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K. Krishna Menon Vs. K. Krishnan Nair and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1921Mad520; (1921)40MLJ338
AppellantK. Krishna Menon
RespondentK. Krishnan Nair and ors.
Cases ReferredAbdulla Koya v. Eacharan Nair
Excerpt:
- - 200 to the karnavan as a present and failed to do so. the district munsif has dealt with that question in paragraph 12 of his judgment very clearly and tersely, following the full bench decision in vasudevan v. the conduct of the karnavan in repudiating the melcharth very soon afterwards and a perusal of the relevant records in the prior suits clearly support the munsif's finding that there was no fraud or collusion between defendants 1 and 2 in the conduct of the defence made to the former suits by the 1st defendant. 467 of 1910, also attacked the mecharth on these very same grounds and failed in his contentions. 36 of 1913, must fail on this issue even without touching the questions of fact raised by the other issues in the case......both on the merits of the melcharth and also on the question of res judicata and dismissed the plaintiffs' suit.4. the subordinate judge came to a different conclusion on both these points and decreed the suit and hence the second appeal.5. i think that this second appeal has to be allowed on the question of res judicata. the karnavan the 1st defendant fully and legally represented the tarwad in the former two suits, o.s. nos. 398 and 399 of 1910 and also in a connected suit, o.s. no. 467 of 1910 which was heard and decided along with those two suits. he contested the validity of the 2nd defendant's melcharth on several grounds which are set out in the munsif's judgment in those suits. see ex. xxi paragraphs 12 and 13 and also 18. those objections are (1) that a term of 24 years was.....
Judgment:

Sadasiva Aiyar, J.

1. The principal second appeal is 468 of 1915 and the 2nd defendant is the appellant therein. The suit out of which that second appeal has arisen was brought by several of the junior members of a tarwad of which the 1st defendant is the Karnavan. The 2nd defendant is the melcharthdar of the plaint properties under a melcharth deed granted by the Karnavan. The 3rd defendant is the senior Anandravan. The plaint admits in paragraph S.A.O. 468 etc of 1915 that the 1st defendant is 'the Karnavan and Manager ' though it refers in paragraph 4 to a karar of 1906 under which the 3rd defendant was to carry on the management under the 1st defendant by virtue of a muktyamamah and was to collect the rents, michavarams &c; and incur expenses relating to the maintenance of the tavazhis and so on. The suit was brought for declaring that the melcharth obtained by the 2nd defendant, a junior member, from the 1st defendant on the 12th February 1907 in respect of the schedule properties is not binding on the plaintiffs or on the tarwad; for directing the 2nd defendant to surrender to the plaintiffs those items of the plaint schedule which lie had recovered from two of the five prior kanomdars (after instituting suits and obtaining decree against them for redemption on the strength of the melcharth); and for other appurtenant reliefs including an injunction against the 2nd defendant from recovering the other properties in the plaint schedule held by other prior kanomdars.

2. The grounds on which the melcharth of the 2nd defendant is attacked are set out in paragraph 7 of the plaint. The facts that in the suits brought by the 2nd defendant, O.S. Nos. 398 and 399 of 1910, the Karnavan the 1st defendant, was a party, that he and the former kanomdar contested the validity of the melcharth in favour of the 2nd defendant and that their contentions were disallowed are not mentioned in the plaint.

3. The 2nd defendant in his written statement while pleading on the merits that his melcharth was binding on the tarwad also pleaded that the question of the validity of his melcharth against the tarwad was res judcata against the tarwad including the plaintiffs by reason of the findings in the former suits. The learned District Munsif upheld the contentions of the 2nd defendant both on the merits of the melcharth and also on the question of res judicata and dismissed the plaintiffs' suit.

4. The Subordinate Judge came to a different conclusion on both these points and decreed the suit and hence the second appeal.

