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ittiavira Thomas Vs. Sankaranarayanan Kesavan Nampori of Manakkattu and anr. - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberC.M.A. No. 173 of 1962
Reported inAIR1964Ker144
ActsHindu Law; Code of Civil Procedure (CPC) , 1908 - Sections 146 - Order 1, Rule 10 - Order 9, Rule 13 - Order 22, Rule 10; Travancore Malayala Brahmin Act, 1106 M.E. - Sections 5
Appellantittiavira Thomas
RespondentSankaranarayanan Kesavan Nampori of Manakkattu and anr.
Appellant Advocate Mannuel T. Paikeday and; Leelamma Paikaday, Advs.
Respondent Advocate S. Subramonia Iyer, Adv.
DispositionAppeal dismissed
Cases Referred and Salar Beg v. Kotayya
.....of civil procedure, 1908 and section 5 of travancore malayala brahim act, 1106 m.e. - x granted suit property to 1st defendant who further assigned to 2nd defenant - 1st and 2nd plaintiff successors of x - 1st plaintiff filed suit for cancellation of sale deed after death of x - suit decreed ex-parte in favour of 1st plaintiff - partition effected between 1st plaintiff and 2nd plaintiff and suit property fell to share of 2nd plaintiff - 2nd plaintiff applied for execution of ex-parte decree claiming to be transferee of decree - defendant and 1st plaintiff contested against 2nd plaintiff - whether 2nd plaintiff was impleaded as plaintiff in suit - 2nd plaintiff made party in application under order 9 rule 13 and regarded as if on plaintiff's place - 2nd plaintiff was legal..........(which has been inaccurately referred to by the courts below as the namboodiri act) granted the suit property, a piece of illom land, 47 cents in extent, (and worth, according to the evidence of the 1st defendant himself about rs. 1,000) on kanom to the 1st defendant for a sum of rs. 50 and a michavaram of rs. 8 a year. two years later, on 30th makaram 1122 m. e. (12th february 1947), the 1st defendant assigned the kanom to the 2nd defendant and put the latter in possession.ramaa namboodiri died on 12th july 1951, and on 22nd september 1952, kesavan namboodiri the succeeding karnavan (who now figures in the suit as the 1st plaintiff) brought the present suit professedly on behalf of the illom, in his capacity as karnavan thereof, for a cancellation of the kanom deed and for recovery.....

P.T. Raman Nayar, J.

1. By Ext. P-1, dated 13th Vrischikam 1120 W. E. (28th November 1944) one Raman Namboodiri, the Karnavan of a Namboodiri joint family illom as it is called governed by the Travancore Malayala Brahmin Act, III of 1106 (which has been inaccurately referred to by the courts below as the Namboodiri Act) granted the suit property, a piece of Illom land, 47 cents in extent, (and worth, according to the evidence of the 1st defendant himself about Rs. 1,000) on kanom to the 1st defendant for a sum of Rs. 50 and a michavaram of Rs. 8 a year. Two years later, on 30th Makaram 1122 M. E. (12th February 1947), the 1st defendant assigned the kanom to the 2nd defendant and put the latter In possession.

Ramaa Namboodiri died on 12th July 1951, and on 22nd September 1952, Kesavan Namboodiri the succeeding karnavan (who now figures in the suit as the 1st plaintiff) brought the present suit professedly on behalf of the illom, in his capacity as Karnavan thereof, for a cancellation of the kanom deed and for recovery of the property from the hands of the two defendants with mesne profits, past and future, on the ground that the hanom was void under the provisions of Section 5 of the Malayala Brahmin Act. (The former was an unnecessary relief; the suit was in truth a suit for possession on the footing that the kanom was void; the kanom could be ignored and there was no need to have it set aside; and the courts below rightly repelled the attempt of the 2nd defendant to bring the suit within Article 91 of the Limitation Act, an attempt which has not been repeated before me, and rightly held that the suit was in time having been brought within 12 years of the date on which possession passed, whether It Is Article 142 or Article 144 that applies).

