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1957 DIGILAW 98 (KER)

Kaliamma Pilla Neelamma Pilla v. Krishna Pillai Narayana Pillai

1957-04-03

T.K.JOSEPH

body1957
Judgment :- 1. Defendants 1,2, and 4 are the appellants. The Second Appeal arises out of a suit for redemption of a mortgage and purakkadom. The properties sought to be redeemed belonged to the tarwad of the plaintiff. There was a partition in the tarwad in the year 1103 and although the plaintiff was not a party to the same, he has accepted this partition arrangement. Under the partition the plaint properties were allotted to the Sakha of the plaintiff, his sisters Gouri Pilla and Janaki Pilla and their children. The plaintiff was the Karanavan of his Sakha. The 1st plaintiff and other adult members of his sakha sold the equity of redemption to the 2nd plaintiff under Ext. C dated 27-4-1125. The two plaintiffs together instituted the suit, Defendants 1 and 2 filed a joint written statement while the 5th defendant filed a separate one. Their contentions were that the 1st plaintiff was absent from the place for a long period and that even at the time of the partition, he was not present here. During his absence his sister Gouri Pilla was managing the affairs of the tarwad as Karanavathi. She obtained a release of the mortgage in the year 1107 and executed a sale deed Ext. III for item No.1 in favour of the mortgagee. Item No. 2 was sold by her on the same date to the 5th defendant under Ext. VII. According to the defendants these transactions are fully supported by consideration and necessity and Gouri Pilla was competent to execute the same. There was a further contention that the defendants had perfected title by adverse possession. The trial court upheld the defence and dismissed the suit but on appeal, the decree was reversed and the 2nd plaintiff was given a decree for redemption. 2. The first point urged on behalf of the appellants is that at the time of execution of the sale deeds, Gouri Pilla was the Karanavathi of the sub-tarwad as the plaintiff was not available to manage its affairs. Reliance was placed on the definition of Karanavan in the Travancore Nair Act. 2. The first point urged on behalf of the appellants is that at the time of execution of the sale deeds, Gouri Pilla was the Karanavathi of the sub-tarwad as the plaintiff was not available to manage its affairs. Reliance was placed on the definition of Karanavan in the Travancore Nair Act. The definition runs as follows: "Karanavan" means the senior major male member of the Tarwad in whom the headship of the Tarwad, the right of management of its affairs and the possession of the properties thereof are vested in law, and, in the absence of such male member, the senior major female member" The argument urged is that the 1st plaintiff who was the Karanavan was absent and during his absence Gouri Pilla, the seniormost female member was the Karanavathi. This argument is based on the words "in the absence of such male member", in the definition extracted above. The learned District Judge held that "in the absence" contemplated in the definition was not a temporary absence of the Karanavan from the tarwad house. No doubt cases may arise in which the Karanavan may become incompetent to manage the affairs of the tarwad with the result that a female member has to assume such management. The question is whether during the temporary absence of the Karanavan, the senior female member can take up management as Karanavathi. Learned counsel for the appellant relied on the decision in Lakshmi Narayani v. Kanakku Padmanabhan Parameswaran (22 T. L. R.188). Mr. Sadasiva Iyer, C. J. observed: "Thus it seems to me that whether the senior adult female member takes up the management because there is no male member at all or because there is no male member capable of performing the duties of Karanavan (the incapability might be due to minority, insanity or idiocy or other "natural causes" or by the decree of a court of justice), she succeeds to the Karanavanship in her own right and not in the right of the incapable male member" The question for decision in that case was whether the female member who became Karanavathi in the absence of an adult male member succeeded to Karanavanship in her own right or in the right of the male member who was a minor at that time. The passage extracted above cannot be taken as deciding the point raised in this case viz., whether the senior female member can take up Karanavanship merely because the Karanavan of the tarwad is absent from the tarwad, To accept the argument of the appellant would mean that even during the temporary absence of the Karanavan the next senior member can discharge all the functions of Karanavan. This is not warranted by the definition of Karanavan in the Nair Act. In my opinion what is contemplated in the definition is a case where there is no adult male member in the Tarwad to take up the management or where the adult male member is incapable of performing the duties of the Karanavan due to some incapacity. This was not the case here. It may be that the 1st defendant was not always residing at the Tarwad house but this does not mean that there was no adult male member to manage the affairs of the Tarwad. The Karanavan is not bound to reside at the Tarwad house and there is nothing in the Travancore Nair Act which prohibits a Karanavan residing elsewhere from managing the Tarwad. The view taken by the learned District Judge is correct and has to be upheld. It cannot therefore be held that Gouri Pilla was competent to execute the sale deeds merely because the 1st plaintiff was living elsewhere for some time. Even apart from her incompetency to discharge the duties of Karanavan, there is the further fact that sale deeds could be executed by the Karanavan, only with the written consent of all the adult members of the tarwad. The 1st plaintiff was not a party to the transactions and the appellants have no case that his consent in writing was obtained. The sale deeds executed without the junction of the Karanavan are therefore ineffective. 3. Another point urged was that the vendees had perfected title by adverse possession. It is true that the suit was filed after the expiry of 12 years from the date of execution of the sale deeds but this fact by itself is insufficient to establish the plea of adverse possession. The properties were outstanding on mortgage and so far as the tarwad was concerned there was no change in the nature of the possession. The properties were outstanding on mortgage and so far as the tarwad was concerned there was no change in the nature of the possession. There was no overt act on the part of the vendees to fix the tarwad with notice of a change in the nature of the possession. So far as the tarwad is concerned, the junior members who obtained a release of the mortgage are only in the position of assignees of the mortgage and the vendees under the sale deeds executed by them cannot be deemed to have obtained higher rights. The plea of adverse possession must therefore fail. 4. The last argument advanced was that junior members in exceptional cases of pressing necessity could execute sale deeds. All that need be said is that there was no case of such pressing necessity, pleaded or proved in the case. 5. No other point arises in second appeal. The decree passed by the lower appellate court is therefore confirmed and the Second Appeal is dismissed with costs.