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Judgment
Mack, J.—The petitioners are defendants 3 and 5 in a suit O.S. No. 90 of 1950 filed by a junior member of the Chirakkal Kovilagam, an
impartible Marumakkathayam tarwad included in the schedule to S. 42 (1) of the Madras Marumakkathayam Act, XXII of 1933. No less than 68
members of the tarwad were impleaded as defendants. The nature of the plaint, which is prolix and sought to be made as complicated as possible,
is best reflected in the reliefs sought, a direction to the first defendant as karnavan and manager of the kovilagam, and the second defendant as de
facto manager and head kariasthan and agent of the first defendant, to render a true, correct and proper account of various items 7 in number,
detailed in the plaint, and for recovery from defendants 1 and 2 of the amounts so found due, which on a correct taking of the accounts defendants
1 and 2 are seen to have misappropriated. The other specific relief was an order for costs against defendants 1 and 2. I have reproduced the
language in the relief portion of the plaint as nearly as possible. The first defendant was the karnavan and Valiyaraja as he is called, the tarwad
being a large one, possessed of very considerable property. At the time of the suit he was an old man aged about 80. The plaint alleges
misappropriation of seven different kinds: (1) that the first defendant misappropriated the surplus income in collusion with the second defendant
who was managing the affairs of the kovilagam since 1935; (2) that first defendant had amassed a large fortune in the name of his wife and his
children by acquisitions in their names out of kovilagam income; (3) that the second defendant has similarly amassed large wealth by
misappropriating kovilagam moneys; (4) that money obtained by granting demises and renewal fee collections which should have gone into the
kovilagam accounts have been misappropriated and suppressed; (5) contributions raised for a building in connection with a High School to the
extent of Rs. 20,000, were not brought into account and fraudulently suppressed; (6) that valuable moveables such as gold swords, gold cups and
jewellery belonging to the kovilagam which are really family heirlooms have been wrongfully sold by the karnavan and their value misappropriated
in collusion with the second defendant and (7) that the second defendant was fraudulently diverting an amount of 1000 seers of paddy each year
from the kovilagam assets for the personal needs of his wife. Accounts were sought to be taken as regards all these alleged misappropriations for
no specified period in the plaint, but it would appear from about the year 1933.
The plaint allegations had the active support of the 7th, 16th, 19th and 20th defendants. Defendants 3, 5, 6, 8, 9, 14, 21, 39, 44, 50, 57 and 59
supported the first defendant contending that he was an ideal karnavan who managed the tarwad affairs satisfactorily, their written statements
stoutly denying that there was any fraud or misappropriation. The other defendants were ex Parte and no inference can be drawn from this that
they are in any way supporting the plaintiff. Defendants 1 and 2 contended inter alia that the suit as framed was not maintainable in law and the
learned Additional Subordinate Judge went elaborately into this issue and found that it was maintainable. This revision petition seeks to challenge
this finding.
A previous civil revision petition, No. 51 of 1952. was filed by the first and second defendants, but dismissed in limine by Ramaswami J. The
first defendant died subsequently and has been succeeded by the third defendant as karnavan and Valiaraja, Defendants 3 and 5 succeeded in
getting the present C.R.P. No. 556 of 1952 admitted by Raghava Rao J. and furthermore, obtained an order confirming the stay in the suit in
C.M.P. No. 3161 of 1952 and 3459 of 1952 from Ramaswami J. himself before whom these matters came up in the admission Court. In a
considered order Ramaswami J. expressed the specific opinion that his dismissal of she previous petition C.R.P. No. 51 of 1952 would not
preclude defendants 3 and 5 coming forward with their contentions to him from dealing with them himself in the admission Court.
I may dispose of here a preliminary objection strongly urged by Mr. Kuttikrishna Menon for the plaintiff respondent that the dismissal of C.R.P.
