GOPALAKRISHNAN Vs. SURENDRANATHAN

JUDGEMENT

(1.) CAN the karnavan of a Malabar tarwad validly represent(and thereby bind)his anandiravans in a suit and decree based on a transaction which he himself fobbed off on the family without necessity or benefit ? That is the central problem raised in this appeal and high -lighted in the debate at the bar and my hesitant answer is that he cannot.

(2.) THE plaintiffs have appealed to the High Court from a decree of the Sub Court,Palghat,dismissing their suit for a declaration that another decree(in O.S.No.43 of 1962 on the file of the same Court ),Ext.B -18,is not bind­ing on their tavazhi.That decree was passed in favour of defendants 1 and 2 in enforcement of a mortgage,Ext.B -1,executed in favour of deceased Chamu,their father,by the 3rd defendant on behalf of her son,the 1st plaintiff,and on her own behalf.The mortgage amount is Rs.11,000 and is made up of sums representing two prior debts of Rs.760 -6 -0 and Rs.5,331 -4 -0 "debts which are not seriously disputed before us and rightly so,"and another borrowing,under a promissory note,Ext.B -2,for Rs.2,000 which had accumulated to Rs.2,031 plus a cash payment of Rs.2,921 stated to have been received for tavazhi purposes.The plaintiffs,all of them minors and children of the 3rd defendant and her husband Nataraja Menon,contended that these debts were not binding on their thayazhi both because the purpose was not for the benefit or necessity of the family(but for spendthrift Nataraja Menon's uses)and also because the need to borrow did not exist.The defendant,inter alia,refuted both these grounds and went further to plead that the decree in O.S.No.43 of 1962 having been passed against the plaintiffs 'tavazhi,they were barred from contending that the debts were not binding,without expressly praying for the cancel­lation of the aforesaid decree and proving sucessfully that the said decree had been vitiated by fraud and collusion.Since there was neither pleading nor proof in this behalf the suit was liable to be dismissed.On this last contention,the ground,taken by the plaintiffs is that the decree in O.S.No.43 of 1962 does not stand in the way of the reliefs being granted in the present suit if the mortgage debt,in enforce­ment of which that decree was passed,is shown to be not binding on the family.For,the argument is that a decree obtained against the Kartha or karnavan of a joint family,on a loan or alienation,cannot bind it,if he is also the author of the impugned transaction.The vice of the alienation vitiates the representation in the litigation.

(3.) THE saga of the Kizhake Natuvath tavazhi,an upper middle class family in Palghat(part of the former Malabar District where the Madras Marumakkathayam Act,1933 applies)needs brief narration here.Lakshmi Maruvalamma,from whom the tavazhi or branch originated,had an only daughter Kalyani Kutti Maruvalamma who was married in 1942 to one Nataraja Menon,a member of another well -to -do tarwad and this fruitful wedlock accounts for the four plain­tiffs.It must however be mentioned that when Ext.B -1 was executed(1950)only the 1st plaintiff had been born although by the time of the suit,O.S.No.43 of 1962,the other plaintiffs had also been born.The economic status of the family,considering its thin membership,was good.Items 1 to 23 had all along belonged to the plaintiffs 'tavazhi,yielding at least an income of 2130 to 2600 paras of paddy,consider­able straw sheaves and quantities of tamarind(vide Ext.B -8 and Ext.A 4 );and the price of paddy had risen during and after the second world war.The tarwad of the plaintiffs was also well off and on partition(Ext.A -6)this tavazhi got substantial items of land 24 to 31,income bearing items which had even earlier vested in the tavazhi on kanom right under the tarwad.Although Ext.A -6 division took place only in 1958,certainly,from the tarwad to the tavazhi a stream of maintenance allowance must have been flowing.Without meticulous analysis and 'making a moderate assessment of normal resources 'and expenditure,we may,take the Kizhakke Natuvath tavazhi as on the mildly affluent side.The situation may,of course,vary if therental income gets blocked by legislation or an extra -ordinary outgoing like for the medical treatment of a member suddenly makes a claim on the family coffers.And a close look at the indebtedness of the family reveals that it had an ancient and admitted debt,charged on property for Rs.700,another mortgage,dated 4th June 1948 for Rs.5,000(incurred without family necessity,according to the plain­tiff,but the alienation took place before the birth of the plaintiffs ),a promissory -note debt for Rs.2,000,dated 18th April 1950(Ext.B -2)and,providing for discharge of all these obligations and taking a cash loan of Rs.2,931,a mortgage debt for Rs.11,000,dated 13th July 1950(Ext.B -1 ).It is a fact that there was some interruption in the free flow of rents around 1948 -50 as is evident from Exts.B -5 to B -7(rent suits ).It is also true that Lakshmi Maruvalamma was seriously ill and,despite medical atten­tion,died in may 1950.The controversy,as will be presently seen,rages round the binding nature of Ext.B -1 mortgage.