IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 SA.No. 739 of 1998(D) --------------------- AS.141/1994 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.609/1977 of MUNSIFF COURT, PARAVUR .................... APPELLANT(S)/APPELLANT/3RD DEFENDANT: -------------- RAVEENDRANATHAN NAIR, S/O.KAMALAMMA, AGED 52, RESIDING AT SAROJA MANDIRAM, PARAVUR PAKUTHY, PARAVOOTHARA MURI. BY ADV. SRI.S.VIDYASAGAR RESPONDENT(S)/RESPONDENTS/PLAINTIFFS 2 AND 3 AND FIRST DEFENDANT: --------------- 1. RAJAMMA, AGED 50, W/O.THILAKAN, PALLIKKARA, VADAKKEKARA PAKUTHY, MADAPLATHURUTH KARA. 2. P.T.SANTHOSH, AGED 34, S/O.THILAKAN, -DO- -DO- 3. VALSA, AGED 35, D/O.KUMARAN, VADAKKEDATH, KUZHUPPILLY VILLAGE, -DO- MURI. ADV. SRI.S.SREEKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON 08/04/2009 DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A.No.739 of 1998 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 8th day of April, 2009 J U D G M E N T ---------------------- Courts below concurrently found that the possessory mortgage created under Ext.A2, deed No.2170/54 is liable to be redeemed and accordingly granted a decree. That is under challenge in this second appeal at the instance of supplemental defendant No.3 in which the following substantial questions of law are raised for a decision. “1. Whether possession obtained by a purchaser in public auction sale of property held in execution proceedings taken pursuant to an award passed under the Kerala Co- operative Societies Act is not hostile to the rest of the world? 2. Whether title obtained by such an auction purchaser can be ignored or set at naught in a Civil Suit instituted twelve years after the sale and delivery of possession of the property to him? 3. Whether a mortgage created in favour of a Co-operative Society can be ignored in collateral proceedings?” S.A. No.739 of 1998 -: 2 :- 2. Plaintiff died during the pendency of the suit and his legal representatives were impleaded as supplemental plaintiffs. Parties are referred to as plaintiff and defendants as in the trial court for convenience. 3. According to the plaintiff a total extent of 3.11 acres including the suit property - 1.08 acres - was acquired by Vilasini Amma and others as per assignment deed No.3248/1122 M.E (Ext.A4 is its certified copy) and they created a possessory mortgage in favour of defendant No.1, a minor then represented by Kumaran, her father as guardian as per deed No.2170/54 dated 29.6.1954 (Ext,.A2 is its copy). It was directed in the mortgage deed that the income from the property was to be appropriated towards interest payable on the mortgage money. While so, Vilasini Amma and others assigned their right of redemption of the mortgage in favour of the plaintiff as per Ext.A1, assignment deed No.1827/74. It is the possessory mortgage created under Ext.A2 that the plaintiff sought to redeem on the strength of Ext.A1. Supplemental defendant No.2 was later impleaded as per order on I.A. No.2277 of 1978 alleging that the mortgagee in possession (defendant No.1) transferred the property to supplemental defendant No.2. The suit was decreed in favour of the plaintiff. Supplemental defendant No.2 preferred A.S. No.14 of 1981 S.A. No.739 of 1998 -: 3 :- before the Additional District Court, North Parur which was transferred to the Sub Court, North Parur and renumbered as A.S. No.33 of 1982. While so, supplemental defendant No.2 died and her legal representative was impleaded as appellant/supplemental defendant No.3 (appellant herein). Appeal was allowed and the case was remanded to the trial court giving defendant No.3 opportunity to file written statement and contest the case. He filed written statement contending that pursuant to the award obtained by the Co-operative Society (hereinafter referred to as “the Society”) for the charged debt of Vilasini Amma over the 3.11 acres including the suit property, that property was sold in public auction by the sale officer pursuant to the award passed against Vilasini Amma. Papputty Narayanan purchased the said 3.11 acres and the sale sannad was issued in his favour. He took delivery of the property. He assigned that property to Subrahmonian as per Ext.B4, assignment deed dated 10.5.1961 for valid consideration. Subrahmonian assigned the property to supplemental defendant No.2 as per Ext.B3, assignment deed dated 1.6.1963 and on the death of supplemental defendant No.2, defendant No.3 inherited the same and is in possession and enjoyment as its absolute owner. Subrahmonian and his assignees possessed the property as its absolute owners. Title if any of all others is lost by S.A. No.739 of 