The suit was decreed ex parte on 25th October 1952. Three years later, there was a partition in the illom under Ext. P-2, dated 9th November 1955, and the suit property fall to the share of the branch of one Parameswaran Namboodiri who now figures as the 2nd plaintiff in the suit. Some time in 1957, Parameswaran Namboodiri applied for execution of the ex parte decree claiming to be the transferee of the decree. On receipt of notice of this application, the 2nd defendant came forward with an application under 0. IX, R. 13 of the Code to set aside the ex parte decree. To this application, he made only Kesavan Namboodiri (now the 1st plaintiff and then the only plaintiff) a party. On 27th March 1957, the court ordered notice of the application to Parameswaran Namboodiri whom it described as the assignee-decree-holder. The court itself seems to have construed this order as an order impleading Parameswaran Namboodiri as a party respondent to the application, and, under the initials of The Judge, the name of Parameswaran Namboodiri was entered In the application as 2nd plaintiff-2nd respondent.

Thereafter, on 13th July 1957, the 2nd defendant applied for the issue of notice to Parameswaran Num-boodiri and in this application lie described Parameswaran Namboodiri as the 2nd plaintiff. The 2nd defendant's restoration application was dismissed lay the first court but was allowed in appeal, and the appellate order was upheld by the High Court in revision on 27th January 1951.

Thereafter, the first court took up the trial of the suit and the trial proceeded on the footing that Parame-swaran Namboodiri was the person entitled to relief in We suit and that he was a plaintiff therein--in fact, it was he that prosecuted the suit. There was, however, no formal order impleading him as a plaintiff and no amendment of the plaint until the Court, on noticing the omission after the close of the trial but before judgment, had his name entered in the plaint as the 2nd plain-tiff on the strength of the order of 27th March 1957.

2. Section 5 of the Travancore Malayala Brahmin Act runs as follows :

'5. Except for consideration and illom necessity, and with the written consent of all the major members of the illom, no karnavan or other managing member shall sell illom immovable property or execute kanom deeds in respect thereof, or mortgage it with possession for a period of more than twelve years or lease it with or without premium for a period of more than twelve years.

Nothing in this section shall affect the right of the karnavan to execute solely renewal of kanom deeds already executed.'

It is clear from the section that three things are necessary for the validity of a hanom of illom property by a karnavan. There must be consideration, there must be illom necessity, and there must be the written consent of all the major members of the illom. The case of the plaintiffs was that none of these three conditions was satisfied, whereas, the defence put forward by the 2nd defendant was that there was consideration and necessity and also the consent of all the members of the Illom and that, in any case, the members, In particular the two plain-tiffs, having subsequently acquiesced in, and affirmed the kanom ware precluded from questioning it. The 2nd defendant disputed the rate of mesne profits claimed in the plaint and also pleaded that, in the event of eviction, he was entitled to compensation for Improvements.

3. The first court found, what Indeed was not disputed, that there were major members in the Illom other than the karnavan, Raman Namboodiri, at the time of the execution of the kanom--the plaintiffs themselves were two of them--and that there was not the written consent of these major members. It found that the kanom was for consideration and for illom necessity. It found further that the plaintiffs had acquiesced in the kanom and were therefore not entitled to question it. And, after it had reserved judgment, it took upon itself to raise a new point not taken by the parties, and, without hearing them in the matter, it held that the 2nd plaintiff had not been properly brought on record, that by reason of the partition, the 1st plaintiff had ceased to have a cause of action to maintain the suit, that the cause of action which the 1st plaintiff had, did not, in the absence of an assignment of the ex parte decree, devolve on the 2nd plaintiff, and that, so far as any independent cause of action which the 2nd plaintiff might have had was concerned, that had become barred by the time he came to court on 29th January 1957 seeking execution of the decree, that being the earliest date on which he could be regarded as having been made a party for the purpose of Section 22 of the Indian Limitation Act if he indeed was made a party at all. In this view, it dismissed the plaintiffs' suit, and it left the issues regarding mesne profits and compensation or improvements undetermined.

