Kodoth Ambu Nair and Others vs Utha Amma and Others

Venkatasubba Rao, J.—We think it unnecessary to restate the facts of this case in any detail, as they have bean fully set out in the judgment

under appeal. The suit has been filed by the karnavan of the Kodoth tarwad, said to be a well-known and wealthy tarwad in South Kanara

District. The object of the suit was to have it declared that the acquisitions made by four individuals, Kunhi Kanna Nair, Kunhi Kora Nair, Pathali

Kanna Nair and Ukkoman Nair belonged to the entire tarwad, of which the plaintiff is the kurnavan. This tarwad consisted of three tavazhies and

the four parsons named above belonged to the tavazhi known as Pattinhara Veddu. The lower Court has held that it is unnecessary to decide

whether the ownership of the properties claimed originally vested in the four individuals or in their tavazhi, for, according to the learned Judge,

granting that at their inceptions the acquisitions had been made for the benefit of the four members, their interest was subsequently validly conveyed

to the entire tavazhi. The plaintiff''s claim that the properties should be deemed to have been acquired for the benefit of the tarwad was negatived

by the lower Court. This finding coupled with its other conclusion already referred to, namely that the tavazhi became the ultimate owner of the

properties in question, led to the dismissal of the suit.

As we substantially agree both with the conclusions of the learned Judge and his reasons in support thereof we propose to deal with the appeal

very briefly. It is common ground that although the suit relates to several acquisitions, the most important of them were those made about &he

years 1878 and 1880; it was with the income derived from these acquisitions, that the other properties in the suit were acquired. The question

therefore to be decided is for whose benefit or in what circumstances were the acquisitions of 1878 and 1880 made? Mr. Venkatarama Sastri for

the appellants takes his stand on the finding of the lower Court, that the tarwad as a whole was possessed of considerable property, whereas the

tavazhi in question was not shown to have had separate funds worth the name of its own. This being so, he contends that it should be assumed that

the acquisitions made by She members of this tavazhi must have been made with the aid of the funds belonging to the tarwad. In addition, ha relies

on the circumstance that the person, who in the crucial years had the control of the tarwad property, was its karnavan Ambu Nair, who also

happened to be the senior most member of the tavazhi in question. His contention is that Ambu Nair, with a view to benefit his own tavazhi at She

expense of the main tarwad, acquired properties in the names of the junior members of the branch, thus defrauding the tarwad, whose interests it

was his duty to ''Safeguard. As we have said, we do not wish to repeat the arguments of the lower Court, but it seems to us that this contention of

the learned Counsel ought not to be allowed to prevail. Ambu Nair, the parson already referred to, was the karnavan from 1873 to 1881. His

successor was one Kora Nair, who was the karnavan for 20 years (1881 to 1901) and he was in turn succeeded by Kamaran Nair, whose

karnavanship extended over 10 years (1901 to 1911). What is most significant is that neither of these two last-mentioned karnavan belonged to

the Pattinhara tavazhi and yet they took no steps whatever to challenge the acquisitions in question during the three decades they were in office. Of

the four individuals referred to above, Kunhi Kannan Nair died in 1903 and the other three either in 1923 or in 1924. The plaintiff, who likewise

belonged to a different tavazai, became the karnavan in 1911 and the transactions in question were not challenged till all the four members had

died. In 1924, after the death of the last survivor, there were mutation proceedings and it was then for the first time that the plaintiff chose to

challenge the transactions. Even then the case he put forward was not that the acquisitions were made on behalf of the tarwad, but that on the

death of the four members who made the acquisitions, the properties lapsed to the tarwad under the Marumakathayam law. Further, in 1923, there

was a suit filed, the parties to which were the members of the Pattinhara tavazhi and the question was there raised, were the properties the

acquisitions of the individual members or did they belong to the tavazhi as a whole? That suit ended in a compromise which declared that the

properties belonged to the tavazhi; in other words, there was a relinquishment in virtue of that compromise of the rights, if any, of the individual

members. It is incredible that the other tavazhies were not aware of this proceeding, and if the properties did in fact belong to the tarwad as is now

suggested, it is difficult to believe that no claim to that effect would then have been put forward. What then is the natural inference from this long

and uniform conduct ? The several karnavans that succeeded Ambu Nair acquiesced in the properties being treated as not belonging to the

tarwad. Is it proper to allow the plaintiff to re-open the transactions which were acquiesced in by his predecessors and which he himself did not

choose to impeach till all the per. SODS connected with the acquisitions had died and all the evidence had disappeared? We therefore agreeing

with the lower Court hold that his acquisitions were not made on behalf of or for the benefit of the tarwad.

