{"id":250534,"date":"2009-04-08T00:00:00","date_gmt":"2009-04-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/raveendranathan-nair-vs-rajamma-on-8-april-2009"},"modified":"2016-05-05T16:24:49","modified_gmt":"2016-05-05T10:54:49","slug":"raveendranathan-nair-vs-rajamma-on-8-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/raveendranathan-nair-vs-rajamma-on-8-april-2009","title":{"rendered":"Raveendranathan Nair vs Rajamma on 8 April, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Raveendranathan Nair vs Rajamma on 8 April, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA.No. 739 of 1998(D)\n\n\n\n1. RAVEENDRANATHAN NAIR\n                      ...  Petitioner\n\n                        Vs\n\n1. RAJAMMA\n                       ...       Respondent\n\n                For Petitioner  :SRI.S.VIDYASAGAR\n\n                For Respondent  :SRI.S.SREEKUMAR\n\nThe Hon'ble MR. Justice THOMAS P.JOSEPH\n\n Dated :08\/04\/2009\n\n O R D E R\n                         THOMAS P.JOSEPH, J.\n              = = = = = = = = = = = = = = = = = = = = = = = =\n                           S.A.No.739 of 1998\n              = = = = = = = = = = = = = = = = = = = = = = = = =\n                Dated this the 8th       day of April,   2009\n\n                              J U D G M E N T\n<\/pre>\n
                              ———————-\n<\/p>\n
\n      Courts below concurrently found that the possessory mortgage<\/p>\n
created under Ext.A2, deed No.2170\/54 is liable to be redeemed and<\/p>\n
accordingly granted a decree. That is under challenge in this second<\/p>\n
appeal at the instance of supplemental defendant No.3 in which the<\/p>\n
following substantial questions of law are raised for a decision.<\/p>\n
                  “1.   Whether possession obtained by a<\/p>\n
           purchaser in public auction sale of property<\/p>\n
           held in execution proceedings taken pursuant<\/p>\n
           to an award passed under the Kerala Co-<\/p>\n
           operative Societies Act<\/a> is not hostile to the rest<\/p>\n
           of the world?\n<\/p><\/blockquote>\n
                  2.    Whether title obtained by such an<\/p>\n
           auction purchaser can be ignored or set at<\/p>\n
           naught in a Civil Suit instituted twelve years<\/p>\n
           after the sale and delivery of possession of the<\/p>\n
           property to him?\n<\/p><\/blockquote>\n
                  3.    Whether a mortgage created in<\/p>\n
           favour of a Co-operative Society can be ignored<\/p>\n
           in collateral proceedings?”<\/p>\n<\/blockquote>\n
S.A. No.739 of 1998<\/p>\n
                                     -: 2 :-<\/span><\/p>\n
       2.     Plaintiff died during the pendency of the suit and his legal<\/p>\n
representatives were impleaded as supplemental plaintiffs. Parties are<\/p>\n
referred to as plaintiff and defendants as in the trial court for<\/p>\n
convenience.\n<\/p>\n
       3.     According to the plaintiff a total extent of 3.11 acres<\/p>\n
including the suit property – 1.08 acres – was acquired by Vilasini<\/p>\n
Amma and others as per assignment deed No.3248\/1122 M.E (Ext.A4<\/p>\n
is its certified copy) and they created a possessory mortgage in favour<\/p>\n
of defendant No.1, a minor then represented by Kumaran, her father<\/p>\n
as guardian as per deed No.2170\/54 dated 29.6.1954 (Ext,.A2 is its<\/p>\n
copy). It was directed in the mortgage deed that the income from the<\/p>\n
property was to be appropriated towards interest payable on the<\/p>\n
mortgage money. While so, Vilasini Amma and others assigned their<\/p>\n
right of redemption of the mortgage in favour of the plaintiff as per<\/p>\n
Ext.A1, assignment deed No.1827\/74. It is the possessory mortgage<\/p>\n
created under Ext.A2 that the plaintiff sought to redeem on the<\/p>\n
strength of Ext.A1. Supplemental defendant No.2 was later impleaded<\/p>\n
as per order on I.A. No.2277 of 1978 alleging that the mortgagee in<\/p>\n
possession     (defendant     No.1)      transferred the    property   to<\/p>\n
supplemental defendant No.2. The suit was decreed in favour of the<\/p>\n
plaintiff. Supplemental defendant No.2 preferred A.S. No.14 of 1981<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                 -: 3 :-<\/span><\/p>\n
before the Additional District Court, North Parur which was transferred<\/p>\n
