Kumara Pillai, J.
1. These five civil miscellaneous appeals, which arise out of five applications for re-delivery madeunder Order 21, Rule 100 of the Code of Civil Procedure in the execution proceedings in O.S. No. 65 of 1943 of the Court of the Subordinate Judge of Tellicherry first came before us on a reference on certain questions of law made by a learned Judge of the High Court of Madras.
Four questions were referred by him to the Full Bench, but, after hearing both sides, we considered that a decision on the last of those questions alone was sufficient for the disposal of four of the civil miscellaneous appeals and mat, as a remand was necessary in the fifth to ascertain relevant facts, the other questions need be decided only if the findings of the lower Court after the remand required a decision on those questions also for its disposal. Accordingly the learned Chief Justice, who also is a member of this Full Bench, ordered the appeals to be posted again before us for hearing the entire case, as distinguished from the mere questions of law referred; and in pursuance of His Lordship's order we have heard the cases again.
2. A Mappila Marumakkathayam tarwad, known as Aruvampalli Puthiyapurayil tarwad and referred to hereinafter as Aruvampalli tarwad was holding under a kanom demise of the year 1928 certain properties, the jenmom right in which belongs to Kalarivathukkal Devaswam of Chirakkal Kovilakam. On 20-9-1937 the members of Aruvampalli tarwad effected a partition by Ext. B-1 under which the tarwad split up into five separate branches or thavazhis. As per the provisions of the partition deed there were to be two joint managers for each of the first three tavazhis, refer red to in Ext. B-1 as thavazhis Nos. 1, 2 and 3, and one manager for each of the other two thavazhis, namely, thavazhis Nos. 4 and 5.
The managers of each of the first three thavazhis were to be the two semormost male members of that thavazhi and they were to jointly manage all the thavazhi affairs and prosecute all suits in respect of the thavazhi properties. So far as thavazhis Nos. 4 and 5 were concerned, the sole manager of each thavazhi was to be the seniormost male member of that thavazhi or the seniormost female member if there was no adult male member, and the manager was to manags all the thavazhi affairs and prosecute all suits relating to thavazhi properties. It was also provided in Ext, B-l that management by two joint managers should be continued in the case of thavazhis Nos. 1, 2 and 3 even after the death of the managers appointed by the partition deed for those thavazhis. The provision reads :
'In the event of the death of any of the managers of thavazhis 1, 2 and 3 then each male member in accordance with seniority of age in the respective thavazhis shall join as the representatives of the de-ceased persons and the management shall be conducted by two persons hereditarily.'
Like other tarwad properties, the properties demised on kanom to Aruvampalli tarwad by the Chirakkal Kovilakam were also divided by Ext. B-l, and under it each of the five thavazhis got some of those kanom properties.
3. After the above partition, the Chirakkal Kovilakam granted a melkanom to plaintiffs 2 to 8 on (3-1-1943 authorising them to redeem the kanom granted to Aruvnmpalli tarwad, and then the Kovilakam and plaintiffs 2 to 8 jointly brought O.S. No. 65 of 1943 for redemption of the kanom of 1928 and recovery of possession of the 'kanom properties'. As Aruvampalli tarwad had been split up by Ext B-1 into five separate thavazhis even before the institution of the suit the managers of the five thavazhis were impleaded therein as defendants 1 to 8 to represent their respective thavazhis.
Defendants 1 and 2 were impleaded as managers of thavazhi No. 1, defendants 3 and 4 as managers of thavazhi No. 2, defendants 5 and 6 us managers of thavazhi No. 3, defendant 7 as manager of thavazhi No, 4, and defendant 8 as manager of thavazhi No. 5; and these defendants also filed written statements in the suit in their representative capacity-
-- defendants 1 and 2 as managers of tavazhi No. 1 and representing that thavazhi, and so on.
The suit was decreed on 7-3-1945 allowing the melkanomdars to recover possession of the properties. But before the date of the decree two of the thavazhis, namely, thavazhis Nos. 1 and 4, effected partitions between the members of each thavazhi dividing the properties which it got under Ext. B-1. Ext. A-1 dated 8-9-1944 is the partition deed executed by the members of thavazhi No. 1 and Ext. A-16 dated 20-2-1945 is the partition deed in thavazhi No. 4.
Before the decree defendants 1, 2 and 6 also died. Defendant 2 was the first to the among these defendants, and on his death defendants 42 to 46 were impleaded as his legal representatives. Defendant 45 is Adamkutty, brother of defendants 1 and 2, who was the male member in their thavazhi, next in age to them. On defendant 1's death defendants 47 to 51, who are his widow and children, were impleaded as his legal representatives. On the death of defendant 6 defendant 52, who is the male member in the thavazhi No. 3 next in age to defendant 6, was impleaded as his legal representative.
