Avidayamma Palavesom and Another vs Paramarathalingom Nadar Thanulingam Nadar and Others

Vithatyathil, J.—Plaintiffs 6 and 7 in O.S. No. 127 of 1104 of the Nagercoil District Court are the Appellants in this case. That suit was instituted by the Plaintiffs 10 in number for recovery of possession of the suit properties on the strength of title and for setting aside an order in a Summary case. Plaintiffs 1 to 7 and Defendants 6 and 7 are members of a Nanjinad Vellala family. Plaintiffs 1, 5 and 6 are the sisters of the deceased 6th Defendant. Plaintiffs 2 to 4 are the children of Plaintiff 1. The 7th Plaintiff is the son of the 6th Plaintiff. The 8th Plaintiff is the husband of the 6th Plaintiff. The 7th Defendant is the step-mother of Plaintiffs 1, 5 and 6 and the 6th Defendant. Plaintiffs 1, 5 and 6 became divided under partition deed Ex. A dated 29-7-1099 by which each of them got one fourth share in the family properties. The properties were being enjoyed in Oodukoor even after the partition.

As there was dispute between the parties relating to the possession of the properties proceedings were started in 1100 u/s 128 of the Old Travancore Code of Criminal Procedure. The present Plaintiffs 5 and 6 were Petitioners in that case and the deceased 6th Defendant, the karnavan, was the 1st counter-Petitioner. The present Defendants 1 to 5 who alleged to be lessees of the properties were counter-Petitioners 2 to 6. The present 21st Defendant in whose favour the prior karnavan had executed a will in respect of the properties was the 7th counter-Petitioner in the proceedings. In the Summary Case counter-Petitioners 2 to 6, namely, Defendants 1 to 5 in this case were found to be in possession of the properties and the present Plaintiffs 5 and 6 and the 6th Defendant were declared to be entitled to receive the rent from the lessees. Two revision petitions were filed in the High Court from this order. The High Court upheld the finding relating to the possession of the lessees. But the finding regarding the right to receive rent was upset.

The present suit was filed for setting aside the order in the summary proceedings and for recovery of possession of properties on the strength of title. Originally there were 32 Defendants in the suit. Subsequently the present Defendants 33 to 38 filed a petition to get themselves impleaded as additional Plaintiffs on the ground that they had acquired the rights of the 8th Plaintiff and 6th Defendant in one half of plaint item No. 1 and 2 acres and 39 cents in item No. 4. They were impleaded as additional Defendants 33 to 38. They filed a written statement in which they put forward their claim under the court sale and delivery.

The 6th Defendant, the deceased karnavan of the tarwad had executed a chitty hypothecation bond on 9-4-1099 in favour of Defendants 33 to 38. They sued upon the bond in O.S. No. 1916 of 1105 of the Nagercoil Munsiff''s Court and obtained a decree. The 8th Plaintiff and the 6th Defendant were parties to that suit. None of the other members of the Plaintiffs tarwad were parties to it. Ex. T is the decree in that case. Pursuant to that decree one half of item No. 1 and 2 acres and 39 cents in item No. 4 were sold in court auction and purchased by the decree-holders. Ex. II dated 15-7-1113 is the copy of the sale certificate. It is alleged that the auction purchasers obtained delivery of possession of the properties on 14-8-1113 under the delivery kychit, Ex. T.

Defendants 33 to 38 filed a written statement in this suit putting forward their claim under the court sale and delivery. In decreeing the suit the District Court made the following observation relating to the contention of Defendants 33 to 38.

Similarly Defendants 33 to 38 contend that they have purchased the 8th Plaintiff''s right in some of the plaint properties. This is no reason to non-suit the Plaintiffs. But it may be observed that this decree will not bar the creditors of the 8th Plaintiff from working out the reliefs obtained by them in accordance with law.

With this observation the Plaintiffs were given a decree for possession of the properties. The operative portion of the judgment is to the following effect:

In the result I declare the title of Plaintiffs and Defendants 6 and 7 to the plaint properties and give Plaintiffs a decree to recover possession of plaint properties from the Defendants.

In the decree that was prepared no reservation was made with regard to the rights of Defendants 33 to 38. The decree reads as follows: (The original in vernacular omitted.)

Neither the Plaintiff nor Defendants 33 to 38 appealed from this decree. But some of the other Defendants preferred an appeal in which Plaintiffs and Defendants 33 to 38 are also made parties. In disposing of the appeal the High Court observed thus:

Respondents 14 to 19 being Defendants 33 to 38 obtained the decree in O.S. 1916 of 1105 against the 8th Plaintiff and sold and recovered possession of one half of item No. 1 and 2 acres and 39 cents in item No. 4. The lower court has reserved the rights of 8th Plaintiff''s creditors irrespective of the decree in favour of the Plaintiff''s tarwad in this suit; We approve of that direction and also direct the 6th Defendant''s creditors'' rights to be so reserved.