It is not contended for the appellants that if the ownership vested in the four Individual members, the properties would on their death lapse to the

tarwad and not to the tavazhi. That this would be the correct position in law, is not disputed. But the question is granting that the properties

originally belonged to the individual members, did or did they not become, by virtue of the compromise, the properties of the tavazhi? In the lower

Court, it was strenuously argued and it was feebly suggested here that a tavazhi as a legal entity can have no existence and can acquire no

properties as such. We agree with the learned Subordinate Judge that this contention is untenable. In (Kypreth) Moithiyan Kutti Vs. (Natukandy)

Puthiapurayil Mammali and Others, it has been held that a tavazhi consisting of a female and her descendants in the female line as a sub-division of

a tarwad is a legal entity, capable of holding properties as a distinct unit. That the properties could be relinquished in favour of the tavazhi in

question, can therefore admit of no doubt. The question then remains was there a valid relinquishment in favour of the tavazhi, granting that the

properties did in fact belong to the individual members in whoso names the acquisitions had been made? The suit which ended in the compromise

to which we have referred, did not embrace all the properties in dispute and if the amended provision now in force of the Registration Act applies,

there can be no question that the compromise decree not having been registered cannot affect such of the properties as were extraneous to the suit.

But Mr. Venkatarama Sastri contends that even under the old provision, the compromise decree could not be received in evidence to show a

completed transfer. In other words, he argues that the effect of the pronouncement of the Judicial Committee in Hemanta Kumari v. Midnapur

Zamindari Co. (1919) 6 AIR P.C. 79 is that the compromise decree could be used as evidence to prove the agreement to convey and not the

completed conveyance. The next atop in his argument is that in the present case the agreement, which alone wan proved, has not been followed by

an out and out relinquishment. This argument proceeds upon an entire misreading of the Privy Council decision. Their Lordships observe:

It may be that as a decree it was incapable of being executed outside the lauds of the suit, but that does not prevent it being received in evidence of

its contents (p. 246).

Then they go on to say, referring to the word ""decree"" in Section 17(2)(vi), Registration Act:

There is therefore no reason why a limit should be imposed upon the meaning of the word so as to confine it to the operative portion only of the

decree (p. 247).

These observations make it perfectly clear that an unregistered decree could under the old provision be received in evidence of its ""contents

there being no suggestion whatever, that although the decree refers to an out and out conveyance, it can be used for a limited purpose, only, that of

proving an agreement to convey. This is also the effect of Govidaswami Mudaliar v. Rasu Mudaliar (1935) 22 AIR Mad 232 and Govidaswami

Mudaliar v. Rasu Mudaliar (1935) 22 AIR Mad 232 which have considered the Privy Council decision. We therefore agreeing with the lower

Court hold that there was a valid relinquishment in favour of the tavazhi of such rights as the members possessed and that the doctrine of lapse

contended for can have no application. We have now disposed of the properties covered by Schedules A to C. As to the property in Schedule D,

the lower Court has disallowed the defendants'' claim to improvements, and the correctness of this conclusion has not been attacked by the

respondents. The lower Court has however refused to grant a declaration in respect of this property in favour of the plaintiff on the ground that the

tarwad''s title had never been questioned previous to the suit. We think in the circumstances, the lower Court ought to have granted a declaration in

respect of the Schedule D property, and Mr. Sitarama Rao, the respondents'' learned Counsel, does not dispute this.

In the result, the lower Court''s decree dismissing the suit in regard to the properties in Schedules A to C is confirmed. As regards the Schedules

D property, we grant a declaration in favour of the appellants and to that extent the lower Court''s decree is varied. In view of this modification of

the decree, we direct the appellants to pay only three-fourths of the respondents'' costs of the appeal. The lower Court''s order as to costs will

stand.