to the Sub Court, North Parur and renumbered as A.S. No.33 of 1982.<\/p>\n
While   so,    supplemental   defendant   No.2  died and her      legal<\/p>\n
representative was impleaded as appellant\/supplemental defendant<\/p>\n
No.3 (appellant herein).     Appeal was allowed and the case was<\/p>\n
remanded to the trial court giving defendant No.3 opportunity to file<\/p>\n
written statement and contest the case. He filed written statement<\/p>\n
contending that pursuant to the award obtained by the Co-operative<\/p>\n
Society (hereinafter referred to as “the Society”) for the charged<\/p>\n
debt of Vilasini Amma over the 3.11 acres including the suit property,<\/p>\n
that property was sold in public auction by the sale officer pursuant to<\/p>\n
the award       passed against Vilasini Amma.     Papputty Narayanan<\/p>\n
purchased the said 3.11 acres and the sale sannad was issued in his<\/p>\n
favour. He took delivery of the property. He assigned that property to<\/p>\n
Subrahmonian as per Ext.B4, assignment deed dated 10.5.1961 for<\/p>\n
valid consideration.     Subrahmonian assigned the property to<\/p>\n
supplemental defendant No.2 as per Ext.B3, assignment deed dated<\/p>\n
1.6.1963 and on the death of supplemental defendant No.2, defendant<\/p>\n
No.3 inherited the same and is in possession and enjoyment as its<\/p>\n
absolute owner.      Subrahmonian and his assignees possessed the<\/p>\n
property as its absolute owners. Title if any of all others is lost by<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                   -: 4 :-<\/span><\/p>\n
adverse possession and limitation.        It is also contended that the<\/p>\n
assignment deed in favour of the plaintiff is fraudulent and the<\/p>\n
assignors of the plaintiff      had no right over the property to be<\/p>\n
conveyed. At any rate, defendant No.3 is entitled to get the value of<\/p>\n
improvements. Trial court granted a decree in favour of the plaintiff<\/p>\n
on 21.2.1983. Defendant No.3 challenged that judgment and decree<\/p>\n
in A.S. No.110 of 1987. There was again a remand to the trial court for<\/p>\n
fresh consideration of the contentious issues. The suit again ended in<\/p>\n
a decree for redemption on 3.6.1994. Value of improvements was<\/p>\n
disallowed as defendant No.3 did not produce evidence to show that<\/p>\n
any improvement was effected.           Defendant No.3 challenged that<\/p>\n
judgment and decree in A.S. No.141 of 1994.           Learned Additional<\/p>\n
District Judge dismissed the appeal as per judgment dated 23.5.1997<\/p>\n
which is under challenge in this second appeal.\n<\/p>\n
      4.     It is not disputed that 3.11 acres including the 1.08 acres<\/p>\n
which is the subject matter of the present proceeding was sold in<\/p>\n
public auction at the instance of the Society for the debt allegedly due<\/p>\n
from Vilasini Amma and others pursuant to the award obtained by the<\/p>\n
Society. It is also not disputed that the property was purchased in<\/p>\n
auction by Papputty Narayanan to whom           sale sannad was issued.<\/p>\n
Ext.B1 is that sale sannad dated 2.12.1958. It is also not in dispute<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                 -: 5 :-<\/span><\/p>\n
that the property was delivered over to Papputty Narayanan as seen<\/p>\n
from Ext.B10, copy of the delivery report.         It is while Papputty<\/p>\n
Narayanan was in possession and enjoyment of the property that he<\/p>\n
assigned it to Subrahmonian as per Ext.B4, assignment deed dated<\/p>\n
10.5.1961 and Subrahmonian in turn assigned the property to<\/p>\n
supplemental defendant No.2 as per Ext.B3, dated 1.6.1963.         It is<\/p>\n
contended by learned counsel for defendant No.3 that the possessory<\/p>\n
mortgage created under Ext.A2 is a fraudulent and sham transaction<\/p>\n
and that at any rate, the sale in public auction under the provisions of<\/p>\n
the Kerala Co-operative Societies Act (for short, “the Act”) and the<\/p>\n
Travancore-Cochin Revenue Recovery Act, 1951 (for short, “R.R. Act”)<\/p>\n
is free of all encumbrances whatsoever over the property and<\/p>\n
conferred absolute title in favour of the purchaser. Learned counsel<\/p>\n
also contended that Vilasini Amma who created the charged debt in<\/p>\n
favour of the Society was a member of that Society and hence the<\/p>\n
