Maya Antharjanam v. Narayana Pillai — 1965 DIGILAW 408 (KER)

JUDGMENT T. S. Krishnamoorthy Iyer, J. 1. The defendant is the appellant. The subject matter of dispute in the suit is three cents of paddy land comprised in S. No. 508/6B, which belonged to Vaikkathazhikathu tarwad. In Ext. P18 dated 5-9-1101, the partition which was effected among the members of the tarwad, the plaint property was allotted to the thavazhi of Kochali Amma Chirutha Amma. The appellant I filed O. S. No. 1236 of 1110 for recovery of jenmi's dues on the plaint property. Ext. P17 is the decree obtained by the appellant. In execution of the decree, the appellant purchased the property in court auction on 12-10-1124. 2. The respondent instituted the suit to declare that Ext. P17 decree and execution proceedings including the court sale are not binding on the plaint property and for consequential reliefs. The suit was dismissed by the Trial Court. But on appeal, the suit was decreed. 3. The learned advocate for the appellant contended that the respondent being a stranger to the tarwad was not competent to question Ext. P17 decree and that the suit is barred on account of S.47 of the C. P. C. The plaint property was allotted to the sakha of Kochali Amma Chirutha Amma under Ext. P18 partition deed. The appellant, when he instituted Ext. P17 suit, should have impleaded the karnavan and the senior anandhiravan of that sakha to comply with the provisions of S.31 of the Travancore Nayar Act, II of 1100. It was admitted that Kunju Pillai Narayana Pillai, the senior anandhiravan of the sakha, was not made a party with the result that there was no compliance with the provisions of S.31 of the Travancore Nayar Act in obtaining Ext. P17 decree. Under Ext. P1 dated 27-6-1113, the partition deed among the members of the sakha of Kochali Amma Chirutha Amma, the plaint property was allotted to Chirutha Amma Janaki Amma and her children. The respondent purchased the plaint property under the sale deed, Ext. P2, dated 17-2-1118 from the sharers to whom this property was allotted under Ext. P1. The respondent therefore is not a member of the tarwad, but is a vendee of the property from the members to whom this property was allotted under Ext. P1. 4. The respondent purchased the plaint property under the sale deed, Ext. P2, dated 17-2-1118 from the sharers to whom this property was allotted under Ext. P1. The respondent therefore is not a member of the tarwad, but is a vendee of the property from the members to whom this property was allotted under Ext. P1. 4. The learned advocate for the appellant relying on the Full Bench decision in 1962 KLT 61 contended that a decree in contravention of S.31 of the Nayar Act is not void but is only voidable and the respondent who is a stranger to the tarwad was not competent to impugn the decree. It is not necessary to decide the question whether a decree obtained in contravention of S.31 of the Nayar Act is void or voidable for purpose of this appeal and we are not therefore expressing any opinion on that aspect. Even assuming that Ext. P17 decree is only voidable and that the respondent being a stranger to the tarwad is not competent to question the same, we are of the view that the appellant cannot succeed in this appeal. It was held in the decision referred to above that it was always not necessary that a party entitled to avoid a transaction not binding on him should sue for its rescission. He can himself avoid it by an unequivocal act repudiating it. Therefore a junior member can treat an invalid alienation of his tarwad property as void, ignore it and to sue to recover the property, and no suit for its rescission as such is needed". Applying this principle in this case it can be seen that ignoring Ext. P17 decree, the members of the tarwad executed Ext. P1 partition deed and the sharers to whom this property was allotted, executed Ext. P. 2 in favour of the respondent. The legal effect of Exts. P1 and P. 2 is to repudiate Ext. P17 decree by the members of the tarwad and by those people to whom this plaint property was allotted under Ext. P1. If that is so, it was open to the respondent to institute a suit for a declaration that Ext. P17 decree is not binding on the plaint property and he filed the suit only after Ext. P17 decree was avoided by the members of the property. 5. P1. If that is so, it was open to the respondent to institute a suit for a declaration that Ext. P17 decree is not binding on the plaint property and he filed the suit only after Ext. P17 decree was avoided by the members of the property. 5. The next contention of the learned advocate for the appellant is that the suit is barred in view of S.47 of the C. P. C. and in support of this contention the learned counsel relied on the decision in 1963 KLJ 647 . It was submitted by the learned advocate that the respondent put in Ext. D1 petition to set aside the court sale which took place in execution of Ext. P17 decree, and Ext. D1 was dismissed by Ext. D2 dated 14-11-1953 which was confirmed in appeal by the order, Ext. D3, dated 3-10-1955. We think that this contention of the learned advocate cannot be accepted. It was found in Exts. D2 and D3 that Ext. D1 petition impeaching the decree and court sale was not maintainable. Exts. D2 and D3 therefore cannot operate as a bar to the suit. The decision in 1963 KLJ 647 also cannot be applied to the facts of this case as in the present suit the prayer is for a declaration that the decree, Ext. P17, is not binding on the tarwad. This is not a matter coming within S.47 of the C. P. C. We are therefore of the view that the decision in 1963 KLJ 647 has no application to the facts of this case. In the result, the second appeal is without substance and it is dismissed with costs.