4. Against the trial Court's decree in O. S. No. 65 of 1943 the defendants filed an appeal, A.S. No. 421 of 1945, in the High Court of Madras, and during the pendency of that appeal partitions were effected in thavazhis Nos. 2, 3 and 5 also. Ext. A-9 dated 14-12-1946 is the partition deed in thavazhi No. 2, Ext. A-13 dated 3-11-1947 the partition deed in thavazhi No. 3, and Ext. A-19 dated 23-11-1947 the partition deed in thavazhi No. 5. A.S. No, 421 of 1945 was ultimately dismissed by the High Court on 17-2-1955. By the partition deeds, Exts. A-1, A-9, A-13, A-16 and A-19, effected during the pendency of the suit and the appeal the properties which Aruvampalli tarwad got under the kanom demise of 1928 and which were divided by Ex. B-1 between the five thavazhis were again divided between the members of the several thavazhis each thavazhi dividing between its members such of the 'kanom properties' as it got under Ext. B-1. After the dismissal of A.S. No. 421 of 1945 the plaintiffs applied, in execution, for delivery of possession of the decree schedule properties (i.e., the properties comprised in the kanom of 1928) in pursuance of the decree for redemption, and the properties were delivered over to them on 27-3-1955.
5. Subsequently, five applications for re-delivery under Order 21, Rule 100, Code of Civil Procedure, were filed by those members of the five thavazhis who had obtained different portions of different items of the decree schedule properties under the five partitions effected pendente lite, Exts. A-1, A-9, A-13, A-16 and A-19. These five petitions are: (1) I.A. No. 1162 of 1955 filed by eight persons belonging to thavazhi No. 1, (2) I.A. No. 1195 of 1955 filed by eight persons belonging to thavazhi No. 2, (3) I.A. No. 1194 of 1955 filed by six persons belonging to thavazhi No. 3, (4) I.A. No. 1193 of 1955 filed by five persons belonging to thavazhi No. 4, and (5) I.A. No. 1196 of 1955 filed by four persons belonging to thavazhi No. 5. The allegations and prayers in all these five petitions were similar and to the effect that the properties described in the schedule to each of the petitions belonged in jenmom to the Chirakkal Kovilakam's devaswom and was being held jointly by the petitioners under a kanom right and the petitioners were holding, cultivating and enjoying the same from 1937 onwards, that the rights of the petitioners in respect of those properties were governed by the Muslim Shariat Act, that the decree and execution proceedings in O.S. No. 65 of 1943 were not binding on them as they were not made parties to that suit and execution proceedings and as the thavazhi and tarwad had ceased to be in existence after the enactment of the Shariat Act and the defendants impleaded in that suit could not, therefore, represent the petitioners, that the decree-holders had therefore no right to evict the petitioners, from the properties and recover possession of them, that the delivery was effected during the absence of the petitioners from the properties, and that the delivery should therefore be cancelled and the properties re-delivered to them.
6. The decree-holder opposed these petitions contending that the Shariat Act did not affect the rights of the petitioners in their tarwad or thavazhi properties and the thavazhi and the tarwad were not extinguished by the said Act, that the petitioners were properly represented in the suit and execution proceedings by the managers of their respective thavazhis and the decree and execution proceedings were therefore valid and binding on them and no redelivery could be ordered, and that the petitions themselves were unsustainable for the reason that the petitioners were not in actual possession of the properties at the time of the delivery to the decree-holders and they were not persons who had been dispossessed, in execution.
7. The allegation in the petitions that the rights of the petitioners in the decree schedule properties were governed by the Shariat Act and the thavazhi and the tarwad had ceased to exist after the enactment of that Act appears to have been made on account of the decision of Baslieer Ahmed Sayeed, J., in Ayisumma v. Mayomonthy Umma, AIR 1933 Mad 425. Before the hearing of these petitions in the lower Court the decision in AIR 1953 Mad 425 was overruled by a Division Bench of the Madras High Court in Abdurahiman v. Avoomma, AIR 1956' Mad 244, which held that the Shariat Act did not abolish or purport to abolish the rights and incidents of a Mappila Marumakkathayam tarwad.
At the time of the hearing of the petitions, the petitioners therefore abandoned their case that their rights in the decree schedule properties were governed by the Shariat Act and so they should have been made parties to the suit at the execution proceedings and contended that on account of the plaintiff's failure after the execution of the partition deeds, Exts. A-1, A-9, A-13, A-16 and A-19, to implead in the suit and execution proceedings, as the case may be, the persons to whom the decree schedule properties had been allotted under those partition deeds, the decree and execution proceedings were not binding on the petitioners and so the properties should be re-delivered to them.
8. All these petitions were enquired into jointly by the learned Subordinate Judge and disposed of by a common order dated 23-1-1956. The learned Subordinate Judge held that, after a partition, the manager of a Hindu Joint family or the karnavan of a marumakkathayam tarwad was not competent to represent in suits and execution proceedings the other members of the joint family or the tarwad and that, therefore, after the execution of Exts. A-1, A-9, A-13, A-16 and A-19 the plaintiffs in O.S. No. 65 of 1943 should have impleaded as additional defendants the persons to whom the decree schedule properties in that suit had been allotted under those partition deeds.
He further found that the properties mentioned in the schedules to the several petitions had been allotted under those partition deeds to the respective petitioners and they were in possession thereof at the time of the delivery in execution and that, as they were not parties to the suit and execution proceedings, the decree and the execution proceedings were not binding on them and they were entitled to get re-delivery. In pursuance of these findings the learned Judge allowed all the five petitions and ordered the properties described in the schedules to each of them to be re-delivered to the respective petitioners.
