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Judgment
Subramania Iyer, J.—The sole question for determination in this appeal would sound strange and it is whether the decree in O.S. No. 41 of 1117 on the file of the Court below which was reversed by the High Court in A.S. 741 of 1119 is nevertheless available for execution. The facts are these: The suit was brought by the karnavan of a Nair tarwad as the first and his senior anandiravan as the second Plaintiff for declaration of their tarwad''s title to and recovery of possession by redemption of certain items of immovable property. The suit was resisted by Defendants 1 and 4 who claimed the property as belonging to their tarwad (Defendants 1 to 37) and not liable to be redeemed for the said and other reasons set out in their written statements. The first Plaintiff died during the pendency of the suit and the second, the succeeding karnavan, continued it and obtained a decree in his favour, having meanwhile got the 38th Defendant (the next senior anandiravan) impleaded as the legal representative of the deceased karnavan besides himself, a curious procedure whose only consequence is this unnecessary and vexatious proceedings in execution of a defunct decree as the sequel will show.
The defeated contestants appealed to the High Court (A.S. No. 741 of 1119) impleading the surviving Plaintiff the decree-holder, as the first and the 38th Defendant as the second Respondent unaware of the latter''s death. On discovery of that fact the Appellants applied to the High Court stating that the suit was brought on behalf of the tarwad of the Plaintiffs and that the first Respondent is the legal representative of the deceased and can effectually represent the tarwad, there being no other person to be impleaded in the place of the second Respondent and praying that it may be so recorded (C.M.P. No. 931 of 1120). The High Court passed an order ''Recorded'' thereon accordingly. The appeal succeeded. The High Court set aside the decree appealed against and dismissed the suit with costs in both the Courts.
The Appellants applied to execute the decree for costs personally against the Respondent. His next senior anandiravan applied for execution of flit decree of the District Court in favour of the tarwad on the basis that the appellate decree should be regarded as void as the tarwad was not the Respondent, the only person impleaded having been the karnavan. Alleging default of the karnavan to execute the decree on behalf of the tarwad owing to his embarrassment as party to the appeal and as the person liable for costs, the junior anandiravan filed the application for execution showing the names of both the original Plaintiffs, noting the first as dead, in the column allotted therefor, with his own name as Petitioner who alone signed the petition. The second Plaintiff has not signed it nor does it appear to have been meant for his signature. Having been shown as a Plaintiff the karnavan was not arrayed as a Defendant as he could not be, for the same person cannot both the Plaintiff and Defendant, even in different capacities. The 4th Defendant contended that there was no decree for execution, the one sought to be executed having been reversed in appeal. The Court below accepted the plea and dismissed the petition for execution. The appeal challenges that order.
The resolution of the question depends upon the correct construction of Section 31 of the Travancore Nair Act, 2. of 1100 which enacts that
No decree shall bind a taywad unless it is obtained against the karnavan as such and the senior anandiravan of his thavazhi and of every thavazhi collateral to the same, if any.
Mr. N.K. Narayana Pillai, learned Counsel for the Appellant, contends that the section prescribes the mode in which a tarwad is to be impleaded as a party to a litigation, whether as Plaintiff or as Defendant, that in the present case the suit was by the tarwad represented in the manner prescribed by that section, the senior anandiravan having been a party Plaintiff besides the karnavan and upon the death of the latter the then senior anandiravan having been brought on record though not as a Plaintiff. The decree of the District Court was passed in favour of the tarwad though given in the name of the surviving second Plaintiff. That decree could be upset only in an appeal to which the tarwad is a party, i.e., the tarwad represented in the manner contemplated by the section, that is to say, with the karnavan and the senior anandiravan as its representatives. There was only the karnavan. impleaded as the Respondent who was incompetent when there is a senior anandiravan in existence, to represent the tarwad according to that section.
Another point urged by him is that even if the karnavan could alone represent the tarwad he was not described ''as such'' which was essential to invoke his representative capacity in the absence of which the tarwad cannot be bound. The result, according to him, is that the decree passed by the High Court in appeal is void and if that is so, that of the District Court was intact available to be executed. The third point urged by him was that when a karnavan who was obtained a decree neglects to take steps for execution it is competent for an anandiravan to start execution and recover the fruits of the decree for the tarwad.