1998 -: 4 :- adverse possession and limitation. It is also contended that the assignment deed in favour of the plaintiff is fraudulent and the assignors of the plaintiff had no right over the property to be conveyed. At any rate, defendant No.3 is entitled to get the value of improvements. Trial court granted a decree in favour of the plaintiff on 21.2.1983. Defendant No.3 challenged that judgment and decree in A.S. No.110 of 1987. There was again a remand to the trial court for fresh consideration of the contentious issues. The suit again ended in a decree for redemption on 3.6.1994. Value of improvements was disallowed as defendant No.3 did not produce evidence to show that any improvement was effected. Defendant No.3 challenged that judgment and decree in A.S. No.141 of 1994. Learned Additional District Judge dismissed the appeal as per judgment dated 23.5.1997 which is under challenge in this second appeal. 4. It is not disputed that 3.11 acres including the 1.08 acres which is the subject matter of the present proceeding was sold in public auction at the instance of the Society for the debt allegedly due from Vilasini Amma and others pursuant to the award obtained by the Society. It is also not disputed that the property was purchased in auction by Papputty Narayanan to whom sale sannad was issued. Ext.B1 is that sale sannad dated 2.12.1958. It is also not in dispute S.A. No.739 of 1998 -: 5 :- that the property was delivered over to Papputty Narayanan as seen from Ext.B10, copy of the delivery report. It is while Papputty Narayanan was in possession and enjoyment of the property that he assigned it to Subrahmonian as per Ext.B4, assignment deed dated 10.5.1961 and Subrahmonian in turn assigned the property to supplemental defendant No.2 as per Ext.B3, dated 1.6.1963. It is contended by learned counsel for defendant No.3 that the possessory mortgage created under Ext.A2 is a fraudulent and sham transaction and that at any rate, the sale in public auction under the provisions of the Kerala Co-operative Societies Act (for short, “the Act”) and the Travancore-Cochin Revenue Recovery Act, 1951 (for short, “R.R. Act”) is free of all encumbrances whatsoever over the property and conferred absolute title in favour of the purchaser. Learned counsel also contended that Vilasini Amma who created the charged debt in favour of the Society was a member of that Society and hence the “dispute” between Vilasini Amma and the Society is one required to be decided under Sec.69 of the Act and hence that dispute could be resolved only in accordance with the provisions of that Act. According to the learned counsel if at all Vilasini Amma and others or any of her assignees were aggrieved by the sale in auction their remedy was to challenge that sale in accordance with the provisions of S.A. No.739 of 1998 -: 6 :- the Act. It is also contended that two members of the tarwad of Vilasini Amma (Aravindaksha Menon and Ravindranadha Menon) had challenged Ext.A2 possessory mortgage in respect of the suit property and certain other transactions concerning certain other properties effected by Vilasini Amma and others allegedly on behalf of the tarwad, in O.S. No.70 of 1970. But that suit was settled, plaintiffs therein gave up their contention that the possessory mortgage created as per Ext.A2 and other transactions were not for the necessity of the tarwad and hence those transactions are not binding on them. Learned counsel contended that plaintiffs in O.S. No.70 of 1970 being members of the tarwad and if the suit property (along with other items) belonged to the tarwad, plaintiffs on behalf of the tarwad ought to have challenged Ext.B1, sale sannad and sought redemption of mortgage in O.S. No.70 of 1970. It is contended by learned counsel that Ext.B5, copy of the plaint in O.S. No.70 of 1970 referred to a partition effected in the tarwad of Vilasini Amma and others on 12.4.1967 and hence at any rate, the tarwad stood disrupted by that partition. If that be so, the members of the tarwad were not entitled to assign the right of redemption in favour of the plaintiff as per Ext.A1, document No.1827/74. According to learned counsel it was only since the members of the tarwad were not entitled to redeem the mortgage S.A. No.739 of 1998 -: 7 :- as per Ext.A2 at their instance that Ext.A1 was executed in favour of the plaintiff as an experiment to attempt at redemption of the mortgage allegedly created as per Ext.A2. Learned counsel requested that the documents produced along with I.A. Nos.1432 of 2005 and 625 of 2009 be received as additional evidence. 