9. The five civil miscellaneous appeals are filed by plaintiffs-deeree-holders 2 to 8 against the above disposal of the five petitions. C.M.A. No. 69 of 1956 relates to I.A. No. 1194 of 1955 filed by the quandom members of the thavazhi No. 3, C.M.A. No. 70 of 1956 relates to I.A. No. 1162 of 1955 filed by the quandom members of thavazhi No. 1, C.M.A. No. 71 of 1956 relates to I.A. No. 1193 of 1955 filed of the quandom members of thavazhi No. 4, C.M.A. No. 72 of 1956 relates to I.A. No. 1195 of 1955 filed by the quandom members of thavazhi No. 2, and C.M.A. No. 73 of 1956 relates to I.A. No. 1196 of 1955 filed by the quandom members of thavazhi No. 5.
10. According to the findings of the learned Judge the petitioners in I.A. No. 1162 of 1955 and I.A. No. 1193 of 1955, who were originally members of thavazhis Nos. 1 and 4, should have been impleaded in the suit itself as the partitions in their thavazhis, Exts. A-1 and A-16, were effected before the decree and the decree and the execution proceedings are not binding on them as they were not impleaded in the suit; and the petitioners in I.A. Nos. 1195, 1194 and 1196 of 1955, who were originally members of thavazhis Nos. 2, 3 and 5, should have been impleaded in the execution proceedings as the partitions in their thavazhis Exts. A-9, A-13 and A-19, were effected after the date of the decree but before the delivery, and the execution proceedings and delivery are not binding on them as they were not impleaded in the execution proceedings.
11. The last of the four questions referred to the Full Bench raises for consideration the effect of the rule of lis pendens enacted in Section 52 of the Transfer of Property Act in cases like the present, where a suit for recovery of property from a joint family or Marumakkathayam tarwad has been brought against the manager in his representative capacity and a partition has been effected in the joint family or tarwad pending the suit or after the date of the decree and the members to whom the property has been allotted in the partition have not been brought on record during the trial or execution proceedings. We consider that a decision on this question alone would be sufficient to dispose of C.M.A. Nos. 69, 71, 72 and 73 of 1956.
12. It is common ground that it was under single kanom demise, namely, the kanom of 1928, that Aruvampalli tarwad was holding all the decree schedule properties in O.S. No. 65 of 1943 and that at the time of the institution of that suit the properties were outstanding under the said kanem demise. By Ext. B-1 Aruvampalli tarwad split up into five thavazhis or branches in 1937, and the status of each of those thavazhis after the partition was that of a separate tarwad by itself.
Under the partition each of those thavazhis obtained some of the properties which Aruvampalli tarwad had got from Chirakkal Kovilakam as per the kanom demise of 1928. All the subsequent petitions in the five thavazhis took place only after 1943. Since the kanom right as per the demise of 1928 had become vested in five separate thavazhis after the partition of 1937, to redeem the kanom and recover possession of the properties in 1943 plaintiffs had to file one suit against all the five separated thavazhis.
Under the ordinary Marumakkathayam law the proceedings in a suit brought against the karnavan or manager of a tarwad in his representative capacity would be binding upon the entire tarwad and all its members, and it is not necessary to impleadeach and every member of the tarwad to make the decree therein binding on the tarwad.
It is seen from the records, and it was also admitted before us by both sides, that all the managers of each of the five thavazhis who were competent to represent their thavazhis as per the provisions of Ext. D1 were at first impleaded in their representative capacity in O. S. No. 65 of 1943 and that at the time of the institution of that suit it was a properly constituted suit for enabling the plaintiffs to get an effective decree for redemption and recovery of possession of all the decree schedule properties as against all the five thavazhis.
As has been stated already defendants 1 and 2 were impleaded as managers and representatives of thavazhi No. 1; defendants 3 and 4, of thavazhi No. 2; defendants 5 and 6, of thavazhi No. 3; defendant 7 as manager and representative of thavazhi No. 4; and defendant 8, of thavazhi No. 5. It is also admitted that on the death of defendant 6, which took place while the suit was pending in the trial court, the person who was to be associated with defendant 5 in the management of thavazhi No. 3 as per the provisions of Ext. B1 was impleaded as defendant 45.
The partitions in thavazhis Nos. 2, 3 and 5 (Exts. A9, A13 and A19) were admittedly effected only after the date of the decree in O. S. No. 65 of 1943. There can therefore be no doubt of the fact that thavazhis Nos. 2, 3 and 5 were properly represented in the trial proceedings as well as at the time of the passing of the decree. The decree in O. S. No. 65 of 1943 has therefore to be held to be valid and binding as regards those thavazhis and the members thereof. As regards these three thavazhis the contention of the respondents in C. M. A. Nos. 69, 72 and 73 is that, although the decree might have been validly obtained against their thavazhis and therefore it might be binding on them also, the execution proceedings are not binding on them as the plaintiffs had not impleaded in the execution proceedings the persons to whom the different items of the decree schedule properties had been allotted under Exts. A9, A13 and A19 as they were bound to d6 after the execution of those partition deeds.
13. The partitions in thavazhis Nos. 1 and 4, Exts. Al and A16 were effected during the pendency of the suit in the trial court itself; and the contention of the respondents in C. M. A. Nos. 70 and 71 of 1956 is that both the decree and the execution proceedings are not binding on them as the plaintiffs had failed to implead in the trial proceedings as well as in the execution proceedings the persons to whom different items of the decree schedule properties had been allotted under Exts. A1 and A16 as they were bound to do after the execution of those two partition deeds.