Mr. Varadaraja Iyengar, learned Counsel for the Respondent, did not controvert the last point and rightly so. The karnavan is the person competent and bound to take action for execution of a decree on behalf of the tarwad as in other matters. The oft-quoted words of Justice Holloway,
A Malabar family speaks through its head and in Courts of justice except in antagonism to that head can speak in no other way,
Contain the ordinary rule. Exceptions thereto have been recognised in the interests of the tarwad by living effect to the right of a junior member to conserve tarwad property. When the karnavan who should take action neglects to do so or has rendered himself incapable of acting, or even if he has subjected himself to any embarrassment in that regard, then an anandiravan can intervene to protect the tarwad''s rights. 37 KER 266 (A); - 1944 KER LR 847 (FB) (B); - ''Kesava Pillai. v. Krishna Pillai'' AIR 1951 KER 155 (C); - ''Govindan v. Sirkar'' 1 KER LJ 78 (D).''
Marumakkathayam is customary law. The first legislative interference with it was by Travancore Act 1 of 1088 which does not purport to be a complete Code as it was meant only to (sic)efine and amend the law of marriage, succession and family management. The last and the 26 Section of the Act saved the operation of the rest (sic)ction the law by enacting in its second clause that (sic) Nothing in this section shall
...
affect the existing rules of marumakkathayam law, custom or usage except to the extent hereinbefore provided for.
And the provision relevant to the context is the 5th section which enacted that
No decree shall bind a tarwad unless it be obtained in a suit against the karnavan as such and the senior anandiravan of his thavazhi and of every thavazhi collateral to the same, if any.
The Cochin Legislature followed, and brought on the Statute Book, the Cochin Nayar Act, 22 of 1095 enacting the 53rd section in terms of the (sic) section of the Travancore Act but slightly (sic)parting from the terms of the 25th section of that Act in Section 32 which reads:
No decree shall bind a tarwad unless it be obtained in a suit against the karnavan as such and all the members of the tarwad.
In Travancore the law was re-enacted by Act 2 of 1100 and in Cochin by Act, 24 of 1113. The applicability of the pre-existing Marumakkatha (sic)am law was saved as before by Sections 44(a) and 74(b) of the respective new Acts in the same terms as in the repealed ones. Section 31 of the Travancore Act has been read. The corresponding section in the amended Cochin Act is 56 which provides that:
No decree shall bind a tarwad unless it be obtained against all the members thereof. But the mere omission to implead any member other than the karnavan shall not be taken to invalidate it if the decree-holder proves that such omission was not due to his negligence and the tarwad was liable for the claim upon which it is based.
In the Cochin Namboodiri Act, 17 of 1114, Section 12 is in the same words. The Cochin Marumakkathayam Act 23 of 1113 which applies to Marumakathayees who are not Nairs provided for this matter in Section 36 thus:
In a suit against the tarwad, all the major members thereof should be made parties. But the omission, to implead any member other than the Karnavan as such shall not by itself invalidate a decree obtained against the tarwad if it is otherwise shown to be one properly binding on it.
With this background, we may come to the remaining two points urged by Mr. Narayana Pillai whereof, it is convenient to consider first the second point; whether the omission of the words ''as such'' in describing the Respondent (sic)ould preclude the appellate decree binding the (sic)wad if otherwise the tarwad would be bound hereby; what is the meaning and purpose of that pression used in Section 31 of the Act? It is con(sic)ed that these words are meant to invoke the presentative capacity of the karnavan. Under (sic) law that existed before legislative interven(sic) the tarwad could be sued by impleading the (sic)navan alone. Indeed it has been said that the (sic)navan is the tarwad. Under that law autho(sic)es are umpteen to the effect that it is not necessary to describe the karnavan ''as such''. It (sic)nough that the person was in fact the karna(sic) and the action was to enforce a claim against (sic) tarwad. Whether the statute made by any (sic)fference in this regard or did it merely declare what was required before, by the expression ''as such'' in relation to the karnavan, is the next question.