5. Learned counsel for the plaintiff in response contended that the courts below have concurrently found that suit property belonged to the tarwad of Vilasini Amma (with herself as the Karanavathy) and that the debt for which the property was sold at the instance of the Society is not proved to be a debt of the tarwad binding the tarwad as such. The Society sold the property of the tarwad as if it belonged to Vilasini Amma. Therefore the auction sale cannot bind the tarwad. For that reason delivery of the property in favour of Papputty Narayanan and the subsequent assignments cannot bind the tarwad. Learned counsel contended that the said finding being one of the fact based on evidence, there is no scope for interference with it in the second appeal. It is also contended that once sale in auction is not binding on the tarwad, that cannot affect the possessory mortgage created as per Ext.A2 or the assignment or right of redemption in favour of the plaintiff as per Ext.A1. Learned counsel S.A. No.739 of 1998 -: 8 :- contended that the documents produced in the second appeal cannot be received as additional evidence. According to learned counsel no satisfactory explanation is given for non-production of the said documents in any of the courts below in spite of the fact there were two rounds of litigation in those courts. It is contended by learned counsel that the transactions referred to in the documents produced in the second appeal do not relate to the suit property or the debt to the Society referred to in Ext.B1. I heard the counsel on both sides on I.A. No.1432 of 2005 and I.A. No.625 of 2009 also along with this appeal. 6. Exhibit B1 is the sale sannad dated 2.12.1958 issued by the Deputy Registrar of Co-operative Societies in favour of Papputty Narayanan. It states that the property was sold in public auction on 16.11.1957 in accordance with the provisions of the R.R. Act pursuant to award No.284 of 1956 of the Deputy Registrar, Co-operative Societies, Kottayam. The sale was confirmed in favour of Papputty Narayanan and he paid the purchase price. The sale was published as per Sec.40 of that Act. Section 2(a) of the R.R. Act defines “public revenue due on land” as including among other things assignment in kind or money charged on lands and payable to the Government (according to the learned counsel for defendant No.3, money payable S.A. No.739 of 1998 -: 9 :- to the Society is the money payable to the Government). Section 44 of the R.R. Act states that all lands brought for sale on account of arrears of public revenue due thereon shall be sold free of all encumbrances. Section 35 of the (Co-operative Societies) Act provides for a first charge subject of course to any prior claim of the Government in favour of the Society for any debt to the Society from its member, past or deceased member as provided therein and sub- sec.(2) prohibits transfer of any property which is thus subject to a charge, except with the previous permission in writing of the Society concerned. Learned counsel for defendant No.3 contends that sale on 16.11.1957 was free from all encumbrances including the possessory mortgage in favour of defendant No.1 as per Ext.A2 of the year 1954 and the right of redemption cannot and does not survive after Ext.B1. 7. It is not very much in dispute before me that if the sale of the property in public auction followed by the sale sannad (Ext.B1) in favour of Papputty Narayanan bound the tarwad and accordingly the suit property, that sale must have precedence over any other transaction in respect of the property and that such sale would be free of all encumbrances over the property. Therefore the crucial issue for a decision is whether Ext.B1 bound the tarwad and the property of S.A. No.739 of 1998 -: 10 :- the tarwad. 8. It is not in dispute that Vilasini Amma and her children belonged to the Hindu, Nair Community which followed Marumakkathayam law of succession. Section 2(3) of the Travancore Nair Act defines 'tavazhy of a female' as meaning “a group of persons consisting of that female and her issue how-low-so-ever in the female line or such of that group as are alive”. As per sub-sec.