4. The 2nd plaintiff appealed. The appellate court accepter the findings of the trial court regarding consideration and the absence of the written consent of the major members of the illom. It however, disagreed with it with regard to necessity and acquiescence as also with regard to the point which the trial court had discovered and which it not unjustifiably characterised as a difficulty which the trial Court had gratuitously created. Consequently, it held that the 2nd plaintiff was entitled to a decree for possession, but, since the trial court had not decided the issues regarding compensation for improvements and mesne profits, it remanded the suit to it for passing a decree for possession after determining these issues. The 2nd defendant has come up with this appeal against the order of remand.

5. As 1 have said, the fact that there were other major members in the illom when Ext. P-1 was executed by the karnavan and that their written consent was not obtained (although one of tham, who held a power of attorney from the karnavan, did attest the document) is not disputed. Both courts have held, I think rightly, though unnecessarily since there was no written consent prior or subsequent, that a subsequent written consent is of no avail.

Turning next to the requirements of consideration and necessity, with regard to the former, the finding is concurrent that consideration did pass, and that is no longer open to question. There remains the question of necessity. On this I am inclined to accept the finding of the lower appellate court that necessity has not been proved. Neither the kanom deed Ext. P-l, nor the counterpart, Ext D-2, states the purpose for which the kanom amount of Rs. 50 was taken, and the written statement filed by the 2nd defendant only contains a vague statement that the money was taken for the needs of the illom.

With regard to this, the only evidence is the testimony of the 1st defendant, the original kanomdar, who was examined as D. W. 1. He no doubt stated that the money was taken for the use of the illom but he was unable to say for what particular purpose. (Both the lower courts appear to have misread his evidence for they say that he said that the money was taken to pay for rice which the illom had bought on credit from his shop. But he only said that the Illom used to buy rice and other provisions on credit from him; he did not say that the kanom amount of Rs. 50 was taken for discharging any such outstanding). Neither did he say that he made any enquiries whatsoever regarding the alleged necessity. He was told that the money was required for the use or the illom. But by whom he did not choose to say, and he had to confess that he had never met and spoken to the karnavan, Raman Namboodiri.

In this state of the evidence, the conclusion reached by the lower appellate Court that necessity had not been proved seems to me the only possible conclusion. In any event, tha undisputed fact that there was not the written consent required by the statute is sufficient to render the sansaction bad, and, unless the 2nd defendant succeeds In his plea of acquiescence, or in the defence which the first Court discovered for him, a finding one way or the other on the issue of necessity cannot affect the result of the suit.

6. On the question of acquiescence, the plea in the written statement was that there was an acceptance of the kanom transaction by the members of the illom by receipt of rent from the defendants. But the evidence regarding payment of rent, consisting of the mere word of mouth of the two defendants, was rejected by the trial Court and this case of acceptance by receipt of rent does not appear to have been pressed before the lower appellate Court. The first Court however found that the deed Ext. P4, dated 9th November 1955, by which the members of the illom, includlig the two plaintiffs, entered into a partition, evidenced an acceptance of the kanom and that the plaintiffs having once affirmed the transaction were precluded from questioning It. But, in agree-ment with the lower appellate Court. I think that it was not right in holding so. In the first place, no such acquiescence or acceptance was pleaded in the written statement.

The facts constituting an acceptance or acquiescence are matter for pleading, not merely for evidence, and, in the absence of a pleading on the matter, no amount of evidence is of any avail. Secondly, I share the lower appellate Court's difficulty in discerning anything in Ext. P-2 amounting to an acceptance of the kanom. What is relied upon on behalf of the 2nd defendant is that among the numerous documents listed in the partition deed as handed over to the several sharers, the kanom counterpart, Ext. D-2, finds a place. That document was undoubtedly one of the documents In the possession of the Illom which had to be handed over to the share concerned, end I fail to see how a mere mention of the document In the list can amount to an acceptance of the transaction embodied in the document. And that at a time when the transaction In question had been set aside (the ex parts decree was then in force) at the instance of the karnavan of the Illom.

