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Thrikkandiyur Padinharekkara Kunjikutty Amma's son Gopala Menon Vs. Karumathil Puthenveettil Ammukutty Amma's children Kalyani Amma and Ors. (21.10.1963 - KERHC) - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 268 of 1959
Judge
Reported inAIR1964Ker81
ActsTransfer of Property Act, 1882 - Sections 91
AppellantThrikkandiyur Padinharekkara Kunjikutty Amma's son Gopala Menon
RespondentKarumathil Puthenveettil Ammukutty Amma's children Kalyani Amma and Ors.
Appellant Advocate V.R. Venkitakrishnan, Adv.
Respondent Advocate Miner, Adv. 15 by guradian 10th Respondent,; B. Moossakutty, Adv. for Respondent No. 22,;
DispositionAppeal dismissed
Cases ReferredIn Padmanabhan Raman v. Raman Narayanan
Excerpt:
.....with all other members of the tarwad, subject of course to well-known restrictions in the exercise of such rights in the common interest of all concerned. i think, that we would not get much good cut of the word 'collectively',which as maitland said 'is the smudgiest word in english language, for the largest collection of zeros is only a zero. ' 15. that an unincorporated body may have a distinct legal personality for certain purposes, is recognised by the legislature itself, for otherwise, why, we should like to know did your legislature lately impose a tax on the property of unincorporated bodies as well as on corporate bodies. that was a suit for redemption brought by the junior members and the learned judges dismissed the action on the ground that the plaintiffs failed to..........him in the field.'in paragraph 7 it is observed:'for many purposes 'the tarwad' is recognised as a legal entity. it is capable of owning properties and owing debts. decrees can be obtained against a tarwad, executable against its properties only. but the tarwad is not recognised as 'a corporation' in the legal sense.'in a later case it is observed:the tarwad, though not a legal person as sucn, is at legal entity, a corporate body, to adopt the expression used by the supreme court in bhagwan dayal v. mt. reoti devi, air 1952 sc 287, capable of holding rights and liabilities as other legal entitles not being legal persons (e.g. firms) are conceded to do. the difference between a legal person-and a legal entity not being a legal person is that while a legal person is independent of the.....
Judgment:

K.K. Mathew, J.

1. The plaintiff is the appellant. The suit was for redemption of Ext. A-1 mortgage dated 24-5-1889 executed by Krishna Menon, who was a karnaven of the tarwad or the plaintiff and defendants 26 to 28 to one Cheroti amma and 2 others for Rs. 1500/-. There was a partition among the mortgagees. Cherotti Amma's rights under the mortgage became vested in the 28th defendant and others. Defan-dants 1 to 16 are the legal representatives of the original mortgagees.

2. The plaintiffs case was that he was entitled to redeem the mortgage as the karnavan of the tarwan, Sekhara Menon, assigned the right to redeem the mortgage to him and also on the ground that he was a co-owner of the property sought to be redeemed.

3. The defendants contended that the plaintiff was incompetent to represent the tarwad and chim relief on behalf of the tarwad, that there was no assignment of the right to redeem by the karnavan as alleged, that the tarwan consisted of the descendants of one Ittirivu Amma also, that the karnavan of the tarwad was one sankara Menon ot Ittirivu Amma's branch, that he alone was competant to institute a suit for redemption and that the suit was bad for non-joinder of the other members of the tarwad.

4. The trial Court found that Ittirivu Amma's descendants also were members of the tarwad, that then was no assignment by the karnavan of the right to redeem the mortgage to the plaintiff, that Sankara Menon was the karnavan of the tarwad on the date of the institution of the suit, and that the plaintiff had no locus stand to file the suit; and dismissed the suit.

5. The plaintiff filed an appeal against the decree and the lower appellate Court confirmed the things of the trial Court and dismissed the appeal.

6. In this second appeal counsel for the appellant submitted that the plaintiff was entitled to redeem the mortgage although he was not the karnavan at the time or the institution of the suit. He submitted that fin plaintiff being a co-owner of the property was in any view entitled to file the suit for redemption of the mortgage exeucted by the tarwad. His argument was that the members of the tarwad are the owners of the property belonging to the tarwad and the tarwad itself not being a juristic persed, any member of the tarwad can institute a suit for redemption without reference to the karnavan. In support of this position counsel drew my attention to the observations in the course of the judgment in Parukutty Nethiaramma v. Kesava Menon, 1962 Ker LJ 688. In that case it was said that the tarwad is not a juristic person, that the members of the tarwad are the owners of the properties belonging to the tarwad and that any member of the tarwad can institute a suit for redemption of a mortgage executed by the tarwad :

'The tarwad has been understood as a group of persons and not a juristic person different from the group. The rights of the tarwad are the rights of the members collectively; in other words, the rights of the tarwad there in every member of the tarwad in part. .... .as a part-owner, he is entitled to exercise the rignts of the tarward in relation to tarwad properties demised to strangers, when the karnavan is not a competitor with him in the field.'