It was not nor can it be contended that the expression used in the sister Acts of the two States have a different content or connotation. Section 32 of the first Cochin Act requires that every member of the tarwad should be ''eo nomine'' on record as Defendant in a suit against the tarwad leaving none to be represented. Nevertheless, that section contained the words "as such" qualifying the karnavan. obviously, those words could not have been intended to invoke the representative capacity of the karnavan because there is no scope for the exercise of that capacity. Those words could therefore only mean that the claim must be concerning the tarwad wherein with reference to the other members one is the karnavan. Both the High Courts of Cochin and Travancore have " thus interpreted these words. In -''22 Cochin LR 359(E)'' and -''20 Trav LT 558(F)'' are instances.
In -''22 Cochin LB 359 at p. 365(E)'', Vaidyanatha Aiyar C.J. expressed himself as follows:
In insisting upon the karnavan of the tarwad being impleaded as such when all the members, of the tarwad are Defendants the Legislature only meant to lay down that there should be something to show that the suit was against, the tarwad. If, therefore, the suit is against the tarwad and all the members of the tarwad are impleaded as representing the tarwad there can be no purpose in describing the person, occupying the position of karnavan as such.
The Legislature accepted this interpretation as is evident from Section 56 of the amended Cochin Nair Act of 1113 which does not contain the words ''as such''. It is not necessary to multiply authorities as, in our judgment, there is no ground to support the opposite view. Reference may however be made to three recent cases one from each of the three High Courts of Travancore,'' Cochin and Madras where alone this question would arise,-''1944 Trav LR 847 (FB) (B)'';-''38 Cochin 379 (FB) (G)''; - Kizhedath Pappi Amma and Others Vs. Rama Iyer and Others, in the last of which Varadachariar, J. said:
In determining whether the decree was obtained against the karnavan as representative of the tarwad Courts have attached more importance to the nature of the debt and the substance of the claim and have not insisted upon, any particular form of words in the frame of the suit (p. 440).
There is no section corresponding to Section 31 of the Travancore Nair Act of 1100 either in the Madras Nambudiri Act 21 or the Madras Marumakka-thayam Act 22, both of the year 1933.
The same rule will apply to Malayala Brahmana and Ezhuva families who follow the customary Malabar Law in this and certain other respects. Section 27 of the Ezhuva Act, 3 of 1100, is word for word the same as Section 31 of the Travancore Nair Act 2 of 1100. Section 12 of the Malayala Brahmana Act, 3 of 1106, is similarly worded. The words ''as such'' in the two enactments have the same object and import as in the enactments above dealt with. In - ''Narayanan Namboori v. Kunji Amma'' AIR 1953 KER 424 (I), the question as regards the necessity to describe the karnavan as such in a Travancore Nambudiri family before the said Statute was enacted arose and it was held that such description was unnecessary following the view that prevailed under the customary Malabar Law. The interpretation of the expression ''as such'' in that section of the Statute did not arise and was left open. In a suit against a Nambudiri family to which Act 3 of 1106 applied but against which a decree had been passed in O.S. 265 of 1103, i.e., before the enactment of Act 3 of 1106 with the karnavan, the next senior anandiravan and Anr. member as Defendants 1, 2 and 3 of whom the first Defendant having died during the pendency of the suit, it was continued with the second Defendant as succeeding karnavan but without expressly describing him as such. It was held by a Division Bench of this Court in an appeal arising out of a subsequent suit of the year 1118 filed by certain junior members who were not impleaded in the prior proceedings that the non-description of the succeeding karnavan as such was fatal to the decree in so far as the illom'' was concerned and that part of it was vacated. This case is reported in - ''Ithappiri Mathai v. Devi Antharjanam'' AIR 1951 KER 225 (J). The decision is wrong and is overruled.
In the present case neither the first Plaintiff nor the second was described as karnavan in the cause title to the plaint, though in the body it was stated that the first Plaintiff was the karnavan of the tarwad. After his death, the surviving Plaintiff who was the next karnavan was not given a similar appellation, that is to -.say, the decree was given in his name on behalf of the tarwad whose karnavan he was in truth though he was not described as such. He was impleaded as the first Respondent in the appeal in the same manner in which he was on record as Plaintiff in the original suit. Except on the basis that the provision for the description of the karnavan ''as such'' in Section 31 of the Act applies when decrees are passed against the tarwad, whether in actions by or against it, the contention cannot be urged here.