“dispute” between Vilasini Amma and the Society is one required to<\/p>\n
be decided under Sec.69 of the Act and hence that dispute could be<\/p>\n
resolved only in accordance with the provisions of that Act.<\/p>\n
According to the learned counsel if at all Vilasini Amma and others or<\/p>\n
any of her assignees were       aggrieved by the sale in auction their<\/p>\n
remedy was to challenge that sale in accordance with the provisions of<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                 -: 6 :-<\/span><\/p>\n
the Act. It is also contended that two members of the tarwad of<\/p>\n
Vilasini Amma (Aravindaksha Menon and Ravindranadha Menon) had<\/p>\n
challenged Ext.A2 possessory mortgage            in respect of the suit<\/p>\n
property and certain other transactions concerning certain other<\/p>\n
properties effected by Vilasini Amma and others allegedly on behalf of<\/p>\n
the tarwad, in O.S. No.70 of 1970. But that suit was settled, plaintiffs<\/p>\n
therein gave up their contention that the possessory mortgage created<\/p>\n
as per Ext.A2 and other transactions were not for the necessity of the<\/p>\n
tarwad and hence those transactions are         not binding on them.<\/p>\n
Learned counsel contended that plaintiffs in O.S. No.70 of 1970 being<\/p>\n
members of the tarwad and if the suit property (along with other<\/p>\n
items) belonged to the tarwad, plaintiffs on behalf of the tarwad ought<\/p>\n
to have challenged Ext.B1, sale sannad and sought redemption of<\/p>\n
mortgage in O.S. No.70 of 1970. It is contended by learned counsel<\/p>\n
that Ext.B5, copy of the plaint in O.S. No.70 of 1970 referred to a<\/p>\n
partition effected in the tarwad of Vilasini Amma and others on<\/p>\n
12.4.1967 and hence at any rate, the tarwad stood disrupted by that<\/p>\n
partition. If that be so, the members of the tarwad were not entitled to<\/p>\n
assign the right of redemption in favour of the plaintiff as per Ext.A1,<\/p>\n
document No.1827\/74. According to learned counsel it was only since<\/p>\n
the members of the tarwad were not entitled to redeem the mortgage<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                  -: 7 :-<\/span><\/p>\n
as per Ext.A2 at their instance that Ext.A1 was executed in favour of<\/p>\n
the plaintiff as an experiment to attempt at redemption of the<\/p>\n
mortgage allegedly created as per Ext.A2. Learned counsel requested<\/p>\n
that the documents produced along with I.A. Nos.1432 of 2005 and<\/p>\n
625 of 2009 be received as additional evidence.\n<\/p>\n
      5.     Learned counsel for the plaintiff in response contended<\/p>\n
that the courts below have concurrently found that suit property<\/p>\n
belonged to the tarwad of Vilasini Amma (with herself as the<\/p>\n
Karanavathy) and that the debt for which the property was sold at the<\/p>\n
instance of the Society is not proved to be a debt of the tarwad binding<\/p>\n
the tarwad as such. The Society sold the property of the tarwad as if it<\/p>\n
belonged to Vilasini Amma.      Therefore the auction sale cannot bind<\/p>\n
the tarwad. For that reason delivery of the property in favour of<\/p>\n
Papputty Narayanan and the subsequent assignments cannot bind<\/p>\n
the tarwad. Learned counsel contended that the said finding being<\/p>\n
one of the fact based on evidence, there is no scope for interference<\/p>\n
with it in the second appeal. It is also contended that once sale in<\/p>\n
auction is not binding on the tarwad,           that cannot affect the<\/p>\n
possessory mortgage created as per Ext.A2 or the assignment or right<\/p>\n
of redemption in favour of the plaintiff as per Ext.A1. Learned counsel<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                 -: 8 :-<\/span><\/p>\n
contended that the documents produced in the second appeal cannot<\/p>\n
be received as additional evidence. According to learned counsel no<\/p>\n
satisfactory explanation is given for non-production of the said<\/p>\n
documents in any of the courts below in spite of the fact there were<\/p>\n
two rounds of litigation in those courts. It is contended by learned<\/p>\n
counsel that the transactions referred to in the documents produced<\/p>\n
in the second appeal do not relate to the suit property or the debt to<\/p>\n
