1958 (8) TMI 61 - HC - Indian Laws

Summary

Issues Involved:
1. Competency of managers to represent thavazhis after partition.
2. Applicability of Section 52 of the Transfer of Property Act.
3. Binding nature of decree and execution proceedings on members of thavazhis post-partition.
4. Necessity to implead members of thavazhis post-partition in execution proceedings.
5. Actual possession of properties at the time of delivery.

Issue-wise Detailed Analysis:

1. Competency of Managers to Represent Thavazhis After Partition:
The court examined whether the managers of the thavazhis, as per the partition deed Ext. B-1, were competent to represent the thavazhis in the suit and execution proceedings. It was found that, under the ordinary Marumakkathayam law, the proceedings in a suit brought against the karnavan or manager of a tarwad in his representative capacity would be binding upon the entire tarwad and all its members. The court held that the managers of each of the five thavazhis, who were competent to represent their thavazhis, were properly impleaded in their representative capacity in O.S. No. 65 of 1943, making the suit properly constituted for an effective decree for redemption and recovery of possession.

2. Applicability of Section 52 of the Transfer of Property Act:
Section 52 of the Transfer of Property Act was crucial in determining the effect of the rule of lis pendens. The court held that this section renders void any transfer or dealing with the suit property pendente lite against the decree-holder. The explanation to Section 52 specifies that the prohibition against transfers or dealings takes effect from the date of the presentation of the plaint and remains in force until complete satisfaction or discharge of the decree is obtained. The court emphasized that the rule of lis pendens prevents parties from alienating property during litigation to avoid prejudicing the opposite party.

3. Binding Nature of Decree and Execution Proceedings on Members of Thavazhis Post-Partition:
The court considered whether the decree and execution proceedings were binding on the members of the thavazhis who were not impleaded after the partitions. It was held that the decree in O.S. No. 65 of 1943 was valid and binding on thavazhis Nos. 2, 3, and 5, as they were properly represented in the trial proceedings. The court concluded that the rule of lis pendens under Section 52 of the Transfer of Property Act binds all members of a tarwad or joint family, including those who obtained rights to the suit properties through subsequent partitions, if the proceedings are valid against the original defendant.

4. Necessity to Implead Members of Thavazhis Post-Partition in Execution Proceedings:
The court addressed whether the decree-holder was bound to implead the members of the thavazhis to whom the properties were allotted under the partitions. It was held that the decree-holder is not bound to implead such persons, as the rule of lis pendens binds the transferee pendente lite to the proceedings in the suit and the decree therein, even if they are not parties to the suit. The court stated that the plaintiff and the decree-holder are not required to implead the transferees, and no proceeding can be invalidated merely because the plaintiff and the decree-holder omitted to implead them.

5. Actual Possession of Properties at the Time of Delivery:
The court considered the contention that the petitions for re-delivery were not maintainable as the petitioners were not in actual possession of the properties at the time of delivery. The court remanded I.A. No. 1162 of 1955 for a fresh finding on who were in possession of the properties mentioned in the petition at the time of delivery, whether the petitioners were dispossessed of all or some of those properties, and whether the persons competent to represent thavazhi No. 1 after the death of defendant 1 were impleaded as per Ext. B1. The lower court was directed to submit the findings within eight weeks after giving both sides an opportunity to adduce evidence.

Conclusion:
The court set aside the lower court's order allowing I.A. Nos. 1193, 1194, 1195, and 1196 of 1955 and directed re-delivery of the properties. C.M.A. Nos. 69, 71, 72, and 73 of 1956 were allowed with costs. I.A. No. 1162 of 1955 was remanded for fresh findings on possession and representation issues. The rule of lis pendens under Section 52 of the Transfer of Property Act was upheld, binding all members of the tarwad or joint family to the proceedings and decree, regardless of subsequent partitions.