Kutty Kochu vs Raman Narayanan and Others

Vithayathil, J.—The 5th Defendant is the Appellant in this second appeal. The suit is to set aside a mortgage deed and for recovery of property. The Plaintiff''s case is that the Plaintiff and Defendants 1 to 3 belong to an undivided Ezhava tarwad. There was an udampady in the tarwad on 29-8-1089 which is marked as Ex. B. Under that udampady properties belonging to the tarwad were divided equally among four sakhas for enjoyment. While the properties were being so enjoyed by the four sakhas one Mathevan Padmanabhan, the senior member of one of the sakhas, executed the plaint mortgage, Ex. A, on 26-4-1110 for Fs. 400 in favour of Defendant 4. According to the Plaintiff Mathevan Padmanabhan was not competent to execute the document, there was no consent of the members of the other three sakas for the execution of the mortgage, and the document is not supported by consideration and tarwad necessity. The Plaintiff therefore prays for the cancellation of Ex. A and for recovery of property on behalf of the tarwad.

Defendants 4 and 5 contested the suit. They contended that Ex. B was a partition and not a mere maintenance arrangement, that, in any case, by course of conduct the four branches have assumed a status of division, that Mathevan Padmanabhan who was the last surviving member of his sakha executed a gift deed, Ex. I, in respect of his sakha properties in favour of Defendant 5, his wife, that Ex. A is supported by consideration and tarwad necessity and that the Plaintiff is incompetent to impeach the same.

The main question to be decided in the suit is whether the Plaintiff, Defendants 1 to 3 and deceased Mathevan Padmanabhan were divided in interest. The trial Court held that they were divided in interest and that therefore Mathevan Padmanabhan who was the sole surviving member of his sakha was competent to execute Ex. A. The suit was, therefore, dismissed with costs. In appeal filed by the Plaintiff the District Court reversed this finding and held that the Plaintiff''s tarwad had not attained a status of division. That Court, therefore, held that Ex. A was invalid and not binding on the Plaintiff and the suit was decreed in terms of the plaint. Hence the second appeal.

Learned Counsel for the Appellant did not contend for the position that Ex. B is a partition. He admitted that it was only a maintenance arrangement. His case is that from 1092 onwards the four sakhas attained a status of division by course of conduct.

Ex. v. is the copy of the judgment in O.S. No. 267 of 1097 of the Kuzhithurai Munsiff''s Court. Plaintiffs 1 and 2 and Defendants 2 and in that case are members of the two branches of the Plaintiff''s main sakha, Plaintiffs 3 and 4 and Defendants 5 and 6 belonged to the present 1st Defendant''s sakha. Defendants 4 and 7 belonged to the present third Defendant''s sakha and Defendant 1 in that case Mathevan Padmanabhan was the sole surviving member of his sakha. That was a suit to set aside a mortgage executed by Mathevan Padmanabhan and to recover property on behalf of the tarwad as in the present case. It was contended in that case that Ex. B amounted to an outright partition and that the 4 sakhas had attained a status of division. No finding was recorded on the question whether Ex. B amounted to a partition, as the document was not produced in that case. The 2nd question was decided in the affirmative.

Issue No. 2 in the case related to this question. The Court considered the evidence relating to the course of conduct of the parties after Ex. B and found that the four branches had attained a status of division and had no community of interest with one Anr. . It was argued for the Plaintiff-Respondent that the senior ananthiravan of the Plaintiff''s sakha was not a party to Ex. v. suit and that therefore the decision in that case is not res judicata so far as the Plaintiff is concerned. Even if that decision does not amount to res judicata it will have the effect of a judicial recognition of the fact that the tarwad had attained a status of division on the date of that judgment. It will therefore have great evidentiary value so far as the matter in issue is concerned. It will be seen from Ex. v. that even in 1090 one of the sakha claimed separate 1/4 share in a mortgage amount belonging to the tarwad. They had filed a written statement to that effect in O.S. No. 50 of 1090 of the Kuzhithurai Munsiff''s Court. One of the sakhas had executed an hypothecation bond in respect of the properties allotted to that sakha and the hypothecatee obtained a decree in O.S. No. 181 of 1090 of the Kuzhithurai Munsiff''s Court on the basis of that hypothecation bond and purchased the property in court auction. Some members of Anr. sakha filed a suit, O.S. No. 66 of 1095, for cancellation of the decree and court sale. That suit was dismissed. These facts are seen from the judgment Ex. V. Other oral and documentary evidence was adduced in that case to show that the tarwad had attained a status of division. All the parties acquiesced in Ex. V. decision. This decision was in 1101.