the Society referred to in Ext.B1. I heard the counsel on both sides on<\/p>\n
I.A. No.1432 of 2005 and I.A. No.625 of 2009 also along with this<\/p>\n
appeal.\n<\/p>\n
      6.     Exhibit B1 is the sale sannad dated 2.12.1958 issued by<\/p>\n
the Deputy Registrar of Co-operative Societies in favour of Papputty<\/p>\n
Narayanan. It states that the property was sold in public auction on<\/p>\n
16.11.1957 in accordance with the provisions of the R.R. Act pursuant<\/p>\n
to award No.284 of 1956 of the Deputy Registrar, Co-operative<\/p>\n
Societies, Kottayam. The sale was confirmed in favour of Papputty<\/p>\n
Narayanan and he paid the purchase price. The sale was published<\/p>\n
as per Sec.40 of that Act. Section 2(a) of the R.R. Act defines “public<\/p>\n
revenue due on land” as including among other things assignment in<\/p>\n
kind or money charged on lands and payable to the Government<\/p>\n
(according to the learned counsel for defendant No.3, money payable<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                  -: 9 :-<\/span><\/p>\n
to the Society is the money payable to the Government). Section 44<\/p>\n
of the R.R. Act states that all lands brought for sale on account of<\/p>\n
arrears of public revenue due thereon shall be sold free of all<\/p>\n
encumbrances. Section 35<\/a> of the (Co-operative Societies) Act provides<\/p>\n
for a first charge subject of course to any prior claim of the<\/p>\n
Government in favour of the Society for any debt to the Society from<\/p>\n
its member, past or deceased member as provided therein and sub-<\/p>\n
sec.(2) prohibits transfer of any property which is thus subject to a<\/p>\n
charge, except with the previous permission in writing of the Society<\/p>\n
concerned. Learned counsel for defendant No.3 contends that sale<\/p>\n
on 16.11.1957 was          free from all encumbrances including the<\/p>\n
possessory mortgage in favour of defendant No.1 as per Ext.A2 of the<\/p>\n
year 1954 and the right of redemption cannot and does not survive<\/p>\n
after Ext.B1.\n<\/p>\n
       7.    It is not very much in dispute before me that if the sale of<\/p>\n
the property in public auction followed by the sale sannad (Ext.B1) in<\/p>\n
favour of Papputty Narayanan bound the tarwad and accordingly the<\/p>\n
suit property, that sale must have precedence          over any other<\/p>\n
transaction in respect of the property and that such sale would be free<\/p>\n
of all encumbrances over the property. Therefore the crucial issue for<\/p>\n
a decision is whether Ext.B1 bound the tarwad and the property of<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                 -: 10 :-<\/span><\/p>\n
the tarwad.\n<\/p>\n
      8.     It is not in dispute that Vilasini Amma and her children<\/p>\n
belonged to        the    Hindu,    Nair Community which followed<\/p>\n
Marumakkathayam law of succession. Section 2(3) of the Travancore<\/p>\n
Nair Act defines ‘tavazhy of a female’ as meaning “a group of persons<\/p>\n
consisting of that female and her issue how-low-so-ever in the female<\/p>\n
line or such of that group as are alive”. As per sub-sec.(6), ‘tarwad’<\/p>\n
“means and includes all the members of a Marumakkathayam family,<\/p>\n
with community of property”.       Vilasini Amma and her children thus<\/p>\n
constituted a natural group and formed a sub tarwad. Exhibit A4 copy<\/p>\n
of assignment deed No.3848 of 1122 M.E. shows that the acquisition of<\/p>\n
the property was by Vilasini Amma and her daughter, Visalakshy (other<\/p>\n
children were born later).    Exhibits A4 further states that      the<\/p>\n
consideration for purchase of that      property was raised by Vilasini<\/p>\n
Amma and her daughter by executing an            agreement for sale of<\/p>\n
another item of property of the tarwad of Vilasini Amma situated in<\/p>\n
Ernakulam Village to Kattikaran Chacko Ouseph and that the assignor<\/p>\n
under Ext.A4 received the sale consideration from the said Chacko<\/p>\n
Ouseph. The sale consideration referred to in Ext.A4 could be traced<\/p>\n
to the sale of property of the tarwad of Vilasini Amma and others.  In<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                 -: 11 :-<\/span><\/p>\n
Lakshmi v. Ananadan (1982 KLT SN 36 – Case No.56) and<\/p>\n
Sarojini Amma v. Abubacker (1986 KLT 944) this Court held<\/p>\n
