IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 AS.No. 262 of 1991(C) --------------------- OS.4/1982 of II ADDL.SUB COURT,THRISSUR .................... APPELLANTS /PLAINTIFFS: -------------- 1. KRISHNAN ELAYATAH, S/O. NARAYANAN ELAYATH, TRIPRAYAR DESOM, NATTIKA AMSOM, CHAVAKKAD TALUK. 2. NARAYANAN ELAYATH, S/O. KRISHNAN ELAYATH, IN DO. DO. 3. KESAVAN ELAYATH, S/O. DO IN DO. DO. BY ADV. MR.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE. MR.R.VIJAYAGOPAL RESPONDENTS 1 TO 5 IN A.S./DEFENDATNS 2 TO 6 IN SUIT/APPELLANTS/ ADDL. RESPONDENTS 8 TO 30 IN A.S. -------------------------------------- 1. V. BALA MENON, D/O. THACHUNNI NAIR, C/O. A.V.K. MENON, NEAR F.A.C.T., MARKET, P.O. UDYOGAMANDAL 2. V. SUBHADRA AMMA, W/O. K.T. MENON, KUNDAYATH HOUSE, P.O. PUDUKAD.(DIED) 3. V. BALACHANDRA MENON, S/O. BLAHAYIL THACHUNNI NAIR, TRIPRAYAR DESOM, NATTIKA AMSOM, CHAVAKKAD TALUK. 4. V. BHASKARA MENON, S/O. DO. IN DO. 5. V. SETHUMADHAVA MENON, S/O. DO. IN DO. (DIED) 6. RAMAN ELAYATH, S/O. NARAYANAN ELAYATH, DO. DO. (DIED) 7. RAMAN ELAYATH, S/O. BLAHAYIL ILLATH VASUDEVAN ELAYATH, MAPRANAM DESOM, MADAYIKKONAM VILLAGE, MUKUNDAPURAM TALUK. (...2/-) A.S.262/91-C - 2 - * Addl.8. B. KOCHUNNI NAIR, S/O. KUNHIPPILLAI NAITHYAR, BLAHAYIL HOUSE, VALAPPAD. * Addl.9. AMMINI NAITHYAR, D/O. KUNHIPPILLAI NAITHYAR,. W/O. KUNHUNNI KARTHA, ERUMPINTHOPPIL MADAM, CHALAKUDY. * Addl.10. AMBIKA, D/O. AMMINI NAITHYAR, IN DO. DO. * Addl.11. ANITHA D/O. DO. IN DO.DO. * Addl.12. AJITHA, D/O. DO. IN DO. DO. * Addl.13. ANIYAN, S/O. DO. IN DO. DO. * Addl.14. RAMANI NAITHYAR, D/O. KOCHUKUTTY NAITHYAR AND W/O. PANUNNI KARTHA, KODASSERI MADAM, CHALAKUDY. * Addl.15. RAMACHANDRAN, S/O. RAMANI NAITHYAR, IN DO. * Addl.16. NANDAKUMAR, S/O. DO. IN DO. * Addl.17. GIRIJA, D/O. DO. IN DO. * Addl.18. B. BHAVANI, D/O. KOCHUKUTTY NAITHYAR, AND W/O. HARIDAS ACHAN, PALIYATH HOUSE, CHENNAMANGALAM. * Addl.19. GANGADEVI, D/O. DO. IN DO. * Addl.20. MEERA, D/O. DO. IN DO. * Addl.21. UNNIKRISHNAN, S/O. DO. IN DO. * Addl.22. VENUGOPALAN, S/O. DO. IN DO. * Addl.23. B. KAMALAVATHI, D/O. KOCHUKUTTY NAITHYAR AND W/O. UNNI RAJA, BLAHAYIL HOUSE, VALAPPAD POST, NATTIKA AMSOM, CHAVAKKAD TALUK, TRICHUR DIST. * Addl.24. BALARAMAN, S/O. DO. IN DO. * Addl.25. MOHANAN, S/O. DO. IN DO. * Addl.26. HARIDAS, S/O. DO. IN DO. * Addl.27. SATHI, D/O. DO. RESIDING IN DO. * Addl.28. RAJI, D/O. DO. RESIDING IN DO. (* IMPLEADED AS ADDL. RESPONDENTS 8 TO 28, VIDE ORDER DT.20.6.08 IN C.M.P.1801/92) (...3/-) A.S.262/91-C - 3 - ** Addl.29. RADHA NAMBOODIRI, W/O. LATE RAMAN ELAYATH, RESIDING NEAR POST OFFICE, POST OFFICE ROAD, SATHYAMANGALAM, (VIA) ERODE, TAMIL NADU. ** Addl.30. RAMESH KUMAR, S/O. DO. RESIDING IN DO. DO. (** LEGAL REPRESENTATIVES OF DECEASED R6 ARE IMPLEADED AS ADDL.RESPONDENTS 29 & 30 VIDE ORDER IN I.A.2436/2004 DT.9.11.2004) ADV. MR.K.JAYAKUMAR FOR R7 MR.M.CHANDRASEKHAR-R9,10,12 TO 20,22,23, 26 TO 28 MR.T.V.ANANTHAN MR.C.D.JOSE THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 09/02/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- A.S. No. 262 of 1991 -------------------------------------------------- Dated this the 9th day of February, 2009 J U D G M E N T Plaintiffs 3 to 5 in O.S. 4 of 1998 on the file of Sub Court, Thrissur are the appellants and defendants 1 to 5 and plaintiffs 2 and 6 are the respondents. Suit was originally instituted against deceased first defendant. Respondents 1 to 5 were later impleaded as his legal heirs. Appeal is filed challenging the judgment dismissing the suit. Appellants instituted the suit contending that they are the surviving members of the illom of deceased first plaintiff and under Ext.A1 sale deed, members of the illom of first plaintiff assigned the plaint schedule properties in favour of tarawad of first defendant for a consideration of Rs.1800/- and out of which Rs.1300/- was retained with the tarawad of first defendant providing a charge over the properties with a stipulation that its interest would be Rs.117/- per annum and it is to be paid as 73 paras of paddy annually and members of illom of first plaintiff is not entitled to claim back the said money retained with the vendors before the expiry of twelve years and even thereafter the amount can be AS.262/91 2 claimed only by all the then existing members of the illom. It was contended by the appellants in the plaint that the tarawad of first defendant defaulted to pay the paddy as agreed and only a portion was being paid and that too only till 1138 ME and the balance is due and as the twelve year period expired, they are entitled to get back the amount from the tarawad of first defendant. A decree is sought for realisation of that amount on charge of the plaint schedule properties impleading first defendant as the Karanavan of the Tarawad. Respondents resisted the suit contending that as all the members of the tarawad of deceased first defendant are not parties to the suit, suit is not maintainable. It was also contended that the properties are not in the possession of the tarawad of first respondent and deceased first defendant is not the Karanavan of the tarawad and respondents are not in possession of the properties covered by Ext.A1 sale deed and the properties are in the possession of the appellants and therefore they are not entitled to claim any amount. It was further contended that the liability under Ext.A1 was only to pay interest of Rs.117/- and payment by paddy was only the mode of payment of interest and AS.262/91 3 therefore in any case the amount claimed is not sustainable. It was also contended that after commencement of Kerala Joint Hindu Family System (Abolition) Act 30 of 1976 there is no Karanavar or tarawad and therefore the suit as instituted is not maintainable. 