This leads to the first of the points contended for by learned Counsel for the Appellants. Section 25 of the Nair Act, 1 of 1088, leaves no room for doubt as it clearly says that the suit, the binding character of the decree wherein is dealt with by Section 25, should be one against the tarwad. Even so, in the case of Section 32 of the Cochin Nair Act of 1095 which is similar. The words ''in the suit'' are omitted from the corresponding Sections 31 and 56 of the amending Acts of the two States. The words were first deleted in Section 31 of the Travancore Act. The omission was made on the motion of the Additional Head Sirkar Vakil who apparently piloted the bill and who said:
It may not always be a decree in a suit. An order passed in execution proceedings may be a decree and similarly orders passed under various circumstances may be decrees. Hence the words ''in a suit'' have to be omitted.'' (See Travancore Acts and Proclamations, Vol. V, p. 660, Footnote to Section 31).
In the presence of the words ''in the suit'' the section could apply only to proceedings against the tarwad. It may have been apprehended that such proceedings may have to be limited to suits though proceedings in execution are, as expressly provided by the Code of Civil Procedure, proceedings in suits and the deletion for enabling its application to such proceedings as well may have been made ''ex abundante cautula''. There can be no doubt that on account of the deletion of the words the Legislature did not intend to include within the ambit of the section proceedings by or on behalf of the tarwad, for, if that had been the intention nothing would have been easier to use the said well known expression.
In our view, the language of the section do not admit of a construction so as to extend (sic) operation to proceedings started on behalf of the tarwad. Where a suit was filed on behalf of tarwad by its karnavan which was dismissed with costs and an execution of the decree for costs followed, it was contended that the tarwad not having been represented in the action in the manner prescribed by Section 32, i.e., by impleading all the members, the decree for costs would not bind the tarwad, the Chief Court of Cochin in - ''17 Cochin 174 (K)'' following an earlier decision at p. 164 of the same Volume (L) held:
That (Section 32 of the Cochin Nair Act (sic) 1095) prohibits the passing of a decree binding| on the tarwad without impleading all the members thereof only in suits brought against the tarwad and not in suits brought by or (sic) behalf of it.
In our judgment, this is the only possible vie(sic) and its correctness can be demonstrated by a attempt to apply Section 56 of the amended Cochin Nair Act, 1113 to a Plaintiff tarwad according (sic) its terms. The section requires that the tarws shall be represented by all the members there(sic) in order that the decree may bind it but add the saving clause to the effect that the (sic) omission to implead any member other than th(sic) karnavan shall not be taken to invalidate it the decree-holder proves that such omission (sic) not due to his negligence and the tarwad is liab(sic) for the claim upon which it is based. The la(sic) portion of the clause unmistakably shows th(sic) the action, the decree wherein is contemplate was to enforce a ''liability'' of the tarwad and (sic) ''a right'' of the tarwad. The words used are th(sic) the tarwad would be ''liable for the claim'' a(sic) not that the tarwad would, be ''entitled to (sic) claim''.
The saving clause contemplates the contingen of the decree-holder proving that his omission implead any member or members of the tarw(sic) other than the karnavan was not due to his neg(sic)gence. Is it conceivable that the tarwad wo(sic)omit any member thereof as a party Plaintiff a(sic) if it is, can the omission be due to any o(sic) cause than negligence? Surely not. In the c(sic) of a stranger filing a suit against the tarw(sic) he may not know who all are the memb(sic) thereof and any omission to implead one or m(sic) on account of the difficulty of getting informat(sic) about the existence and whereabouts of memb(sic) especially in this age when the members n(sic) even ordinarily be anywhere in the world unl(sic) the olden times when their movements w(sic) restricted, should not be fatal. The effect of ti(sic) and space having been minimised if not effa(sic) by up-to-date facilities for quick transport, in absence of a provision like the one contained the saving clause claimants against the tar(sic) may well-nigh find it impossible to enforce t(sic) rights against it, and hence the saving clause their benefit which cannot apply when the tar(sic) itself figures as Plaintiff.