that once it is found that the acquirers constituted a natural group and<\/p>\n
formed a tavazhi by themselves the acquisition should be presumed<\/p>\n
to be on behalf of that tavazhi. In this case, Vilasini Amma and her<\/p>\n
only child then in existence, daughter Visalakshy constituted a natural<\/p>\n
group and formed a tavazhi. Hence the acquisition as per Ext.A4 must<\/p>\n
be presumed to be for the tavazhi. Apart from that presumption<\/p>\n
Ext.A4 states that purchase money was raised by entering into an<\/p>\n
agreement for sale of an item of property belonging to the tarwad.<\/p>\n
Subsequent to Ext.A4, Vilasini Amma and Karunakaran Nair begot two<\/p>\n
other children also. Exhibit A2 is the mortgage deed No.2170 of 1954<\/p>\n
executed by Vilasini Amma on her own and by her husband,<\/p>\n
Karunakaran Nair representing their minor children Visalakshy,<\/p>\n
Aravindaksha       Menon and Ravindranadha Menon.           Exhibit A1,<\/p>\n
assignment deed No.1827\/84 is also executed by the said persons.<\/p>\n
From Exts.A1, A2 and A4 it is evident that the acquisition of the 3.11<\/p>\n
acres including the suit property was for the tavazhi of Vilasini Amma.<\/p>\n
The courts below have rightly held so.\n<\/p>\n
      9.     The next question is whether Ext.B1, sale sannad bound<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                  -: 12 :-<\/span><\/p>\n
the tarwad and its property. Exhibit B1 states that for the amount due<\/p>\n
to the Society as per award No.284 of 1956 with Karunakaran Nair<\/p>\n
(husband of Vilasini Amma) as respondent No.1 on his own behalf and<\/p>\n
on behalf of minor children Visalakshy, Aravindaksha Menon and<\/p>\n
Ravindranadha Menon and Vilasini Amma as respondent No.1 on her<\/p>\n
own and on behalf of the minor children referred to above, property<\/p>\n
belonging to     Vilasini Amma was sold by the authorised officer on<\/p>\n
16.11.1957. Exhibit B1 states in the beginning that the property<\/p>\n
belonging to Vilasini Amma and at a later stage sates that the right<\/p>\n
which Vilasini Amma and her husband as owners had in the property<\/p>\n
was sold in auction and conveyed to Papputty Narayanan.<\/p>\n
      10.    It is contended by learned counsel for defendant No.3 that<\/p>\n
even a reading of Ext.A2 and the documents produced in the second<\/p>\n
appeal would show that debt to the Society incurred by the tarwad was<\/p>\n
for the necessities of the tarwad.       The document produced in this<\/p>\n
appeal along with I.A. No.1432 of 2005 is the kuri agreement No.1468<\/p>\n
of 1953 referred to in Ext.A2. Exhibit A2 states that money is raised<\/p>\n
by that mortgage to discharge the liability of the Taluk Co-operative<\/p>\n
Bank.    That certainly is not the debt to the Society referred to in<\/p>\n
Ext.B1. Document No.1468 of 1953 of course states that the debt<\/p>\n
referred to therein was created for the necessities of the tarwad. But<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                  -: 13 :-<\/span><\/p>\n
that is not shown to be the debt referred to in Ext.B1 and which<\/p>\n
culminated in the award referred to in Ext.B1 was for an on behalf of<\/p>\n
the tarwad and bound the tarwad.\n<\/p>\n
       11.   Along with I.A. No.625 of 2009, copy of mortgage deed<\/p>\n
No.2171 of 1954 is produced by defendant No.3 to be received as<\/p>\n
additional evidence. That is a mortgage deed executed by the same<\/p>\n
executants as in Ext.A2 on the same day in favour of defendant No.1,<\/p>\n
executed by her father, Kumaran. That document refers to certain<\/p>\n
debts created in favour of the Co-operative Bank. There again it is not<\/p>\n
shown that any of those debts is the debt referred to in          Ext.B1.<\/p>\n
Defendant No.3 should have produced the copies or summoned the<\/p>\n
original of the relevant documents as per which the debt referred to in<\/p>\n
Ext.B1 was created and shown that the said debt was created for and<\/p>\n
on behalf of the tarwad.       No sufficient or justifiable reason is also<\/p>\n
stated to receive the documents produced in this appeal as additional<\/p>\n
evidence.      The affidavits in support of the applications to receive<\/p>\n
additional evidence contain the same         averments and state that<\/p>\n
defendant No.3 was searching for the documents and obtained the<\/p>\n
