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Keshava Tharagan Vs. Rudran Nambudri - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1882)ILR5Mad259
AppellantKeshava Tharagan
RespondentRudran Nambudri
Cases ReferredJenkins v. Robertson L.R.
.....16) 10. a copy of a registered receipt (exhibit 7) has been filed by the defendant, in which shangaran acknowledges that he has received from savitri..........july 21st, 1874, the transactions took place which are the foundations of the claim made in this suit. shangaran mortgaged the lands of the illam mentioned in the plaint to his younger brother, kollapratti jadavedan, father of the plaintiff, rudran, in consideration of rs. 2,350. of this sum, it is alleged rs. 1,723 were taken to pay off prior encumbrances on the illam properties, and rs. 627 were retained by the mortgagor for his own use. [261] on the same date, jadavedan granted a lease of the mortgaged land to the first defendant, valia alimu. this lease the judge considers was granted to valia alimu as a collateral security for rs. 900 advanced to the mortgagee to enable him to make up the mortgage money; and that it was a bond fide transaction, the judge regards as proved by the.....

1. The facts of this case, so far as they have been ascertained, are as follows : Damodaram Numbudri, the last male owner of the Thiruthil Illam, having no sons, gave his daughter Nangeli in marriage to the second defendant, Shangaran Nambudri, whom he accepted as a Sarvaswadanam son-in-law.

2. [The ordinary incidents to this Sarvaswadanam custom have not as yet been ascertained after any complete inquiry. The Judge refers to two of his own decisions, of which the latter follows the earlier, and the earlier proceeds, not so much on evidence, as on the hypothesis that the custom is a survival of the obsolete practice of constituting as heir the son of an appointed daughter. These rulings cannot then be safely accepted as conclusive. It is agreed that the effect of the custom is to introduce the son into the Mam, to confer on him the status of a son in respect of the property of the Illam, coupled with the obligation of managing, or assisting in the management, of the estate and of supporting the family.

3. The Judge considers, and the appellant's pleader insists, that ordinarily on failure of issue to the son-in-law by the daughter of the family, his interest in the Illam property ceases.

4. The respondent's pleader, on the other hand, denies there is any such divesting of the interest once taken. It would be impossible to determine which view is correct, either in reference to evidence on the record, or in advertence to any sufficient authority known to us. It is, however, unnecessary to arrive at a decision in this case, for the Judge finds, and his finding is supported by the deed of Saravaswadanam, that in this case Damodaram and his wife Savitri conferred on the second defendant an immediate interest in the property of the Illam, analogous to that of a son, and that this gift was ratified after the death of Damodaram by Jadavedan, the nearest natural male heir of the deceased.

5. Nangeli died in her father's lifetime and left no issue, if, as is disputed in this Court, she had any.

6. After the death of Damodaram, Shangaran entered into, or continued in possession of, the lands of the Illam, for which revenue engagements were taken in his name; and he also on several occasions exercised the Urayama rights of the Illam. On July 21st, 1874, the transactions took place which are the foundations of the claim made in this suit. Shangaran mortgaged the lands of the Illam mentioned in the plaint to his younger brother, Kollapratti Jadavedan, father of the plaintiff, Rudran, in consideration of Rs. 2,350. Of this sum, it is alleged Rs. 1,723 were taken to pay off prior encumbrances on the Illam properties, and Rs. 627 were retained by the mortgagor for his own use. [261] On the same date, Jadavedan granted a lease of the mortgaged land to the first defendant, Valia Alimu. This lease the Judge considers was granted to Valia Alimu as a collateral security for Rs. 900 advanced to the mortgagee to enable him to make up the mortgage money; and that it was a bond fide transaction, the Judge regards as proved by the circumstance that Valia Alimu sued and obtained a decree for the amount in Original Suit 609 of 1879. On the same day, July 21st, 1874, Shangaran, the mortgagor, took the lands in lease from Valia Alimu, and the Judge finds that the rents received on the lease by the mortgagee to Valia Alimu and the lease by Valia Alimu to the mortgagor, Shangaran, in effect, represented the interest on the mortgage debt.

