The Judgment of the Court was delivered by
Velu Pillai, J.:— This is an appeal by defendants 34 to 42, 44, 45 and 52 and is directed against a preliminary decree passed by lie Subordinate Judge at Tellicherry, for partition of properties which were found to belong to a Moplah Marumakkathayam tarwad called Adeelakath tarwad or which may be referred to as the tarwad, consisting of the plaintiff and or defendants 1 to 45 and 49. The plaintiff sued for partition and recovery of 1/47th share of 43 items of properties described in B schedule of the plaint. The chief defence put up by the appellants was, that items 2 to 43 of B schedule are not partible, as they belong to a tavazhi in the tarwad, called Unnintavide tavazhi of the appellants, or shortly the tavazhi, and not to the tarwad.
2. The court below has now found, that of these items, all, except items 2, 4 and 6, are partible; this was partly on the basis of the decision in a previous litigation, evidenced by judgment Ext. A-3 rendered on appeal, by the Subordinate Judge, and confirmed by judgment Ext. A-4, passed on second appeal by the Madras High Court, which was held to operate as res judicata. In holding so, the court below has failed to note what was so obvious, that the previous suit was instituted in the Munsif's Court, which was not competent to entertain the present suit, which was instituted in the court of the Subordinate Judge. The learned counsel appearing for the plaintiff-respondent was therefore unable to support the view taken, that the appellants are barred by res judicata in their present contention; instead, he supported the finding on three contentions, first, that the previous decision is admissible in evidence under Section 13 of the Evidence Act and is almost conclusive, secondly, that it serves to shift the onus of proof to the appellants to establish the title of the tavazhi to the properties concerned, and thirdly, that Ext. A-4 contains a record of an admission made by the karanavan of the tavazhi relating to the acquisition of the properties, which is now available to the plaintiff, to be used against the appellants.
3. The former suit was instituted by a female member of the tarwad, impleading its karanavan as the first defendant, and four of its senior members as defendants 2 to 5, claiming maintenance, from the first defendant personally, and out of the income of tarwad properties, which were not specified in the plaint. Defendants 3 and 4 who were members of the tavazhi, were described in the plaint in that case, Ext. B-20. As living in Unnintavide, and as having no occupation or following no pursuit. While not opposing the claim for maintenance as against the tarwad, they contended, that the tavazhi properties ought not to be made answerable, and insisted, that the plaintiff do file in court a list of the properties which according to her, belonged to the tarwad.
4. Such a list was furnished later, being Ext. A-1 or B-24, in this suit. The first court dismissed the suit by Ext. A-2, judgment; on appeal by the plaintiff, impleading the 3rd defendant, described as ‘Anandiravan,’ in the tarwad presumably, and impleading none in the place of the 4th defendant who had died in the meanwhile, the Subordinate Judge came to the conclusion, that of the properties covered by the list, those specified by aim in paragraph 15 of his judgment. Ext. A-3, which were said to have been acquired in the name of the 4th defendant, were not liable to meet the plaintiffs claim, but that, the remaining properties which were in the possession of the first defendant, belonged to the tarwad and were so liable. The 3rd defendant preferred a second appeal describing himself, again as Anandiravan, and by Ext. A-4, the findings of the Subordinate Judge and the decree passed by him were confirmed.
5. It may be, that under the law governing the parties, a karanavan need not be described as such it the plaint and the capacity in which he is sued, may be capable of being inferred from the frame of the suit or from the reliefs claimed or from other cogent circumstances. But when the plaintiff herself set out in Ext B-20, the reason for the impleadment of defendants 2 and 3 to be that they were the senior made members next in rank to the karnavan and of defendants 4 and 5 to be that they were the senior female members next in rank to the plaintiff, and she did not allege, much less recognise, the existence of the tavazhi and of properties appertaining to it and specifically wanted no relief, declaratory or otherwise, as against the tavazhi, there is no scope for an inference, that the 3rd defendant was sued as lie karanavan of the tavazhi, all because he exercised a privilege which was open to any member of the tavazhi who may be impleaded, of setting up the title of the tavazhi to the properties in which he is interested. While Ext. A-5 shows, that the 3rd defendant was the karanavan of the tavazhi, in the year 1934, our attention has not been drawn to any other material to show conclusively, that he was the karanavan during the period of the former litigation. A suit for maintenance by a member of the tarwad is of which from its very nature, would ordinarily be brought against the karanavan of the tarwad, Chandu v. Raman, ILR 11 Mad 378. We therefore come to the conclusion, that the tavazhi was not sued in the former litigation.
