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1968 DIGILAW 44 (KER)

Sankunny Santha Kumar v. Lekshmy Amma Bhargavi Amma

1968-02-28

M.S.MENON, P.GOVINDA NAIR

body1968
.Judgment :- 1. This appeal is by the plaintiff from the decision of this Court in S. A.No. 856 of 1960. By that decision the decree granted by the trial court and confirmed by the first appellate court has been reversed and the suit dismissed. 2. The short question arising for determination is whether the decree in O.S. No. 1068 of 1121 of the Sherthallai Munsiff's Court passed on 16 61124 is binding on the Tarwad of the plaintiff appellant. This question, it is admitted must be answered with reference to S.27 of the Ezhava Act 3 of 1100. That Section is in these terms: "27. No decree shall bind a Tarwad, unless it is obtained against the Karanavan as such and the senior. Anandaravan of his Thavazhee and of every Thavazhee collateral to the same, if any." 3. On the date of the decree in O. S.1068 of 1121 i.e., on 16-6-1124, the plaintiff was a major and was the eldest male member of his tarwad, is not disputed. That he was not a party in O. S.1068 of 1121 is also not disputed. The second defendant in these proceedings (the mother of the plaintiff) was the first defendant in O. S.1068 of'1121 and she is the oldest adult member in the tarwad. She was therefore the karanavathi before plaintiff attained majority and the suit O. S.1068 of 1121 was instituted therefore properly. Even so the question arises whether on the plaintiff attaining majority it was necessary to bring him on the party array and obtain a decree against him as envisaged by S.27 in order that the decree may be binding on the tarwad. 4. No decision has been brought to our notice where the view has been taken that it is unnecessary in such circumstances to bring the karnavan on record and get a decree. On the other hand the decision in Rajappan Pillai v. Bhoothalingam Pillai K. M. reported in 1954 KLT. 755 has categorically taken the view that a decree without the karanavan will not be binding on the tarwad. This is the view that was accepted by the; trial court as well as the appellate court. On the other hand the decision in Rajappan Pillai v. Bhoothalingam Pillai K. M. reported in 1954 KLT. 755 has categorically taken the view that a decree without the karanavan will not be binding on the tarwad. This is the view that was accepted by the; trial court as well as the appellate court. In the judgment appealed against, it is said that it is possible to gather that the intention of the legislature in enacting S.27 was something different from what the Section purports to state, when the Section is read in the light of the provisions in the Code of Civil Procedure. The provisions of that Code apparently relied on, though not stated in the judgment, are those contained in R.2,3 and 10 of 0.22. We are not satisfied that these provisions have any bearing in construing S.27. These provisions are enabling provisions by which a suit can be proceeded by or against persons who were not originally parties. We see no reason to differ from a practice apparently followed for decades in the area where the Act In question had been in force for wellnigh 40 years. We are therefore compelled to reverse the decision under appeal which we do by allowing this appeal. We make no order as to costs. Allowed.