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1977 DIGILAW 348 (KER)

PARUKUTIY v. APPUKUTTAN

1977-12-19

G.BALAGANGADHARAN NAIR

body1977
Judgment :- 1. The appeal arises out of an application under S.13B of the Land Reforms Act (Act I of 1964), hereinafter called the Act for brief. The material tacts relevant for the appeal are the following. 2. In execution of a decree for arrears of rent, the appellants' predecessor who was the landlord decree holder brought the leasehold to sale and purchased ii on May 17,1965. The sale was duly confirmed on June 26, 1965 and on October 1, 1965 the decree holder obtained delivery of possession of the properties. The decree holder is dead and the appellants who are two of the legal representatives are in possession of the properties. On May 29, 1970 the first respondent who was the first judgment-debtor made an application, E. A. No. 257 of 1970 under S.13B, followed by the deposit of the required amount on June 3, 1970. The appellants opposed the application on the ground, interalia, that the first respondent was not competent to maintain the application by himself as the other members of his tarwad were also judgment-debtors under the decree and that possession was taken from them as well. The first respondent thereupon filed E. A No. 88 of 1971 on 24-2-1971 for amending E. A. No. 257 of 1970 to describe himself as karnavan and manager of his tavazhi and to seek restoration of possession for the tavazhi. By order dated 16-6-1971, the court allowed the amendment. By a subsequent order on E. A. No. 426 of 1971 filed by him, the court allowed the other judgment-debtors to be brought on record as petitioners 2 to 14 in E. A. No. 257 of 1970. They are respondents 2 to 14 in this appeal. 3. The learned Munsiff dismissed E. A. No. 257 of 1970 in the view that there was no valid application made on or before June 30,1970 as E.A. No. 257 although filed on May 29,1970 was by the first respondent alone and the amendments describing him as karnavan and bringing on record the other judgment-debtors were subsequent to June 30, 1970 and could not give retrospective validity to the application The Munsiff also held that S.104 of the Act which deals with "Proceedings by or against joint families etc" would be of no avail to the respondents. On appeal by the respondents the appellate court took a contrary view and allowed the application, finding that it was duly filed within time and did not contravene S.104. 4. The judgment of the lower appellate court shows that the appellants did not dispute that the lease which was the basis of the decree was in favour of the respondent's tarward and that the first respondent was its karnavan. This stand was also in line with the objection which they had originally taken that E. A. No. 257 of 1970 was defective in that the other members of the first respondent's tarwad had not been made parties to it. It was obviously this objection that led the first respondent to get E. A. No. 257 of 1970 amended not only by describing himself as the karnavan but also by joining the other judgment-debtors as co-petitioners. In this situation 1 cannot accept the argument of counsel for the appellants that the leasehold belonged to the respondents as co-tenants and not to their tarwad. The position therefore was that the lessee was the tarwad of which the first respondent was the karanavan. Now under S.13B, the application has to be filed with the prescribed deposit within six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969, which was on 1-1-1970. The application was filed and the deposit made within the prescribed time and the only controversy is whether the first respondent was competent to file it. He was karnavan of the tarwad and under the Marumakkathayam Law he was competent to take any proceedings on behalf of the tarwad. But counsel for the appellants contended that the position is different in respect of proceedings under the Act in view of S.104(1) which reads as follows: "104. He was karnavan of the tarwad and under the Marumakkathayam Law he was competent to take any proceedings on behalf of the tarwad. But counsel for the appellants contended that the position is different in respect of proceedings under the Act in view of S.104(1) which reads as follows: "104. Proceedings by or against joint families, etc, (1) Where, in any proceeding under this Act, a joint family is a party, it shall be sufficient to implead the manager, karanavan or yajaman and the seniormost male member of such family and, in the case of a Marumakkathayam or Aliyasanthana family, also the karanavan or yajaman of each tavazhi or kavaru, but any other member of the family shall have the right to get himself impleaded as a party." If this sub-section applies, it is obvious that the seniormost male member after the first respondent was not a party to the application to start with and the application was defective in that respect. But the sub-section in my opinion applies only to proceedings against joint families including Marumakkathayam tarwads but not to proceedings by them. Apart from the fact that the Act which is primarily concerned with agrarian reforms could not have undertaken to upset a rule of Marumakkathayam law, this conclusion flows from the use of the word "to implead" in sub-section (1). Despite the loose way in which the word "implead" is often used even in legal parlance, it really means: (i) "To sue or prosecute by due course of law" Bouvier's Law Dictionary and Black's Law Dictionary, (ii) "To prosecute or take proceedings against a person" Jowitt's Dictionary of English Law and Qsborn's Concise Law Dictionary, (iii) "To sue or prosecuth" Wharton's Law Lexicon, (iv) "To sue, arrest or prosecute by coarse of law" Mozley and Whiteloy's Law Dictionary, (v) "To sue or prosecute by course of law; to make one a party to an action or suit" Ramanatha Iyer's Law Lexicon, (vi) "Prosecute or take proceedings against (person)" The Concise Oxford Dictionary. The word thus connotes taking a proceeding against a person and not the starting of a proceeding by a person. The word thus connotes taking a proceeding against a person and not the starting of a proceeding by a person. "To implead the manager" thus postulates a proceeding by someone against the manager and not a proceeding initiated by the manager The word "impleaded" occurring in the expression "to get himself impleaded as a party" is not used m its strict legal sense but that is no ground to ignore the correct legal significance of the word "implead" in the earlier part. Further the words "it shall be sufficient to implead the manager" etc. plainly indicate that what is intended is to permit the petitioner under S.104 (I) to proceed against the persons specified therein without having to proceed against all the members of the joint family. The effect and intention of the sub-section being thus clear, it cannot be controlled by the marginal note to the Section which reads: "Proceedings by or against joint families etc." The sub-section in my opinion applies only to proceedings against joint families and not to proceedings by them and the first respondent, as karnavan, was competent by himself to make the application. 5. Counsel for the appellants objected that even so, the application was defective in that the first respondent did not claim any relief as karanavan on behalf of the tarwad. The leasehold belonged to the tarwad and the fact that he did not expressly describe himself as karanavan or claim the relief on behalf of the tarwad is of no consequence and in any case the absence of that description has been remedied by suitable amendment. Although the amendment was allowed only after expiry of the period of six months that again is of no consequence for it involves no addition of a party within S.21, Limitation Act. Indeed that Section itself governs only suits and not applications and it will answer the appellants' contention that the other judgment-debtors were brought on record only after the period of six months was over, apart from the fact that their junction was unnecessary as the first respondent was competent to claim the relief on behalf of the tarwad. I find no force in these contentions. 6. Counsel for the appellants lastly invoked the protection of the proviso to S.13B, contending that under the partition deed Ext. I find no force in these contentions. 6. Counsel for the appellants lastly invoked the protection of the proviso to S.13B, contending that under the partition deed Ext. BI dated 18-5-1966 executed in the appellants' tarwad portions of the properties had been obtained by the appellants. There is no merit in the contention as the proviso applies only to a "case where the holding has been sold to a bona fide purchaser for consideration". What had taken place here was only a partition and not a sale. The contention therefore fails. I confirm the order of the lower appellate court and dismiss the appeal but without costs.