In paragraph 7 it is observed:

'for many purposes 'the tarwad' is recognised as a legal entity. It is capable of owning properties and owing debts. Decrees can be obtained against a tarwad, executable against its properties only. But the tarwad is not recognised as 'a corporation' in the legal sense.'

In a later case it is observed:

The tarwad, though not a legal person as sucn, is at legal entity, a corporate body, to adopt the expression used by the Supreme Court in Bhagwan Dayal v. Mt. Reoti Devi, AIR 1952 SC 287, capable of holding rights and liabilities as other legal entitles not being legal persons (e.g. firms) are conceded to do. The difference between a legal person-and a legal entity not being a legal person is that while a legal person is independent of the natural persons who constitute it, the other legal entity is not so independent but is only the group of persons taken collectively. Junior members of tarwad have therefore been described as co-proprietors of its properties having equal rights with all other members of the tarwad, subject of course to well-known restrictions in the exercise of such rights in the common interest of all concerned. The tarwad or family pro-parties are those that belong to the tarwad or family as a corporate body.' (See the observations in Kunnammad v. Narayanan Nambudiri, 1963 Ker LT 759: (AIR 1964 Kerala 8) (FB)).

If the tarwad is a legal entity for many purposes why it is rot a distinct entity for those purposes, apart from the members of the tarwad? (For the distinction between an entity in fact and an entity in law, See Denning L. J. in Bonsor v. Musicians' Union, 1954-1 All E R 822 at page 838) it is said that the property of the tarwad is owned by the members as co-proprietors. What kind or co-proprietorship is that which prevents the supposed co- proprietor from transferring his interest in the property? or what kind of property the co-proprietor has if it is incapable of being taken in execution for his debt, and if it does not pass on his insolvency to the trustee in bankruptcy? Is it joint ownership or co-ownership as tenants-in-common and why if it is either the one or the other, a member cannot transfer his Interest? The fact that on partition or dissolution of a tarwad a member may get a share in the property of the tarwad is hardly to the point that only illustrates the truth of what thering said that the beneficiary of every right or property is man. The nature of an entity has to be understood by looking at it when it is alive and functioning.

'A group itself is something which cannot be analysed into the mere sum of its parts. The sum of the parts may survive the destruction of the group but could no more explain the group than the dead materials of a murdered organism will explain the organism.' (See XII Law Quarterly Review p. 365 at p. 379. 'The Personality of Corporation and State' by Jethrabrown.)

It the tarwad or family properties are those that belong to the tarwad or family as 3 corporate body, I do not know how that would be consistent with the part ownership or the co-propietorship of the members.

7. It is permissible to ask oneself the question, why the debt of the tarwad cannot be realised from the members thereof by proceeding against their persons or their separate properties, and why for their personal debts, the property of the tarwad cannot be proceeded against? The debt or the tarwad is not the individual debt of A, B or C, the members thereof. Then whose debt is it? is it owed by the members collectively? I think, that we would not get much good cut of the word 'collectively', which as Maitland said 'is the smudgiest word in English language, for the largest collection of Zeros is only a Zero.' (See 'Moral and legal Personality', Selected Essays by Maitland page 237). Nor does the analogy of firm help us in this context. The share of the partner in a partnership is liable for his separate debt. That share can be subjected to a charging order. (See Order 21 Rule 49). The debt of the firm is the joint and separate debt of the members of the firm and is realisable from the separate property of the members. [See Section 25 of the Partnership Act.) Quite apart from this, look at me way in which the Judicial Committee of the Privy council has characterised the status of a firm in Indian Law in Bhagawanji Morarji Goculdas v. Alembic Chemical works Co. Ltd., AIR 1948 PC 100:

'It is true that the Indian Partnership Act goes further than the English Partnership Act, 1890, in recognising that a firm may possess a personality distinct from the persons constituting it; the law in India in that respect being more in accordance with the law of Scotland, than with that of England.'

