ARUNACHALAM PATTAR Vs. LSESHAN PATTAR

JUDGEMENT

(1.) The facts upon which this second appeal arises may be shortly stated as follows: There are two Brahmin villages in Palghat called Nurani and Thondikulam. The inhabitants of the latter who are represented by the defendant appellant were sued by the plaintiff-respondent representing the former village for the recovery of a certain sum of money out of the properties of the village community represented by the defendant including its half share in certain samuham property and for declaration of a charge on this half share for the amount sued for. The samuham properties are properties which according to the plaintiff belong to the Palghat Cherry Samuham; i.e., association or community, which consists of the villagers both of Nurani and Thondikulam. The money which the plaintiff seeks to recover by the suit represents a portion of the cost of certain litigation in the Cochin Court incurred by the representatives of Nurani Village on behalf of their own village and the Thondikulam village. The question involved in the Cochin suit was whether the inhabitants of these two villages alone composed the Palghat Cherry Samuham and were as such solely entitled to certain emoluments or gifts in connection with particular religious rites in the Cochin palace and to certain properties situate in Cochin or whether the Palghat Cherry Samuham consisted of one hundred and odd villages in Palghat Taluk including Nurani and Thondikulam. It was held that the Samuham consisted only of the villages of Nurani and Thondikulam and that they alone were entitled to the emoluments and properties in question in that suit. To that extent both the villages undoubtedly benefited by the litigation but so far as it appears, the title to the property now in dispute was not directly in question in the Cochin suit.

(2.) It has, however, been found that the representatives of the Thondikulam village expressly agreed to bear their share of the expenses of the suit and the villagers of Thondikulam are bound by that agreement. But that will not sustain a charge on the defendants share in Palghat Cherry Samuham property assuming that they have a beneficial interest in such properties as found by the lower appellate court and are not merely trustees thereof along with the villagers of Nurani as contended before us in second appeal, nor would the fact that the decision of the Cochin Court is in favour of Nurani and Thondikulam villages on the issue whether the Palghat Cherry Samuham consisted of the inhabitants of these villages alone or of them and the Brahmins of a number of other villages, suffice to create a charge on the defendants share in the Samuham property in respect of the defendants share of the costs of the Cochin Suit. The learned pleader for the respondent has not in fact tried to support the position to the contrary by any authority and the principle enunciated by the Privy Council in Abdul Wahid Khan v. Shahiba Bibi (1893) I.L.R. 21 C. 496 leads to the opposite conclusion. We may also point out that the agreement, between the parties in this case, was that each of the villages should bear its proportionate share of the expenses of the suit and not that there should be a charge on any particular property belonging to the defendants village for its share of the expenses.

(3.) The result will be that the decree passed by the lower court will be modified by substituting in the 2nd paragraph of the decree the words "from the community of Thondikulakkars " in place of the words " out of the interest of the Thondikulakkars in the Samuham property described in the schedule hereunto annexed " and in the 5th paragraph of the words " from the community of Nuranakkars " for the words " out of the interest of Nuranakkars in the said Samuham properties described in the said schedule and by expunging the 6th paragraph. Each party will bear his own costs of this appeal and the civil revision petition.