Rajavarama Thampan v. Mathai — 1954 DIGILAW 207 (KER)

Judgment :- 1. The plaintiff in O.S. No.15 of 1121 of the District Court of Anjikaimal is the appellant before us. He is a member of a divided branch of the Koratti Swaroopam (hereinafter called "the tarwad") and the suit, as stated in the words of the opening paragraph of the judgment under appeal, was "for a declaration that the decree and sale of the suit properties in O.S. No. 308 of 1111 of the Irinjalakuda Munsiff's Court and their basic debt and mortgage evidenced by deed No. 1554 of 1104 of the Chalakudi Registry are binding neither on him nor on his branch, and for their surrender by defendants with mesne profits, past and future." 2. The plaintiff's tarwad obtained the properties by Ext. AJ, the award decree dated 23.7.1104 in O.S. No. 172 of 1101 of the Anjikaimal District Court and Ext. AF is a certified copy of the usufructuary mortgage deed of 21.2.1104 on the basis of which O.S. No. 308 of 1111 was filed. Ext. AF was for a sum of Rs. 475/-and was executed by four members of the tarwad, Kunhikitavu Thampan, his brother Kavu Thampan, his sister Kunhipilla Thampatti and her eldest son. What was mortgaged to the 1st respondent (1st defendant) was the mortgage right under Ext. AG of 22.11.1080 which Kunhikitavu Thampan had purchased under document No. 178 of 1092 of the Chalakudy Registry (and which he had already dealt with under the mortgages, Ext. S dated 9.3.1099, Ext. T dated 22.12.1101, Ext. P dated 27.10.1102 and the pattomchit Ext. AL dated 27.10.1102) and equity of redemption over the seven items of property described in the schedule to Ext. AF; and what was actually sold in pursuance of the decree in O.S. No. 308 of 1111 were the items described in the schedule to the present plaint which except to an extent of 2 acres and 24 cents in item 3 were not included in Ext. AG and Ext. AF. As stated by the lower court "there is no indication in the document that the rights under Ext. AG, taken assignment of in 1092 from the original mortgagee were intended to enure or had enured to the benefit of any but Kunhikitavu Thampan himself, that Ext. AG and Ext. AF. As stated by the lower court "there is no indication in the document that the rights under Ext. AG, taken assignment of in 1092 from the original mortgagee were intended to enure or had enured to the benefit of any but Kunhikitavu Thampan himself, that Ext. AF had been executed on behalf of any group or individuals other than its four executants, or that the consideration therefor had been borrowed for the needs or benefits of any but its executants or any or more of them". After noticing the circumstances which were urged in favour of the contention that the rights under Ext. AG might have been taken by Kunhikitavu Thampan for and on behalf of his tarwad and that the money borrowed under Ext. AF might have been borrowed and used for tarwad purposes the learned District Judge proceeded to deal with the matter as follows: "These circumstances are, however, offset by the fact in the sub-mortgages Exts. S, T and P executed by Kunhikitavu Thampan alone in 1099, 1101 and 1102 there is the clearest statement that the assignment of the mortgage right under Ext. AG had been taken solely on his own behalf and that in Ext. AF itself there is no indication that the assignment had been taken on behalf of the tavazhi or that the mortgage was being executed on behalf of their tavazhi or for amounts borrowed for the needs of the tavazhi. If the mortgage Ext. AF had been really executed for the needs of the tavazhi and on its behalf, the omission to mention those facts in the deed is inexplicable; and it is all the more so in view of D1's own admission in cross-examination as well as in his prior deposition Ext. AM that the other members had joined in its execution of his compulsion and evidently to safeguard his interests and afford further security for his money. If he had insisted on their junction to make it binding on the tavazhi, he would certainly have insisted on the junction of all the adult members of the tavazhi (it is admitted there were at the time at least 3 more adults besides the executants of Ext. If he had insisted on their junction to make it binding on the tavazhi, he would certainly have insisted on the junction of all the adult members of the tavazhi (it is admitted there were at the time at least 3 more adults besides the executants of Ext. AG), and would certainly not have omitted the insertion of the recital that the money was borrowed for the tavazhi's needs and that the mortgage was being executed on the tavazhi's behalf. It is clear that both parties were conscious at the time that the transaction was not being entered into on behalf of the tavazhi or for its needs and that neither party had any intention then to make it binding on the tavazhi. That this is so is further evident from two circumstances. Ext. W is the copy of the plaint dated 26.5.1108 