7. What is most strenuously urged on behalf of the 2nd defendant is a variation of the first Court's self-discovered theme. Notwithstanding that the plaint expressly averred that the 1st plaintiff was suing as the kamavan of the illom and was In that capacity claiming possession of the property to which the Illom was entitled, the first Court took the untenable view that the suit was brought by the 1st plaintiff in his personal capacity as a mere member of the Illom, because, as a Junior member of the illom, a cause of action had accrued to him when the kanom was granted. That cause of action accrued to alt the members excepting the karnavan, and, why a succeeding karnavan should not represent all the members, just as he could in any other suit, is more than I can follow.

In the appeal here, the same line, namely, that the suit was brought by the 1st plaintiff on a cause of action personal to him and was neither by or on behalf of the illom and that that cause of action disappeared with the dissolution of the Illom on partition, was taken -- see paragraph 7 of the memorandum -- but the argument before me has been on the footing that the suit was a suit brought by the Illom Itself. The argument Is that with the division effected by Ext P-2, the Illom as such ceased to exist, and that, with it ceased the right (which belonged, and could belong, only to the undivided illom) to impugn the kanom and obtain possession of the property.

That right could not, and did not, devolve on any of the branches into which the illom divided itself. Indeed, the argument has proceeded to this length, namely, that, if pending a suit for possession brought by the manager of a joint family, a division of status occurs, then the suit must abate and the property lost for ever to the several members of the family. The joint family to which the property belonged dissolves with the division leaving no heirs or successors.

8. I am afraid this argument proceeds on the fallacious assumption that a Hindu joint family Is, like a corporation, a legal person, an altogether different person from the natural persons composing It, an assumption which, even if well founded, is of little avail as we shall presently see. Only a legal person can possess rights or sue in enforcement of them. The very first characteristic of a legal right as set out in Salmond on Jurisprudence (Eleventh Edition page 265) is that it is vested in a person. Now, it has often been said that a Hindu joint family is a legal entity, but, so far as I am aware, it has never been said that it is a legal person, although I must confess that some decisions have used the words, 'entity' and 'person' as if they were synonymous. But, a legal entity means only a thing retognized by the law as real in itself and distinct from its qualities and attributes, and, while every legal person is necessarily a legal entity, the converse; is not true.

In fact, so far as personality is concerned, a Hindu joint family is nothing more than a collection of Individual persons with a certain community of Interest, and terms such as 'joint family' or 'tarwad' or 'illom' are but compendious expressions designed to denote all the individuals composing the body -- see the definition of 'illom' in Section 2 (2) of the Malayala Brahmin Act as meaning and including all the members of a Malayala Brahmin joint family with community of property and the similar dafinitions of 'tarwad' In the Travancore Nayar Act and the Madras Marumakkathayam Act

That the General Clauses Act defines 'person' as including a body of individuals, whether incorporated or not, does not mean that an unincorporated body of Individuals is a legal person. We no doubt invest a joint family with a certain measure of personality for the sake of convenience when we speak of a suit brought by a Joint family or of property belonging to a Joint family (just as we do of a trust or a firm when we speak of a suit by a trust or a firm or the property of a trust or a firm) but I do not think that it can be said that a joint family as such possesses any rights or owns any property or brings a suit. It is the individuals constituting the joint family, namely, the members thereof, that possess the rights, own the property or bring the suit, and, when a division is effected, the rights held by the members jointly devolve on the several members or sharers in accordance with the division. There is therefore no such thing as the death of a joint family on a partition being effected or of any right of the joint family being lost thereby. The right continues to reside in the Individuals to whom It is exclusively allotted in the partition.

9. On behalf of the appellant, it is argued that the decision in Neelakanta Pillai v. Madhavi Amma, 1958 Ker L T 890, proceeds on the footing that a tarwad is a legal person which dies on partition, leaving Its quondam members with no right to impugn alienations made before the partition and recover the property alienated. Indeed the second headnote to this decision reads.