As regards the consequence of non-c(sic)pliance with the requirements of the sect(sic) regarding impleading of a tarwad as a p(sic) there is no doubt. If the provisions of the (sic)tion are not complied with the tarwad is there as a party and without tarwad as a p(sic) no decree can be passed against it. A Full Be(sic) of this Court held so recently -''Kamal Amma v. Gangadharan Pillai'' AIR 1954 KER 60 (FB) (M).
In the present case the facts proved not show that the two Plaintiffs would (sic)tistied the requirements of Section 31 of the Travancore Nair Act, 2 of 1100. There is no evidence (sic)at there was only the thavazhi of the karna(sic) in the tarwad. If there were collateral tha(sic)hies the senior anandiravans of those thava(sic)es were also necessary for representing the (sic)wad according to that section. In the absence (sic) evidence of the non-existence of collateral (sic)avazhies it is not possible to say that the plaint (sic) originally laid brought the tarwad on record (sic) Plaintiff. That alter the first Plaintiff''s death there was non-compliance with the section is clear because the next anandiravan was brought (sic) only as a Defendant, the 38th. An additional Plaintiff could be brought on record with the con(sic)ent of the existing Plaintiff. But the anandi(sic) uvan was not brought in as such. It was on the (sic)urviving Plaintiff''s application that he was (sic)rought in. The application is not before us. It might be that the succeeding karnavan, that is (sic)th surviving Plaintiff, was not agreeable to (sic)ing the anandiravan as a co-Plaintiff with him. (sic) might also be that the anandiravan was not (sic)illing to fjgure as a co-Plaintiff and no one can (sic) made a Plaintiff without his consent.
But whatever the reason be, the fact is that here was not the concurrence of the karnavan and anandiravan in the matter of the latter being (sic)rrayed as a co-Plaintiff. It is true that the law permits some among a group of persons who ought to but cannot for some reason institute (sic)sults impleading the Ors. as Defendants. The (sic)ase of co-trustees is an instance. One of them may bring the suit on behalf of the trust implead(sic)ing the co-trustees as Defendants if their joinder (sic)as Plaintiffs is either impossible or impracticable. The decree in such a case should be asked for and given in the names of all the co-trustees, however they may have been arrayed because the trust is to be represented by all of them. In the present case there does not appear to have been any prayer for granting relief in the names of surviving Plaintiff and of the 38th Defendant. (sic)ad there been a prayer it must have been dis(sic) allowed because the decree granted was only in (sic)he name of the surviving, second Plaintiff. In (sic) view of the matter can it, therefore, be said (sic) the decree in O.S. 41/1117 was obtained by (sic) tarwad, with the representatives mentioned (sic) Section 31. It was only obtained by the karnavan (sic) the tarwad on its behalf and the same karha- (sic)-decree-holder represented it as Respondent in (sic) appeal.
Under the customary Malabar Law whose (sic)peration was saved by the Nair Act which made (sic) express provision as to the person by whom relief on behalf of the tarwad as Plaintiff should (sic) sought, the karnavan was entitled to sue as (sic) representative. The management of the tar(sic)ad and possession of tarwad properties is with (sic) karnavan. He can collect outstandings and (sic)ive discharges all by himself. In fact he could alone act in all matters on behalf of the tarwad except perhaps in the case of out-right assignments of immovable properties of the tarwad. The Nair Act recognises the karnavan''s power of management. It places certain restrictions upon this acts for safeguarding the interests of the (sic)wad. In transactions regarding immovable property by way of out-right alienation and by (sic)ay of mortgage or lease thereof for specified (sic)ng periods the consent in certain prescribed manner of the adult members was provided for (sic) concurrence in the act was enjoined. Starting proceedings in Courts for enforcing claims of the (sic)arwad is a part of the management and no (sic)straint has been placed upon the karnavan in the matter of initiating actions. This, consideration corroborates the conclusion reached as regards the scope of the operation of Section 31 of the Act, viz., that it is confined to the case where the tarwad is arrayed as a Defendant or as a party proceeded against.