7. The Judge also finds it was not until 1875 that any question was raised as to Shangaran's interest in the property of the Illam. In that year, Govinda Warrier, who held some of the lands mentioned in the plaint under a mortgage from Damodaram, and had as was usual, leased them to the mortgagor, brought Original Suit 475 of 1875 on his mortgage and obtained a decree against Shangaran and the fifth defendant, Kunhi Ayappan, the cultivator or tenant. Savitri resisted the execution of the decree, and the Munsif rejected her claim on the ground that she was colluding with Shangaran. She then brought Original Suit No. 716 of 1876 to contest the Munsif's order and obtained an ex parte decree. The Judge stated it as his impression that Govinda Warrier's claim had been satisfied by Shangaran, or the latter would have defended the suit. The plaintiff's father was not a party to Original Suit 716 of 1876, but in the same year in which Govinda Warrier sued, Sayitri instituted Original Suit 710 of 1875, claiming to redeem a small piece of land, which she alleged had been demised to the plaintiff's father on kanam by her husband. The plaintiff's father and Shangaran Nambudri, who was made a party subsequently to the institution of the suit, pleaded that Savitri was not entitled to maintain suit, seeing the Shangaran had by a Sarvaswadanam marriage acquired the property of the Illam; and they also pleaded that Shangaran had in 1872, when managing the affairs of the Illam, created a further charge on the property. Savitri denied the title of Shangaran, and issues were framed accordingly.

8. It was represented to the Munsif that the plaintiff's father and Shangaran agreed to be bound by the oath of Savitri taken in a certain temple.

9. Savitri, on June 27th, 1876, appeared in the temple and swore that when her daughter was given in Sarvaswadanam marriage to Shangaran, he received neither possession of the Illam property nor authority to manage it; that he had at no time enjoyed independent powers of management, and was not at any time exercising any such powers (exhibit 14). Savitri having given this deposition, obtained a decree on June 28th, 1876 (Exhibit 15), which she executed in October 1876 (exhibit 16)

10. A copy of a registered receipt (exhibit 7) has been filed by the defendant, in which Shangaran acknowledges that he has received from Savitri Rs. 65, paid by her on account of revenue for the Illam lands included in the decree in Original Suit No. 710. This receipt is dated March 20th, 1877, and was registered on the following day. The Munsif suspects it to be a forgery, while the Judge regards it as genuine. In 1878 Savitri executed several deeds (exhibits 3, 4, and 5), mortgaging the lands of the Illam to the sixth defendant; but the Judge considers the alleged consideration for these deeds is fictitious. The cultivating tenants have, in view of these deeds, attorned to the sixth defendant.

11. In 1879, the first defendant brought Original Suit No. 609 of 1879 against the plaintiff and Shangaran to recover the sum of Rs. 900, alleged to have been advanced by him on the occasion of the mortgage of 1874, and obtained a decree (exhibit 26), and in the same years Savitri died. In November 1879 the plaintiff instituted this suit, claiming to recover possession of the lands and arrears of rent in virtue of the title acquired by his father under the mortgage of 1874 and of the contemporaneous lease.

12. The first and sixth defendants denied the title of Shangaran to execute the mortgage, the first defendant asserting in explanation of his connection with the mortgage, that he was unaware of the circumstances; and both these defendants relied on the decision in Original Suit 710 of 1875, as precluding the plaintiff from asserting that Shangaran had any title, by which the mortgage could be supported.

13. The Munsif, and, in appeal, the Judge, have held that the decree in Original Suit 710 of 1875 can affect only the property which was the subject of the decree in that suit, and on the other evidence, they have held it established, that in 1874 the second defendant had title to make the mortgage, and that the plaintiff has established his claim to enforce the terms of the lease.