'After a tarwad or thavazhi becomes divided, a divided member cannot maintain a suit on behalf of the tarwad or thavazhi as such to set aside an alienation effected before division.'

But from the judgment it would appear -- see paragraph 6 -- that no such proposition was laid down in the case and that their Lordships only referred to certain authorities as supporting such a proposition.

It is a little difficult to understand how a right which is vested in every individual member of a Joint family and which is personal to him, although any exercise thereof must be for the benefit of all the members, can disappear merely because the members choose to effect a partition and alter the manner in which they are to hold the properties hitherto held by them jointly, although, of course, the result of the partition might be to vest the right in some of the members to the exclusion of the rest. However that might be, the correctness or otherwise of the proposition is not material for the purpose of the present case. It Is enough to say that there is nothing in the decision to suggest that a tarwad or other joint Hindu family is, like a corporation, a legal person.

10. Even if it be that a joint family is a legal person, it seems to me that when by the act that effects its dissolution, namely, the partition, a particular property hitherto owned by the entire, joint family devolves on a particular individual or branch, the right to institute a suit in respect of that property devolves with it so that the individual or branch would be entitled to continue a suit brought by the original joint family under Section 146 of the Civil Procedure Code, the scope of which is wider than that of Order 22, Rule 10 -- see Salla Bata v. Nirmala Sundari, AIR 1958 SC 394 -- if not under Order 22, Rule 10.

But, it seems to me that the true position is that a joint family is a group of persons, the membership of which, and the manner In which the members whereof hold joint property and joint rights, are regulated by law. It is a concept or institution which Is a creature of the law and not of act of parties (though act of parties can put an end to it) and that is why it is called a legal entity. Property and other rights are jointly held by all the members of the family and, surely, those, rights cannot disappear by reason of an arrangement between the members wheraby certain rights are thereafter to be held by one or more of the members to the exclusion of the rest. The right to avoid an alienation made by a manager is a right which inhares personally in each individual member of a joint family although he must exercise it not for himself alone but for the benefit of all, and, if in a partition, any particular right is not the subject-matter of allotment, it seems to me that it must still belong to all the members of the original joint family, whether as tenants-in-common or as coparceners is a matter of no consequence.

11. Turning to the case on hand, we have already seen that the suit was brought by the 1st plaintiff as the karnavan of the family. Every member of the family was therefore constructively, though not 'eo nomine', a party to the suit, the karnavan representing all of them, and, as pointed out in Venkatanarayana v. V. Somaraju, AIR 1937 Mad 610 (FB), the representative character occupied by the karnavan is not affected by a severance of status pending that suit unless the other members choose to disaffirm it Therefore, from the very beginning, the 2nd plaintiff was constructively, though not 'eo nomine', s party to the suit, and, that being so, it seems to me, he was entitled to be made an actual party at any stage of the suit -- Order 1, Rule 8 (2) of the Code affords a close analogy. If a person is already constructively a party to a suit because somebody who is a party represents him therein so that the decision In the suit is going to be binding on him, it is only right and proper that he should be heard if he so wishes and be made a party for the purpose -- Order 1, Rule 10 of the Code could be properly invoked. All the more so if, as a result of a partition in a family, the particular joint family property in respect of which a suit has been brought falls to his share in which case Section 146 and Order 22, R. 10 of the Code would also come into play. And when a person, who is already constructively a party to a suit, is actually brought on record as a party, no question of limitation arises. Saction 22 of the Limitation Act is not attracted because he is not a new party -- see Banwari Singh v. Sakhraj Singh, AIR 1931 All 585.