No. 51 of 1952 to revise this finding by defendants 1 and 2 who were alone affected by it, concludes the matter as against the other defendants
also against whom no relief is sought in the suit Mr. Chinnappan Nair for the third defendant has strongly urged that he is very directly affected by
the finding of maintainability, as if the trial of the suit is to be proceeded with a great burden will be placed upon him as karnavan and Valiaraja of
producing several cartloads of accounts covering a period of more than 20 years, and that he would be put to unnecessary harassment and
vexation in defending a suit which is really not maintainable in law. I am quite unable to see how the dismissal of C.R.P. No. 51 of 1952 by
Ramaswami J. in limine filed by defendants 1 and 2 can operate in the circumstances as res judicata, or per se bar the hearing on its merits of the
present revision petition admitted by another learned Judge of this Court. Mr. Chinnappan Nair has relied strongly on the observations of
Ramaswami J. in granting stay as being due to a consciousness that his dismissal in limine of C.R.P. No. 51 of 1932 was not justified. All that I am
prepared to say is that the orders passed by the late Raghava Rao J. and by Ramaswami J. on this revision petition and the connected petitions for
stay remove all legal impediments which may have existed which would otherwise normally bar defendants in turn seeking to get a revision petition
dismissed in limine by one Judge admitted by others.
Mr. Kuttikrishna Menon has next challenged the maintainability of this revision petition. He has relied cm Vuthilinga Pandara Sannadhi v.
Sankaralinga Thambiran 58 Mad. 771 = 41 L. W. 257, in which Beasley C.J. and King J. observed that because a High Court has power to
interfere in revision it ought not to do so unless the particular point can be shortly and conveniently disposed of through this avenue. There can be
no doubt as regards the power of the High Court to interfere in revision and to set aside a preliminary finding such as this though it may have the
effect of dismissing the suit in toto and indeed in view of the length and the elaborate nature of the learned Judge''s finding and my own difference in
the domain of Marumakkathayam and Aliyasanthana law on which I do not claim to have had much experience, my first impulse was to dismiss the
petition. I have however allowed Mr. Chinnappan Nair''s urgent plea that he be given an opportunity to take me into the legal merits. I did so on
the distinct understanding that I would on no account interfere in revision unless I was quite satisfied that the finding of the learned Subordinate
Judge was wrong in law, and that if I had any doubt about this, I would feel myself constrained to dismiss the petition. The result is that I have had
placed before me able and interesting arguments on the legal position by Mr. Chinnappan Nair for the petitioners) Mr. Kuttikrishna Menon for the
plaintiff respondent and also by Mr. O.T.G. Nambiar who has appeared for the second defendant and claimed his right to be heard, though his
own revision petition was dismissed in limine as a respondent served on this petition.
The main contention against the maintainability of such a suit against the karnavan boils down simply to this, that under Malabar law a suit of this
kind to call a karnavan to account even for a specific misappropriation does not lie without a prayer for his removal as karnavan. In legal theory
there is not much difference between the position of a kartha of a joint Hindu family under Mitakshara or Dayabaga law and a karnavan under the
Marumakkatayam law or an ejaman under Aliyasanthana law. It is well settled in Hindu law, despite the argument of Mr. Kuttikrishna Menon who
is unable to cite a single decision to the contrary, that as regards the Kartha of a joint Hindu family under Mitakshara law, a suit for an account
even for any specific misappropriation will not lie except in a suit for partition, and so long as the manager of the family continues as such, junior
coparceners cannot call upon him to account. This is so for obvious and practical reasons, because if the family is to continue joint, there is no one
really capable in law of representing it and bringing the manager to account. This position is made clear in Mayne''s Hindu law, 11th Edn. at page
367 where authority is cited for the position of a karta or manager being sui generis; the relation between him and the other members of the family
being not that of principal and agent, or of partners, but more like that of a trustee and cestui que trust. Several decisions which I need not refer to
specifically are cited there to support the position that if a kartha spends more for family purposes than other members approve of, the only
remedy of the latter is to have a partition, in the case of tarwads under Marumakkattayam law, as regards which until Act XXII of 1933 was
passed there was no right of partition the corresponding remedy for a junior member was to file a suit for removal of the karnavan and in such a
suit he could be called to account. In Sundara Aiyar''s Malabar and Aliyasanthana law at page 53, the position of the karnavan as it stood in 1922
was described as follows:
If the karnavan squanders the family income there is no means of recovering it for the family. There is no precedent for compelling the manager to
make good out of his private properties the loss sustained by the family by his improvidence or even by his fraudulent dealing. The only remedy
that the family has is to remove him. We must take the observations in Kenath Puthen Vittil Tavazhi v. Narayanan 28 Mad. 182, in this sense.