Though in a lesser degree than the Indian law, English law too retains for certain purposes 'the notion of the existence of the firm as a separate entity from the existence of its partners.' Jessel M. R, laid stress on this, in order to snow 'that a partner does not act as agent in the ordinary sense of the word for the others, so to bind the others, but that he acts on behalf of the firm of which they are the members.' The truth of the matter, I venture to think, is that the tarwad has got a legal personality apart from its members for certain purposes and for other purposes it is a group of persons. Kernan J,, said that the tarwad is a quasi-corporation. (See Moidln Kutty v. Krisnnan, ILR 10 Mad 322). Nor is there anything strange in such a conception. If the tarwad is capable of owning properties and owing debts, and if decrees could be obtained against its properties it is certainly a right-and-duty-bearing unit, and where is the difficulty in postulating a distinct legal personality for it.

'Capacity for rights means having legal personality; being a legal unit, possessing rights (in the broader sense) and having ability to acquire and exercise rights. (See Jurisprudence by Roscoe Pound, Vol. IV, at pages 277 and 278.)

8. Professor Dicey said whenever men act in concern for a common purpose they tend to create a body which from no fiction of law but from nature of things differs from the individuals of whom it is constituted. The observation of Dicey was referred to by Denning L J., in his dissenting judgment in Bonsor's case in the Court of appeal, (1954-1 All ER 82Z) and the judgment of Denning L. J., was approved in appeal by the House of Lords. The karnavan is the representative of the tarwad. He is not the agent on the members of the tarwad as such but only the agent or the legal entity called 'tarwad'. The property of that entity is liable for the acts of the kamavan within the scope of his authority -- both in contract and in tort. And when an action is laid against the tarwad, even in Jurisdiction where it is necessary to implead all the members of the tarwad, the members are impleaded only to represent the entity, for otherwise, why the decree or order could not be enforced against the members but only against the property of the tarwad.

9. Farwell J., in the Taff vale case (see the juagment quoted in Taff Vale Rly. Co. v. Amalgamated Society of Railway Servants, 1901 AC 426 said:

'Now it is undoubtedly true that a trade union is neither a corporation, nor an individual, nor a partnership between a number of individuals; but this does not by any means conclude the case .... Now, the Legislature is giving a trade union the capacity to own property and the capacity to act by agents has, without incorporating it, given it two of the essential qualities of a corporation -- essential, I mean, in respect of liability for tort, for a corporation can only set by its agents, and can only be made to pay by means of its property.'

The case of Bonsor v. Musicians' Union, 1956 AC 104 raised the important question as to the right of a member of a registered trade union to sue the Union for damages for wrongful expulsion. Incidentally the case also has considerable bearing on the legal position of un-incorporate associations generally. The decision in Taff vale case was the subject of discussion in this case and after reviewing the various expressions of judicial opinion in that case Lord Morten reached the conclusion that it was established by the majority in. that case that the entity being sued was something separate and distinct in law from the members of the society. Moreover, said Lord Morion, the opposite view gives rise to great difficulties. For instance the membership of a trade union is constantly changing as old members die and new members come in. If the suit is to be regarded as having been brought against the individual members it must have been brought against those who were members at the time when the writ was issued, some of these persons may not have been members at the time when the tort was committed and the tort cannot nave been committed by their agents, in Lord Morion's opinion it action had been taken against all the members of the Union there is no reason why an order for payment or me amount could only be enforced against the property of the Union. Speaking of the effect of the majority decision in Taff Vale Case, 1901 AC 426 he said :

'It seems to me that the majority of this House regarded the entity or thing which was being sued was separate and distinct from the individual members of the society.'

Lord Porter followed the lines of Lord Motion. The contract of member was with the union as such and the union has a capacity to contract as a legal entity. The Taff vale Case, 1901 AC 426, according to him, recognised that a registered union was a thing created by statute, call it what you will, an entity, a body, a near corporation which by statute has in certain respects an existence apart from its members, lord MacDermott on the other hand rejected the view that the trade union is a corporation and also held that it is not a legal entity distinct from its members, and that reasoning was followed by Lord Somerwell. According to Lord Keith a trade union is a legal entity and not merely an entity in fact. He said:

'There are important attributes of characteristics of a registered trade union which in my opinion differentiate from other voluntary associations and may entitle it to be called a legal entity while at the same time remaining an unincorporated association of individuals. As a registered trade union it is a permanent identity and represents its members at any moment of time. It would not I think be wrong to call it a legal entity.'

