Kesava Pillai Velayudhan Pillai vs Krishna Pillai Govinda Pillai and Others

The only point urged before us by the learned Counsel for the applt. who is deft. 5 is that the Cts. below erred in granting a decree to the pltf. as he is only a junior member of a Malabar tarwad of which the applt. is the karnavan.

The facts may be briefly stated. The suit was for redemption of a usufructuary mtge. granted by the pltf.''s tarwad. In the plaint there were originally only 2 defts. of whom the 1st was impleaded as the party in possession of the properties sought to be redeemed and deft. 2 was impleaded as the karnavan of the plti''s tarwad with the allegation that the Karnavan having neglected to take steps for redemption, the pltf. had brought the suit claiming relief on behalf of the tarwad. Defendant 1 filed a written statement to the effect that though deft. 2 was a member of the pltf.''s tarwad, he was not the karnavan & that one Kesavan Pillai Velayudhan Pillai was the Karnavan & that in the absence of the said Velayudhan Pillai, the suit was not maintainable. Defendant 1 also stated that he was not the representative of the possessory mtgee. mentioned in the plaint but that he was only a submtgee. Defendants 3 and 4 were thereafter impleaded as representatives of the possessory mtgee. & the said Kesavan Pillai Velayudhan Pillai was impleaded as dift. 5. Defendant 5 contended that he was the Karnavan of the pltf s tarwad & as such he was the only person competent to institute the suit & prayed that the suit brought by the plft. may be dismissed with coats. Defendant 5 also stated that be had with some other members of the tarward, filed a suit for partition against the pltf. & other remembers of the tarward wherein a partition of the plaint properties also was claimed.

It is not disputed that redemption of the properties is for the benefit of the tarwad. The only point raised is, as already mentioned, that the pltf. is incompetent to file the suit as be is only an ananthiravan. The learned Counsel for the applt. relied upon Narayava Menon v. Kunhikrishna Menon 6 KER L. R. 64, Sankunni Menon v. Ammu 30 KER L. R. 539, Padmanabhan Raman v. Raman Narayanan 28 T. L. R. 31 & Chummaru Manni v. Kumaran Neelagandan 12 T. L. R. 211 in support of the position contended for by him. Narayana Menon v. Kunhikrishna Menon 6 KER L. R. 64 was a case in which an alienation by a karanavan was sought to be set aside by an ananthiravan impleading the karnavan as a party deft. The pltf. sought recovery of possession of the properties after setting aside the alienation. The karanavan who was impleaded as a party also claimed a decree in his favour for recovery of possession of the properties on setting aside the alienation impeached. It was, therefore, a case of a competition between an ananthiravan & a karanavan of a tarwad each claiming a decree for recovery of possession of tarwad properties on behalf of the tarwad. The Ct. held that the karanavan was entitled to the decree in preference to the ananthiravsn though be was the pltf, In Sunkunni Menon v. Ammu 30 KER L. R. 539 it was held that a junior member is entitled to redeem the properties of the tarwad but that he is not entitled to have exclusive possession of the properties redeemed & that he would bold the properties, on redemption, on behalf of the tarwad. Padmanabhan Raman v. Raman Narayanan 28 T. L. R. 31 the 3rd case relied upon holds that a junior member is not entitled to sue in spite of the karanavan for redemption of mtge. of tarwad lands except when the interests of the tarwad as a whole demand such redemption for the benefit of the tarwad.

The authorities relied upon do not support the position contended for on behalf of the applt. In the present case the karanavan did not claim a decree in his favour on behalf of the tarwad as was done by the karanavan in Narayana Menon''s case, (6 KER L R. 64). The pltf. in the present case is not given a decree for exclusive possession of the properties on his own behalf. The learned Dist. J. in para. 3 of his judgment said: "I wish to make it clear that the pltf. can recover possession, of the properties only on behalf of the tarwad." This is strictly in accordance with the decision in Sankunni Menon''s case (30 KER L. R. 539). The third case relied upon by the counsel for the applt. is the authority only for the position that a junior member cannot exercise the tarwad''s right of redemption in spite of the karanavan. In Narayanan Parameswaran v. Vikraman Mathevan 30 T. L. R. 67, M. Krishna Nair, C.J., explained the import of Padmanabhan Raman''s case (28 T. L. R. 31) thus at p. 70:

The incompetency of junior members to sue to redeem tarwad mtges. is not an objection that is incapable of being waived or one, like a question of limitation or jurisdiction, which may be raised in appeal for the first time. That incompetenay is neither absolute in itself nor invariable in stringency. Its applicability & force are dependent on circumstances. It is imposed in the interest of the tarwad & its limits are reached when the interests of the tarwad as a whole demand such redemption.

The last case relied upon holds that

a junior member of a Marumakkathayam tarwad may, in the interests of the tarwad as a whole, rocover tarwad property improperly alienated by the karanavan subject to the general right of the karanavan to manage such property after Its recovery.

The view laid down herein is unexceptionable. The decision, however, has obviously no application to the present case.

The important point of fact in this case which has to be borne in mind is that the karanavan did not, in his written statement, claim a decree for redemption in his favour on behalf of the tarwad. He merely wanted the dismissal of the suit brought by the pltf. There is not principle or authority to sustain the view that in a case like this, a junior member''s suit for redemption of tarwad properties on behalf of the tarwad is liable to be dismissed.