6. On the first of the contentions formulated above, it may be taken as settled by the pronouncements of the Supreme Court in Srinivas Krishna Rao v. Narayan Devji, AIR 1954 SC 379 and Sital Das v. Sant Ram, AIR 1954 SC 606, that the judgment in a previous suit, though not inter partes, is admissible under Section 13 of the Evidence Act in proof of a transaction or particular instance, in which the right in question was asserted and recognised or denied; it is therefore needless to refer to earlier cases on the subject of admissibility of such judgments in evidence. But the finding of fact arrived at in the judgment on the evidence in the previous case, is not evidence of that fact in the later case: Gopika Raman v. Atal Singh, AIR 1929 PC 99. In another case, the Privy Council observed, that “the reasons upon which the judgment is founded are no part of the transaction and cannot be so regarded, nor can any finding of fact there came to, other than the transaction itself, be relevant in the present case”, Gobinda Narayan v. Shamlal AIR 1931 P.C 89. It is unnecessary to multiply cases. Accordingly in Srinivas Krishna Rao's case AIR 1954 SC 379, the Supreme Court was prepared to treat the earlier judgment, only as an assertion of the right claimed, and in AIR 1954 SC 606, the court used the judgment, only to fill up the slight lacuna in the evidence, and to support the oral evidence. In Ram Lakhan v. Jai Upadhya, AIR 1929 Pat 749, the prior decree was held to be admissible “under Section 13 of the Evidence Act as corroboration of the oral evidence”. It is difficult to think, that an assertion can be made the sole foundation for relief being granted by a court, Kesho Prasad Singh v. Mt. Bhagjona Kuer, AIR 1937 PC 69. If so, the finding in Ext. A-3 confirmed by Ext. A-4, could not be made the basis on which a decree can be granted in this case.
7. Next, it was contended on the authority of the Privy Council in Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy, AIR 1922 PC 241, which was followed by the Calcutta High Court in Secy. of State v. Brajendra Kishore, AIR 1936 Cal 629, that the earlier judgment may be relied on to shift to the party against whom it was made, the onus of proving that it is incorrect, and so, the appellants have to discharge that burden. In the two cases cited above, the prior judgments were inter partes; other too may be cited, in which a similar view was taken, though it must be mentioned that the opinion was expressed by Fazl Ali J., as he then was in Purnima Debya v. Nand Lal, AIR 1932 Pat 105, and by Ramkrishna Iyer, J. in Kesava Kurup v. Lekshmikutty Amma, 29 Trav LJ 919 at 928, that except where the previous judgment is res judicata the Evidence Act does not make a distinction between a judgment inter partes and a judgment not inter partes for this purpose.
8. This controversy need not detain us in the present case, for the previous judgment has been found to be not inter partes. Even so, there are a few cases, in which this rule of burden of proof was held to apply equally, where the previous judgment was not inter partes. Yeshwant v. Daulat. AIR 1920 Nag 129 may be cited as one of such cases but not, Gopal Rao v. Sitaram, AIR 1927 Nag 19, on which reliance was placed, as the previous judgment in it was inter partes. The Privy Council has however declined to extend the rule of onus of proof in respect of a previous judgment not inter partes, observing that “serious consequences might ensue as regards title to land in India, if it were recognised, that a judgment against a third party altered the burden of proof as between rival claimants and much ‘indirect lying’ might be expected to follow therefrom”, AIR 1937 PC 69. We are not therefore prepared to accept the contention, that by reason of the finding in Exts. A-3 and A-4, the burden has shifted to the appellants to establish, that it is erroneous.
9. The third contention was founded on the principle deducible from decided cases, that a Judgment though not inter partes is admissible to prove recorded admissions in it, made by ancestors or by predecessors-in-interest of the parties to a litigation. Lakshman Govind v. Amrit Gopal, ILR 24 Bom 591 and Chandulal v. Pushkar Raj, AIR 1952 Nag 271, may be referred to in this connection. As observed by Fazl Ali, J. in AIR 1932 Pat 105, the decisions on this point are not quite uniform. The statements in Ext. A-4, that “it is not disputed by the parties, that the properties were acquired by Abdulla Haji a member of the appellants' tavazhi”, and that “admittedly all the properties in question were acquired by him (Abdulla Haji)”. were relied on, as constituting admissions made by the tavazhi in the previous litigation. On the contrary, after stating in paragraph 15 of Ext. A3, that “some of lie properties in suit, viz., items 1 to 14, 34 and 39” which according to the appellants' second written statement, correspond to items 2 to 11, 28 and 33 in this suit, “were acquired by Abdulla Haji in the name of the 4th defendant,” the Subordinate Judge proceeded to record, that “this proposition has not been attacked by the plaintiff”.