in the suit filed on foot of the sub-mortgage Ext. P impleading Kunhikitavu Thampan alone as the mortgagor and D1, as a puisne mortgagee. No relief was therein claimed against the tavazhi; and D1 himself did not put forward the plea that he held not only a sub-mortgage, but also a mortgage of the proprietory rights of the tavazhi in virtue of Ext. AF, executed by the senior members of the tavazhi, but tamely suffered the properties to be sold and delivered out of his possession in enforcement of the decree earned thereon. Further Ext. Z is the copy of the plaint in the suit filed by D1 himself on foot of Ext. AF on 14.4.1111; and it is significant that though he claimed relief therein against the tavazhi of its executants, it was not on the averment that it had been executed for and on behalf of the tavazhi for a debt borrowed for its needs, but only on the pleading that the liability for its discharge had been adopted by the tavazhi in its subsequent karars Exts. AH and G of 1105 and 1106 in consideration of Kunhikitavu Thampan's relinquishment of his share in the tavazhi assets in favour of the tavazhi. These circumstances leave no manner of doubt that D1 himself had no case then that Ext. AF had been tavazhi debt in its inception and that therefore it was really not a debt incurred for any needs of that tavazhi". These circumstances leave no manner of doubt that D1 himself had no case then that Ext. AF had been tavazhi debt in its inception and that therefore it was really not a debt incurred for any needs of that tavazhi". He found, however, that the debt even though a personal debt of Kunhikitavu Thampan at its inception was adopted by the tarwad as a tarwad debt by the family karars, Ext. AH dated 10.1.1105 and Ext. G dated 28.3.1106, and the main contention of the appellant who attained majority only on 9.7.1120 was that the purported adoption of the debt will not make the liability a tarwad liability as the adoption of the debt was so manifestly subversive of the real interests of the tarwad. 3. The economic consequences of the two karars are clearly brought out in the statements filed by the learned counsel for the appellant which reads as follows: "The economic condition of the family at the period of 1105-1106 is clear from Award decree Ext. AJ (23-7-04) and Trust deed Ext. A (17.12.08). The award says that income per head is 100 paras paddy. So eight members of the tavazhi gets 800 paras. Para 16 of Ext. Ai says paddy price is 12 as per para. So total income of family is say Rs. 600/-. 1 was in the possession of the tarwad and item 2 was assessed only to ""kpaOkL•U. Though D1 has contended that he had not obtained delivery of all the plaint items under the sale certificate Ext. AA the delivery receipts Exts. AB and AC establish the contrary. If therefore plaintiff is entitled to claim mesne profits, D1 would be liable therefor at 407 paras of paddy per annum. I answer the issue accordingly. " 8. Mr. Sankara Kurup, learned counsel for the 1st respondent, addressed us at some length on this point but the evidence on record clearly supports the finding of the court below and we see no reason to differ from the same. In paragraph 14 of the judgment of the lower court it is stated: "Plaintiff has conceded that the entire rights of defendants 3 and 7 may be reserved and that he would be pressing only for a decree for possession and mesne profits subject to their rights. Their rights will accordingly be so reserved". In paragraph 14 of the judgment of the lower court it is stated: "Plaintiff has conceded that the entire rights of defendants 3 and 7 may be reserved and that he would be pressing only for a decree for possession and mesne profits subject to their rights. Their rights will accordingly be so reserved". and in paragraph 15: "If the decree and sale are to be set aside it is obvious that D1 is at any rate entitled to the reimbursement of the Rs. 1023-0-6 paid by him under Exts. V and VI towards prior encumbrances with interest thereon at 6% per annum from the respective dates of payment. This is agreed to be paid by plaintiff in the event of a decree in his favour. He has also agreed to pay the parent mortgage debt of Rs. 1000 allotted by the Award Decree to be discharged by his Thavazhi if and when claimed by the proper party with proof of his title, as D1 has lost title thereto by virtue of the decree, sale and delivery pursuant to the suit evidenced by the plaint Ext. W by the prior encumbrancer. But these questions do not arise in view of the only decree I can pass in this suit on the basis of my foregoing conclusions". 9. The reservations and concessions embodied in the two paragraphs extracted above, it is agreed, must stand and shall be recorded in this judgment. 10. In the light of what is stated above this appeal has to be allowed and we do so subject to the reservations and concessions recorded above and with costs here and in the court below. Allowed.