14. Leaving aside the case of the members of thavazhi No. 1 (I. A. No. 1162 of 1955 and C. M. A. No. 70 of 1956) for reasons which will be stated later we shall first deal with the case of thavazhis Nos. 2, 3, 4 and 5 that the plaintiffs were bound to implead, after the execution of the respective partition deeds in their thavazhis, the persons to whom different portions of the decree schedule properties were allotted under those partitions, to make the subsequent proceedings binding upon them.
Section 52 of the Transfer of Property Act enacts:
'During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government ........ ofany suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation -- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force'.
The effect of this section is to render void as against the decree-holder in a suit in which any right to immovable property was in dispute and entitle him to ignore all transfers or other dealing with it by the judgment-debtor from the time of the institution of the suit till the complete satisfaction or discharge of the decree which would affect the decree-holder's rights under the decree or any order made in the suit.
The explanation specifically enjoins that the prohibition against transfers or dealings is to take effect from the date of the presentation of the plaint or the institution of the proceedings in a court of competent jurisdiction and remain in force until complete satisfaction or discharge of the decree has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed by law.
15. If a transfer or other dealing with a suit properly pendente lite is void as against the decree-holder and he is entitled to ignore it and it cannot affect his rights under the decree, no purpose will be served by bringing on record, after the transfer, the transferee or the person in whose favour the property has been dealt with; and to insist that a transferee or the person in whose favour the property has been dealt with should be brought on record in such cases would only be to hold out a premium to persons who desire to escape from their legal obligations and unnecessarily protract legal proceedings, and would defeat the very purpose for which Section 52 of the Transfer of Property Act has been enacted.
16. Regarding the necessity and justification for the rule of Us pendens Turner, L. J., has observed in Bellamy v. Sabiue, (1857) I De G. and T. 566:
'It is as I think, a doctrine common to the Courts both of Law and equity, and rests, as I apprehend, upon this foundation - that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding.'
Lord Cranworth also has said in the same case :
'It is scarcely correct to speak of its pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of theCourts often so describes its operation. It affects. him not because it amounts to notice, but because-the law does not allow litigant parties to give toothers, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party: (See passages from their Lordships' judgment extracted at page 224 of Mulla's Transfer or Property Act, 1956 Edition). The explanation to Section 52, Transfer of Property Act, is wide enough to include ail transfers and dealings with the property made during the pendency of the suit in the trial and appellate courts as well as during the execution proceedings.
17. There is a case reported in Ishwar Lingo v. Dattu Copal, ILR 37 Bom 427, almost parallel to the present case. But for the fact that in the Bombay case the suit was for the redemption of four joint mortgages and in the present case the suit was for redemption of a kanom, there is practically no difference between the two cases. There, as in the present case, the suit was originally brought against a joint family and there was a partition in that family during the pendency of the suit.
The coparcener who obtained in the family partition the property involved in ILR 37 Bom 427 died during the course of the suit, and on his death his right in the property devolved on his widow as his heir. But she was not impleaded in the suit after his death; and after the decree she came forward and contended that the decree obtained without impleading her was invalid and not binding on her and the properties she got by virtue of the partition and her husband's death. The following passages from the judgment in that case disposing of her contentions are very relevant for the purpose of this case :
'... .....Thus regarded, it is at once clear that if, indeed, the plaintiff was under any obligation to bring Gopal's widow on the record, that could only have been because of the partition. And as ex hypothesi, that partition, being effected during the active prosecution of a contentious suit, was void against the plaintiff, it could not have cast any such obligation upon him. In using those-words we do not lose sight of the learned Judge's view, that although a transfer or dealing with the property in suit pendente life, it was not dealing which in any way affected the plaintiffs right. We are rather indicating why, in our opinion, that view is incorrect. For anything which imposes a new obligation upon a party to a suit must plainly protanto, affect his right ...... ..... It is surely partof any litigant's rights, so far as the subject matter and conduct of the suit are concerned, to know precisely where he stands. He is entitled to know who his opponents are, and when that has been definitely and finally ascertained, to insist that no dealing on their parts, with the property in suit, shall compel him to go further a field, and bring in new parties, who, but for such dealing could have had no locus standi at all...... .....
Perhaps the simplest and most effective test is to ask whether, if the partition had not been made pendente lite, the plaintiffs suit could possibly have ended as it has? The answer to this must be --No. If there had been no partition, the widow would have had no locus standi, when she intervened in execution. This suit would never have needed to be brought. All his troubles during the last seven years in prosecuting his redemption suit have been brought on the plaintiff by this partition and by nothing else. Or to put it in another way, either the partition has affected the plaintiffsrights as a party, or it has not. If it has, it is admittedly void as against him, under Section 52. If it has not, it ought to be ignored, and no considerations drawn from it ought to have any place in the decision of the suit. Taking the latter course what is the result? This, that no Court should have treated the defendant in this suit as having any right whatever against the plaintiff, so far as his suit for redemption went. For it is only on the strength of the partition that she can pretend' to any such right, and ex hypothesi, the partition does not affect the plaintiff for all the purposes of that suit. Thus the same result is easily and immediately reached either way. It would DC easy to add further illustrative considerations. But we think that what we have said warrants us in believing that we have indicated the correct lines of reasoning to be followed in cases of the kind. Applied to the facts of this case, those lines of reasoning yield a very safe conclusion. We have no doubt at all but that the partition of January 10th, 1902, falls within the mischief of Section 52, Transfer of Property Act, and cannot be allowed in any way to affect the plaintiff's right, either under his redemption decree or in execution. That being so, and the partition with all its legal consequences out of the way, it necessarily follows that the defendant in this suit has no right nor any ground of defence at all.'