On 25-10-1098 a member of the 2nd Defendant''s sakha executed a sale deed Ex. 24 in respect of his 1/16th share in the sakha property on the basis that the property belonged to him. Nobody sought to set aside that document. Exhibit 2 is the copy of the plaint in O.S. No. 15 of 1104 of the Kuzhithura Munsiff''s Court instituted by the present Plaintiff and his mother against one Mathevan Velayudhan who was the karnavan of the Plaintiff and one Chinnan Govindan who was a member of Anr. sub-branch of the Plaintiff''s sakha for setting aside a release deed executed by the latter. In para. 2 of that plaint it was stated that the common tarwad had been divided into four sakhas and that the sakha consisting of the Plaintiffs and Defendants 1 and 2 in that case was entitled to one fourth of the plaint lekkom properties. This clearly amounts to an admission by the Plaintiff that the four sakhas had attained the status of division. Ex. 6 is an otti and kuzhikanom dated 31-9-1104 executed by the Plaintiff''s sakha. In it it was stated that the sakha was entitled to one-fourth share in the properties mentioned in the document. Ex. 23 dated 25-12-1104 is a partition in the first Defendant''s sakha of their one-fourth share of the properties. Exhibit 27 dated 3-5-1104 is an otti and Kuzhikanom executed by the Plaintiff''s karnavan grand mother, Defendant 3 and Ors. in respect of 5/20 share of the one-fourth share belonging to their branch. Ex. 28 is a sale deed dated 1-12-1111 executed by the members of the 2nd Defendant''s sakha. Ex. 1 dated 5-3-1108 is the gift deed executed by Mathevan Padmanabhan in respect of the one-fourth share that belonged to his sakha in favour of Defendant 5.

Ex. 3 is the written statement filed by Mathevan Padmanabhan in Ex. 4 suit, namely O.S. 520 of 1103. In that he contended that he was entitled only to one-fourth share in the suit property in that case and that he was liable to pay michavarom only to the extent of that share. Ex. 26 is a mortgage deed dated 13-8-1103 executed by the junior members of the 2nd Defendant''s sakha relating to the sakha property. Ex. 25 dated 26-11-1103 is a sale deed executed by the 2nd Defendant''s sakha in respect of properties allotted to that sakha. Some of the documents produced in the case relate to transactions that took place after the date of this suit. Although the evidentiary value of these documents cannot be much they also go to show that the four branches continued, to deal with the properties allotted to their respective shares as their separate properties even after the institution of this suit. Ext. 7 dated 7-2-1113, Ex. 29 dated 29-12-1112, Ex. 30 dated 17-4-1116, Ex. 31 dated 18-11-1117, and Ex. 32 dated 15-2-1118 are the documents executed after the date of the suit. They show that the four sakhas were dealing with the shares allotted to them under Ex. B as if they were their separate properties.

It is clear from these documents that the four branches have by their course of conduct attained a status of division. The trial Court considered the effect of these documents and also the oral evidence adduced in the case. Reference may be made in this connection to the following observation of Sadasiva Iyer J. in - ''Authichan Easwaran v. Easwaran Narayanan'' 24 Trav LR 187 (A), which is quoted with approval by Krishna Pillai J. in - ''Velu Kurup v. Krishna Pillai'' 1947 Trav LR 623 (B):

There is no magic in any particular number of years, and provided the intention to remain thereafter in a state of division without ownership is indicated by even a single very clear transaction in which the branches or the recognised heads of the branches have taken part, and if that transaction can be taken as approved by all the adult members of both branches by the surrounding circumstances and by their not having tried to set it aside for a reasonably long time, a state of division might safely be found.

The lower appellate Court has not correctly appreciated the evidentiary value of the documents produced in this case. The learned Judge has not, attached due importance to Ex. 5 decision and to the admission of the Plaintiff in the plaint, Ex. 2. The reasons given by the learned Judge for not giving due weight to these documents are unsustainable. I have no hesitation in agreeing with the finding of the trial Court that the four branches of the Plaintiff''s common tarwad had by their course of conduct attained a status of division on the date of Ex. A, that the Plaintiff''s branch had no interest in the suit properly on, the date of that document, and that the Plaintiff is therefore not entitled to impeach the same. The judgment and decree of the lower appellate Court are therefore set aside and those of the'' trial Court are restored. The Second Appeal is thus allowed and the suit is dismissed with costs in all the Courts.