(6), 'tarwad' “means and includes all the members of a Marumakkathayam family, with community of property”. Vilasini Amma and her children thus constituted a natural group and formed a sub tarwad. Exhibit A4 copy of assignment deed No.3848 of 1122 M.E. shows that the acquisition of the property was by Vilasini Amma and her daughter, Visalakshy (other children were born later). Exhibits A4 further states that the consideration for purchase of that property was raised by Vilasini Amma and her daughter by executing an agreement for sale of another item of property of the tarwad of Vilasini Amma situated in Ernakulam Village to Kattikaran Chacko Ouseph and that the assignor under Ext.A4 received the sale consideration from the said Chacko Ouseph. The sale consideration referred to in Ext.A4 could be traced to the sale of property of the tarwad of Vilasini Amma and others. In S.A. No.739 of 1998 -: 11 :- Lakshmi v. Ananadan (1982 KLT SN 36 - Case No.56) and Sarojini Amma v. Abubacker (1986 KLT 944) this Court held that once it is found that the acquirers constituted a natural group and formed a tavazhi by themselves the acquisition should be presumed to be on behalf of that tavazhi. In this case, Vilasini Amma and her only child then in existence, daughter Visalakshy constituted a natural group and formed a tavazhi. Hence the acquisition as per Ext.A4 must be presumed to be for the tavazhi. Apart from that presumption Ext.A4 states that purchase money was raised by entering into an agreement for sale of an item of property belonging to the tarwad. Subsequent to Ext.A4, Vilasini Amma and Karunakaran Nair begot two other children also. Exhibit A2 is the mortgage deed No.2170 of 1954 executed by Vilasini Amma on her own and by her husband, Karunakaran Nair representing their minor children Visalakshy, Aravindaksha Menon and Ravindranadha Menon. Exhibit A1, assignment deed No.1827/84 is also executed by the said persons. From Exts.A1, A2 and A4 it is evident that the acquisition of the 3.11 acres including the suit property was for the tavazhi of Vilasini Amma. The courts below have rightly held so. 9. The next question is whether Ext.B1, sale sannad bound S.A. No.739 of 1998 -: 12 :- the tarwad and its property. Exhibit B1 states that for the amount due to the Society as per award No.284 of 1956 with Karunakaran Nair (husband of Vilasini Amma) as respondent No.1 on his own behalf and on behalf of minor children Visalakshy, Aravindaksha Menon and Ravindranadha Menon and Vilasini Amma as respondent No.1 on her own and on behalf of the minor children referred to above, property belonging to Vilasini Amma was sold by the authorised officer on 16.11.1957. Exhibit B1 states in the beginning that the property belonging to Vilasini Amma and at a later stage sates that the right which Vilasini Amma and her husband as owners had in the property was sold in auction and conveyed to Papputty Narayanan. 10. It is contended by learned counsel for defendant No.3 that even a reading of Ext.A2 and the documents produced in the second appeal would show that debt to the Society incurred by the tarwad was for the necessities of the tarwad. The document produced in this appeal along with I.A. No.1432 of 2005 is the kuri agreement No.1468 of 1953 referred to in Ext.A2. Exhibit A2 states that money is raised by that mortgage to discharge the liability of the Taluk Co-operative Bank. That certainly is not the debt to the Society referred to in Ext.B1. Document No.1468 of 1953 of course states that the debt referred to therein was created for the necessities of the tarwad. But S.A. No.739 of 1998 -: 13 :- that is not shown to be the debt referred to in Ext.B1 and which culminated in the award referred to in Ext.B1 was for an on behalf of the tarwad and bound the tarwad. 11. Along with I.A. No.625 of 2009, copy of mortgage deed No.2171 of 1954 is produced by defendant No.3 to be received as additional evidence. That is a mortgage deed executed by the same executants as in Ext.A2 on the same day in favour of defendant No.1, executed by her father, Kumaran. That document refers to certain debts created in favour of the Co-operative Bank. There again it is not shown that any of those debts is the debt referred to in Ext.B1. Defendant No.3 should have produced the copies or summoned the original of the relevant documents as per which the debt referred to in Ext.B1 was created and shown that the said debt was created for and on behalf of the tarwad. No sufficient or justifiable reason is also stated to receive the documents produced in this appeal as additional evidence. The affidavits in support of the applications to receive additional evidence contain the same averments and state that defendant No.3 was searching for the documents and obtained the certified copies, there was long delay and the same could be obtained by him only at “this stage”. It is true that second appellate court has the power to receive additional evidence under Order XLI Rule 27 of S.A. No.739 of 1998 -: 14 :- the Code of Civil Procedure but not for a mere asking. The Court must be satisfied that there