18. We have quoted the above passage in extenso because it gives an answer to the respondent's contention that section 52 of the Transfer of Property Act only enjoins that the transfer or dealing with the property shall not affect the decree-holder's rights under the decree and does not obviate the necessity to implead the transferee or the person in whose favour the property has been dealt with after the transfer.
The decree-holder's right under the decree is not merely to get the property after paying the mortgage money -- that right existed even before the decree and the decree merely enforces that right -- but also to get possession of the property from the defendants against whom he had brought a properly constituted suit. The defendants cannot be allowed to defeat that right and cast a burden upon the plaintiff to change the frame of his suit and bring in other persons on record by transferring or dealing with the property pendente lite.
It would be extremely difficult, if not altogether impossible to have a final adjudication if after each successive transfer of the suit property or dealing with it by the defendants the plaintiff has to implead the persons obtaining rights under the transfer or dealing or file a fresh suit against them. He will have then to implead more and more persons in successive and unending stages determined at the sweet will and pleasure of the persons interested in delaying the suit.
The effect of the rule of lis pendens, which has been enacted by Section 52 of the Transfer of Property Act to get over this difficulty, is that the transferee pendente lite is bound by the proceedings in the suit and the decree therein even though he is not a party to the suit. He takes the transfer subject to the result of the suit to which the original transferor is a party. As pointed out in Settyappa Goundan v. Muthai Goundan, ILR 31 Mad 268:
'The law of lis pendens in this country is founded on the necessity, if possible, of a final adjudication.'
and to prevent the injustice of the plaintiff being prejudiced by any act of the defendant subsequent to the institution of the suit.
19. It was also contended by the respondents' counsel that Section 52, Transfer of Property Act, can have no application to partitions since all the parties to a partition deed would be entitled to the property and have shares in it even before the partition, and so, there would be no transfer of property by one person to another in the case of partitions. But Section 52 is not confined to transfers and expressly prohibits both transfers and 'other dealings' with the suit property. In Bhubindra Narayan v. Mt. Tarupriya Debya, AIR 1950 Assam 119 a similar contention has been disposed of thus;
'The section prevents not merely the transfer of immovable property when any right to it is directly and specifically questioned but it also prevents dealing with me property otherwise. Partitioning the property is certainly dealing with it. A partition may or may not be regarded as a transfer. It does, however, alter the mode of enjoyment of the property and can produce a result very similar to transfer in certain cases. In any case the language of the section is wide enough to cover a partition.' The case in ILR 37 Bom 427, also 'was a case of partition pendente lite and the decision of the learned Judges in that case was:
'We have no doubt at all hut that the partition of January 10th, 1902, falls within the mischief of Section 52, Transfer of Property Act, and cannot be allowed in any way to affect the plaintiff's right either under his redemption decree Or in execution.' When by the partition separate properties or separate shares in properties have been specifically allowed to the several executants, as under Exts. A 9, A 13, A 16 and A 19, there can be no doubt of the fact that it is a dealing with property,
20. A number of decisions of the Madras High Court were cited by the respondents' learned counsel in support of his contention that the karnavan of a Marumakkathayam tarwad or the manager of a joint Hindu family is not competent to represent the other members of the tarwad or family after the partition and that it is necessary for the plaintiff to implead after the partition all the members of the tarwad or family or at least the member or members to whom the property against which he desires to proceed has been allotted in partition.
The earliest of the cases cited by him was Sankara v. Kelu, ILR 14 Mad 29. In that case a kanomdar brought a suit against the karnavan of a Marmukkathayam tarwad for return of the kanom amount charged on the property. But only a decree for money was given to the kanomdar and no charge was allowed by the decree on the property. This decree was passed on 17-6-1885. Subsequently, in December 1886, a partition took place in the tarwad, and in 1887 the kanomdar attached the kanom property in execution of his decree.
After the sale of the property in execution the member of the tarwad to whom the property had been allotted in the partition came forward with the contention that, as he was not impleaded in execution after the partition, the execution sale was not binding on him and had to be set aside; and accepting this contention the High Court set aside the sale. That case cannot, however, affect the contention of the appellants' counsel in the present case that on account of Section 52 of the Transfer of Property Act the appellants were not bound; to implead after the execution of Exts. A9, A13, A16 and A19 the persons to whom portions of the decree schedule properties had been allotted thereunder.
Although the kanomdar's suit in ILR 14 Mad 29 was, at the time of its inception, a suit in which a rent to immovable property was directly and specifically in question inasmuch as he had prayed fora charge on the kanom property, he was given only a money decree; and therefore, after the date of that decree, the suit had ceased to be one in which a right to immovable property was directly and specifically in question. The kanomdar did not appeal against the decree, and accepting it he attached the property in execution of his decree.
