KRISHNANKUTTY WARRIER Vs. BHADRANAYAKAM

JUDGEMENT

(1.) THIS is an application to revise an order of the district Munsiff of Trichur rejecting a claim to certain amounts attached in execution of a decree.

(2.) ONE Ikkanda Warrier, deceased had executed a promissory note in favour of the respondent to this application. A suit was instituted on foot of it after Ikkanda Warrier's death and a decree obtained thereon. Ikkanda Warrier died in Makaram 1117 and according to the Cochin marumakkathayam Act, by which he was governed, his self-acquired and separate properties devolved on his childless widow and his thavazhi in equal halves. The widow was not made a defendant in the suit. The persons who were impleaded as defendants were the eldest sons of Ikkanda Warrier's two sisters and the common Karanavan of his tarwad. Defendant 1, the Karanavan of Ikkanda Warrier's thavazhi, contested the suit. He disputed the genuineness of the promissory note and contended that in any view a suit instituted in 1118 on a promissory note alleged to have been executed in 1109 was clearly time-barred. The plaintiff relied on Ikkanda Warrier's acknowledgments in writing to keep the claim alive. In the written statement filed by Defendant 1 it was also pointed out that Ikkanda Warrier's heirs were his widow and his thavazhi, that defendant 3, the common Karanavan, was not one of Ikkanda Warrier's heirs and that defendant 1 by himself or together with defendant 2 the eldest son of the second sister cannot and did not represent the thavazhi and that a decree against the assets of Ikkanda Warrier cannot be passed unless the remaining members of the thavazhi and the widow are also impleaded as defendants. At the final hearing of the suit the plaintiff represented that he was prepared to take the risk in not impleading Ikkanda Warrier's widow or anybody else and that he only wanted a decree against the assets of the deceased with the defendants alone on the record. Defendant 1 did not then press his objection as to non-joinder and on the promissory note being proved his objection to its genuineness and the contention that the suit was time-barred were also not pressed. The Court thereupon passed a decree in favour of the plaintiff substantially in terms of the plaint. In execution of that decree certain amounts awarded to Ikkanda Warrier in a Land Acquisition Proceeding - L. A. 59 of 1120 of the Trichur District Court - were attached. Four persons came forward with the claim petition giving rise to this revision raising objections to the attachment. The first two-petitioners are Ikkanda Warrier's children by his first wife who died in 1090. By reason of their mother having died long before the Cochin Marumakkathayam Act, 1113 was enacted these petitioners did not become Ikkanda Warrier's heirs under that Act, but pursuant to a direction given by the second wife during her life time, her nephew and sole heir transferred all the interests she had obtained in Ikkanda Warrier's self-acquired and separate properties to petitioners 1 and 2. The second wife died in Chingam 1119. The suit was instituted in Dhanu 1118, but the decree was passed only in Thulam 1119, after her death. The assignment in farour of petitioners 1 and 2 was on 7th vrischigam 1119 and the attachment was effected in Meenam 1120. Their objection to the attachment was that so long as the widow or her heir, their assignor, was not made a defendant to the suit the decree cannot bind the half-share the widow obtained and that the attachment was therefore unsustainable to that extent. The two remaining petitioners to the claim petition are members of ikkanda Warrier's thavazhi and their objection is that a decree obtained without impleading all the members of the thavazhi cannot bind them or the thavazhi and that the attachment should therefore be raised with respect to the remaining half share as well. The lower Court found that Ikkanda Warrier's estate was sufficiently represented in the suit and that the decree was therefore binding on all his heirs. The claim petition was hence found to be without merit and it was dismissed. The petitioners now move this Court in revision.

(3.) ANOTHER impediment in the way of the application of the said rule to the case on hand is that the persons impleaded as defendants or the thavazhi for that matter, is not shown to have had an actual possession or management, or even he right to possession or management of the deceased person's estate. S. 22 of the Marumakkathayam Act enacts that the self-acquired and separate property left undisposed of by a Marumakkathayee male leaving a widow or children or both as also undivided Marumakkathayam heirs shall be in the possession of the widow until a division is effected. In Khiarajmal v. Daim ilr 32 Cal. 296. , the P. C. Privy Council observed thus with reference to the rule of substantial representation: "the Indian Courts have properly exercised a wide discretion in allowing the estate of a deceased debtor to be represented by one member of the family, and in refusing to disturb judicial sales on the mere ground that some members of the family, who were minors, were not made parties to the proceedings, if it appears that there was a debt justly due from the deceased, and no prejudice is shown to the absent minors. But these are usually cases where the person named as defendant is de facto manager of a Hindu family property, or has the assets out of which the decree is to be satisfied under his control". The case on hand does not satisfy this test or requirement. Further, the rule of substantial representation cannot at all be invoked in a case where the failure to implead all the heirs is not caused bona fide. On this point I shall straightaway refer to a recent pronouncement of the Federal Court of India in Tirtha Lal v. Bhusan Moyee Dasi air 1950 FC 195. In that case at pp. 205 and 206 of the report Mr. Justice mahajan has observed as follows: "reference was also made to decisions of certain high Courts in India which have expressed the view that in cases where some legal representatives are unwilling to join as parties or one or more of them are unknown, a bonafide application by those who are willing to join in making the application will be sufficient compliance with the provision of 0. 22 R. 3 and 4 and a decree passed in a suit binds the whole estate. The ratio of these exceptional cases is that for making the partial representation effective against the true representatives the plaintiff or the decree-holder must have acted bona fide, the decree obtained must have been free from fraud or collusion, the person impleaded must have been impleaded in a representative capacity and the decree or order must have been passed against him as a representative of the estate of the deceased. None of these conditions are satisfied in the present case. It is not even arguable that the parties and the arbitrator in ignoring the widow acted bonafide, i. e. , with due care and caution. Ignorance of law is no excuse. Moreover, by the exercise of due care and caution such ignorance could have been dispelled".