certified copies, there was long delay and the same could be obtained<\/p>\n
by him only at “this stage”. It is true that second appellate court has<\/p>\n
the power to receive additional evidence under Order XLI Rule 27 of<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                   -: 14 :-<\/span><\/p>\n
the Code of Civil Procedure but not for a mere asking. The Court must<\/p>\n
be satisfied that there is justifiable reason as referred to in Order XLI<\/p>\n
Rule 27 of the Code which prevented the party concerned from<\/p>\n
producing such evidence in the courts below.          It is not as if the<\/p>\n
documents produced along with the applications could be received in<\/p>\n
evidence to the prejudice of the opposite party. Necessarily they<\/p>\n
must get an opportunity to produce contra evidence if any or explain<\/p>\n
away the circumstances which may be created against them.         I have<\/p>\n
also to bear in mind that 3 decades plus 2 years have elapsed since<\/p>\n
the parties started this litigation.     As pointed out by the learned<\/p>\n
counsel for the plaintiff, twice there were remands by the first<\/p>\n
appellate court whatever be the reason thereof.       If  defendant No.3<\/p>\n
were diligent, he could have produced the relevant documents in any<\/p>\n
of the courts below before which the litigation was pending for 21<\/p>\n
years. On the facts and circumstances of this case I am not inclined to<\/p>\n
think that defendant No.3 could be permitted to adduce additional<\/p>\n
evidence or that the documents produced are relevant or necessary<\/p>\n
for a just decision of this appeal. Hence I.A. Nos.1432 of 2005 and 625<\/p>\n
of 2009 will stand dismissed.\n<\/p>\n
       12.   Exhibit B1 does not show or indicate that the debt was for<\/p>\n
the necessities of the tharwad. Going by Ext.B1 it would appear that<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                -: 15 :-<\/span><\/p>\n
Karunakaran Nair (husband of Vilasini Amma) was also a respondent<\/p>\n
on his own as well in the case which ended in award No.284 of 1956.<\/p>\n
That would indicate that he     was a party on his own in the loan<\/p>\n
transaction. For the debt of Karunakaran Nair the tarwad property<\/p>\n
could not have been sold.   It is also pertinent to note that defendant<\/p>\n
No.3 has no case in his written statement that the debt to the Society<\/p>\n
was created by the tarwad or for any legal necessities of the tarwad.<\/p>\n
Instead, the contention raised is that the debt was incurred by Vilasini<\/p>\n
Amma. Exhibit B1 would show that the property was sold in public<\/p>\n
auction as if it belonged to Vilasini Amma or Vilasini Amma and her<\/p>\n
husband. There is no reference in Ext.B1 that the property belonging<\/p>\n
to the tarwad was brought to sale. There is no presumption attached<\/p>\n
to the sale under the Act or the R.R. Act    or to Ext.B1 that it bound<\/p>\n
the tarwad or that the debt was incurred for the necessities of the<\/p>\n
tarwad. As per Sec.27 of the Travancore Nair Act, a debt created by<\/p>\n
the Karanavan or other managing member of a tarwad shall not bind<\/p>\n
that tarwad unless it is for the necessity of that tarwad.      Though<\/p>\n
Vilasini Amma was also a party in the Arbitration case referred to in<\/p>\n
Ext.B1, there is no indication that she created that debt for the<\/p>\n
necessities of the tarwad. The undivided share of Vilasini Amma could<\/p>\n
not have sold in auction. From the mere fact that the children also<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                  -: 16 :-<\/span><\/p>\n
were     parties in the arbitration proceedings it cannot be presumed<\/p>\n
that the debt was incurred for family necessity. The loan transaction<\/p>\n
referred to in Ext.B1 is also not capable of raising any presumption<\/p>\n
that the debt was incurred for the necessity of the tarwad. As I stated<\/p>\n
above, it is not even pleaded so, by defendant No.3.        Nor did he<\/p>\n
attempt even to prove that, by getting the relevant documents from<\/p>\n
the Society concerned.\n<\/p>\n
      13.    Section 31 of the Travancore Nair Act states that no decree<\/p>\n
shall bind the tarwad unless it is obtained against the Karanavan as<\/p>\n
such. Learned counsel for defendant No.3 would meet Sec.31 with<\/p>\n