10. These items were excluded from the scope of the previous finding. The statements in Ext. A-3 conflict with the present case of the plaintiff, that items 2 to 43 are all partible. It seems to us, that concessions such as these, made by parties or counsel at the hearing of the case, can hardly be deemed to constitute admissions made by ancestors or predecessors-in-interest. It has also been held, that recitals in a judgment are no evidence whatever to prove the exact admissions made by a party or witness unless the whole of the statement is recited therein, Indra Singh v. Income-tax Commr. AIR 1943 Pat 169. Even as admissions made by the third defendant, they have not been shown to be binding on the tavazhi. We therefore reject this contention.
11. Counsel for the plaintiff drew our attention to the plea of the appellants in their first written statement, admitting that items 1, 8, 9, 10 to 27 and 29 to 43 of the properties, belonged to the tarward and are partible, and to their omission to deny the allegation in para 7 of the plaint, that items 2 to 43 of the B schedule were acquired by Abdulla Haji. In their second written statement, which was admitted by the Court, and was acted upon, the appellants have pleaded, that items 2 to 43 are not partible, having been acquired by the tavazhi karanavans from lame to time. In this view, no conclusion can be reached in favour of the plaintiff upon the state of the pleadings, or upon the recital of the contentions of the appellants in the judgment under appeal, in more than one place. The order dated the 4th August, 1951, on I.A 3138 of 1950, excluding some of the disputed properties from receivership, has no relevance in this context, as having been made before the second written statement of the appellants had come on record. We therefore come to the conclusion, that the title to the properties must be decided chiefly, on the evidence adduced in this case with respect to them. Accordingly we proceed to consider the same.
12. Item 3 was acquired by Abdulla Haji together with six other properties under a sale deed, Ext. A-11, of the year 1877. Ext. A-12 of the year 1889 is a deed of assignment executed by Abdulla Haji and Mariyumma, in favour of one Avulla for one of the other properties comprised in Ext. A-11; the junction of Mariyumma being, as explained in it in consequence of a kanam right in her. This is indicative, that Abdulla Haji kept his right under Ext A-11, distinct from any right which Mariyumma might have had, or could set up, over the properties comprised in it, and that the acquisition under Ext. A-11 by Abdulla Haji was for himself. On his death, according to the law as it was then understood, item 3 devolved upon the entire tarwad; so Mariyumma. Interest in it was only as a junior member of the tarwad. It is seen however, that she took Ext. B-48, a kanam kuzhikanam deed for item 3 from Avulla in the year 1896, and a similar deed Ext. B-9 in the year 1909 after the death of Abdulla Haji. These do not affect the title of Abdulla Haji under the parent document, and no reservation of a special interest in the tavazhi was set up. It is also seen, that in the year 1914 Mariyumma purported to make a gift of item 3 in favour of her grand-daughter by deed Ext. B-10, reciting that the property was originally acquired with her own funds. This is a purely self-serving statement. An argument was addressed to us by the learned counsel for the appellants, that the right of the tarwad, if any, must be deemed to have been lost by reason of her adverse possession. It must be noted, that no issue had been raised in the lower court on this question and no ground had been raised in the appeal memorandum. It is not open to a junior member of a tarwad in possession of property, appertaining to it, to set up adverse possession against it, except in special circumstances. Item 3 must be held to be partible property.
13. Items 7, 28 and 33: With regard to these properties, the title deeds stand in the name of Abdulla Haji, being Ext. A-19 of the year 1877 for item 7, Ext. A-24 of the year 1876 for item 28, and Ext. A-25 of the year 1881 for item 33. After the death of Abdulla Haji, these properties must be deemed to have devolved upon the tarwad. The Karanavan of the tarwad obtained judgment in a rent suit in respect of item 28 against Ext. A-5, as against a rival suit instituted by the karnavan of the tavazhi which was dismissed. The finding of the Subordinate Judge must stand concerning these items.
