Sankaranarayanan Namboori v. Kali — 1955 DIGILAW 66 (KER)

Judgment :- 1. Defendant 1 in O.S. No. 91 of 1122 on the file of the Trichur District Court has brought this appeal against the decree passed in the suit declaring that the decree in O.S. No.75 of 1116 on the file of the said court is not binding on the plaintiffs and defendants 2 to 12 in the present suit, and their illom, to the extent of Rs. 2471-8-5, and interest and costs thereon. On 16.9.1107 the appellant obtained a simple mortgage for Rs.14,000/- from the then undivided Kanipeyuur Illom of which the plaintiffs and defendants 2 to 12 now form a divided branch. Defendant 2 is the seniormost male member of the branch. Under a partition arrangement in the Illom (9.7.1111) the liability for the mortgage debt was to be shared equally between the branch of defendant 2 and another branch of which one Subramonian Nambudiri was the managing member. Subramonian Nambudiri's branch first executed a renewed mortgage for their share of the debt and afterwards discharged it. O.S. No. 75 of 1116 was instituted by the appellant against the branch of defendant 2 for realization of the debt due by that branch by the sale of its share of the mortgaged property and personally from defendants 1 to 4, who had joined the execution of the mortgage. 2. All the members of the Illom were made defendants to that suit but defendants 2, 4 and 5 in the present suit (defendants 1, 3 and 4 there) alone entered appearance and contested it. They filed a joint written statement; all the other defendants remained ex parte throughout. Even those defendants who contested abandoned their contest after a certain stage. The result was that the appellant was granted a decree for the full claim set out in the plaint, namely, Rs. 13216-8-0 with future interest and costs. The mortgage provided for interest at 6 3/4 % per annum on the principal amount and 12% on arrears of interest. The amount claimed in the plaint was arrived at by calculating interest on the principal amount and on the arrears of interest at the rates specified in the document. 3. 13216-8-0 with future interest and costs. The mortgage provided for interest at 6 3/4 % per annum on the principal amount and 12% on arrears of interest. The amount claimed in the plaint was arrived at by calculating interest on the principal amount and on the arrears of interest at the rates specified in the document. 3. The main contention raised by the written statement filed in that suit was that the defendants and their illom were "agriculturists" within the meaning of the Cochin Agriculturists' Relief Act, XVIII of 1114, and that, therefore, the plaintiff could claim only the principal amount of Rs. 7000/- and 6% simple interest thereon. Ext. B in the present suit is the judgment in OS. No. 75 of 1116 and it shows that on the date the suit was set down for hearing, viz., 16.7.1117, the contesting defendants did not enter appearance and their advocates reported that they had no instructions. The court, therefore proceeded to judgment accepting the affidavit filed by the plaintiff (the appellant) in proof of his claim as made in the plaint. Afterwards an attempt was made by defendants 2, 4 and 5 to reopen the suit but that proved unsuccessful. (Vide Ext. VII the petition and Ext. D the order). Even that petition happened to be dismissed for non-prosecution but in its order the court, however, stated that the grounds alleged to reopen the suit were insufficient in that behalf. 4. The present plaintiffs were all minors when O.S. No. 75 of 1116 was filed as also when it was decreed. Of the three plaintiffs, two had become majors by the time of the institution of the present suit and third became a major while the suit was pending in the lower court. Their case was that defendants 2,4 and 5 withdrew their contest in the former suit in collusion with the plaintiff thereto, that is, the appellant, that the decree was vitiated by fraud and that in any event, defendant 2 who was the guardian ad litem for the minor defendants in the suit (including the present plaintiffs) was grossly negligent in the matter of defending the suit. According to the plaintiffs a decree happened to be passed in O.S. No. 75 of the full claim as laid in the plaint on account of the fraud, collusion and gross negligence alleged by them and they were, therefore entitled to have the decree avoided, at least to the extent of the excess claim allowed to the appellant, ignoring the provisions of the Cochin Agriculturists' Relief Act, XVIII of 1114. That excess claim amounted to Rs. 2471-8-5 and the lower court avoided the decree to that extent. Hence this appeal. 5. Before the lower court the appellant's main contentions were that the illom of the plaintiffs and defendants 2 to 12 was not a agriculturist as contemplated by the Cochin Agriculturists' Relief Act, XVIII of 1114, that the charges of fraud and collusion levelled against him and that of gross negligence on the part of the court guardian, were all false and unfounded and that even assuming the guardian was negligent the plaintiffs were not entitled to impugn the decree. These contentions were repeated before us by the learned counsel appearing for him. We are afraid we cannot accept the arguments. 