Therefore, at the time of attachment of the property, he had only a money decree against a tarwad which had ceased to exist after the date of the decree and before the attachment. In those circumstances, to make the attachment effective and binding on the person to whom the property had been allotted in the partition, it was necessary for him to have impleaded him in execution before the attachment. The effect of Section 52 of the Transfer of Property Act was not considered in this case; nor was there any occasion to consider it.
21. The next case relied upon by the respondent's counsel was Kunhappa Nambiar v. Sridevi Kettilamma, ILR 18 Mad 451. In that case a creditor brought a suit against the karnavan for money borrowed by him for tarwad purposes and obtained a decree in 1879. A partition took place in the tarwad in 1882, and in 1891 the creditor attached a property which had been allotted in the partition to one of the junior members and brought it to sale. The court held that the execution sale was not binding on the junior member to whom the property had been allotted in the partition as the decree-holder had not impleaded him in execution.
Here, the suit was, from its very inception, a money suit; and Section 52 of the Transfer of Property Act could not have been invoked at all by the decree-holder; and for the reasons which we have stated while discussing ILR 14 Mad 29, to render an attachment and sale in execution of a decree in a money suit binding on the members of the tarwad to whom the attached property had been allotted in the partition after the decree but before the attachment, it was necessary for the decree-holder to have impleaded that member also in the execution proceedings. As pointed out by Mitter, J. in Taynal Abeelin v. Hyderali Khan, ILR 55 Cal 701 at p. 709: (AIR 1928 Cal 441 at p. 442):
'It is of the essence of the rule of lis pendens that, in order to obtain the protection of the rule, the property must be directly and specifically in question in the suit.'
There was no such thing in Kunhappa Nambiar v. Sridevi Kettilamma.
22. The other cases cited by the respondents' counsel are: Kantian v. Soopi, 18 Mad LJ 132 in which ILR 14 Mad 29 and ILR 18 Mad 451 were followed; Kuppan Chettiar v. Masa Goundan, 1937-1 Mad Li 249: (AIR 1937 Mad 424); Official Receiver, Guntur v. Seshayya, 1940-2 Mad LJ 860: (AIR 1941 Mad 262), Rangaswami Goundan V. Kandaswami Goundan, 1942-2 Mad LJ 361: (AIR 1942 Mad 732); Ramanathan Chettiar v. Ramanathan Chettiar 1949-2 Mad LJ 751 relied upon by the lower court: V. Raman v. K.K. Nambiar, AIR 1956 Mad 445: 19564 Mad LJ 403 and China Ramayya v. Venkaraju 1954-2 Mad LJ 176: (AIR 1954 Mad 864) (FB). In all these cases, except AIR 1956 Mad 445, either the suit was a money suit, pure and simple, or the decree in which execution was levied was a decree for money alone with no charge on property; and so, Section 52 of the Transfer of Property Act could not apply in those cases. Nor has anything been said in any of them about the effect of that section.
23. The facts in AIR 1956 Mad 445 were as follows: For reimbursement of the amount whichhe was obliged to pay on account of the arrears of land revenue in respect of a property leased to him by a tarwad and which had to be paid by the jenmi a tenant brought a suit against the jenmi tarwad impleading the kamavan alone to represent the tarwad and seeking to realise the amount by sale of the jenmi's right in the property.
Before the preliminary decree could be passed in that suit some of the members of the tarwad filed a suit for partition on 7-4-1937 and a preliminary decree for partition was passed therein on 31-12-1938. In the tenant's suit against the tarwad represented by the karnavan a preliminary decree for sale of the jenmi's rights was passed on 30-7-1937 and a final decree on 1-12-1937; and in pursuance of that decree the leased property was sold in execution on 23-11-1939.
The sale proceeds were insufficient for the discharge of the decree amount; and so, in 1942 the tenant made an application in his suit for passing a personal decree against all the members of the jenmi-tarwad so that he could recover the balance decree amount due to him after the execution sale of 23-11-1939 by attaching and selling other tarwad properties. This application was resisted by certain junior members of the jenmi-tarwad on the ground that the execution proceedings in the suit and the sale on 23-11-1939 were not valid and binding so far as they were concerned, as after the institution of the partition suit they had attained a divided status and the karnavan of the tarwad was not competent thereafter to represent them in the tenant's suit and the execution proceedings thereunder.
On the authority of Venkatanarayana Rao v. Venkata Somaraju, AIR 1937 Mad 610 (FB) the High Court was inclined to hold that a decree passed, after the partition of the family or tarwad in a suit brought against the manager of a joint Hindu family or the karnavan of a marumakkathayam tarwad in his representative capacity before the partition was binding upon all the members of the joint family or the tarwad even though they were not eo nomine parties to the suit.