In default of the karnavan to take action the Malabar Law conceded to an anandiravan a right to conserve tarwad property by starting action himself alleging the karnavan''s default. Even then, relief can and should be granted in the name of the Karnavan except in a case where he does not claim it himself but assumes an attitude of obstruction challenging the anandiravan''s right of suit though it is one for the tarwad''s benefit (See Sundara Iyer''s Malabar Law, Page 83. See also - ''AIR. 1951 Trav-C 155 (C); - ''1944 Trav LR 847 (FB) (B)). In a case where the karnavan with or without the conjunction of other members alienates tarwad property or does an act which is considered detrimental to the interests of the tarwad to the member or members who are not parties to the act and those who though apparently parties being minors or otherwise disqualified are only represented by guardians in which case they may be regarded as being really no parties, the law concedes a right of action. If the action succeeds the tarwad gets the benefit. That is to say, the decree would enure to the benefit of the tarwad though the junior member at whose instance and cost the relief was obtained would be entitled to recoup himself the expenditure properly incurred by him to secure it.
In all these cases the Plaintiff who starts the action is ''dominus litis'' and can control the action and represent the cause agitated throughout the ''lis'' which depends and continues in all its stages in the Court of first instance, in the Court of appeal, if there is one, and in the second appellate Court, should resort be made to the High Court. The decree obtained in the action is the final or the effective decree (See the Pull Bench decision of this Court in--Umayamma Marthandaveera Lekshmi v. Muthukaruppa Pillai AIR 1954 KER 353 (N)). The earlier decree or decrees of the Court or Courts below would merely be stages in the process towards that final decree and when that last stage is reached the earlier ones would merely be historical importance. To regard the decree of a lower Court in favour of the karnavan or other member on behalf of the tarwad otherwise than as a stage in the whole litigation and as creating a right in favour of the tarwad immediately, of which it can be deprived only in an appeal to which it is made a Respondent in the manner provided by Section 31 would be fraught with very serious consequences which could not have been contemplated by the Legislature. Law gives the defeated Defendant a right of appeal. It is a vested right of which he cannot be deprived except by express words of a statute. The time for appeal is short and is meant merely to enable its preparation and presentation. If the Appellant has to ascertain the existence and whereabouts of the other persons to be impleaded it may not be possible to do so within the time and if one member is omitted, the tarwad will not be there, and if he is afterwards brought in it might be too late. It would thus be indirectly depriving the Defendant of his right of appeal for no fault of his, and bestowing an unjunstifiable advantage on the party that for the moment succeeds.
If Section 31 applies to appeals, it would apply to an application to set aside a decree ex parte under Order 9, Rule 13, Clause (1) and the tarwad would have to be impleaded in the manner prescribed by that section, i.e., other members of the tarwad would have to be brought in afresh and notices given to them. That is to say, notices will have to issue to persons not on record though the second clause of the rule provides for notice only on the opposite party. In the words of Macpherson and Hill JJ.:
We are of opinion that the persons on whose behalf the suits were instituted, but who did not themselves join as Plaintiffs in the suit were not parties to the suit in the sense that they had any voice or control in the conduct of it, - Sajedur Raj v. Baidya Nath Deb 1 CWN 65 at pp. 66-7 (O).
It would be inconvenient even for the tarwad if the conjunction of all members or any member other than the karnavan is required for enforcing its claims, i.e., if any Ors. than the karnavan should figure as Plaintiffs. If they are Plaintiffs the decree must be in their names and execution must be taken out by all and one dissentient may obstruct even if he may not prevent proceedings. This will be a feature common to the Cochin and Travancore Acts, There is yet Anr. difficulty in applying the section to the Travancore Act because according to it all members of the tarwad need not be parties. If the person mentioned in Section 31 are Plaintiffs and a decree is given in their favour that would be a discrimination in their favour as against the other members of the tarwad whose rights are equal. In either case it would be an encroachment upon the right of management of the karnavan for which there is no warrant. The competency of the Plaintiff to represent his cause continues and should continue in all the various stages of the litigation. The second Plaintiff who obtained the decree in O.S. 41 was, therefore, competent to represent the tarwad as the sole Respondent in the appeal against it (A.S. 741) and the appellate decree being the final decree in the case, that of the trial Court which was set aside should be regarded as not having come into existence, because when the appellate Court dismissed the suit, it said that the Court below should have dismissed it and that it was wrong in not having done so.
The order passed by the Court below is therefore right and the appeal directed against it should be dismissed with costs.