10. The provisions in chapter V of the Madras Maruma-kkathayam Act tAct 32 of 1933) seem to indicate that the legislature has recognised the tarwad as a distinct legal entity for certain purposes having a personality of its own for those purposes. Section 33 speaks of 'immovable property ot a tarwad' and of 'tarwad necessity'. Section 34 says tnat no debt .... .shall bind 'the tarwad' unless the debt is contracted .....for tarwad necessity-Section 25 makes mention of 'the income and circumstances of the tarwad'. Does that mean the income and circumstances of the members of the tarwad taken collectively, and would that include the income and circumstances or each and every member of the tarwad derived from his separate property also? The definition of the word tarwad 'as a group of person forming a joint family with communny of property governed by Marumakkatnayam law' lanes us nowhere. It is said that tarwad, though a legal entity, is only 'a group of persons taken collectively.' A legal entry has got a personality ot its own, for otherwise why can it a legal entity. In Lindly on Partnership, page 23, there occurs the following description of a Corporation, that seems to me to show that a tarwad has greater attinity with a corporation than that with a firm.

'A corporation, it is true, consists of a number of individuals, but the rights and obligations of these individuals are not the rights and obligations of the artificial person composed of those individuals; nor are the rights and obligations of the body corporate exercisable by or enforceable against the individual members thereof, either jointly or separately, but only collectively, as one artificial whole.'

11. The essence of corporation is that it is a separate entity in law distinct from its members thus enabling the entity to perform acts in law such as contracting, holding property, suing and being sued as if it were an individual. But it is not necessary that an entity should be a corporation in order that It may have a legal personality.

'So far as statute recognises the body as a separate entity it has a distinct legal personality though for other purposes it may be dissolved into its constituent elements. Thus it a statute allows a registered body to contract as an entity, to that extent it is a quasi-corporation though for other purposes e.g. holding property, it may still be necessary to treat it as a merely voluntary society made up of its constituent members, if however, the statute In effect confers on the body all the normal powers of a legal persona it will be a corporation in everything but name; and this appears to be the outcome of the opinions of Lord morton and Lord Porter when they hold that a registered trade union is a distinct legal entity and a 'near corporation .... The real significance of the current of authority initiated by Taff Vale case, 1901 A C 426, is to indicate that where a statute confers wide powers on a non-corporate body this may result as a matter of statutory construction in the body being treated as enjoying a quasi-corporate status in certain respects which are not expressly specified In the Act itself, Moreover this construction may in some cases go so far as to result in the body being treated as if it were a corporate entity for all purposes save in such respects as are expressly excluded or restricted by the terms of the Act Itself.' (See Modern Law Review, Vol. 19, page 121 --Damages, for wrongful Expulsion from a Trade Union.)

12. That a relative personality for certain purposes has been recognised in law is clear from the following passages.

'A slave under the constitution of Antoninus Pius was a real entity, but had legal personality only to the extent of being able to start a legal proceeding to inquire whether he was cruelly treated. A free negro in some of the United states before the Civil War was a real entity and had a partial legal personality, but only In very few connections. (See Jurisprudence by Roscoe Pound, Vol. IV, page 235.)

13. 'The Civil law made a rigid distinction between the universitas and societas. One was and the other was not capable of having rights and duties of a separate entity. Modern law has been obliged to go beyond this narrow classification and to recognise that intermediate degrees of personality may exist which lie between the full personality of the universitas and the purely individual societas.' ('Unincorporated Associations' at pages 217 and 218 by Dennis Lloyd.)

14. The case of Chaff and Hay Acquisition committee v. J. A. Homphill and Sons Proprietary Ltd., 74 Com-W LR 3/5 at p. 384 Is instructive in this context, in that case the appellant was a statutory body created under the Chatt and Hay (Acquisition) Act 1944 (S.A.). It consisted of a committee of four persons which was authorised, inter alia, to acquire within and without the State certain property (Which, on acquisition, it held in its collective name; to dispose of that property and to sue and be sued in its collective name. The Act contained no express words of incorporation and the committee had no common seal. It was held by the majority of the Court that the Committee had a legal personality apart from the members of the Committee. Latham C. J., speaking for the majority of the court said:

'The Committee can own property, acquire rights, incur liabilities, and those' rights and liabilities are the liabilities of the committee, and not of its members ...... But even if it should be held that the Committee is not a corporation, the provisions of the South Australian Act snow that it is a statutory person, a persona ficta created by law. It is a subject of rights and duties. A body which, as distinct from the natural persons composing it, can have rights and be subject to duties and can own property must be regarded as having a legal personality, whether it is or is not called a corporation.'