the non-obstante clause in Sec.35 of the Act which conferred first<\/p>\n
charge for the debt of the Society. But Sec.35 of the Act which merely<\/p>\n
dealt with the creation of charge has nothing to do with the binding<\/p>\n
nature of decree referred to in Sect.31 of the Travancore Nair Act.<\/p>\n
      14.    This Court in Padmanabhan Nair v. Vasudevan<\/p>\n
Nair (1959 KLT 984) held that it is       not necessary that Karanavan<\/p>\n
of the   tarwad was impleaded as such in the proceeding to bind the<\/p>\n
tarwad.    Even assuming so, there is no mention in Ext.B1          and<\/p>\n
defendant No.3 did not adduce evidence also to show that any of the<\/p>\n
respondents in award No.284 of 1956 represented the tarwad.<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                 -: 17 :-<\/span><\/p>\n
Karunakaran Nair was not competent to represent his minor children<\/p>\n
and I stated that it is not shown who actually had incurred the debt<\/p>\n
and for what purpose whatsoever.\n<\/p>\n
      15.    Reliance is made by defendant No.3 on Exts.B2, B5 and<\/p>\n
B6. Exhibit B5 as I stated above is the copy of plaint in O.S. No.70 of<\/p>\n
1970 filed by Aravindaksha Menon and Ravindranadha Menon, two<\/p>\n
junior members of the tarwad headed by their mother, Vilasini Amma.<\/p>\n
Exhibit B5 would show that plaintiffs therein claimed that the property<\/p>\n
referred to therein including the suit property was tarwad property<\/p>\n
and that the transactions including Ext.A2 referred to therein were<\/p>\n
not created for the necessity of the tarwad. But as seen from Exts.B2<\/p>\n
and B6, plaintiffs therein gave up that contention.         Trial court<\/p>\n
observed that the action brought for setting aside the transaction and<\/p>\n
for recovery of possession of the property though by two junior<\/p>\n
members was for and on behalf of the tarwad but they could not have<\/p>\n
given up the claim to bind the tarwad. None of the other members of<\/p>\n
the tarwad who were defendants in O.S. No.70 of 1970, nor even<\/p>\n
defendant No.1, mortgagee under Ext.A2 (represented by her father<\/p>\n
and guardian) are parties in Exts.B2 and B6.           Therefore   the<\/p>\n
compromise said to have been effected by the plaintiffs in O.S. No.70<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                   -: 18 :-<\/span><\/p>\n
of 1970 and defendant No.9 therein (who was not at all concerned with<\/p>\n
the present suit property which is item No.3 therein) cannot bind the<\/p>\n
tarwad.\n<\/p>\n
      16.    It is contended by learned counsel that even as per the<\/p>\n
provisions of the Travancore Nair Act, right of the members of the<\/p>\n
tarwad can arise only once and that right arose when two junior<\/p>\n
members filed O.S. No.70 of 1970 but no challenge was made against<\/p>\n
Ext.B1.   Hence the assignee of the members of the tarwad is not<\/p>\n
entitled to sue for redemption of the mortgage, it is contended.  It is<\/p>\n
also contended that the tarwad stands disrupted by the partition on<\/p>\n
12.4.1967 referred to in paragraph 6 of Ext.B5, copy of plaint in O.S.<\/p>\n
No.70 of 1970. It is however, seen that all the members of the tarwad<\/p>\n
have joined to execute Ext.A1 in favour of the plaintiff transferring<\/p>\n
their right of redemption.        Assuming that the joint family stood<\/p>\n
disrupted by the partition on 12.4.1967 referred to in Ext.B5, all the<\/p>\n
members of the tarwad who had a separate share in the property<\/p>\n
consequent to the alleged disruption of the joint family have assigned<\/p>\n
their right jointly in favour of the plaintiff as per Ext.A1.<\/p>\n
      17.    Since it is not shown that the debt referred to in Ext.B1<\/p>\n
bound the tarwad, the contention raised by defendant No.3 that the<\/p>\n
sale in auction referred to in Ext.B1 is free from all encumbrances<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                 -: 19 :-<\/span><\/p>\n
whatsoever based on the provisions of the Act and the R.R. Act should<\/p>\n
fail.\n<\/p>\n
      17.    Another contention raised is that since Vilasini Amma was<\/p>\n
a member of the Society, challenge to Ext.B1 could only be under<\/p>\n
the provisions of the Act and not collaterally in the suit for redemption.<\/p>\n