14. Item 5: Ext. A-15 a Stridhanam deed with respect to item 5, does not as supposed by the learned Subordinate Judge, show, that it belongs to the tarwad; if at all, the indication in it is, that it was dealt with as tavazhi property, the word “karnavan” being descriptive of Kunju Moideen, the executant Exts. A13 and A14 too, referred to by the Judge have no relevance. It was suggested that Kunju Moideen was not a dependable or reliable man and that the recitals he has made in Ext. A-15 and other documents, cannot be used against the tarwad. It seems that he had executed a will Ext. B-3 in the year 1904 bequeathing properties to the tavazhi, but the tavazhi declared it to be inoperative by Ext. B-4 in the year 1914; it is also seen, that he instituted a suit as tarwad kamavan, which was afterwards dismissed, to recover from the tenant, a property which he had previously gifted to Mariyumma. These do not negative the inference arising from Ext. A-15, as to the tavazhi character of item 5.
15. Items 9, 10 and 11: Item 9 was acquired by Kuttiamu under Ext. A-7 of the year 1892, a document which comprised also item 2. Kuttiamu died in the year 1902, and by his death, the property lapsed to the tarwad. Item 10 which was purchased by Kunju Moideen at a court sale, under certificate Ext. A-23 must be deemed to have lapsed to the tarwad on his death, which took place in the year 1913. The title of the tarwad to item 11, is evidenced by Ext. B16 of the year 1910, which is a Stridhana grant by Kunju Moideen as kamavan of the tarwad in favour erf Mariyumma; it recited an understanding at the time of her marriage to give her property fetching an annual income of Rs. 120 for her maintenance, and declared that she would have no right to alienate it, but could only enjoy the usufruct. On these provisions, we agree with the lower court in thinking, that Ext. B-16 was only a maintenance arrangement, and the tarwad's right to partition the property subsists. Thus items 9, 10 and 11 are partible.
16. Items 13, 29 and 35: These were the subject of a Stridhanam grant Ext. B-30, by the karanavan of the tarwad to the 37th defendant, a female member of the tavazhi, which recited an understanding at the time of her wedding, to give her properties on Stridhanam fetching an income of Rs. 320 per annum, and which provided, that the grantee and her issues, may enjoy the properties granted on Stridhanam for ever, redeeming outstanding kanams and may also effect mutation in he name. The idea of permanency stands out prominently in the deed. A Stridhanam grant can be by way of an absolute gift, and need not necessarily revert to the family of the grantor: see Malabar Aliyasanthanam Law, by P.R Sundara Iyer, 1922 Edition page 237. The operative words in Ext. B30 are of such amplitude as to import an absolute gift; it was so held in Ismail Beari v. Abdul Kadar Beari, ILR 6 Mad 319, where the operative words were, that the grantee may enjoy from generation to generation. Differing from the learned Subordinate Judge we hold, that items 13, 29 and 35 are not partible.
17. Items 2, 4 and 6 were found to be not partible by the Subordinate Judge. Of the other items, the plaintiff adduced no evidence, barring Exts. A-8 and A-4, to prove the tarwad title with respect to items 8, 12, 14 to 27, 30 to 32, 34 and 36 to 43; the finding in Exts. A-3 and A-4 not being relevant, and the decision therein as evidencing an assertion or recognition of the right, not being sufficient, as held by us, it must follow, that these items are not partible.
18. The next question in the appeal relates to the validity of three mortgages, Exts. B-67, B-88 and B-90 in respect of item 28. The plaintiff did not impeach them; the appellants too had no case about them in their written statement, though they disputed their validity at the trial, an additional issue having been raised for the purpose. They have been found by the Subordinate Judge to be valid and binding on the tarwad. Ext. B-67 dated 24-3-1943, a mortgage with possession for a term of six years, executed by the karanavan and the senior Anandiravan of the tarwad, in favour of Mammu Haji, whose legal representatives are defendants 54 to 57, was for a sum of Rs. 3,500. The 53rd defendant, examined as D.W 2, has given cogent and convincing evidence as to all the three transactions and we fully accept it.