6. The question whether the branch of the Kanipayyur Illom of which defendant 2 is the senior most male member is entitled to the benefits of the Cochin Agriculturists' Relief Act, XVIII of 1114, has been the subject of controversy in courts more than once before it was raised in this suit. The question arose for the first time in execution of the decree in O.S. No. 23 of 1107 on the file of the Trichur District Court. Though the execution court decided the question against the Illom the appellate court upheld its status as an "agriculturist". But this was more on the concession of the decree-holder thereto than as the result of a proper enquiry into the question. In O.S. No. 15 of 1116 the question came up for decision again and the trial court upheld the claim of the Illom to the benefits of the Act. That decision was challenged in the appeal. On a remand of the case to the lower court its original decision was reaffirmed. In O.S. No. 15 of 1116 the question came up for decision again and the trial court upheld the claim of the Illom to the benefits of the Act. That decision was challenged in the appeal. On a remand of the case to the lower court its original decision was reaffirmed. The High Court's decision is reported in 37 Cochin Law Reports 402 and there it was for the first time laid down that in considering whether a Jenmi was excluded from the benefits of the Act by reason of proviso (d) to S. 3 of the Act must be decided with reference to the land revenue which the jenmi was primarily liable to pay and not by taking into account the land revenue which a kanam tenant was by contract or by law bound to pay even though the land registers might show the jenmi to be liable for such amounts as well. A re-inquiry in the light of the above principle was found necessary. Hence the order for a remand in that case. 7. It is common ground that the result of the re-inquiry was in favour of the Illom and that it was then admitted to the benefits of the Act. In setting out the facts of the case we mentioned that a half-share of the mortgage debt had to be discharged by Subramonian Nambudiri's branch and that branch had executed a fresh document to defendant 1. Subramonian Nambudiri sought to discharge the debt by depositing the amount in court under the provisions of the Transfer of Property Act; and the deposit he made was of the debt as scaled down under the Cochin Agriculturists' Relief Act, XVIII of 1114. The present appellant disputed the right of Subramonian Nambudiri's branch to the benefits of the Act but the District Court repelled that contention. As to the true quantum of the scaled down amount the decision of the District Court was not found acceptable to the debtor. Therefore both sides took the matter in appeal to the High Court and the decision of the High Court is reported in 37 Cochin Law Reports 462. Following the principles laid down in the earlier decision at p. 402 of the report the High Court found that the lower court's decision that Subramonian Nambudiri's branch was entitled to the benefits of the Cochin Agriculturists' Relief Act was right. 8. Following the principles laid down in the earlier decision at p. 402 of the report the High Court found that the lower court's decision that Subramonian Nambudiri's branch was entitled to the benefits of the Cochin Agriculturists' Relief Act was right. 8. The two latter causes were depended upon by the lower court to find that the plaintiffs' branch of the Illom i.e., the branch of defendant 2, was entitled to the benefits of the Act. To the earlier case reported at p. 402 the appellant was not a party but that decision furnishes useful evidence to solve the present controversy. The second decision is also useful but in a different sense. The two branches of the Illom got equal shares in the Illom properties and when it was found in the second case that the tax which Subramonian Nambudiri's branch was paying did not exceed Rs. 1000/- the evidence on the side of the plaintiffs that their branch of the Illom was also paying only a smaller amount as tax than the limit prescribed in proviso (d) to S. 3 becomes readily acceptable. Ext. E is a statement showing the amounts which the plaintiffs' branch of the Illom pays in various villages and according to it the total amount comes to Rs. 670-9-11 alone. PWs.1 and 2 (plaintiff 3 and defendant 4) have given oral evidence in support of Ext. E. Ext. E was produced in the former suit, O.S. No. 75 of 1116, and the Kanakachits on the basis of which Ext. E was prepared have also been produced here. We, therefore, find very little difficulty in affirming the lower court's finding that the plaintiffs' branch of the Illom was entitled to the benefits of the Cochin Agriculturists' Relief Act, XVIII of 1114. The counter-evidence let in by the appellant really counts for nothing. The plaintiff as DW.1 has only given evidence of some hearsay information and Exts. I to VI, copies of Chittas of properties held by the