Ekkanatha Eachara Unni Valia Kaimal and Another vs Manakkat Vasunni Elaya Kaimal and Others

Arnold White, C.J.—The main defence in the suit was that Exhibit B, which is an arrangement which was entered into by the 1st defendant''s

predecessor-in-office as Karnavan of the tarwad and the plaintiff''s predecessor-in-interest, had been revoked. The District Judge finds that it has

not been revoked. This is a question of fact which is binding on us in second appeal.

Then, on behalf of the appellant, it was argued that Exhibit B is not binding on him as the successor-in-office of the man by whom the agreement

was entered into I feel some doubt as to whether we should allow this point to be raised before us at all, because the judgment of the learned

District Judge, as I read it, strongly suggests that the point was never taken before him. The learned Judge refers to the fact in the 4th paragraph.

The first defendant''s Vakil supports the decree on the ground that the suit should be dismissed on the first issue, i.e., non-joinder. But it does not

say that any decision took place before him with reference to the question as to whether Exhibit B was binding or not apart from, any question of

revocation, on the 1st defendant.

The agreement purports, as I read it, to have been entered into by the 1st defendant''s predecessor-in-office on behalf of the tarwad and I see

no reason for holding that it is not binding on his successor-in-office, the 1st defendant.

The further point, which was argued before us, was the question of parties and it was contended that the suit ought to have been dismissed on

the ground of non-joinder. Now the plaintiff in the present suit is the manager of the tavezhi, the first defendant is the manager of the tarwad; and

certain members of the plaintiff''s tavezhi have been made supplemental defendants. The point as to alleged non-joinder is this: That all the

members of the 1st defendant''s tarwad should have been made defendants to the suit. On behalf of the appellant we are referred to a decision,

Mammali v. Pakki 7 M.k 428. That was a suit for increase of maintenance against the karnavan of the tarwad and it was there hold by this Court

that all the members of the tarwad were necessary parties to that suit. I think that case is clearly distinguishable from the case before us. In the

Mammali v. Pakki case 7 M.k 428 the suit was for an increase of the rate of maintenance and it was not based upon any agreement entered into

by the Karnavan. The present suit is on an agreement to pay maintenance at a specified rate executed by a former karnavan and as I have said I

see no reason for holding that the agreement is not binding on the tarwad. It purports to be entered into by the karnavan representing the tarwad.

In these circumstances the present case in regard to the question of the suggested non-joinder is not governed by the decision in Mammali v. Pakki

7 M.k 428. In any way, it ssems to me that we may hold u/s 99 of the present Code of Civil Procedure, we are not called upon to give effect to

the objection in regard to parties.

It is contended that Section 99 speaks only of mis-joinder of parties or causes of action. But it has been held by this Court in Mahaballa Bhatta

v. Kunhanna Bhatta 21 M. k 373, for the purpose of construing the section to which the present Section 99 corresponds that the word ''mis-

joinder'' includes ''non-joinder''. I think that the second appeal must be dismissed with costs.

Krishnaswami Iyer, J.

I agree. The appellant attacks the judgment of the District Judge on the ground that Exhibit B is not binding upon him because the property

allotted for the maintenance of the plaintiff''s branch gives at present a larger income than it was expected to yield at the time when it was allotted.

It seems to me that this is not a sufficient ground for modifying an arrangement that was entered into by a karnavan. The question as regards the

propriety of the arrangement made by the karnavan in 1879 is certainly open to the present karnavan to raise. But if it was a bona fide and proper

and prudent arrangement to make at the time it was entered into, it seems to me that the ground on which that arrangement is now attacked is not

available to the present representative of the tarward. As regards non-joinder, in the circumstances of this case, it is at best an irregularity, which

does not vitiate the decision on the merits, and, therefore, Section 99 of the present CPC would seem to be sufficient to dispose of that objection.

But, looking at the question on its merits, it seems to me that it is not clear that there is a non-joinder in this case. The contention is open to

exception. The suit is brought upon an arrangement entered into by a karnavan against the successor of that karnavan. It is sought to enforce it

against him in his capacity as the karnavan of the tarwad. In such a suit he represents all the other members of the tarwad and, therefore, it would

seem to me to be unnecessary to make the other members parties, though if they made an application at the earliest possible stage to join on the

record as parties to the suit, such an application ought to be favourably viewed. There was no such application in this case. Nov was there any

application by the 1st defendant that the other members should be joined as parties. The mere objection, therefore, that they have not been joined

seems to me to be of no validity whatever in a suit brought like the present one for the enforcement of an arrangement made by the predecessor of

the present karnavan. I agree in dismissing the second appeal with costs.