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TMI Blog1958 (8) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... decision on those questions also for its disposal. Accordingly the learned Chief Justice, who also is a member of this Full Bench, ordered the appeals to be posted again before us for hearing the entire case, as distinguished from the mere questions of law referred; and in pursuance of His Lordship's order we have heard the cases again. 2. A Mappila Marumakkathayam tarwad, known as Aruvampalli Puthiyapurayil tarwad and referred to hereinafter as Aruvampalli tarwad was holding under a kanom demise of the year 1928 certain properties, the jenmom right in which belongs to Kalarivathukkal Devaswam of Chirakkal Kovilakam. On 20-9-1937 the members of Aruvampalli tarwad effected a partition by Ext. B-1 under which the tarwad split up into five separate branches or thavazhis. As per the provisions of the partition deed there were to be two joint managers for each of the first three tavazhis, refer red to in Ext. B-1 as thavazhis Nos. 1, 2 and 3, and one manager for each of the other two thavazhis, namely, thavazhis Nos. 4 and 5. The managers of each of the first three thavazhis were to be the two semormost male members of that thavazhi and they were to jointly manage all the thav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titions between the members of each thavazhi dividing the properties which it got under Ext. B-1. Ext. A-1 dated 8-9-1944 is the partition deed executed by the members of thavazhi No. 1 and Ext. A-16 dated 20-2-1945 is the partition deed in thavazhi No. 4. Before the decree defendants 1, 2 and 6 also died. Defendant 2 was the first to the among these defendants, and on his death defendants 42 to 46 were impleaded as his legal representatives. Defendant 45 is Adamkutty, brother of defendants 1 and 2, who was the male member in their thavazhi, next in age to them. On defendant 1's death defendants 47 to 51, who are his widow and children, were impleaded as his legal representatives. On the death of defendant 6 defendant 52, who is the male member in the thavazhi No. 3 next in age to defendant 6, was impleaded as his legal representative. 4. Against the trial Court's decree in O. S. No. 65 of 1943 the defendants filed an appeal, A.S. No. 421 of 1945, in the High Court of Madras, and during the pendency of that appeal partitions were effected in thavazhis Nos. 2, 3 and 5 also. Ext. A-9 dated 14-12-1946 is the partition deed in thavazhi No. 2, Ext. A-13 dated 3-11-1947 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendants impleaded in that suit could not, therefore, represent the petitioners, that the decree-holders had therefore no right to evict the petitioners, from the properties and recover possession of them, that the delivery was effected during the absence of the petitioners from the properties, and that the delivery should therefore be cancelled and the properties re-delivered to them. 6. The decree-holder opposed these petitions contending that the Shariat Act did not affect the rights of the petitioners in their tarwad or thavazhi properties and the thavazhi and the tarwad were not extinguished by the said Act, that the petitioners were properly represented in the suit and execution proceedings by the managers of their respective thavazhis and the decree and execution proceedings were therefore valid and binding on them and no redelivery could be ordered, and that the petitions themselves were unsustainable for the reason that the petitioners were not in actual possession of the properties at the time of the delivery to the decree-holders and they were not persons who had been dispossessed, in execution. 7. The allegation in the petitions that the rights of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-delivery. In pursuance of these findings the learned Judge allowed all the five petitions and ordered the properties described in the schedules to each of them to be re-delivered to the respective petitioners. 9. The five civil miscellaneous appeals are filed by p laintiffs-decree-holders 2 to 8 against the above disposal of the five petitions. C.M.A. No. 69 of 1956 relates to I.A. No. 1194 of 1955 filed by the quandom members of the thavazhi No. 3, C.M.A. No. 70 of 1956 relates to I.A. No. 1162 of 1955 filed by the quandom members of thavazhi No. 1, C.M.A. No. 71 of 1956 relates to I.A. No. 1193 of 1955 filed of the quandom members of thavazhi No. 4, C.M.A. No. 72 of 1956 relates to I.A. No. 1195 of 1955 filed by the quandom members of thavazhi No. 2, and C.M.A. No. 73 of 1956 relates to I.A. No. 1196 of 1955 filed by the quandom members of thavazhi No. 5. 10. According to the findings of the learned Judge the petitioners in I.A. No. 1162 of 1955 and I.A. No. 1193 of 1955, who were originally members of thavazhis Nos. 1 and 4, should have been impleaded in the suit itself as the partitions in their thavazhis, Exts. A-1 and A-16, were effected before the decree and the decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentative capacity would be binding upon the entire tarwad and all its members, and it is not necessary to implead each and every member of the tarwad to make the decree therein binding on the tarwad. It is seen from the records, and it was also admitted before us by both sides, that all the managers of each of the five thavazhis who were competent to represent their thavazhis as per the provisions of Ext. D1 were at first impleaded in their representative capacity in O. S. No. 65 of 1943 and that at the time of the institution of that suit it was a properly constituted suit for enabling the plaintiffs to get an effective decree for redemption and recovery of possession of all the decree schedule properties as against all the five thavazhis. As has been stated already defendants 1 and 2 were impleaded as managers and representatives of thavazhi No. 1; defendants 3 and 4, of thavazhi No. 2; defendants 5 and 6, of thavazhi No. 3; defendant 7 as manager and representative of thavazhi No. 4; and defendant 8, of thavazhi No. 5. It is also admitted that on the death of defendant 6, which took place while the suit was pending in the trial court, the person who was to be associat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed beyond such limits by the Central Government ........ of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation -- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force . The effect of this section is to render void as against the decree-holder in a suit in which any right to immovable property was in dispute and entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party: (See passages from their Lordships' judgment extracted at page 224 of Mulla's Transfer or Property Act, 1956 Edition). The explanation to Section 52, Transfer of Property Act, is wide enough to include ail transfers and dealings with the property made during the pendency of the suit in the trial and appellate courts as well as during the execution proceedings. 17. There is a case reported in Ishwar Lingo v. Dattu Copal ILR 37 Bom 427, almost parallel to the present case. But for the fact that in the Bombay case the suit was for the redemption of four joint mortgages and in the present case the suit was for redemption of a kanom, there is practically no difference between the two cases. There, as in the present case, the suit was originally brought against a joint family and there was a partition in that family during the pendency of the suit. The coparcener who obtained in the family partition the property involved in ILR 37 Bom 427 died during the course of the suit, and on his death his right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , under Section 52. If it has not, it ought to be ignored, and no considerations drawn from it ought to have any place in the decision of the suit. Taking the latter course what is the result? This, that no Court should have treated the defendant in this suit as having any right whatever against the plaintiff, so far as his suit for redemption went. For it is only on the strength of the partition that she can pretend' to any such right, and ex hypothesi, the partition does not affect the plaintiff for all the purposes of that suit. Thus the same result is easily and immediately reached either way. It would DC easy to add further illustrative considerations. But we think that what we have said warrants us in believing that we have indicated the correct lines of reasoning to be followed in cases of the kind. Applied to the facts of this case, those lines of reasoning yield a very safe conclusion. We have no doubt at all but that the partition of January 10th, 1902, falls within the mischief of Section 52, Transfer of Property Act, and cannot be allowed in any way to affect the plaintiff's right, either under his redemption decree or in execution. That being so, and the partit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer of Property Act, can have no application to partitions since all the parties to a partition deed would be entitled to the property and have shares in it even before the partition, and so, there would be no transfer of property by one person to another in the case of partitions. But Section 52 is not confined to transfers and expressly prohibits both transfers and other dealings with the suit property. In Bhubindra Narayan v. Mt. Tarupriya Debya AIR 1950 Gau 119 a similar contention has been disposed of thus; The section prevents not merely the transfer of immovable property when any right to it is directly and specifically questioned but it also prevents dealing with me property otherwise. Partitioning the property is certainly dealing with it. A partition may or may not be regarded as a transfer. It does, however, alter the mode of enjoyment of the property and can produce a result very similar to transfer in certain cases. In any case the language of the section is wide enough to cover a partition. The case in ILR 37 Bom 427, also 'was a case of partition pendente lite and the decision of the learned Judges in that case was: We have no doubt at all hut that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally in question inasmuch as he had prayed for a charge on the kanom property, he was given only a money decree; and therefore, after the date of that decree, the suit had ceased to be one in which a right to immovable property was directly and specifically in question. The kanomdar did not appeal against the decree, and accepting it he attached the property in execution of his decree. Therefore, at the time of attachment of the property, he had only a money decree against a tarwad which had ceased to exist after the date of the decree and before the attachment. In those circumstances, to make the attachment effective and binding on the person to whom the property had been allotted in the partition, it was necessary for him to have impleaded him in execution before the attachment. The effect of Section 52 of the Transfer of Property Act was not considered in this case; nor was there any occasion to consider it. 21. The next case relied upon by the respondent's counsel was Kunhappa Nambiar v. Sridevi Kettilamma ILR Mad 451. In that case a creditor brought a suit against the karnavan for money borrowed by him for tarwad purposes and obtained a decree in 1879. A partition to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of a property leased to him by a tarwad and which had to be paid by the jenmi a tenant brought a suit against the jenmi tarwad impleading the kamavan alone to represent the tarwad and seeking to realise the amount by sale of the jenmi's right in the property. Before the preliminary decree could be passed in that suit some