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Documents citing Kypreth Moithiyan Kutty vs Natukandy Puthiapurayil Mammali And ... on 3 February, 1928

(Ottapilokool Kurunkot Mammili) ... vs Chalikkara Kunhayan And Ors. on 2 August, 1934

4. This was reversed by the lower appellate Court on four grounds: (1) that the tavazhi created by the razinamah Ex. A is one unknown to the law; (2) that Ammini's son shown in the right-hand corner of the pedigree is senior to the plaintiff and the suit should have been therefore brought by him; (3) that defendant 2 had no notice of the razinamah; and (4) that the melkanam is binding on the larger tavazhi because the amount was advanced to clear the debt of the tavazhi. I agree with the learned Advocate for the appellant that none of these grounds can be maintained. The plea that such a tavazhi was unknown to the law was not raised in the trial Court nor in the appeal to the lower appellate Court. Assuming that it was competent to the lower appellate Court to raise it and that its view is justified by the ruling in Moithiyan Kutty v. Puthiapurayil Mammali 1928 Mad 870, which it quotes, it will not make any difference in this case for two reasons (1): even if the tavazhi was not legally constituted, the right of management under the razinamah Ex. A vests in the senior male member and if the parties did not take the property under Ex. A as a tavazhi, they would be tenants in common and (2) any tenant in common can sue to recover the properties as against the trespasser. Vide Freeman on Co-tenancy, Edn.
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