Komappan Nambiar and Others vs Ukkaran Nambiar and Others

The present suit is brought by twelve persons alleged to belong with Chabhu Nambiar, the twelfth defendant, to a branch tarwad. They claim a

property hold under lease by the thirteenth defendant. In 1887 the first defendant in the suit who is karnavan of the tarwad, brought a suit to

recover the same property. In that suit the tenant was joined as first defendant and the other two defendants were the above-mentioned Chathu

Nambiar and another member of the branch, Raman Nambiar. The main contention in that suit was that these two, Chathu and Raman, belonged

to a branch having no community of interest with the main tarwad. That contention was overruled and a decree was passed in favour of the then

plaintiff, the karnavan. This decree, it has been held by the District Judge, is binding on the present plaintiffs, because in the former suit they were

represented by Chathu and Raman, respectively, the karnavan and senior anandravan of their branch. The District Judge held that the question

sought to be raised in the present suit is res judicata. In our opinion the judgment cannot be sustained. In the first place, the statement that the two

members, Chathu and Raman, represented anybody but themselves seems to be a mere assumption. The only part of the record in the previous

suit which is produced is the judgment, and from that it would be difficult to say that the then defendants were impleaded by the then plaintiff or put

themselves forward in a representative character. At any rate, the mere fact that they are branch karnavan and senior anandravan is no ground for

raising any inference. It must be remembered that the case for the then plaintiff was that there is no such thing as an independent branch existent

and Ohathu was joined as a defendant, because he happened to have taken a part in granting the demise.

Under these circumstances we are of opinion that there really is no foundation for the statement of the Judge on which he rests his conclusion as

to the applicability of Section 30 of the Civil Procedure Code. In drawing that conclusion also the Judge is clearly in error. It has been more than

once decided that although the members of a tarwad or family may, in an irregular fashion, be represented by a karnavan of the tarwad, the decree

does not raise an absolute estoppel against members not actually brought on the record, see Ittiachan v. Vellappan ILR 8 Mad. 484; Sri Devi v.

Kelu Eradi ILR 10 Mad. 79 and Second Appeal No. 93 of 1885.

We must, therefore, reverse the decree of the District Judge and remand the appeal for disposal. The plaintiffs are entitled to the costs of the

appeal For other costs provision will be made in the revised decree.