of the members of the tarwad filed a suit for partition on 7-4-1937 and a preliminary decree for partition was passed therein on 31-12-1938. In the tenant's suit against the tarwad represented by the karnavan a preliminary decree for sale of the jenmi's rights was passed on 30-7-1937 and a final decree on 1-12-1937; and in pursuance of that decree the leased property was sold in execution on 23-11-1939. The sale proceeds were insufficient for the discharge of the decree amount; and so, in 1942 the tenant made an application in his suit for passing a personal decree against all the members of the jenmi-tarwad so that he could recover the balance decree amount due to him after the execution sale of 23-11-1939 by attaching and selling other tarwad properties. This application was resisted by certain junior members of the jenmi-tarwad on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and 18 Mad LJ 132 amply bear out the proposition that after a tarwad has got divided a decree obtained against the karnavan before such division cannot be executed as against the properties which had been tarwad properties but allotted to the other members after the decree and therefore no attachment and sale of the properties in execution of that decree without the person to whom these properties had been allotted being made a party in the execution proceedings would be valid and binding. To the same effect is the decision in 18 Mad LJ 132. The learned Judges, Bensom and Wallis, JJ. held that the members of a tarwad cannot escape liability for debts or decrees binding on the tarwad by dividing themselves into thavazhis; but where the karnavan of the original tarwad has ceased to represent them they cannot be bound by proceedings in execution of a decree against him unless they are separately represented in the execution proceedings. The decision in ILR Mad 451 was followed. We see no reason why the principles enunciated therein should not be applied to the facts of the present case. We may also observe that they are observations in 1949 2 Mad LJ 751 to the effect that in executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Judges who decided that case were inclined to hold that notwithstanding the partition the karnavan was competent to represent the other members in the proceedings before the decree. Beyond following the three cases ILR Mad 451 18 Mad LJ 132, and 1949 2 Mad LJ 751; the learned Judges have not given any reason for drawing a distinction between the proceedings before the decree and thereafter. All that they have said for drawing this distinction, beyond the references to the above three cases, is: But it is one thing to say that the decree would be binding and another tiling to say that the decree can be enforced in execution proceedings behind the back of the other members of the family. On principle, we can see 110 distinction between the proceedings before a decree and the proceedings, thereafter in a suit in which a right to immovable property was directly and specifically in question and to which Section 52 of the Transfer of Property Act would therefore apply. It is specifically made clear in the explanation to Section 52 that there is no distinction in regard to this matter between the trial proceedings and the execution proceedings, for it is stated therein that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e properties mentioned in the schedule and that the petition was not, therefore, maintainable. Before us, it was contended by the appellants that the petitioners in each of these petitions were not in possession of all the properties mentioned in the respective petitions, that they were in possession of only some of those properties, and that as only persons who have been actually dispossessed by the delivery can apply under Order 21 Rule 100, Code of Civil Procedure, for re-delivery, the petitions are not maintainable in respect of the properties which were not in the possession of the petitioners at the time of the delivery to the appellants. In view of our finding that the petitioners in I. A. Nos. 1193, 1194, 1195 and 1196 of 1955 are hound by all the proceedings on the trial, appellate and execution sides this contention is not of any importance in C. M. A. Nos. 69, 71, 72 and 73 of 1956. In C. M. A. No. 70 of 1958 arising out of I. A. No. 1162 of 1955 the respondents had a contention before us (although it was not raised in the lower court) that the persons competent to represent thavazhi No. 1 after defendant 1's death were not impleaded and that, 'therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the petitioners got under Ext. Al but all the properties which thavazhi No. 1 got under Ext. B1. It is obvious that on account of the wrong interpretation which it gave to the admissions of the parties regarding the execution of the documents produced by them the lower court has denied to both sides an opportunity to adduce evidence regarding possession of the properties mentioned in I. A. No. 1162 of 1955 at the time of the delivery in O. S. No. 65 of 1943. In the circumstances, we consider that the interests of justice require that both sides should be given an opportunity to adduce evidence on the question of possession and the lower court should be asked to record a definite finding thereon before we dispose of C. M. A. No. 70 of 1956. We also consider it necessary that we should have a finding as to whether the persons competent to represent thavazhi No. 1 as per the provisions of Ext. B1 have been impleaded after the death of defendant 1. 26. In the result, the order of the lower court in so far as it allows I. A. Nos. 1193, 1194, 1195 and 1196 of 1955 and directs and re-delivery of the properties mentioned in the schedules to those petitions to the respective pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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