But it held on the authority of ILR 18 Mad 451 and 18 Mad LJ 132 that, after a tarwad has got divided a decree obtained against the karnavan before such division cannot be executed as against the tarwad properties which had been allotted in the partition to other members of the tarwad without those members being brought on the party array. Govinda Menon, J., who delivered the judgment of the Court in that case says at p. 447 of the report:
'Mr. Gopalan Nambiar for the appellant contends that the observations of the learned Judges in AIR 1937 Mad 610 quoted above should be extended to the case of execution proceedings also. It is argued that if a decree obtained against such a quandom manager can validly be executed against the properties of the family then it stands to reason that in the execution proceedings the erstwhile manager can represent the other members to whom properties had been allotted under partition or who have become tenants-in-common. We do not think that this extension can be justified. All that the learned Judges point out in AIR 1937 Mad 610 is to this effect that despite the fact that the manager had lent his representative character pendente lite a decree passed against him would bind the entire properties of joint family. But it is one thing to say that the decree would be binding and another thing to say that the decree can be enforced in execution proceedings behind the back of the other members of the family. We do not think that the learned Judges had gene to that extent ........... Thedecisions in ILR 18 Mad 451 and 18 Mad LJ 132 amply bear out the proposition that after a tarwad has got divided a decree obtained against the karnavan before such division cannot be executed as against the properties which had been tarwad properties but allotted to the other members after the decree and therefore no attachment and sale of the properties in execution of that decree without the person to whom these properties had been allotted being made a party in the execution proceedings would be valid and binding. To the same effect is the decision in 18 Mad LJ 132. The learned Judges, Bensom and Wallis, JJ. held that the members of a tarwad cannot escape liability for debts or decrees binding on the tarwad by dividing themselves into thavazhis; but where the karnavan of the original tarwad has ceased to represent them they cannot be bound by proceedings in execution of a decree against him unless they are separately represented in the execution proceedings. The decision in ILR 18 Mad 451 was followed. We see no reason why the principles enunciated therein should not be applied to the facts of the present case. We may also observe that they are observations in 1949-2 Mad LJ 751 to the effect that in execution proceedings after the disruption of the family all the members sought to be made liable for the decree debt should be made parties.'
On the facts it is clear that AIR 1956 Mad 445 was a case in which the decree-holder (the tenant) could have invoked and relied upon Section 52 of the Transfer of Property Act as his suit was one in which a right to immovable property was directly and specifically in question, and so, the respondents' counsel urged that the decision in that case would support his contention that the karnavan of a tarwad or the manager of a joint Hindu family would cease, after the partition in the tarwad or the joint family, to represent the other members of the tarwad or joint family in a suit brought against him in his representative capacity and that, if the decree holder desires to proceed in execution against properties allotted to other members, it is necessary for him to implead those members also in the execution proceedings.
But, although AIR 1956 Mad 445 was a case in which the decree-holder could have invoked and relied upon Section 52 of the Transfer of Property Act the judgment shows that, as a matter of fact, Section 52 was not invoked or relied upon by him. Nor has the effect of that section been considered by the learned Judges in any portion of their judgment.
All the cases relied upon by them were casesto which Section 52 of the Transfer of Property Act hadno application at all. As pointed out already, ILR18 Mad 451, 18 Mad LJ 132 and 1942-2 Mad LJ 7511were all simple money suits brought against thekarnavan or manager in his representative capacity.No right to immovable property was directly andspecifically in question in those cases, and it wasonly after the partition that the question of theliability of any property for the discharge of thedecree was raised by the decree-holder for thefirst time.
In all of them the decree-holder had attached and sold, after the partition, properties allotted to other members of the tarwad, fit it was then that the contention was raised that the sale was not binding upon them as at the time of the attachment there was no tarwad or family and they had become the owners of the property long before the attachment by which alone the property was sought to be made liable for the decree-debt. This distinction has not been noticed in AIR 1956 Mad 445.
Further, the learned Judges who decided that case were inclined to hold that notwithstanding thepartition the karnavan was competent to represent the other members in the proceedings before the decree. Beyond following the three cases ILR 18-Mad 451, 18 Mad LJ 132, and 1949-2 Mad LJ 751; the learned Judges have not given any reason for drawing a distinction between the proceedings before the decree and thereafter. All that they have said for drawing this distinction, beyond the references to the above three cases, is:
'But it is one thing to say that the decree would be binding and another tiling to say that the decree can be enforced in execution proceedings behind the back of the other members of the family.'
On principle, we can see 110 distinction between the proceedings before a decree and the proceedings, thereafter in a suit in which a right to immovable property was directly and specifically in question and to which Section 52 of the Transfer of Property Act would therefore apply. It is specifically made clear in the explanation to Section 52 that there is no distinction in regard to this matter between the trial proceedings and the execution proceedings, for it is stated therein that the pendency of a suit shall be deemed to commence from the date of the presentation of the plaint and to continue until the suit has been disposed of by a final decree and complete satisfaction or discharge of the decree has been obtained or become unobtainable by reason of limitation.
24. For the reasons stated above, we hold that in a suit for proceeding in which any right to immovable property is directly and specifically in question (which would include the right to recover property) brought against the manager of a Hindu joint family or the karnavan of a marumakkathayam tarwad in his representative capacity, which is not collusive, the plaintiff, or the decree-holder in the execution proceedings, is not bound to implead either in the suit or in the execution proceedings any person to whom the suit property has been allotted under a partition effected subsequent to the institution of the suit and that all proceedings in such a suit, whether on the trial, appellate, or execution side, would be binding on all the members of the tarwad or joint family including the persons who had obtained title to any part of the suit property under the subsequent partition, if they axe valid and binding against the original defendant and the persons whom the plaintiff or decree-holder was bound to implead on the death of such defendant.
