PARUKUTTY NETHIARAMMA Vs. KESAVA MENON

JUDGEMENT

(1.) THE 2nd plaintiff,whose suit to redeem a kanom has been concurrently dismissed by the courts below,has preferred this second appeal.The 1st defendant,upon whom the tenancy has devolved,admits the kanom,but contends that the 2nd plaintiff is not a landlord entitled to resume the property from him.The courts below have found that the plaintiff needs the land bona fide for cultivation for his maintenance;but dismissed the suit because S.25 of the Malabar Tenancy Act permitted only the landlord to resume property from a tenant and the landlord in regard to the suit kanom is the tarwad,and not the 2nd plaintiff who is only a member thereof.Hence this appeal.

(2.) THE question therefore is of the capacity of a member of the tarwad to resume tarwad property outstanding with strangers on a lease or a kanom.The courts below have assumed that the proprietary right in the suit property is vested in the legal entity known as 'the tarwad 'and therefore the plaintiff,who was not the karnavan,cannot claim to recover the same.The appellant challenges in this appeal the correctness of that proposition.

(3.) MUTHUSWAMI Ayyar J .,in Moidin Kutty v.Krishnan(ILR 10 Madras 322,329)had to strain much to find out rights in the junior members in a tarwad. "The substantial question then is whether the right which the respondents sought to enforce is an individual right or a right which vests in their family only in its collective capacity.Having regard to the family system that obtains in Malabar,I do not consider that a tarvrad is a corporate body in the sense that no single member of it has an individual right to enforce.Each member of a tarwad has a right to be maintained in the tarwrd house,and this is a personal right.He has also a right,if a male and not incompetent,to succeed to management in the order of seniority,and this is also a personal right.The tarwad property is not partible at the pleasure of any one member,and he cannot maintain a suit to enforce partition because no separate right to demand partition exists.The tarwad property is,however,a common fund for subsistence,and each member is entitled to see that the karnavan to whose management it is entrusted does not exceed his lawful authority and waste it,and this is an individual right vesting in every anandravan by reason of his position as such.If the anandravan is a female,there is the further right to see that the tarwad property is not wasted by the karnavan,and thereby divested from descent to her children.The conception of a tarwad is that of a joint family under the management ordinarily of the senior male,in which the anandravans have each a group of individual rights which they are entitled to enforce individualy or collectively either as against the karnavan or his alienee or both."