Vs. Chellappan Pillai  INSC 326 (13 May 1994)
Dayal (J) Yogeshwar Dayal (J) Kuldip Singh (J)
1994 SCC Supl. (2) 332 JT 1994 (4) 177 1994 SCALE (2)1021
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 333 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
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.
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.
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.
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.
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 334 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).
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.
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.,
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.
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.
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.
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.
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.
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.
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.
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.
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.