PETITIONER: P.MUTHAYYA Vs. RESPONDENT: CHELLAPPAN PILLAI DATE OF JUDGMENT13/05/1994 BENCH: YOGESHWAR DAYAL (J) BENCH: YOGESHWAR DAYAL (J) KULDIP SINGH (J) CITATION: 1994 SCC Supl. (2) 332 JT 1994 (4) 177 1994 SCALE (2)1021 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
YOGESHWAR DAYAL, J.- This appeal arises from the judgment of
the learned Single Judge of the High Court of Madras, dated
16-6-1980. It arises out of a suit for partition and
redemption of mortgage deed filed by one P. Muthayya. The
trial court had dismissed the suit. But, on an appeal by
the plaintiff, the judgment of the trial court was set aside
and the suit of the plaintiff for redemption was decreed and
the share of the plaintiff was determined as 5/6th share in
his 2/3rd share. Defendant 1’s share was determined as the
1/6th share out of the 2/3rd share. Some portion of the
balance of 1/3rd share was held to go to defendants 20 to 22
and defendants 2 to 19 were also held to get some portion by
reason of the other sharers in not having instituted the
suit for
+ From the Judgment and Order dated 16-6-1980 of the
Madras High Court in Second Appeal No. 799 of 1976
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redemption within time. However, on the request of all the
parties a preliminary decree for partition was passed but
the matter was remanded to the trial court for determining
the shares. The lower court was also directed to decide the
amount due under the mortgage deed of which redemption was
allowed and the value of improvements, if any, to be paid by
the mortgagor.
2. The High Court in second appeal set aside the decree
for redemption of mortgage, vide mortgage deed Ext. A-1 on
the ground that Karanavan in whose favour the mortgage deed
was executed was Padmanabhan Pillai Mathevan Pillai (in
short Mathevan Pillai) a junior member of the Karanavan and
it was beyond his powers and that it was executed when the
senior member of the Karanavan, namely, Raman Pillai was
alive. The whole case turns round on the validity of Ext.
A-1 having been executed in favour of the mortgagee,
Mathevan Pillai.
3. The mortgagee under the suit mortgage deed Ext. A-1,
namely, Mathevan Pillai belonged to the Tarwad of defendants
2 to 19. The plea of defendants 2 to 19 was that he was not
the Karanavan of Tarwad and that he was only a junior member
and as such he was disentitled to represent the Tarwad by
figuring as mortgagee under Ext. A-1. The
plaintiff/appellant’s case was that mortgagee Mathevan
Pillai was really the Karanavan of the Tarwad and he
represented the Tarwad consisting of defendants 2 to 19.
The plaintiff had relied upon the judgments in OS No. 678 of
1112 and OS No. 731 of 1112 (Ext. A-14) in support of his
contention. But those suits were filed by Raman Pillai
Bhagavathy Pillai, the then Karanavan of defendants 2 to 19.
The plaintiff in that suit alleged that he was the Karanavan
and Manager of the Tarwad. OS No. 678 of 1112 was filed to
set aside a gift deed executed by Mathevan Pillai the prior
Karanavan. It was specifically admitted in the plaint in OS
No. 678 of 1112 that the prior Karanavan was Mathevan
Pillai. The second suit (OS No. 731 of 1112) was filed to
set aside the will executed by Mathevan Pillai and for
declaration of title. Therein also it was alleged that the
plaintiff therein, namely, Raman Pillai Bhagavathy Pillai
was the next Karanavan of the Tarwad after the death of
Mathevan Pillai who was the prior Karanavan and that the
said Mathevan Pillai died on 20-7-1112 (M.E.) (equivalent to
1937). It was specifically stated that the property in that
case was purchased by Mathevan Pillai on behalf of the
Tarwad.