There can, I think, be no doubt that this was the customary law of Malabar prior to Act XXII of 1933 despite Mr. Kuttikrishna Menon''s
arguments to the contrary that junior members of the tarwad did have the right of suing the karnavan independently for alleged specific
misappropriation.
Mr. Kuttikrishna Menon has relied somewhat strongly on the observations of Jackson J. in Manavadan v. Sreedevi 50 Mad. 431 = 25 L.W.
284 a Bench decision of the year 1926, on which Mr. Chinnappan Nair also relies for the petitioners. It must be stated at the outset that in that suit
some junior members of a tarwad sued for the removal of the karnavati on allegations of fraud, misappropriation of family funds in general and
devoting the funds to her particular branch. In the course of the suit the first defendant ceased to be karnavati, because under the family law of
succession she moved to a higher sphere. There was therefore no longer any question of removing her and the suit was dismissed. Mr. Kuttikrishna
Menon has sought to harness in support of this plaint certain observations of Jackson J. which however must be taken in the context of that suit,
which was one for the removal of the karnavati. For instance when Jackson J. said at page 439:
If it be proved against him that he has abused this discretion and fraudulently misappropriated the family estate, he must account for that
transaction. If it be proved generally that he is a bad manager, he will be liable to removal .
All that was intended to apply to a suit for removal. I am unable to see anything in this Bench decision which supports the maintainability of the
present plaint.
The reason why the present plaint has not included a prayer for the removal of the karnavan seems to be due to an obvious fiscal hurdle, the
heavy court fee payable on one-third the value of the entire tarwad property, which in the case of the present tarwad is admitted to be very
considerable-(vide Appendix C to Krishnamachari''s Court Fees Act of 1951 under Government Notification dated 20th February 1903). In the
appendix on Maramakkattayam and Aliyasanthana law to Mayne''s Hindu law and Usage for which we are indebted to my learned brother
Govinda Menon J. I can find no support whatever for the contention of Mr. Kuttikrishna Menon that even for alleged fraudulent misappropriations
a junior member of the tarwad can maintain a suit without a prayer for the removal of the karnavan. There is a wealth of authority to support the
position that it is only under very special circumstances that a junior member of a tarwad can maintain a suit on behalf of the tarwad, and where the
karnavan has made an improper alienation of tarwad property, a Court will interfere at the instance of a junior member but cannot challenge an
alienation made by a deceased karnavan without proving that the next succeeding karnavan was consulted and declined to sue. In Vasudevan v.
Sankaron 20 Mad. 129 (F.B.), it was held that a decree against a karnavan in a suit in which he is joined as a defendant in his representative
capacity, which he honestly defends, is binding on the other members of the family, though not (1) actually made parties. I have not been referred
to a single decision prior to Act XXII of 1933 in which a karnavan has been sued for an account even on specific allegations of misappropriation
except in a suit for his removal. This undoubtedly in my opinion was the customary law in Malabar prior to Act XXII of 1933.
The next point for determination is whether this customary law has in any way been changed by this Act which introduced drastic changes in
the old law. It is true that under S. 32 of this Act the karnavan shall keep true and correct accounts of the income and expenditure of the tarwad
and the accounts of each year shall be available for inspection at the tarwad house by the major anan dravans once in a year during a specified
period, and that they may take copies or extracts from such accounts. Under S. 50 nothing contained in the Act shall be deemed to affect any rule
of Marumakkattayam law, custom or usage, except to the extent expressly laid down in the Act. The position was considered in Thachunni v.