19. On the date of Ext. B-67, a sum of Rs. 1,000 was paid in advance to the kamavan for the purchase of materials, for effecting repairs to the tarwad buildings, which were in a state of ruin and had to be renovated. Exts. B-55 and B-56 are notices issued by the Municipality to the tarwad in February and March, 1943, for effecting the necessary repairs and for the payment of tax. Out of the balance of Rs. 2,500 reserved under the mortgage, two payments were made to the tarwad aggregating a sum of Rs. 1,147-1-0, as evidenced by Ext. B-83. Later, a sum of Rs. 65 was paid to the tarwad, for making payment towards Municipal tax and a further sum of Rs. 800 was paid for meeting the expenses of the marriage of a female member of the tarwad. A consolidated receipt was then passed for the various amounts. Ext. B-88 dated 2-11-1943, the 2nd mortgage, was executed by the then kamavan of the tarwad for a sum of Rs. 1,000 in order to raise funds to meet the expenses of marriage of two other female members of the tarwad. D.W 2 paid a sum of Rs. 500 on behalf of the mortgagee, and obtained Ext. B-89, registered receipt from one of them and her mother, and he also paid the “kasu panam” through the “kazi.” Ext. B-90, also executed on the 2nd November, 1943, was for a consideration of Rs. 1,000, out of which Rs. 500 was towards the liquidation of two promissory notes, Exts. B-91 and B-92, under which a sum of Rs. 500 was raised by the tarwad, for paying “kasu panam” for the marriage of another female member, and for the conduct of the funeral ceremonies of a member of the tarwad. The balance of Rs. 500 was applied for the construction of a room an the tarwad house, the payment of which was evidenced by vouchers Ext. B-93 to B-98. D.W 2 carried out the repairs, and in doing so, was out of pocket to the extent of over Rs. 390, on behalf of the mortgagee; but there is provision in Ext. B-90, for any additional amount so spent. The testimony of D.W 2 is supported by the relative vouchers and receipts and by the recitals in the documents impeached. The mortgage rights under Exts. B-67, B-89 and B-90 now vest in the 59th defendant. The finding of the Subordinate Judge concerning these mortgages is hereby affirmed.
20. The last point for consideration in this appeal is, whether some of the defendants are entitled to shares in the partible properties. They are the 4th defendant, defendants 46 to 48, defendants) 50 and 51, and defendants 60 to 64. The learned Subordinate Judge allowed them to share in the partition, by applying the provisions of the Muslim Personal Law (Shariat) Application Act, 1937; counsel appearing in the case conceded, that this could no longer be sustained in view of the interpretation put upon that Act, by the Madras High Court in Abdurahiman v. Avoomma, AIR 1956 Mad 244. Their claim for partition must therefore depend on whether their predecessors-in-interest died severed from the tarwad. Defendants 46 to 48 and defendants 60 to 64 set up a plea in the court below, which was found against, that their predecessors had issued notices demanding their shares in the tarwad properties. This question is still open for defendants 50 and 51, whose documents, though produced before the learned Judge were not admitted, because he was prepared to grant them relief on the other ground; these documents have been produced in this court, and have now to be returned to the learned Judge, in the course that we are adopting. The 4th defendant's learned counsel contended before us, that his party predecessors-in-interest too had died severed in interest from the tarwad, but that on the interpretation of the Shariat Act in Ayisumma v. Mayomoothy Umma, AIR 1953 Mad 425, it was not considered necessary to set up this plea, and requested us, to allow an opportunity to establish the present contention. We think that the 4th defendant may be allowed to do so. The court below has to decide afresh, whether the 4th defendant and defendants 50 and 51 are entitled to the shares claimed by then this may involve a decision afresh on the relative issues which will be made after giving defendants 4, 50 and 51 and those who oppose their claim an opportunity to adduce their evidence. Defendants 46 to 48 and 60 to 64 are not entitled to any share. The result is, that subject to the modifications noted below, the decree under appeal is confirmed in other respects:
(i) In addition to those items of properties which the lower court has held to be not partible, items 5, 8, 12 to 27, 29 to 32, and 34 to 43, are hereby held to be not partible.
(ii) The claim made by defendants 46 to 48 and 60 to 64, to share on partition is hereby rejected.
(iii) But the claim made by defendants 4, 50 and 51 to share on partition will be tried and determined, and the shares of the parties concerned will be resettled. The additional documents filed in this court by defendants 50 and 51 will be forwarded to the lower court.
21. The appellants will pay the costs of defendants 53 to 59 in this appeal, only one set; other parties shall bear their costs in this court. The records of the case will be transmitted to the lower court without delay. The appeal is partly allowed.
KC/R.G.D
22. Appeal partly allowed.