12. The only question remaining is whether Para-meswaran Namboodiri was, in fact, impleaded as a plaintiff in the suit, and, in this connection, it is to be noted that he alone filed the appeal before the lower appellate Court although the 1st plaintiff was impleaded therein as the 3rd respondent. I do not think that this matter can give room for much dispute. In the first place, as I have already said, both sides assumed that Parameswaran Namboodiri had come on record as the 2nd plaintiff. The trial in the suit proceeded on that basis; it was Parameswaran Namboodiri that prosecuted the suit; and, as I have already indicated more than once, I do not think that the first Court should, of its own accord, have taken up a point which was not merely not takan by the parties but was even not put to them. Had the omission to enter his name in the plaint been pointed out at the proper time, either by the opposite party or by the Court, undoubtedly Parameswaran Namboodiri would have made an application to remedy the omission and the application would have been granted as a matter of course.

It would also appear from the decision in AIR 1958 SC 394, that even if Parameswaran Namboodiri were not on record in the suit, he could nevertheless have maintained the appeal under Section 146 of the Civil Procedure Code by reason of the entire interest of the undivided illom in the property in suit having devolved on his branch by the partition under Ext. P-2, in other words, as a person who had taken the place of the original plaintiff. That being so, he necessarily figures as a substituted plaintiff in the appeal and further trial after remand can only be on the basis that he is a plaintiff in the suit.

All this apart, we have seen that Parameswaran Namboodiri was impleaded as 2nd plaintiff in the 2nd defendant's application under Order 9, Rule 13, and, with great respect to what has been said in Salil Kumar v. S. N. Ghose, 63 Cal WN 883 : (AIR 1960 Cal 203), I think this is a case to which the observation of the Judicial Committee in Brij Indar Singh v. KanshI Ram 1LR 45 Cal 94 at p. 110 : (AIR 1917 PC 156 at p. 161) that.

'the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages.'

applies with even greater force than in the case their Lordships had to consider. With equally great respect to what has been said in Venkatanarasimha v. Suryanarayana, AIR 1926 Mad 325 and Salar Beg v. Kotayya, AIR 1926 Mad 654, I see little difficulty in regarding an application under Order 9, Rule 13 like, for example, an application under Section 152 or 153 or Order XLV1I, Rule 1 of the Code, as marking a stage of the suit. I think it is an application in the suit, and I am unable to appreciate why it should be regarded as an altogether. Independent proceeding merely because the suit has been disposed of. It is to be noticed that the definition of the term 'interlocutory application' In Rula 5 (8) of the Travancore-Cochin Civil Rules of Practice and in Rule 3(8) of the Madras Rules does not insist that the main proceeding should be pending when the interlocutory application is made, and an application under Order IX, Rule 13 is commonly and, in my view rightly, regarded as an interlocutory application in the suit. To hold as was done in the Calcutta case that when a legal representative is brought on record in an application under Order 9, Rule 13, that will not amount to his being brought on record in the suit itself would lead to most anomalous results as noticed in that case itself. Supposing the application under Order 9, Rule 13 is brought, as often happens, years after the original plaintiff is dead, after the time limited for setting aside an abatement of the suit. Such an application can be brought only against the legal representative of the plaintiff and he can figure in the application only as representing the plaintiff. Supposing the application is allowed, the result will be that the ex parte decree against the defendant is set aside but the suit thus restored to file, and which has to be proceeded with under the terms of Order 9, Rule 13, would stand abated. Thus both the decree and the suit would be lost. I do not think that, in such circumstances, it should be necessary for the legal representative of the deceased plaintiff to come forward with an application to excuse the delay and have the abatement set aside. The decree, which was his, having been set aside after he was brought on record as the person who had taken the place ot the original plaintiff, he should be entitled to prosecute the suit as of right. He should automatically find himself in a position to do so and should not have to crave any indulgence for the purpose. I think the correct position is that, on his being made a party to the application under Order 9, Rule 13 as having taken the place of the original plaintiff, which is the only character he can occupy therein, he must be regarded as having taken the plaintiff's place in the suit itself, in other words, as having been impleaded therein as a plaintiff. There can be no abatement after decree. By his being made a party in the application under Order 9, Rule 13, which is a stage of the suit subsequent to the decree, the legal representative is made a party to the suit and no question of abatement arises,

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

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