUKKARATHIYUTE MAMMU

JUDGEMENT

(1.) THIS appeal arises out of a suit for possession, the plaintiff's father having purchased the suit properties in a Court sale under Ex. A-1 dated 24th June 1943. The properties were brought to sale in execution of the decree in O. S. No. 44 of 1095 M. E. of the Travancore State. That suit was a suit for maintenance by a junior member of a Marumakathayam tarwad for maintenance against the members of the kovilagam. It was filed in the District Court, Kottayam in the travancore State. The decree was for arrears of maintenance and the future maintenance, the amount awarded to the plaintiff-decrce-holder in that suit and the future maintenance was declared a charge on the tarwad properties. It is common ground that the tarwad properties were not specified in the decree. The kovilagam owned properties both in the Travancore State and in British India in north Malabar. The plaintiff in O. S. No. 44 of 1095 had the decree in the travancore Court transmitted to the District Court of North Malabar and filed a petition for enforcement of the charge in execution by sale of the properties of the tarwad situated in the district of North Malabar. Sale was ordered and in pursuance of that sale, the plaintiff had become the purchaser. Symbolical possession was granted to him and the present suit is to recover actual possession. The main defences to the action were that the charge created on the tarwad properties by the Travancore Court did not relate to the properties outside the travancore State, and, in any event, such a decree is void and unenforceable, as no decree could be passed in respect of immoveable properties situated in a foreign State. The decree having been passed in 1920, corresponding to 1095 m. E. , the Travancore State was not part of the Indian Union. The question, therefore, Would be whether such a decree could be upheld as creating any rights in the decree-holder for enforcement of the charge on properties outside the travancore State.

(2.) THE trial Court rejected the contention of fhe defendants and granted a decree for possession. In appeal the learned District Judge held that the decree did not really create a charge over the properties in British India, and secondly, it could not, in law, affect properties in British India. With both these findings I am in entire agreement.

(3.) FROM the decree, Ex. A-4, it is seen that the amount awarded to the plaintiff is declared a charge on the tarwad properties. There was nothing to show that the plaintiff sought to ask for a charge against the properties of the tarwad situated outside the Travancore State since there was no description or particulars of the tarwad properties shown in the decree. Presumably, therefore, the plaintiff in that suit could have asked for a charge on the tarwad properties situated within the jurisdiction of the Travancore Courts. In the absence of any specific reference creating a charge over properties outside the State and in British India, there is no reason to assume that a charge is created in respect of properties of the tarwad wherever they may be situated, notwithstanding that they are outside the jurisdiction of the Travancore State. This will be sufficient to dispose of the appeal.