It will, of course, be open to the persons who have obtained rights to the suit properties by the subsequent partition to apply to get themselves impleaded in the suit or execution proceedings to protect their legitimate rights, if any, and courts have the power to implead them on their applications if their presence in the party array is necessary in the interests of justice.
But the plaintiff and the decree-holder are not bound to implead them, and no proceeding can be held to be invalid merely because the plaintiff and the decree-holder have omitted to implead them. We, therefore, hold that the decree-holders were not bound to implead the petitioners in I. A. Nos. 1193, 1194, 1195 and 1196 of 1955 and that the deliveries of the properties complained of in those petitions cannot be set aside on the ground that the decree-holders had failed to implead them.
25. In their objection petitions to each of thefive applications in the lower court the decree-holders had stated that the petitioners were not in actual possession of the properties mentioned in theschedule and that the petition was not, therefore,maintainable.
Before us, it was contended by the appellants that the petitioners in each of these petitions were not in possession of all the properties mentioned in the respective petitions, that they were in possession of only some of those properties, and that as only persons who have been actually dispossessed by the delivery can apply under Order 21 Rule 100, Code of Civil Procedure, for re-delivery, the petitions are not maintainable in respect of the properties which were not in the possession of the petitioners at the time of the delivery to the appellants.
In view of our finding that the petitioners in I. A. Nos. 1193, 1194, 1195 and 1196 of 1955 are hound by all the proceedings on the trial, appellate and execution sides this contention is not of any importance in C. M. A. Nos. 69, 71, 72 and 73 of 1956. In C. M. A. No. 70 of 1958 arising out of I. A. No. 1162 of 1955 the respondents had a contention before us (although it was not raised in the lower court) that the persons competent to represent thavazhi No. 1 after defendant 1's death were not impleaded and that, 'therefore, the proceedings after his death are not binding on their thavazhi or its members including them.
In view of this contention of the respondents the question whether the petitioners in I. A. No. 1162 of 1955 were in possession of all or any of the properties mentioned in the schedule thereto is, according to the appellants' learned counsel, of considerable importance. He contended that the petition would not be maintainable in respect of such of the properties as were not in their possession at the time of the delivery, and if they were not in possession of any of the properties the petition would not be maintainable at all and if they were in possession of only some of those properties the petition would be maintainable only in respect of those properties.
It is seen from paragraph 2 of the lower court's order that the parties were not given an opportunity to adduce oral evidence on this question of possession because of a statement made by both sides that they were not disputing the execution and genuineness of the document, produced by either side and the production of certain documents by the petitioner.
The document principally relied upon by the lower court for holding that the petitioners in I. A. No. 1162 of 1955 were in possession of all the properties mentioned in the petition is a list prepared by their own advocate as regards the properties they were dispossessed of by the delivery in pursuance of the decree in O. S. No. 65 of 1943.
The statement of the decree-holders admitting the execution of the documents and the fact that it had been acted upon could not have obviously referred to this list prepared by the petitioners' advocate. According to the appellants' advocate, the partition deed (Ext. A1) itself would show that the petitioners in I. A. No. 1162 of 1955 were not in possession of all the properties mentioned in that petition.
He stated before us that the properties mentioned in the petition are all properties which thavazhi No. 1 got under Ext. B1 out of the kanom properties of 1928 and that as the properties which that thavazhi got under Ext. B1 were divided between all its members by Ext. A1 the petitioners in I. A. No. 1162 of 1955 have got only some of the properties which thavazhi No. 1 got under Ext. B1. According to him, the properties mentioned in I. A. No. 1162 of 1955 are not merely the properties which the petitioners got under Ext. Al but all the properties which thavazhi No. 1 got under Ext. B1.
It is obvious that on account of the wrong interpretation which it gave to the admissions of the parties regarding the execution of the documents produced by them the lower court has denied to both sides an opportunity to adduce evidence regarding possession of the properties mentioned in I. A. No. 1162 of 1955 at the time of the delivery in O. S. No. 65 of 1943.
In the circumstances, we consider that the interests of justice require that both sides should be given an opportunity to adduce evidence on the question of possession and the lower court should be asked to record a definite finding thereon before we dispose of C. M. A. No. 70 of 1956. We also consider it necessary that we should have a finding as to whether the persons competent to represent thavazhi No. 1 as per the provisions of Ext. B1 have been impleaded after the death of defendant 1.
26. In the result, the order of the lower court in so far as it allows I. A. Nos. 1193, 1194, 1195 and 1196 of 1955 and directs and re-delivery of the properties mentioned in the schedules to those petitions to the respective petitioners is set aside. C. M. A. Nos. 69, 71, 72 and 73 of 1956 (M) are accordingly allowed as above, with costs here and below.
In C. M. A. No. 70 of 1956 (M) we remand I. A. No. 1162 of 1955 for fresh finding from the lower court as to who were the persons in possession of the properties mentioned in that petition at the time of the delivery, whether the petitioners have been dispossessed of all or some of those properties by the said delivery, and also as to whether the persons competent to represent thavazhi No. 1 after the death of defendant 1, as per the provisions of Ext. B1, have been impleaded or not. The lower court will submit the findings within eight weeks of the receipt of the records in that court, after giving both sides another opportunity to adduce evidence. Time for filing objections here to the findings of the lower court, ten days.