G ARUNAJALAM 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 a declaration of a charge on his half share for the amount sued for. The samuham properties are properties which, according to plaintiff, belong to the Palghatchery 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 comprised the Palghatchery 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 Palghatchery samuham consisted of one hundred and odd villages in Palghat taluk, including Nurani and Thondikulam. It was held that the simuham 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, undoubtedly, both the villages were benefited by the litigation, but so far as it appears, the title to the properties 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 the agreement. But that will not sustain a charge on the defendant s share in the Palghatchery 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 in favour of Nurani and Thondihulam villages on the question whether the Palghatchery samuham consisted of the inhabitants of this village alone or of them and the Brahmins of a number of other villages, suffice to create a charge on the defendant s share in the samuham property in respect of the defendant s share of the costs of the Cochin suit. The learned Pleader for the respondents 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. Shuluka Bibi 21 C. 496 at p. 503 : 21 I.A. 26 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 expense of the suit and not that there should be a charge on any particular property belonging to the defendant s village for its share of the expenses.

(3.) The result will be that the decree passed by the lower Courts will be modified by substituting in the 2nd paragraph of the decree the words "from Community of Thondikulakkars" in place of the words out of the interest of the Thondikulakars in the samuham property described in the schedule hereto annexed" and in the Eth paragraph the words "from the community of Nuranikars" for the words "out of the interest of the Nuranikars in the said samuham properties described in the said schedule," and by expunging the 6th paragraph. Each party will bear his costs of this appeal and the Civil Revision Petition. It should be noted that we do Dot express any opinion on the question whether the finding of the lower Courts that the plaintiff s and the defendant s villages are beneficial owners of samuham properties and not merely trustees of these properties is correct.