5. I think that this second appeal has to be allowed on the question of res judicata. The Karnavan the 1st defendant fully and legally represented the tarwad in the former two suits, O.S. Nos. 398 and 399 of 1910 and also in a connected suit, O.S. No. 467 of 1910 which was heard and decided along with those two suits. He contested the validity of the 2nd defendant's melcharth on several grounds which are set out in the Munsif's judgment in those suits. See Ex. XXI paragraphs 12 and 13 and also 18. Those objections are (1) that a term of 24 years was granted whereas the ordinary term is 12 years; (2) that five demises were consolidated into one under the melcharth which would make it difficult for the tarwad to redeem the lands separately, (3) that the avakasam was unreasonably reduced, (4) that a further loanof Rs. 200 was raised as Puramkatam (5) that a debt not binding on the tarwad was shown as consideration for the melcharth and (6) that the 2nd defendant promised to pay Rs. 200 to the Karnavan as a present and failed to do so. Though this last point was not expressly raised by the Karnavan in the written statement he mentioned it in his evidence given in those suits as part of the fraud practised upon him and that point was also considered by the Munsif in his judgment. Having considered all these objections the Munsif held that the melkanom in favour of the 2nd defendant (who was the plaintiff in two of the three former suits) was valid, and also that it had not been validly cancelled by the karnavan who had executed a cancellation deed before those suits were brought. Now I find that the plaintiffs in the present plaint have raised objections 1 to 5 of the former objections in paragraph 7 of their plaint but omitted the objection 6 relating to the non-payment of Rs. 200 ' present ', which was relied on at the trial of the former suits. They also set up that under the provisions of a family karar, the karnavan had no right to execute a melcharth at all, that karar being Ex.A dated 14th May 1906. There is nothing in this additional point and it has been fully met in paragraphs 5, 6 and 7 of the lower Appellate Court's Judgment. The karar did not deprive the 1st defendant of his position as karnavan who was entitled to grant a melcharth binding on the tarwad on proper occasions and for proper necessities. See Karunakara Menon v. Kutti Krishna Menon.

6. As regards the question relating to the Rs. 200/'present' if it is the manusam given at time of renewals, though the karnavan' receives it, he receives it on behalf of the tarwad and it cannot be called a bribe paid to him as stated in the judgment of the Subordinate Judge See S.A. 877 of 1911 (23 M.L.J. 20 short notes). The mere non-payment of a manusam or sanjanyam promised cannot invalidate a melcharth otherwise valid.

7. Now, as regards the other points, there might be effective answers to the objections made by the lower appellate court to the validity of the melcharth based on those points but I do not think that in second appeal we are entitled to dissent from the finding of the lower appellate court on the question for consideration, namely, that the melcharth was executed under circumstances which make it not binding on the tarwad. But, as stated in the beginning, the question is not whether the melcharth was effected for purposes binding on the tarwad but whether the finding in the former suits that it is binding on the tarwad is or is not res judicata against the tarwad. That question, as my learned brother pointed out in the course of the argument, has to be decided on the answer to the question whether the Karnavan honestly and bona fide raised that contention in the interests of the tarwad in the former suits and whether after an honest contest by him, it was decided against him as representing the tarwad in those former suits. The District Munsif has dealt with that question in paragraph 12 of his judgment very clearly and tersely, following the Full Bench decision in Vasudevan v. Sankaran (1917) 35 M.L.J. 405 and has decided that question against the tarwad. The Subordinate Judge deals with this point very shortly in paragraphs 28 and 29 of his judgment. As regards paragraph 29, that relates to the question whether the 4th defendant is also bound by res judicata. I shall come to it later on.