is justifiable reason as referred to in Order XLI Rule 27 of the Code which prevented the party concerned from producing such evidence in the courts below. It is not as if the documents produced along with the applications could be received in evidence to the prejudice of the opposite party. Necessarily they must get an opportunity to produce contra evidence if any or explain away the circumstances which may be created against them. I have also to bear in mind that 3 decades plus 2 years have elapsed since the parties started this litigation. As pointed out by the learned counsel for the plaintiff, twice there were remands by the first appellate court whatever be the reason thereof. If defendant No.3 were diligent, he could have produced the relevant documents in any of the courts below before which the litigation was pending for 21 years. On the facts and circumstances of this case I am not inclined to think that defendant No.3 could be permitted to adduce additional evidence or that the documents produced are relevant or necessary for a just decision of this appeal. Hence I.A. Nos.1432 of 2005 and 625 of 2009 will stand dismissed. 12. Exhibit B1 does not show or indicate that the debt was for the necessities of the tharwad. Going by Ext.B1 it would appear that S.A. No.739 of 1998 -: 15 :- Karunakaran Nair (husband of Vilasini Amma) was also a respondent on his own as well in the case which ended in award No.284 of 1956. That would indicate that he was a party on his own in the loan transaction. For the debt of Karunakaran Nair the tarwad property could not have been sold. It is also pertinent to note that defendant No.3 has no case in his written statement that the debt to the Society was created by the tarwad or for any legal necessities of the tarwad. Instead, the contention raised is that the debt was incurred by Vilasini Amma. Exhibit B1 would show that the property was sold in public auction as if it belonged to Vilasini Amma or Vilasini Amma and her husband. There is no reference in Ext.B1 that the property belonging to the tarwad was brought to sale. There is no presumption attached to the sale under the Act or the R.R. Act or to Ext.B1 that it bound the tarwad or that the debt was incurred for the necessities of the tarwad. As per Sec.27 of the Travancore Nair Act, a debt created by the Karanavan or other managing member of a tarwad shall not bind that tarwad unless it is for the necessity of that tarwad. Though Vilasini Amma was also a party in the Arbitration case referred to in Ext.B1, there is no indication that she created that debt for the necessities of the tarwad. The undivided share of Vilasini Amma could not have sold in auction. From the mere fact that the children also S.A. No.739 of 1998 -: 16 :- were parties in the arbitration proceedings it cannot be presumed that the debt was incurred for family necessity. The loan transaction referred to in Ext.B1 is also not capable of raising any presumption that the debt was incurred for the necessity of the tarwad. As I stated above, it is not even pleaded so, by defendant No.3. Nor did he attempt even to prove that, by getting the relevant documents from the Society concerned. 13. Section 31 of the Travancore Nair Act states that no decree shall bind the tarwad unless it is obtained against the Karanavan as such. Learned counsel for defendant No.3 would meet Sec.31 with the non-obstante clause in Sec.35 of the Act which conferred first charge for the debt of the Society. But Sec.35 of the Act which merely dealt with the creation of charge has nothing to do with the binding nature of decree referred to in Sect.31 of the Travancore Nair Act. 14. This Court in Padmanabhan Nair v. Vasudevan Nair (1959 KLT 984) held that it is not necessary that Karanavan of the tarwad was impleaded as such in the proceeding to bind the tarwad. Even assuming so, there is no mention in Ext.B1 and defendant No.3 did not adduce evidence also to show that any of the respondents in award No.284 of 1956 represented the tarwad. S.A. No.739 of 1998 -: 17 :- Karunakaran Nair was not competent to represent his minor children and I stated that it is not shown who actually had incurred the debt and for what purpose whatsoever. 15. Reliance is made by defendant No.3 on Exts.B2, B5 and B6. Exhibit B5 as I stated above is the copy of plaint in O.S. No.70 of 1970 filed by Aravindaksha Menon and Ravindranadha Menon, two junior members of the tarwad headed by their mother, Vilasini Amma. Exhibit B5 would show that plaintiffs therein claimed that the property referred to therein including the suit property was tarwad property and