In pursuance to the decree the Plaintiffs recovered possession of some of the decree schedule properties. When Plaintiffs 6 to 8 applied for delivery of possession of the remaining items, Defendants 50 to 53 who in the meanwhile had obtained the rights of Defendants 33 to 38 objected to the delivery of one half of item No. 1 and 2 acres and 39 cents in item No. 4. The District, Judge by his order dated 30-7-1123 disallowed the objection of Defendants 50 to 53 and allowed the decree-holders to recover possession, of these items also. In appeal filed by Defendants 50 to 53 as A.S. No. 457 of 1123 the order of the District Judge was set aside by the erstwhile Travancore High Court and the case was remanded for fresh disposal. The following observations were made by the learned Judges in the order of remand:

We find on a perusal of the judgment of the lower Court and the judgment of this Court in appeal that the decisions were not intended to affect the rights of these Defendants. The parties are not agreed as to the interpretation of the direction contained in the judgment. It is, necessary therefore to consider the respective rights of the parties having regard to the terms in which their claims have been disposed. of by this Court. As the Respondents learned Counsel contends that since these facts were never brought to the notice of his clients or the lower court which disposed of the petition, the matter may be remanded to the lower court so that there may be a proper disposal of the matter. Under the circumstances we think it proper to grant this prayer. We accordingly set, aside the order against the Appellants and remand the matter to the lower court for fresh disposal.

After the remand the District Court upheld the objection of Defendants 50 to 53 and dismissed the prayer of the Plaintiffs to recover possession of the properties in dispute. From this order Plaintiffs 6 and 7 preferred this appeal. On hearing, the appeal this Court by its order dated 10-3-1950 directed the court below to record findings on 2 points, namely (1) whether Defendants 50 to 53 have established their claims with regard to the subject-matter of the execution case prior to Exts. Q and III (Ex. Q judgment of the trial Court and Ex. III) that of the High Court and (2) whether such rights are legal and valid. The learned District Judge has recorded findings on these points in favour of Defendants 50 to 53. They are to the following effect :

Defendants 50 to 53 have already established their rights so far as 3/4 interest in the disputed properties is concerned even before the judgment in this case, Ex. Q, dated 27-5-1116, and Ex. III judgment of the High Court.

Such rights do not affect the one-fourth right of the 6th Plaintiff which must be deemed to be intact and unaffected by the trial proceedings,

and

The rights to the extent of 3/4 obtained by Defendants 50 to 53 are legal and valid. The Plaintiffs filed objections to these findings. Defendants 50 to 53 also have objected to that portion of the findings which says that the one-fourth right of the 6th Plaintiff has not been affected by the court sale in favour of the pre-decessors-in-interest of Defendants 50 to 53.

It is admitted by the Plaintiff''s in Ex. Y plaint in this case that Plaintiffs 1 to 4 together had one-fourth share in the disputed properties and that Plaintiff''s 5 and 6 and the 6th Defendant had each one-fourth share. It is also stated that the rights of Plaintiffs 1 to 5 and the 6th Defendant have been acquired by the 8th Plaintiff. Since the 8th Plaintiff and 6th Defendant were Defendants in O.S. No. 1916 of 1105 it may be taken that their rights in the properties have been extinguished by the Court sale in that case and that Defendants 33 to 38 the auction purchasers in that case acquired those rights. It would therefore appear that Defendants 50 to 53 who purchased the rights of Defendants 33 to 33 are entitled to 3/4 share in the disputed properties. Learned Counsel for the Respondents did not press his case that they have acquired the one-fourth right of the 6th Plaintiff also. There is nothing to show that the 6th Plaintiff had assigned her rights in favour of either the 8th Plaintiff or the 6th Defendant.

But the real question for decision in this case is whether Defendants 50 to 53 can resist the claim of the Plaintiffs for delivery of possession of the disputed properties as per the decree passed in this case. The decree allows them to recover possession of the properties from the Defendant in the case. The fact that Defendants 33 to 38 were not originally Defendants in the case cannot affect the right of the Plaintiffs to recover possession of the properties from them also. It is argued for the Respondents that this right of the Plaintiffs is subject to the reservation made in the judgment with regard to the rights of Defendants 33 to 38.

The reservation is only to the effect that the decree would not bar Defendants 33 to 38 from working out their rights under the court sale in accordance with law. The question therefore resolved itself into one of considering whether Defendants 50 to 53 who have acquired the 3/4th share of the 8th Plaintiff in the disputed properties are entitled to obtain possession of that share in these proceedings. The Plaintiffs'' case is that Defendants 50 to 53 have to work out their rights by means of a suit for partition and that they are not entitled to get joint possession of the properties along with the 6th Plaintiff who (SIC) entitled to one-fourth share.

So far as the present possession of Defendants 50 to 53 is concerned it is clear that the transfer of possession in their favour is affected by ''lis pendens''. This suit which was one for possession of the suit properties was filed in 1104 while the suit Ex. D which was one for money filed by Defendants 33 to 38 was in 1105. The 6th Plaintiff who is entitled to one-fourth share in the properties was not a party to that suit and therefore the decree and court sale in that case cannot affect her rights in the properties. Neither can the court delivery in that case affect her right to recover possession of the properties as per the decree in this case. The delivery of the properties in favour of Defendants 33 to 38 could have been only from Defendants 1 to 5 in this case who were declared to be in possession of the properties as lessees in the order in the summary proceedings.

