RAJA RAJA VARMA Vs. GOPALA IYER

JUDGEMENT

(1.) THIS second appeal arises in a suit for partition of a kshatriya tarwad. The appellant was originally the 20th defendant and was transposed as plaintiff, the original plaintiff being transposed as the 20th defendant. As between the members of the family, there was a petition of compromise in the suit, by which their rights inter se were adjusted. The 50th defendant, a lawyer whose legal representatives were impleaded as defendants 52 and 53 and who are the respondents here, had obtained the decree in O. S. 36 of 1104 against defendants 1 and 2, who were the karnavan and the senior anandiravan of the family, for Vakil's fees alleged to be due to him from the family, in connection with the conduct of several litigations on its behalf. After the compromise, the 50th defendant who was no party to it attempted to execute O. S. 36 of 1104, when the appellant sought to restrain the proceedings by injunction. These proceedings culminated in the order of the Travancore High court passed on the 1st Mithunam,1120, in C. R. P. Nos. 3 & 4 of 1119, by which the trial court was directed to dispose of issues 8 and 24 in the suit, which related to the validity and binding character of the decree as against the family. The Munsiff tried these issues and decided, that the decree in O. S. 36 of 1104 did not bind the family. In appeal by the respondents, the subordinate Judge differed from the Munsiff. In second appeal, the point for decision is whether 0. S. 36 of 1104 is valid and binding on the plaintiff and whether he is entitled to impeach the same.

(2.) THE Subordinate Judge was of the view, that the decree in O. S. 36 of 1104 having been obtained against the karnavan and the senior anandiravan, could not be impeached except on the ground of fraud or collusion, but learned counsel for the appellant maintained, that junior members of the family have a right to question the reality of the debt which led to the decree. THEre is a catena of decisions of the Travancore High Court, which have held, that it is open to the junior members of a tarwad when they are impleaded in execution or by a fresh suit, to question the reality of the debt contracted by the karnavan and the binding nature of the decree obtained to enforce payment. THE karnavan who contracted the debt cannot be expected to represent the tarwad effectively, by putting forth available defences or by adducing proper evidence, but where junior members, who do not suffer from such disqualification or with regard to whom there is no conflict of interest and duty are parties to the decree, the tarwad may be held to be properly represented. On this, it is sufficient to refer to H. S. Mahommed Rowther v. Kunjappan Kochucherukkan 26 T. L. J. 188, a decision of a full bench of five judges, Aiyappan Kunju Pillai v. Kunju Panikkan Padmanabhan 28 T. L. J. 1048 and Palpu Govindan v. Muhammad Kunju Ahammad Kunju 25 T. L. J. 722. Perhaps the law as laid down by the Madras decision is not so favourable to junior members, in oases where the karnavan makes a bona fide contest, though even there a distinction is recognised in the case of ex parte judgments or judgments on default. (Sundara Iyer on Malabar and Aliyasanthana Law, page 90 ). THE learned author after stating at page 90, that "in cases where the action is brought to enforce an obligation incurred by the karnavan or to enforce the consequences of a default of his, the dividing line between fraud and failure to plead would generally be heard to delineate", observed thus at pages 92,93: "the course of decisions in the Travancore High court as stated by Sadasiva Iyer, C. J. (as he then was) in Mundan Raman v. Ramasubba Aiyan Kulathoor Aiyan (1906) 21 Tr. L. R. 41 is to allow a separate suit by the anandiravans not only to set aside a decree on the ground of fraud and collusion, but also on the ground (a) that there was no consideration for the debt sued on and (b) that the debt was not contracted for tarwad purposes and was a personal debt of the karnavan. In cases of the last description the conflict between interest and duty on the part of the karnavan is so great that the rule stated by the Travancore High Court is likely to prove more just in the working than the narrower rule which the Madras decisions seem to suggest. " Learned counsel for the respondents relied on Kesavan namboori v. Subhadra 1957 KLT. 1046 where the point decided was different. In. that case, in execution of the decree a sale had taken place. It was held, that the court sale had to be avoided within the period prescribed by Art. 9 (a)of the Travancore Limitation Act. THEre are of course observations to the effect, that though under the Hindu Law where the debt contracted by a Hindu father is found not to be due or to have been incurred for purposes which are illegal or immoral, a decree obtained thereon would not bind the son and that the sale in execution also would not bind, there is no case under Malabar Law which has held that a decree obtained against the tarwad in fulfilment of the formal requisites can be ignored by a junior member merely because the debt is not binding. I do not see the reason for the distinction; moreover the latter part of the observations seem to ignore the course of decisions cited above. Apart from this, the decree was obtained against the karnavan of the illom and all the other senior members who had not executed the hypothecation bond by which the debt was contracted. It was in this context, that the court considered the decree to have been obtained "in fulfilment of the formal requisites laid down by law". As observed at page 1048, the decree was not challenged. For these reasons, I consider that the case is distinguishable. Raman Narayanan v. Velayudhan govindan 1955 KLT. 78 too which was relied on, has no application, because junior members who were no parties to the transaction by which the debt was contracted, were themselves parties to the suit and contested it though unsuccessfully. I am therefore of the opinion, that the appellant as a junior member of the family has a right to contend against the reality and binding character of the debt which gave rise to O. S. 36 of 1104, provided he can establish, that not only the first defendant, but also the second defendant who was a party to the previous suit could not effectively represent or safeguard the interests of the family. This however is a question of fact which has to be answered on the materials on record.

(3.) ON the merits, the respondents have to establish their claim against the appellant. The claim was for Vakil's fee due for more than ten suits, "which were specifically referred to. It may be observed, that in the year 1089, a suit O. S. 98 of 1089, was instituted by the 7th defendant's branch, to remove the first defendant from karnavanship, by the decree in which his powers were curtailed, & he could no longer alienate properties or incur debts, except with the junction of other senior members. The 50th defendant as Vakil appeared for defendants 1 and 2 in this litigation, and so knew about this provision in the decree. Yet he took Ext. K from defendants 1 & 2 alone. It must be for this reason, that Ext. K was given up; even if the properties were inadequate to meet his claim, the charge need not have been given up. In about eight of the ten suits the 50th defendant had filed certificates that the fees due to him had been paid. If the respondents have a case, that in spite of the certificates, fees were still unpaid and the plea is admissible in law, still the burden of proof is very heavy on them. No attempt was made to prove the claim. The account books of the 50th defendant were not produced, although the appellent had given notice for its production. The second respondent, the 53rd defendant deposed, that some of the account books were destroyed by white ants though this was after the death of the 50th defendant, and that they are not in a fit condition for production in court. So the best evidence is not available. In two of the suits evidenced by Exts. T and S decrees, he did not file fee certificates, but it must be remembered, that the claim in O. S. 36 of 1104 was based on an alleged settlement of all accounts and it is not proper to isolate these instances from the others and give relief on that basis.