Kanippayur Illom in different Amsoms of the Ponnani Taluk, do not take the matter further. As pointed out in the two reported decisions the quantum of the tax the Illom pays should be determined with reference to the Kanakaichits and the enquiries held in respect of either branch did not end in favour of the creditor. Many items shown in Ext. As pointed out in the two reported decisions the quantum of the tax the Illom pays should be determined with reference to the Kanakaichits and the enquiries held in respect of either branch did not end in favour of the creditor. Many items shown in Ext. I and VI have gone under the partition arrangement to the branch of the plaintiffs. Exts. I to VI and the oral testimony of DW.1 cannot therefore counteract the weight of the evidence on the side of the plaintiffs. We accordingly affirm the finding of the lower court that the plaintiffs branch (i.e., 2nd defendant's branch) was entitled to the benefits of the Cochin Agriculturists' Relief Act, XVIII of 1114. 9. The lower court found against the case of fraud and collusion set up by the plaintiffs. The plaintiffs succeeded before the lower court on the ground that defendant 2, the guardian ad litem of the minor defendants in the former suit, was grossly negligent in defending that suit. As guardian he filed no written statement at all. No doubt, the interest of all the defendants in that suit was common. Still whatever he might do in his individual capacity he was not justified in behaving as he did so far as the minors were concerned. The defence failed through default and even the attempt to reopen the suit was allowed to fail for non-production of the petition filed in that behalf. If the defence raised in the written statement had been pursued to the last and the contention had still gone against the illom no negligence, much less gross negligence, could have been attributed to the guardian ad litem even though no written statement had been filed on behalf of the minor defendants. But that is not what actually happened. After filing the written statement the defence was abandoned, equally so, the petition filed to reopen the suit. The fact that the decision in the two cases reported in 37 Cochin Law Reports were decided long after the decree in O.S. No. 75 of 1116 was passed is no reason to justify the conduct of defendant 2 in not prosecuting his defence in the suit to the last. The fact that the decision in the two cases reported in 37 Cochin Law Reports were decided long after the decree in O.S. No. 75 of 1116 was passed is no reason to justify the conduct of defendant 2 in not prosecuting his defence in the suit to the last. The lower court was, therefore, right in holding that the guardian ad litem of the minor defendants in O.S. No. 75 acted with gross negligence and that he was callously indifferent to the interests of the minors. 10. The further question for decision is whether such negligence on the part of the guardian ad litem in not pursuing a defence available to the minors in a normal manner would constitute a sufficient ground to avoid the decree. The lower court has referred to the decisions bearing on the point; and held that it would constitute a good ground. It is unnecessary for us to traverse the same ground here over again. We shall, however, refer to an argument raised by the learned counsel for the appellant that the negligence of the managing member of the illom was the negligence of the illom itself and that before a court no person was entitled to take advantage of his own wrong. The short answer to it is that the argument cannot be applied to a case where all the members of the illom including minors had to be made defendants to the suit to make the decree binding on the illom. The competence of the Karnavan or the managing member to represent an illom in suits against the illom has been taken away by S.12 of the Cochin Nambudiri Act, XVII of 1114 and when all the members of the Illom including minors had to be made defendants there is no meaning in saying that the negligence of one of them is the negligence of all. To accept the contention would be to deprive the parties the benefit the legislature conferred on them. The lower court, was, therefore, right in avoiding the decree to the extent of the amount found to be in excess when the Cochin Agriculturists' Relief Act, XVIII of 1114, was applied to the debt. We accordingly affirm its decree that the illom and its properties cannot be proceeded against for Rs. 2471-8-5 out of the plaint claim in O.S.No. 75 of 1116 and interest and costs thereon. 11. We accordingly affirm its decree that the illom and its properties cannot be proceeded against for Rs. 2471-8-5 out of the plaint claim in O.S.No. 75 of 1116 and interest and costs thereon. 11. The lower Court, however, made one mistake and that was to annul the personal decree against defendants 1 to 4 for the said excess claim. That part of the decree goes beyond the reliefs asked for in the plaint and we delete it. Subject to this modification the lower court's decree is affirmed and the appeal will stand dismissed with costs. Dismissed.