The learned District Judge''s findings show that Defendants 50 to 53 took a sale deed from Defendants 1 to 5 in respect of the disputed properties on 8-5-1122, although their case is that they came into possession of the properties under Defendants 33 to 38. Defendants 33 to 38 themselves could have got possession of the properties only from the Defendants in this case after the date of this suit. Therefore, the transfer of possession in their favour and in favour of Defendants 50 to 53 is clearly affected by the rule of ''lis pendens'', and cannot affect the right of the 6th Plaintiff to recover possession of the properties as per the decree in this case.

The other question for consideration is whether the Respondents are entitled to step into the shoes of the 8th Plaintiff as his representatives in interest and obtain possession of his 3/4 share in the disputed properties. We are of opinion that they are not entitled to obtain such possession in these proceedings and that their remedy is a separate suit for partition of the 3/4 share acquired by them. This question came up for consideration before this Court in a recent case decided by the Chief Justice and Mr. Justice Govinda Pillai, namely A.S. No. 319 of 1125 (A). In that case the parties were Christians and the Plaintiff was entitled to one-fifth share in the suit property under a will. For court-fee due to the State from the Plaintiff the property was purchased by the State and delivery of possession was also obtained by the State.

The Plaintiff had 6 children and under the will they were entitled to 4/5th share. The eldest son who was the 6th Defendant in the case sought for redelivery of the property on the ground that the property was not liable to be sold for court-fee due from the Plaintiff. The trial court ordered that 4/5th share of the property should be redelivered to the Petitioner on his applying for a commission to effect a division of the property. In the appeal filed by the 6th Defendant the main question that was considered by this Court was whether the State was entitled to retain possession of the one-fifth share purchased by the State in court auction. It was held that the State was not entitled to have possession of the share purchased by them and that the remedy of the State was to file a suit for partition. The learned Judges reviewed the case law relating to the question referring to the decisions of the Travancore High Court and of the other High Courts in India.

Reference was made to �Raman Padmanabhan v. Mahadevan Ramayyan� �7 KER App 50 (B)In that case a share in an undivided joint family property was purchased in court auction by a stranger and the execution court directed a division, the property to be effected and the purchaser given possession of his share. The High Court held that the remedy of the court auction-purchaser was a separate suit for possession Another case referred to is �� Deenadayal Lal v. Jugdleep Narain Singh� 3 Cal 198 (PC) (C), in which case the Privy Council held that the purchaser at a court sale of the right of a co-sharer acquires only the right to compel a partition as against the other co-sharers. To the same effect is the decision of the Privy Council in � �Hardi Natain v. Ruder Perkash� 10 Cal 626 (PC) (D) In � �Balaji Anant v. Ganesh Janardhan� 5 Bom 499 (E), it was held that the purchaser of the share of a member of an un-divided Hindu family could only sue for partition and could not claim to be in joint possession of the property along with the other co-sharers. Another case referred to is in � �Yelumalai Chetti v. Srinivasa Chetti� 29 Mad 294 (F). The argument advanced in that case that the rulings relating to Hindu joint family would not apply to tenants-in-common was repelled by the learned Judges who took the view that there is no difference in principle between cases of joint Hindu family and tenants-in-common, so far as this question is concerned. Reference was also made to the decision of the Cochin High Court in � Maraim v. Ponnu Nayanam Pillai 8 KERLR 273 (G) in which case Verghese J. relying on the decisions in � �Jogeswar Narain Deo v. Ramachandra Dutt� 23 Cal 670 (PC) (H) ; � Naro Gopal Kulkarni Vs. Paragowda Basagowda, and � Udaram Sitaiam v. Ranu Panduji� 11 Bom HCR 76 (J) observed that there was no distinction between joint tenants and tenants-in-common so far as the right to possession is concerned. In 8 KERLR 273 (G) it was the undivided interest of the member of a Christian family that was sold in court auction. It was held that the auction-purchaser was not entitled to get possession in execution of his decree and that his remedy was a suit for partition. This decision was followed in � �Meenka v. Anna� 23 Cochin LR 309 (K). 10. In A.S. No. 319 of 1125 (Trav-C) (A) it was argued for the State that since the State was in actual possession of the property the other co-sharers should be directed to sue for partition of their shares. The learned Judges repelled that contention and directed redelivery of the property to the 6th Defendant, and held that he was entitled to be in possession of the entire property until the State or the other co-sharers obtained their respective shares by means of partition. The prayer to allow the State to be in Odukur possession of the property was also not allowed by the learned Judges. Following this decision we hold that Defendants 50 to 53 are not entitled to retain possession of the properties in dispute as against the 6th Plaintiff, that the 6th Plaintiff is entitled to obtain possession of the properties in execution of the decree in this case and that the remedy of Defendants 50 to 53 is a separate suit for partition. We therefore set aside the order of the court below and allow this appeal with costs.