Bikutti vs Kalendan and Others

This is a suit brought by the junior members of a Malabar tarwad in respect of land alleged to have been alienated to some of the defendants.

The plaint states that after the death of the late Karnavan Cheria Kunhammad, defendants Nos. 1 and 2, executed a deed of gift in favour of the

other defendants including the name of the late karnavan as an executant. It charges that defendants Nos. 1 and 2, of whom one is the present

karnavan, are not authorized to make such a gift and concludes with a prayer for the cancellation of the deed of gift and the surrender of the land

given to the plaintiffs or to defendant No. 1 on behalf of the tarwad.

The District Munsif who tried the suit dismissed it on the merits, and the plaintiff appealed. On the appeal, in order to save Court-fee stamp, he

abandoned the prayer for possession, but insisted on his right to have the other relief prayed for in the plaint; and it is against the decree

accordingly made in his favour by the Subordinate Judge that defendant No. 3 now appeals. In the opinion of the Subordinate Judge, it was

competent to him to grant such a decree, because the relief prayed for was not of a declaratory nature and because the plaintiff being an

anandravan was not entitled to maintain a suit for possession.

At the hearing before us, it was argued that a suit for possession would not lie under the circumstances and that therefore whether or not the

relief claimed was of a declaratory nature the suit was maintainable. We are unable to accede to this contention. The prayer is for the surrender of

the land to the plaintiff or to defendant No. 1 on behalf of the tarwad According to the case of the plaintiff the land being in the hands of strangers,

it was clearly the right of the plaintiff as of other members of the tarwad to have the land restored to the possession of the tarwad. Obviously this

right could not be enforced by defendant No. 1 in the face of his own deed, and therefore the objection which may generally be raised to a suit for

possession by an anandravan was not applicable. Except at the suit of a junior member the tarwad''s right could not be asserted and enforced.

Under these circumstances, we are of opinion that it was competent to the plaintiff to maintain the suit for possession as framed in his plaint. The

question then arises whether it being open to the plaintiff to sue for possession, he was at liberty to restrict himself to the other kind of relief claimed

in the plaint. We agree with the Subordinate Judge that the plaint does not ask for a declaration though we must observe that the Subordinate

Judge has framed the decree as if that had been the nature of the prayer of the plaint. But are the circumstances stated in the plaint such as to justify

a prayer for the cancellation of the instrument of gift? It was argued that the alleged forgery of the late karnavan''s signature necessitated a

cancellation of the instrument and that the case was therefore distinguishable from that in which a declaration has been sought for by anandravans

impeaching the alienations of their karnavans. In our judgment, however, it is clear that the factum of the gift is admitted and the alleged forgery is

not the ground on which relief is sought. The substantial charge made in the plaint is that defendants Nos. 1 and 2 have, without authority, made a

gift of tarwad property and, if that charge is made out, it is a declaration of the tarwad''s right and not a cancellation of the instrument of gift that

should be granted.

This being so, it must follow that the suit, as framed by the plaintiff on the appeal, is not maintainable. The relief in the shape of cancellation of the

deed could only have been granted in the form of a declaration, in the form indeed in which it has been granted, and as such ancillary to the

principal relief by way of delivery of possession. It would be a mere evasion of the provision of Section 42 of the Specific Relief Act to allow the

suit in its maimed form to be maintained. We must, therefore, reverse the decree of the Subordinate Judge, and restore that of the District Munsif.

Respondents to pay costs here and in the Lower Appellate Court.