KODOTH AMBU NAIR Vs. UTHA AMMA

JUDGEMENT

(1.) We think it unnecessary to restate the facts of this case in any detail, as they have bean fully set out in the judgment under appeal. The suit has been filed by the karnavan of the Kodoth tarwad, said to be a well-known and wealthy tarwad in South Kanara District. The object of the suit was to have it declared that the acquisitions made by four individuals, Kunhi Kanna Nair, Kunhi Kora Nair, Pathali Kanna Nair and Ukkoman Nair belonged to the entire tarwad, of which the plaintiff is the kurnavan. This tarwad consisted of three tavazhies and the four parsons named above belonged to the tavazhi known as Pattinhara Veddu. The lower Court has held that it is unnecessary to decide whether the ownership of the properties claimed originally vested in the four individuals or in their tavazhi, for, according to the learned Judge, granting that at their inceptions the acquisitions had been made for the benefit of the four members, their interest was subsequently validly conveyed to the entire tavazhi. The plaintiff's claim that the properties should be deemed to have been acquired for the benefit of the tarwad was negatived by the lower Court. This finding coupled with its other conclusion already referred to, namely that the tavazhi became the ultimate owner of the properties in question, led to the dismissal of the suit.

(2.) As we substantially agree both with the conclusions of the learned Judge and his reasons in support thereof we propose to deal with the appeal very briefly. It is common ground that although the suit relates to several acquisitions, the most important of them were those made about &he years 1878 and 1880; it was with the income derived from these acquisitions, that the other properties in the suit were acquired. The question therefore to be decided is for whose benefit or in what circumstances were the acquisitions of 1878 and 1880 made? Mr. Venkatarama Sastri for the appellants takes his stand on the finding of the lower Court, that the tarwad as a whole was possessed of considerable property, whereas the tavazhi in question was not shown to have had separate funds worth the name of its own. This being so, he contends that it should be assumed that the acquisitions made by She members of this tavazhi must have been made with the aid of the funds belonging to the tarwad. In addition, ha relies on the circumstance that the person, who in the crucial years had the control of the tarwad property, was its karnavan Ambu Nair, who also happened to be the senior most member of the tavazhi in question. His contention is that Ambu Nair, with a view to benefit his own tavazhi at She expense of the main tarwad, acquired properties in the names of the junior members of the branch, thus defrauding the tarwad, whose interests it was his duty to Safeguard. As we have said, we do not wish to repeat the arguments of the lower Court, but it seems to us that this contention of the learned Counsel ought not to be allowed to prevail. Ambu Nair, the parson already referred to, was the karnavan from 1873 to 1881. His successor was one Kora Nair, who was the karnavan for 20 years (1881 to 1901) and he was in turn succeeded by Kamaran Nair, whose karnavanship extended over 10 years (1901 to 1911). What is most significant is that neither of these two last-mentioned karnavan belonged to the Pattinhara tavazhi and yet they took no steps whatever to challenge the acquisitions in question during the three decades they were in office. Of the four individuals referred to above, Kunhi Kannan Nair died in 1903 and the other three either in 1923 or in 1924. The plaintiff, who likewise belonged to a different tavazai, became the karnavan in 1911 and the transactions in question were not challenged till all the four members had died. In 1924, after the death of the last survivor, there were mutation proceedings and it was then for the first time that the plaintiff chose to challenge the transactions. Even then the case he put forward was not that the acquisitions were made on behalf of the tarwad, but that on the death of the four members who made the acquisitions, the properties lapsed to the tarwad under the Marumakathayam law. Further, in 1923, there was a suit filed, the parties to which were the members of the Pattinhara tavazhi and the question was there raised, were the properties the acquisitions of the individual members or did they belong to the tavazhi as a whole? That suit ended in a compromise which declared that the properties belonged to the tavazhi; in other words, there was a relinquishment in virtue of that compromise of the rights, if any, of the individual members. It is incredible that the other tavazhies were not aware of this proceeding, and if the properties did in fact belong to the tarwad as is now suggested, it is difficult to believe that no claim to that effect would then have been put forward. What then is the natural inference from this long and uniform conduct ? The several karnavans that succeeded Ambu Nair acquiesced in the properties being treated as not belonging to the tarwad. Is it proper to allow the plaintiff to re-open the transactions which were acquiesced in by his predecessors and which he himself did not choose to impeach till all the per. SODS connected with the acquisitions had died and all the evidence had disappeared? We therefore agreeing with the lower Court hold that his acquisitions were not made on behalf of or for the benefit of the tarwad.

(3.) It is not contended for the appellants that if the ownership vested in the four Individual members, the properties would on their death lapse to the tarwad and not to the tavazhi. That this would be the correct position in law, is not disputed. But the question is granting that the properties originally belonged to the individual members, did or did they not become, by virtue of the compromise, the properties of the tavazhi? In the lower Court, it was strenuously argued and it was feebly suggested here that a tavazhi as a legal entity can have no existence and can acquire no properties as such. We agree with the learned Subordinate Judge that this contention is untenable. In Moitiyan Kutti V/s. Puthiapurayil Mammali it has been held that a tavazhi consisting of a female and her descendants in the female line as a sub-division of a tarwad is a legal entity, capable of holding properties as a distinct unit. That the properties could be relinquished in favour of the tavazhi in question, can therefore admit of no doubt. The question then remains was there a valid relinquishment in favour of the tavazhi, granting that the properties did in fact belong to the individual members in whoso names the acquisitions had been made? The suit which ended in the compromise to which we have referred, did not embrace all the properties in dispute and if the amended provision now in force of the Registration Act applies, there can be no question that the compromise decree not having been registered cannot affect such of the properties as were extraneous to the suit. But Mr. Venkatarama Sastri contends that even under the old provision, the compromise decree could not be received in evidence to show a completed transfer. In other words, he argues that the effect of the pronouncement of the Judicial Committee in Hemanta Kumari v. Midnapur Zamindari Co. (1919) 6 A.I.R. P.C. 79 is that the compromise decree could be used as evidence to prove the agreement to convey and not the completed conveyance. The next atop in his argument is that in the present case the agreement, which alone wan proved, has not been followed by an out and out relinquishment. This argument proceeds upon an entire misreading of the Privy Council decision. Their Lordships observe: It may be that as a decree it was incapable of being executed outside the lauds of the suit, but that does not prevent it being received in evidence of its contents (p. 246).