8. As regards the tarwad, the Subordinate Judge deals with the question of res judicata only in paragraph 28. He says that there was fraud and collusion between the 1st and 2nd defendants and therefore the karnavan could not represent the tarwad in those litigations. The question whether he conducted the litigation in the interests of the tarwad honestly and bona fide has not been considered by him. But he does not dissent from the Munsif's conclusion that he did contest it in the interests of the tarwad property. As regards the decision in Parameswaran Nambudripad v. Sankaran Nambudripad (1917) 35 M.L.J. 405 , relied upon by the Subordinate Judge that case related to the applicability of Section 7 of the Limitation Act to the facts of that case and there is no question of res judicata involved. An obiter dictum of mine which did not even lay down any clear pronouncement but referred to a plausible argument that ' it may be argued' that a karnavan may not represent the tarwad in certain circumstances has been stretched by the Subordinate Judge to cover a different point altogether. The conduct of the karnavan in repudiating the melcharth very soon afterwards and a perusal of the relevant records in the prior suits clearly support the Munsif's finding that there was no fraud or collusion between defendants 1 and 2 in the conduct of the defence made to the former suits by the 1st defendant. As I said, the plaint in this case does not set out that there was any such fraud and collusion in the conduct of those suits though the plaintiffs knew the result of those suits as is shown by their prayer for the recovery of the proper lies obtained by the 2nd defendant in execution of the decree in those suits. Even if, for argument's sake, the 1st defendant did not represent the tarwad, the 3rd defendant who was made a party in one of those connected suits, O.S. No. 467 of 1910, also attacked the mecharth on these very same grounds and failed in his contentions. He was also D. W. 2 in O.S. No. 398 of 1910 and sup ported the Karnavan in the attack on the 2nd defendant's melcharth. Under those circumstances I am quite clear that the finding in the former suits is resjudicata in this suit as against the plaintiff's tarwad.

9. The 4th defendant is a prior kanomdar of some of the plaint properties and he contends that he is not bound by the finding in the prior suits. I do not see what that has to do with the question whether the plaintiffs' present suit is barred by the findings against the plaintiffs in the former suits. The reliefs in the present suit are directed against the 2nd defendant alone and if the 2nd defendants' melcharth is valid as against the plaintiffs, the plaintiff's suit was rightly dismissed. So far as this second appeal is concerned the question whether the 4th defendant in this suit is bound by the findings in the former suits does not arise for consideration. In the result this second appeal is allowed and the decree of the District Munsif will be restored. The plaintiffs will pay the 2nd defendant's costs in this court and in the lower appellate court.

10. The two other second appeals 469 and 470 of 1915, arose out of suits brought by the 2nd defendant in the principal suit for redemption of the prior kanoms relating to some of the properties mentioned in his melcharth deed. Those suits have been dismissed by the lower appellate court on the ground that the melcharth was invalid. So far as the tarwad is concerned, I have already found that the melcharth of the 2nd defendant--plaintiff in these suits--is valid as against the tarwad. The prior kanomdar has also no right to question the right of the 2nd defendant so established against the tarwad, as the term of his kanom had expired before these suits were broughtby the 2nd defendant. See Ramamurti Dhora v. Secreatary of State for India in Council (1917) 35 M.L.J. 405 Abdulla Koya v. Eacharan Nair (1917) 35 M.L.J. 405. The decree of the lower appellate court is therefore reversed in each of these litigations and the cases are remanded to the lower appellate Court for passing fresh decisions in the appeals preferred to that Court in the suits after considering the other points arising in the suits. The contesting respondents will pay the costs of the appellant in these appeals and bear their own. The costs in the lower courts will be provided for by the decisions to be freshly passed by that court.

Spencer, J.

11. I fully agree with the judgment just delivered by my learned brother and have nothing to add except that I am of opinion that the Subordinate Judge fell into an error in deciding the question of resjudicata in paragraph 28 of his judgment; and that this error arose owing to his con founding two different questions, the first question being whether the karnavan, 1st defendant, acted legally and prudently on behalf of the tarward in granting the melcharth and the other question being one that arose out of Explanation VI to Section 11 of the Civil Procedure Code, namely, whether the karnavan conducted bona fide in the interests of the tarward the defence in the suits brought to enforce the terms of the melcharth (O.S. Nos. 398 and 399 of 1910.) As nothing has appeared in the records of this suit or in the trial of the former suits to afford ground for answering the second question otherwise than in the affirmative, the plea of res judicata must prevail and the plaintiffs' suit O.S. No. 36 of 1913, must fail on this issue even without touching the questions of fact raised by the other issues in the case. I therefore agree that the Munsif's decree dismissing the suit should be restored, and I also agree with the order for the rehearing of the appeals in the other suits.


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