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1969 DIGILAW 236 (KER)

PARAMESWARA KURUP v. OUSEPH

1969-10-24

M.MADHAVAN NAIR, T.S.KRISHNAMOORTHY IYER

body1969
Judgment :- 1. The appellant in this second appeal filed an application under S.11 (2) of Act XXXI of 1958 for recovery of possession of the plaint property outstanding on Otti and puravaippa evidenced by Ext. P2 dated 18-8-1053 and Ext. P3 dated 4-2-1064. The appellant was a junior member of the tarwad to whom the property belonged and Exts. P2 and P3 were executed by the karanavan of the tarwad. There was a partition of the tarwad properties evidenced by Ext. D10 on 12-4-1101. The appellant claims that the property covered by Exts. P2 and P3 had devolved on him, the 2nd respondent and the father of respondents 3 and 4 on the terms of Ext. D10. The. 1st respondent raised a contention that the father of respondents 3 and 4 has executed Ext. D4 in respect of his interest in the equity of redemption in favour of the transferees thereunder benami for him. His contention was disputed by the appellant. The trial Court found that the 1st respondent is not the beneficial owner under Ext. D4. This finding has not been disturbed by the appellate Judge. The position therefore is that the 1st respondent is not in any way interested in the equity of redemption in the property. Ext. D4 is prior to the institution of the proceedings under S.11, and the transferees under Ext. D4 have not been impleaded in the application filed Under S.11. Though the learned Munsiff allowed the petition, the Subordinate Judge dismissed the same for two reasons. The first reason is that the appellant being a legal representative of the original mortgagor is not entitled to file the petition under S.11 of Act XXXI of 1958 in view of the decisions in Vasudevaru v. Idchandy Oommen (1964 KLT. 94 FB.) and Varkey v. Sankaran (1965 KLT. 519). The second reason given by the Appellate judge is that even according to the appellant, he is only a co-owner of the property, and he is not competent to file the petition. This appeal is filed against the decision of the appellate judge. 2. Though the counsel for the appellant canvassed the correctness of the decision in Varkey v. Sankaran (1965 KLT. This appeal is filed against the decision of the appellate judge. 2. Though the counsel for the appellant canvassed the correctness of the decision in Varkey v. Sankaran (1965 KLT. 519) before us, it is unnecessary for the purpose of this appeal to decide the same, as we disagree with the view of the learned Subordinate Judge that the appellant is a legal representative or an assignee of the original mortgagor. It is admitted that the appellant is a member of the tarwad to which the property belonged on the date of the execution of Exts. P2 and P3. These documents were executed by the karanavan of the tarwad. The execution of these documents by the karnavan is not on his own behalf alone but as representing all the members of the tarwad, especially because it is nobody's case that these transactions are not binding on the members of the tarwad. The appellant therefore must be deemed to be a constructive party to Exts. P2 and P3, he being represented by the karnavan, the executant thereof. He cannot therefore be considered either as an assignee or the legal representative of the executant of Exts. P2 and P3. In this view it is not necessary to consider the correctness of the decision in 1964 KLT. 519. It is no doubt true that the entire rights in the property have now become crystallised in the three members of the tarwad alone on account of Ext. D10 partition deed. The legal effect of a partition, either among the members of a Marumakkathayam tarwad or among the members of a joint Hindu family, is not to transfer the interest of the property from one person to another, but is an adjustment of the rights and a recognition of the vesting of the rights in a sole member of a particular property allotted to him. In this view, we cannot agree with the finding of the lower Court that the appellant is either a legal representative or an assignee of the rights of the mortgagor. 3. We also cannot agree with the view of the Court below that a co-mortgagor cannot sustain an application under S.11 of Act XXXI of 1958. The term mortgagor must take in mortgagors also if there are more than one mortgagor in a mortgage deed. 3. We also cannot agree with the view of the Court below that a co-mortgagor cannot sustain an application under S.11 of Act XXXI of 1958. The term mortgagor must take in mortgagors also if there are more than one mortgagor in a mortgage deed. If on account of any reason all the mortgagors are not willing to join as applicants in an application to be filed under S.11 of Act XXXI of 1958, we do not find anything in the said provision to prevent one of the co-mortgagors from taking advantage of the provisions of the Act. The submission of the 1st respondent's counsel was that in such circumstances the other co-mortgagors also should be on the party array, and in this case since the transferees under Ext. D4 have not been impleaded, the application is not maintainable. In the case of suits to which Order XXXIV R.1 CPC. applies, their Lordships of the Supreme Court have observed in Jagan Nath v. Jaswant Singh (AIR. 1954 SC. 210) thus: "Therein (in 0.34 R.1 of the Code of Civil Procedure) it is provided that all persons having an interest either in the mortgage security or in the right of redemption 'shall' be joined as parties to any suit relating to the mortgage. There is ample authority for the view that this is merely a directory provision and non joinder of any party is not a fatal defect and a decree can be passed so far as parties actually on record are concerned unless the party omitted is a necessary party in the sense that in his absence no relief could be given at all even as regards parties actually on record." 4. Though Order XXXIV R.1 of the Code of Civil Procedure is not in specific terms applicable to this case, in view of S.11 subsection (3) of Act XXXI of 1958, in order to enable the 1st respondent to get an effective decree for sale of the property for recovery of one-half the mortgage money, it is necessary that the equity of redemption of the entire property should be represented in the proceedings. Since the transferees under Ext. D4 are not parties to the suit and in view of the finding of the trial court that the transferees are not benamidars of the 1st respondent, it is necessary that they should be on the party array. Since the transferees under Ext. D4 are not parties to the suit and in view of the finding of the trial court that the transferees are not benamidars of the 1st respondent, it is necessary that they should be on the party array. Without them it may not be possible for the 1st respondent to get an effective decree for the sale of the entire property contemplated by S.11 sub-section (3) of the Act. Though they are necessary parties, we do not think that because of their non-impleading the application should be rejected. The trial Court should have given an opportunity to the appellant to implead the transferees under Ext. D4. We therefore set aside the decision of the learned appellate judge and remand the petition to the trial Court for fresh disposal after impleading the transferees under Ext. D4 and in the light of the observations that we have made above. The second appeal is allowed; but in the circumstances, we make no order as to costs. Allowed.