The contention is equally not sustainable as the plaintiff is entitled to<\/p>\n
ignore Ext.B1 if it has no binding effect on the tarwad or its property<\/p>\n
and consequently, on Ext.A2.\n<\/p>\n
      19.    Learned counsel for defendant No.3 then contended that<\/p>\n
Ext.A2 has not come into effect and that it is a sham transaction, at<\/p>\n
any rate created fraudulently. Learned counsel contended that even<\/p>\n
the mortgage money referred to in Ext.A2 was not a reality but, was<\/p>\n
bogus. Reference made by learned counsel to the mortgage money<\/p>\n
mentioned      in Ext.A2 as “said to have been received” is        not a<\/p>\n
reference to the mortgage money as such.         The reference in Ext.A2<\/p>\n
about the money “said to have been received” is to the manner in<\/p>\n
which the mortgagee is said to have raised the amount by sale of an<\/p>\n
item of property belonging to one Mathew.       Exhibit B1 shows that the<\/p>\n
award was passed in 1956, sale of the property in auction was on<\/p>\n
16.11.1957 and Ext.B1 was issued on 2.12.1958.              Exhibit A2 is<\/p>\n
executed in 1954.      There is no reason to think that it was in<\/p>\n
S.A. No.739 of 1998<\/p>\n
                                -: 20 :-<\/span><\/p>\n
anticipation of the award in 1956, sale in auction on 16.11.1957 and to<\/p>\n
defeat all those things that Ext.A2 was executed in 1954.         That,<\/p>\n
possession of the property has gone to the mortgagee under Ext.A2 is<\/p>\n
evident from Ext.B10, copy of delivery report produced and relied on<\/p>\n
by defendant No.3.     Exhibit B10 states that Kumaran      (father and<\/p>\n
guardian of defendant No.1, the possessory mortgagee under Ext.A2)<\/p>\n
was residing in the property (3.11 acres) adjoining the road towards<\/p>\n
the western portion of the said property and that he voluntarily<\/p>\n
vacated the property. On the back of Ext.B10, Kumaran describing<\/p>\n
himself as the person in possession of the property (3.11 acres) has<\/p>\n
signed as a witness. Exhibit B10 shows that Kumaran (certainly on<\/p>\n
behalf of defendant No.1, the mortgagee under Ext.A2) was in<\/p>\n
possession of the 3.11 acres including the suit property. There is no<\/p>\n
case or evidence that Kumaran got possession of the property<\/p>\n
otherwise than under Ext.A2. Therefore the contention that Ext.A2 is a<\/p>\n
sham transaction or created fraudulently cannot stand. The contention<\/p>\n
that Subrahmonian and his assignees were holding the property<\/p>\n
adversely to all others also cannot stand. Courts below have held and<\/p>\n
rightly, that mere length of possession is not sufficient to extinguish<\/p>\n
title. Possession with the necessary hostile animus is not established.<\/p>\n
Moreover, the assignee of the right to redeem can and need file the<\/p>\n
S.A. No.739 of 1998<\/p>\n
                              -: 21 :-<\/span><\/p>\n
suit for redemption and recovery of possession on the expiry of the<\/p>\n
period of mortgage stated in Ext.A2. In view of what I have stated<\/p>\n
above, the substantial questions raised are   answered accordingly<\/p>\n
against the appellant\/supplemental defendant No.3.<\/p>\n
      Second appeal is dismissed. No costs.\n<\/p>\n
      Civil Miscellaneous Petition No.1819 of 1999 shall stand<\/p>\n
dismissed.\n<\/p>\n
\n
                                         THOMAS P.JOSEPH, JUDGE.\n<\/p>\n
\nvsv<\/p>\n
  THOMAS P.JOSEPH, J.\n<\/p>\n
===================
\n   S.A. NO.739 OF 1998
\n===================<\/p>\n
     J U D G M E N T<\/p>\n
   8TH APRIL, 2009<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Raveendranathan Nair vs Rajamma on 8 April, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM SA.No. 739 of 1998(D) 1. RAVEENDRANATHAN NAIR … Petitioner Vs 1. RAJAMMA … Respondent For Petitioner :SRI.S.VIDYASAGAR For Respondent :SRI.S.SREEKUMAR The Hon’ble MR. Justice THOMAS P.JOSEPH Dated :08\/04\/2009 O R D E R THOMAS P.JOSEPH, J. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-250534","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nRaveendranathan Nair vs Rajamma on 8 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/raveendranathan-nair-vs-rajamma-on-8-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Raveendranathan Nair vs Rajamma on 8 April, 2009 - 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