4. The argument of the plaintiff/appellant was that once
it is admitted that Raman Pillai Bhagavathy Pillai, who
filed OS No. 678 of 1112 and OS No. 731 of 1112 was
Karanavan of the Tarwad consisting of defendants 2 to 19 and
that the said Raman Pillai Bhagavathy Pillai filed the suits
in his capacity as the Karanavan and on behalf of the
Tarwad, the admission in the plaints that the prior
Karanavan was Mathevan Pillai is binding upon defendants 2
to 19. It was urged that they must accept it that as Tarwad
of defendants 2 to 19 admitted the fact that Mathevan Pillai
was the Karanavan, it is not now open to defendants 2 to 19
to dispute the fact that Mathevan Pillai was really the
Karanavan of the Tarwad. On the other hand the plea of
defendants 2 to 19 before the lower appellate court was that
there was no finding in OS No. 678 of 1112 and OS No. 731 of
1112 that Mathevan Pillai was the Karanavan. It was also
pleaded on behalf of defendants 2 to 19 that the said
judgment was also set aside in appeal but this contention
was not accepted as there was no evidence to show that the
judgment was set aside in appeal even though there was
evidence to show that there was an appeal. The lower
appellate court took the view that there was an
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admission that Mathevan Pillai was an earlier Karanavan and,
therefore, it was binding upon defendants 2 to 19. The
lower appellate court also took the view that the perusal of
the judgment (Ext. A-14) also shows that one Raman, who was
senior member of the Tarwad was alive only till the close of
1079 (M.E.) (equivalent to 1904).
5. The lower appellate court then took the view that it
appears from Ext. A-14 that Raman Pillai was alive till the
close of 1079 and was not there when the suit mortgage deed
(Ext. A-1) was executed by Mathevan Pillai, who was not
merely de facto Karanavan but in fact was the senior member
of the Tarwad. The prior Karanavan Raman Pillai having died
before the close of 1079 M.E., Mathevan Pillai was the
Karanavan when Ext. A-1 was executed in the year 1088 M.E.
by him. It also held that the prior mortgage Ext. B-15 was
got merged in Ext. A-1 and was completely discharged by the
execution of Ext. A-1.,
6. The High Court in second appeal set aside the finding
of the lower appellate court only to the extent that Raman
Pillai had died before the execution of Ext. A-1 which was
executed in the year 1088 M.E. by Mathevan Pillai and took
the view that this finding of the lower appellate court was
not supported by any evidence on record.
7. The whole thing turns round the evidence and discussion
of the District Munsif, Kuzhithurai who decided suit (OS No.
678 of 1112). The learned Munsif who decided the suit by
judgment Ext. A-14 relied on Ext. ‘G’ which was a copy of
deposition of Mathevan Pillai where he admits in clear terms
that he became the Karanavan of the Tarwad in 1078 M.E. and
ever since then he continued to be the Karanavan till his
death. Mathevan Pillai could have become the Karanavan of
the Tarwad only if the senior member i.e. Raman Pillai had
died. It was noticed in Ext. A-14 regarding Mathevan
Pillai deposing about the death of Raman towards the end of
1079 M.E. or the beginning of 1080 M.E.
8. It may be noticed that it is not a case of any
liability being undertaken on behalf of the Tarwad by
Mathevan Pillai. He was acting as a mortgagee. Besides,
when transactions are so ancient, like the one before us,
the date of death of Raman, the elder Karanavan was within
the special knowledge of the Tarwad of defendants 2 to 19.
They led no evidence to depose when he died. It will be too
much to place something in special knowledge of defendants 2
to 19 to be proved by the plaintiff to a successor-in-
interest of the mortgagee. In this state of the records it
is clear from the recapitulation of Mathevan’s statement
referred to as Ext. ‘G’ before the court which decided suit
(OS No. 731 of 1112) that Raman had died in 1079 M.E. or
beginning of 1080 M.E.
9. It is true that the District Munsif who decided suit
(OS No. 731 of 1112) talked question of “de facto” or “de
jure” Karanavan but that judgment was not appealed from.
This was the litigation which was started by the
predecessors of defendants 2 to 19 and it was their evidence
which the District Munsif was discussing and was relied upon
by the lower appellate court in the present case.
10. It cannot be said, in the circumstances, that the
evidence by way of Ext. A- 14 was no evidence -at all
about the death of Raman Pillai, the elder brother, towards
the close of 1079 M.E. (equivalent to 1904). The mortgage
in dispute was executed in 1088 M.E. which is practically 9
years after the death of Raman Pillai, who was the earlier
Karanavan.
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11. The High Court could interefere with the finding of the
lower appellate court about the validity of Ext. A-1 only
if it could come to a finding that at the relevant time when
Ext. A-1 was executed, Raman Pillai, the senior member was
alive. No such evidence had been led on behalf of
defendants 2 to 19 and thus the High Court erred in law in
setting aside the finding of fact recorded by the lower
appellate court relying on Ext. A-14.
12. The result is that this appeal is allowed, the impugned
judgment of the High Court dated 16-6-1980 is set aside and
the judgment of the lower appellate court dated 12-1-1976 is
restored. Parties are, however, left to bear their own
costs of the present proceedings.