It is no doubt true that the earliest view was that the rights of junior members were out of the property & not to the property, of a tarwad [Mayne''s Hindu Law, 6th Edn. p. 359] & that "a Malabar family speaks through its head and in Cts. of justice except in antagonism to that head can speak in no other way" [Justice Mr. Holloway in A. Section 120 of 1862 Tellicherry: See Malabar Law and Custom by Lewis Moore, 3rd Edn. p. 98], but that view did not prevail for any length of time. The social practices in & the commonsense of, the community changed, & there came about a progressive recognition of the rights of junior members and a consequential diminution in the powers of karanavans and rights were conceded to the anantbiravans in the interests of the tarwad. The powers of the karanavan vested in him for purposes of being used for the benefit of the tarwad. Any misuse or apprehended misuse of the said powers was regarded as an occasion for intererence by Cts at the instance of ananthiravans. A prospective prejudicial act by the karanavan could be inhibited at the action of ananthiravans. Properties wrongly alienated by the karanavan could be recovered back at the instance of ananthiravans. Ananthiravans could, on the neglect of the karanavan, sue to redeem properties for the tarwad. Possession of properties could be recovered back for the tarwad from trespassers by ananthiravans. It was only in case of a conflict of discretion (interest?) between an ananthiravan and karanavan that the junior member was found to be disentitled to start action on behalf of the tarwad. Not that the junior member has no right but that it has no be subject to the superior right of the karanavan, bona fide exercised for the benefit of the tarwad. If the karanavan is found to be acting either mala fide, in collusion, or for his own self aggrandisement, owing to the constant conflict of interest and duty, Courts exercised their discretion, permitted actions at the instance of and granted reliefs to ananthiravans in the interests, of the tarwad. When an action started by an ananthiravan ia admittedly for the benefit of the tarwad, there has never been a case at least in recent times where it was held to be unsustainable. It may be, the benefit of that action will have to be given to the karanavan should he claim it, even in the very proceeding started by the ananthiravan, as happened in Narayana Menon''s case: (6 Cochin L. R. 64). The karanavan has never been recognised as having a power to be exercised mala fide, merely in a negative and destructive fashion against the interests of the tarwad as is attempted to be done by the applt. in this case.

The development of and changes in the law as aforesaid were recognised in and further developments made by Legislature. The Nair Act 1 [l] of 1088 and II [2] of 1100 in Travancore, XXII [22] of 1095 and XXIX [29] of 1113 in Cochin, Marumakkathayan Act (Madras Act XXII [22] of 1933) in Madras were passed conferring large powers on ananthiravans and curtailing the powers of the karanavan regarding matters in and outside Ct. The indissolubility of the tarwad which was the main foundation for the once recognised absolute powers of the Karanavan ceased with the conferment of a right for compulsory partition. Cochin Acts XXIX [29] of 1113 confers a right for individual partition on every member and completes the disintegration of the tarwad.

The applt. appears to have filed certain petns. in the trial Ct. depositing the mtge. money and claiming a decree in his favour. In those petns. he does not appear to have sought an amendment of the pleadings and the trial Ct. dismissed those petos. The trial Ct. states in para. 5 of its judgment:

The attitude of deft. 5 clearly shows that it is not his interest in the tarwad that prompted him to deposit the money but it is his desire to non-suit the pltf. that made him to deposit the money in Ct.

We may here mention that no appln. was made even before us by the applt. for amendment of the pleadings.

One other aspect of the matter which emerges from the record must be mentioned. The applt. mentioned in his written statement that he himself and, some other members of his tarwad had filed a suit for partition of the tarwad properties (obviously under the Travancore Nair Act) against the "pltf, and other members. The result of the instigation of the suit for partition was to create a division in status between the pltfs. in that suit on the one hand and the defts. there in, i e. the other members, on the other. The plaint in a suit for partition is not merely evidence of an intention to divide but it is a formal demand for partition which is an act in the law and which creates a division in status (vide Mayne on "Hindu Law and Usage," 11th Edn., 1950, p. 561 para. 450). As regards a member claiming his share by partition from the tarwad and becoming divided in status it is stated in Kali Kesavan v. Kali Deiyani 1949 T. L. R. 173 F. B. at p. 178 as follows:

. . . . His position is that of a co-owner in respect of such share, and as he is divided both in status and in the proprietary interests in the family, he is not bound by the fortunes of the family, To him the family has ceased to exist.

It begins where co-parcenary begins, and ceases where co-parcenary ceases" said Lord Dunedin in Rama Rao v. Rajah of Pithapur 41 Mad. 778 : AIR 1918 P. C. 81, with reference to a co-parcener''s right to maintenance. Equally true it is to say with regard to the right of a karanavan that "it begins where the tarwad begins and ceases where the tarwad ceases." Assuming, therefore, that the applt. was karanavan of the tarwad at one time, he ceased to be such by the time he appeared in the suit and any claim which he might have had while he was a karanavan ceased to be available to him when, by the suit for partition, the tarwad was split up and there was no tarwad which he could represent.

We drew the attention of the learned Counsel for the applt. to the aforesaid legal effect arising out of the suit for partition which was maladroitly mentioned by his client in the written statement. His answer was that in that view there would be no tarwad for whose benefit pltf. could be given a decree. This objection to the grant of a decree to the pltf. is unsound. The suit for partition filed by the applt. and others will have no effect to create a disruption as between the remaining members of the family inter se. Such disruptions might arise when the defts. who are entitled to shares file written statements and claim shares. Until then, the defts. among themselves remain undivided and constitute the tarwad of which Defendant 2 could be the karnavan. (See Kunhilakshmi Ammal v. Krishna Menon, AIR 1948 Mad. 460 : I. L. R. 1948 Mad. 888. (See also Dakshayani Amma v. Andi 20 KER L. R. 461.

The Cts. below are, therefore, right in decreeing the suit. This second appeal is thus without merit and should be dismissed with costs.