Rao Bahadur Ottur Vasava Menon (died) and Others vs Valia Konikkilidathil Tavazshi Karnavan Kelu Achan

Devadoss, J.—The only question in this Second Appeal is whether the appellants who are the mortgagors should pay-interest to the

mortgagees subsequent to the date of Exhibit E, a petition presented by the appellants u/s 83 of the Transfer of Property Act. The learned

Subordinate Judge held that the appellants were bound to pay interest subsequent to the date of Exhibit E as they did not deposit the money u/s 83

so as to enable the persons entitled to the money, i.e., the mortgagee''s representatives, to draw it from Court.

The appellants mortgaged the properties to the tarwad of Defendants 1 and 2. At the time of the execution of the mortgage deed the karnavan

was one Pangi Achan. Some time after, he was removed from the position of karnavan and the 1st defendant was appointed karnavan. Under an

arrangement entered into between the appellants and the mortgagees it was arranged that the appellants should be in possession of the mortgaged

property and should pay pattom in lieu of interest. Under an arrangement among the members of the mortgagee''s tarwad, Exhibit 1 in 1894, it was

arranged that the pattom money should be collected by the 2nd defendant. When the appellants wanted to redeem the property, they deposited

the mortgage amount in Court and stated that Defendants 1 and 2 were entitled to receive the money and that they should be asked to receive the

amount and return the documents of title. The Court dismissed the petition u/s 83 as the 2nd defendant was not entitled to the money and as the

deposit did not satisfy the terms of Section 83. Thereupon the appellants brought a suit for redemption. The Subordinate Judge held that in as

much as the deposit u/s 88 was not a proper deposit as the 2nd defendant also was included in the petition, the appellants must pay interest

subsequent to the date of Exhibit E.

The first point urged is that there was a dispute between Defendants 1 and 2, the de jure Karnavan and anandravan who was asked to manage

some of the properties, and that the appellants were justified in depositing the money in Court. No doubt, if there was a dispute among the

members of the defendants'' family as to who was entitled to receive the money and give a valid discharge, or if there was any dispute at the time,

which could not be determined by a layman as to who the real person entitled was, the plaintiffs could deposit the money in Court and ask the

Court to decide and pay the amount to the person who may be entitled. But where there is no such dispute among the members of the

mortgagees'' family, it is not open to the mortgagors to deposit the money in Court and ask the Court to determine Who should receive it. In such a

ca the mortgagors only invite trouble themselves if the deposit is not found conform to the requirements of Section 83, and they must bear the loss

occasioned by the procedure which they have adopted. In this view of the case, I do not think the decisions in Subba Rao v. Pakkiammal Nadathi

AIR 1924 Mad. 453 and Nagathal v. Arumugam Pillai AIR 1923 Mad. 354, to one of which I was a party, apply.

The next contention put forward is that there was a karar among the members of the defendants'' family and under that karar the 2nd defendant

was entitled to receive the money and inasmuch as the pattom had been paid for over 20 years to the 2nd defendant, the mortgagors (plaintiffs)

had reason to believe that the 2nd defendant was entitled to receive the mortgage amount. The plaintiffs were not parties to the karar and they had

no business to concern themselves with the terms of a document to which they were not parties. Any arrangement inter se between the members of

the mortgagee''s family is not binding on the mortgagors, unless they were parties to the arrangement or unless they consented to abide by it.

Granting for argument''s sake that the karar is a document on which the plaintiffs can rely there is nothing in the document to show that the 2nd

defendant was entitled to receive the mortgage amount. Under Exhibit I it was arranged that certain amounts should be collected by the 2nd

defendant, the senior anandravan, and that he should meet certain expenditure and be accountable to the first defendant de jure karnavan. There is

nothing in the document to show that the power of the karnavan as such was taken away by any of the recitals. The karnavan of a Malabar tarwad

stands in an exceptional position. He is the only person entitled to represent the family and demise the property belonging to the family and to give

a discharge in respect of outstandings due to the family. No doubt his powers could be curtailed by an arrangement entered into among the

members of the family, but the karar in this case does not at all curtail the powers which,'' he possesses, as the karnavan to give a discharge in

respect of outstandings due to the family. The mortgage amount was paid by the tarwad and it was money belonging to the tarwad and the only

person who could give the discharge in respect of that outstanding was the 1st defendant. That being so, it was not open to the appellants to rely

upon the karar as substantiating the position that the 2nd defendant was entitled to the money. In this view, it is unnecessary to consider in detail

the cases quoted by Mr. Menon for the respondents. I shall only refer to them to show the position taken up by the respondents. In Valia

Konikkal Edathil Cheria Pangi Achan Vs. Valia Konikkal Edathil Unnalachan and Others, this karar was construed and it was held by a Bench of

this Court that the karnavan''s powers as such were not taken away by the karar and the 2nd defendant, the senior anandravan, was only to

manage certain matters connected with the tarwad. In Karunakara Menon v. Kutti Krishna Menon [1917] 5 L.W. 511 it was held that the powers

of a karnavan, unless; expressly taken away by any document or by any arrangement entered into among the members of the family, his powers

would subsist. I may also in this connexion refer to Madhavi Amma v. Kunhi Pathumma [1900] 23 Mad. 510 which supports the contention of the

respondent.

I, therefore, hold that the karar does not deprive the karnavan of the ordinary powers, which he has to give a discharge in respect of

outstandings due to the family and therefore the 1st defendant is the only person who could have-given proper discharge to the appellants-for the

amount due to the family and the appellants were not therefore justified in including the name of the 2nd defendant in their petition, Exhibit E which

they presented to the Court with, the deposit of the money u/s 83. As already observed, the plaintiffs ought not to have taken into consideration-

Exhibit I to which they were not parties, and as they have relied upon that document they have only to thank themselves if the basis of their

contention gives way.

In the result, the appeal fails and is dismissed with costs.