Unniappan ILR 1945 Mad. 558. -= 58 L.W. 12, where the learned Bench held that under the customary law of Malabar a junior member of the
tarwad was not entitled to sue the karnavan for accounts, that S. 32 of the Act does not contemplate such a suit but only the maintenance of
correct accounts and their production for inspection. There is absolutely no warrant in Act XXII of 1933 for such a suit for an account against the
karnavan on misappropriations of various descriptions over a period of more than 20 years and the maintainability of this suit must be determined
on customary Marumakkattayam law which has in this respect not been altered by proved custom or judicial decisions. Rather curiously the
learned Subordinate Judge has come to the conclusion that the present suit was maintainable on the strength of the observations in Manavadan v.
Sreedevi 50 Mad. 431. = 26 L.W. 284 forgetful of the fact that the suit in that case was one for the removal of the karnavati. It is true that
Jackson, J. in that decision, cited, Vasudevan v. Sankaran 120 Mad. 129 (F.B.) as authority for the position that members other than the karnavan
have the right to prevent the karnavan from wasting or improperly alienating the family property. But in the very next paragraph he made the
following observation:
In these circumstances it would seem proper that the karnavan should make good from his personal estate any of his defalcations from the family
property; but there happens to be no case directly in point.
Whether this observation had reference to a suit for the removal of a karnavan in which such personal liability was sought to be fastened or not
is not easy to say. Even assuming that Jackson, J. expressed the opinion that it would seem proper that a karnavan should make good from his
personal estate defalcations from family property in a suit for an account without a prayer for the karnavan''s removal, I do not think that this
opinion can form the basis of customary law in the absence of a judicial decision specifically determining this point.
I have found it extremely difficult to follow the reasoning of the learned Additional Subordinate Judge in paragraphs 25 and 26 of his finding
which is tantamount to holding that although the suit is filed as one for account under S. 7(4) (f), it was a suit for alleging specific acts of
misappropriation and was therefore maintainable. After giving my best consideration to the state of Malabar Law on the liability of karnavans to
account, I have not the least hesitation in finding that a suit such as that framed in the present case calling on the karnavan to account for alleged
acts of misappropriation of various descriptions covering a period of over 20 years without a prayer for his removal is not maintainable in law. As I
observed supra, if I had any doubt myself about the incorrectness of the Subordinate Judge''s finding, I would have had no hesitation in dismissing
this petition. Having however come to this conclusion it appears to me to be my duty to reverse the Sub-ordinate Judge''s finding of maintainability
and to direct the dismissal of the suit with costs. It is a well established principle that in deciding a point of maintainability the plaint a legations only
have to be considered and that no extraneous material should in determining jurisdiction or maintainability be invoked. The learned Subordinate
Judge in setting out the pleadings referred to a contention in the written statement of defendants 1 and 2 that the whole of this suit was engineered
by a dismissed kariasthan, one Parameswaran Embrandiri who was in his employ for many years. I feel it my duty to mention that this individual
was present in Court during the hearing of this revision petition which went well into its second day. Plaintiff is a young man and a very junior
member of this tarwad. His plaint does not indicate the sources from which he obtained a great deal of detailed knowledge as regards the alleged
misappropriations relied on. Nor is it averred that he availed himself of the right conferred upon him by S. 32 of the Act to inspect the accounts
maintained by the karnavan during the specified period for each year under this section. There appears to me considerable substance in the
contention of Mr. Chinnappan Nair that this suit is a harassing and vexatious one with a fishing and roving enquiry into 20 years'' accounts as its
objective, and that although no specific relief is sought in the plaint against the third defendant who is now the karnavan, he will be put to a very
great deal of trouble and annoyance and vexation during the trial of the suit if it is to be permitted. I consider that in the circumstances he is
perfectly entitled to contend in revision that the suit also on this ground is not maintainable as lacking in bona fides apart from its maintainability
under customary Malabar Law. In the result the petition is allowed with costs against the plaintiff-respondent. Advocate''s fee fixed at Rs. 150.