14. The Judge considers that the second defendant, in order to evade his creditors, set up Savitri to contest his title, and that she was eventually gained over by the sixth defendant to give substantial effect to proceedings which had been designed to conceal the title of the second defendant.

15. The sixth defendant, in second appeal, argues that, inasmuch as the Judge has found that the mortgage-deed of 1874 did not exhibit the terms of a real transaction, and that possession was not given to the lessee, the suit should have been dismissed. The Judge, it may be admitted, suggests that the arrangement was complicated, and that it was purposely so continued with a view to defraud some one. We do not understand the Judge to find that the mortgage was not made for substantial consideration. The apparent complication is explained by the Munsif and, as it seems, correctly as occasioned by the desire to give the first defendant security at least for the interest on the advance made by him. Standing between the mortgagor and mortgagee, he could enforce from the former, who was to remain in possession, payment of the rent which represented the interest, and if default were made in its payment, obtain possession. Absence of possession on his part was compatible with the arrangement contemplated by the deeds and is not of itself a badge of fraud.

16. It is objected that the Judge should not have determined whether the mortgage was a real transaction, but he could not have avoided doing so, when the whole transaction was impugned and the issue was purposely framed on the averment.

17. It is next objected that the Judge should not have expressed any opinion as to the validity of the title of the sixth defendant. It appears to us he could hardly have avoided adverting to the whole of Savitri's conduct and explaining it in a manner consonant with his conclusions--it had a bearing on the question as to the bona fides of the litigation between Savitri and the second defendant.

18. Nor can we allow there is any force in the objection that the deed executed by Damodaram and Savitri as a deed of Sarvaswadanam has been misconstrued.

19. Although the terms of the instrument are somewhat ambiguous, yet, Interpreted in view of the custom and of the conduct of the parties, we agree that they are sufficient to constitute Shangaran heir to the estate in the place of a son.

20. The objection that the second defendant was ousted by reason of the ex parte decree obtained against him in Original Suit 716 of 1876 cannot affect the title of the plaintiff's father, who was no party to the suit, and who claims under a mortgage executed before the institution of the suit.

21. The last objection, which we decide with some hesitation is, the objection that the Judge has refused their due effect to the proceedings in Original Suit 710 of 1875.

22. The decree in that suit affects, it is true, only the property which is the subject of it; but the appellant is entitled to contend that the determination of all questions of fact, directly and substantially in issue in that suit, binds the parties to the suit, and therefore the present plaintiff, who was then the first defendant, that the question, whether Shangaran had acquired a title to the property of the Illam, was directly and substantially put in issue, and that it was determined in the negative.

23. To this argument, it is answered that there was no determination of the issues, but that the then defendants consented to be bound as to the subject of the suit by the oaths of their opponents.

24. The Indian Oaths Act, Sections 9 and 11, declares that, if any party to any judicial proceedings offers to be bound by any oath or affirmation made in the form therein mentioned, such oath may be administered and the evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated.

25. The oath having been taken, the Court is constrained to accept the statements of the deponent as true and, cannot exercise its judgment in this matter. It would be highly dangerous to regard the decision of an issue so arrived at as an adjudication, operating as an estoppel in any future proceedings. The terms of the Act indicate that the party consents to be bound only in respect of the subject-matter of the pending proceedings. A party may be willing to risk so much on the conscience of his ' opponent. He knows what, at the outside, his loss will be, but it would be unreasonable to suggest that he should bind himself further than is necessary for the decision of the pending suit, and, as we have said, we do not understand that the law compels us to hold that he is bound to a greater extent.

26. Jenkins v. Robertson L.R. 1 Scotch Appeals 117 is an authority, that, under British law, a determination of matters in issue, otherwise than by the Court, is not a indicium and will not operate to create an estoppel. We hold, then, that the effect of the proceedings in Original Suit No. 710 of 1875 is not greater than the Judge has held it to be.

27. The appeal fails and is dismissed with costs.

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