15. That an unincorporated body may have a distinct legal personality for certain purposes, is recognised by the legislature itself, for otherwise,

'Why, we should like to know did your legislature lately impose a tax on the property of unincorporated bodies as well as on corporate bodies. When the property of individuals and of corporations was already taxed, was there still property that escapes taxation? And what can your legislature mean when ft says that in Acts of Parliament (unless a contrary intention appears) the word 'person' is to include any body of persons corporate and unincorporated (see Introduction to Political Theories of Middle Age By Martiand. page 34).

If the tarwad has a corporate character, and a personality of its own distinct from the members thereof for certain purposes, the question arises whether any member of the tarwad can Institute a suit for redemption of a mortgage executed by the tarwad on tarwad property on the theory that every member is a part owner of that property. I think neither principle nor precedent would warrant the conclusion that a junior member can institute a suit for redemption, unless there are circumstances disabling the karnavan from filing the suit.

16. In Hanavedan v. Veerayan, AIR 1939 Mad /51 a was held by Venkatasuoba Rao and Abdur Ranman JJ.,

'Where a Junior member seeks to redeem a kanom the court would insist upon proof that the institution of me suit was for the benefit of the whole of the tarwad. But where it is sought to set aside an alienation all that the junior member need show is that the karnavan was approached but refused to take action. Though a mere formality, iy is a part of the Customary Law of Malabar.' (See the Head note)

After referring to the judgment in the case in mazatn Soopi v. Mariyamma, AIR 1920 Mad 401 it is said:

'That was a suit for redemption brought by the junior members and the learned Judges dismissed the action on the ground that the plaintiffs failed to establish that such 'very special circumstances' existed as would justify a suit being brought by the anandaravan of a tarwad. The two cases aforesaid illustrate by way of contract the difference in the application of the principle.'

In Kesava Pillai v. Krishna Pillai, AIR 1951 Trav-Co. 133 it was held:

'Where a junior member of a tarwad sues for redemption of a mortgage of tarwad properties on behalf of the tarwad and the redemption of the properties is for the benefit of the tarwad and the karnavan who is a party to the suit, does not claim a decree in his favour on behalf of the tarwad, the suit was not liable to be dismissed.' (See the Headnote)

In considering the question about the capacity of a junior member to institute a suit, the learned judges referred to some of the decisions of the Travancore High court, and came to the conclusion that it is not an absolute rule that no member of the tarwad could institute a suit for redemption.

17. In AIR 1920 Mad 401 already referred to, spencer and Bakeweli JJ., said:

'As a suit for redemption of a kanom granted by a karnavan amounts to an act of interference in the karnavan's management of tarwad affairs, it can only be maintained by the anandravans of the tarwad under very special circumstances and it is for them to establish the existence of such very special circumstances as would justify the sun without the concurrence of the karnavan.' (See the Head note).

In Raja of Arakal v. Churia Kunhi Kannan, 29 MM LJ 532; (AIR 1916 Mad 976) Wallis C. J., is reported to nave said:

'If the karnavan for the time being is submitting to an infringement of the Tarwad's right of property it is competent to the next senior members to institute a suit to prefect the rights of the family.'

In Cheria Pangi Achan v. Unnalachan, 32 Mad LJ 323.(AIR 1918 Mad 958) Sadasiva Iyer J., said that ordinarily the karnavan alone can sue on benaif of the tarwad and that unless he has disabled himself from suing, an ananaravan cannot be allowed to sue on behalf of the tarwaa. In V. Kunnath Packi v. Kunnath Munammaa, AIR 1925 Mad 150(2) the learned Judge held that unless the karnavan is disables trom suing, an anandravan cannot be allowed to sue on behalf of the tarwad. In Padmanabhan Raman v. Raman Narayanan, 18 Trav LR 31 (FB), the learned Judges quoted with approval a passage from 16 Trav. LR 60. That passage is as follows:

'For proprietary purposes, the members of a tarwad form a whole, somewhat in the nature of a corporation, and as the Karnavan is the mouthpiece, manager and representative of the Tarwad, he alone can bring a suit for recovery of the property.'

18. In this case there are no circumstances alleged or proved which would warrant a junior member in filing the suit for redemption, it is not shown how the tarwad is going to be benefited by allowing the plaintiff to redeem the mortgage, nor is there any allegation or proof tnat tns karnavan has disabled himself from seeking to redeem the mortgage. The other members of the Tarward were not made parties to the suit. Even if the plaintiff is part-owner or the property, the other part owners are necessary parties to a suit for redemption, if, on the other hand, the tarwad properties belong to the tarwad as 'a corporate body', I think, the person competent to represent that body and give a discharge binding on it is the person who is entitled to sue on its behalf, in the absence of special circumstances.

19. In the result, I dismiss the appeal with costs.


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