2. Learned Sub Judge framed necessary issues. On the evidence of PW1, DW1 and Exts. A1 to A3 the learned Sub Judge dismissed the suit holding that appellants are not entitled to the decree. It is challenged in the appeal. 3. Learned counsel appearing for the appellants were heard. 4. The argument of the learned counsel is that when it is the specific case of the appellants that they are the only surviving members of their illom, finding that the suit is bad for non-joinder of necessary parties is not correct. It was also argued that when Ext.A1 provides for payment of paddy at the rate of 73 paras per annum and there is no case that it was being paid and as the twelve year period fixed under Ext.A1 expired, appellants are entitled to get back Rs.1300/- which was part of the consideration retained with the vendor under Ext.A1 to be AS.262/91 4 repaid after twelve years and therefore the decree should have been granted. 5. The suit is for realisation of the amount retained by the assignee under Ext.A1 sale deed, whereunder members of the appellants' illom sold four items of their properties in favour of the tarawad of deceased first defendant. As seen from Ext.A1 the total consideration payable was Rs.1800/-. Out of the said consideration Rs.336.4 As. and 6 Ps. were adjusted, being the mortgage amount of Rs.151/- with interest due under mortgage deed 2401 of 1920 and as well as the amount of Rs.154.13/- As. 10 ps. due under document No.1936 of 1922 due to the tarawad from the illom. Out of the balance amount, which was payable by the assignee to the assignors under Ext.A1, Rs.1300/- was retained with the assignee with a specific stipulation that its interest as assessed was Rs.117/- and it is to be paid by the assignee tarawad to the illom of the assignor at the rate of 73 paras of paddy annually. It is also provided that Rs.1300/- retained with the assignee cannot be claimed back by the assignor illom before the expiry of twelve years and even after expiry of twelve years unless all the members of the illom AS.262/91 5 claim it, the assignee has no liability to pay the same. Therefore the liability under Ext.A1 is on the tarawad of first defendant to the illom of the appellants. Though deceased first defendant was impleaded as the Karanavan of the tarawad of the assignee, as rightly canvassed by the respondents, after coming into force of Kerala Joint Hindu Family System (Abolition) Act 30 of 1976, there cannot be a Karanavar or tarawad. The suit was instituted only in 1982. Even if appellants are entitled to claim back the amount, retained under Ext.A1 from the assignee it can legally be claimed only from all the members of the tarawad as it existed on the date of institution of the suit or from those persons in whose possession the properties covered under Ext.A1 were at that time. As the suit is instituted against the first defendant on the ground that deceased first defendant is the Karanavar of the tarawad, without impleading all the members of the tarawad, the suit will not lie. For that sole reason the suit is liable to be dismissed. 6. Moreover, what was contended by deceased first defendant and the respondents was that the properties covered under Ext.A1 are not in the possession of the members of the AS.262/91 6 tarawad but with the appellants' illom. Though nothing was stated about possession of the properties in the plaint, PW1 admitted that items 3 and 4 properties of Ext.A1 assignment deed are in the possession of their illom. Though possession of item No. 1 and 2 was disputed, it was further admitted by PW1 that the house in item No.1 is still in their possession. It is the case of PW1 that after Ext.A1 there was lease back. If that be the case it is clear that though properties covered under Ext.A1 were assigned to the tarawad, the illom of the assignors obtained back the properties. It is suppressing this fact the suit is filed. In the light of the evidence and admitted facts learned Sub Judge was justified in finding that the properties covered by Ext.A1 are not in the possession of the respondents. In such circumstances learned Sub Judge was fully justified in dismissing the suit. I find no reason to interfere with the findings. There is no merit in the appeal. Appeal is dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb