K.M. NARAYANAN NAMBUDIRIPAD AND ORS. Vs. VARNASI ALIAS MARAVANCHERI VADAKKETATH MANAKKAL SANKARAN NAMBUDIRIPAD AND ORS.

JUDGEMENT

(1.) THE question referred to the Full Bench is whether, with reference to the decisions in Marayanan Mambudiri v. Sundara Aiyar, (1935) 43 L.W.584 and Marayanan Mambudiri v. The Chalapuram Bank, Ltd. Appeal No. 103 of 1936 it is within the power of the karnavan of Nambudiri illom to impose on the illom liability for debts incurred in running a kuri or chit, in the absence of any family custom. Before dealing with this reference we wish to make it clear at the outset that we are not concerned with the question whether for necessity a karnavan can borrow from a chit fund, nor are we concerned with a case in which it can be shown that the running of chits is an established institution in a particular family justified by the custom of that family.

(2.) THE facts so far as they are necessary in the present case are that the first and second defendants and their elder brother Narayanan Nambudiripad who is now dead and who was at that time the karnavan of the illom or mana, started a kuri in 1917. This kuri was one of a very usual type. There were to be 20 subscribers besides the stakeholders. Each subscriber was to pay a subscription of Rs. 600 yearly for 20 years. The stakeholders were to receive the whole of the money for the first year and in subsequent years, after deducting Rs. 600 which was to be distributed by way of interest, the balance was to be put up to auction and the subscriber who bid the biggest discount was to get the money, the discount being distributed amongst the subscribers. The stakeholders made themselves liable for any loss which might ensue and they bound their property also. They were charged with the duty of collecting the subscriptions, holding the auctions and looking after the security which was to be taken from those who had drawn prizes in the successive auctions, so as to guarantee that their future subscriptions would be forthcoming. The kuri continued to run until its maturity at which date there was one subscriber, the plaintiff in the suit out of which A.S. No. 127 arises, who had not drawn a prize and was therefore entitled to the full amount of his subscriptions, which was not paid, and another subscriber, the plaintiff in the suit out of which A.S. No. 341 arises, who had not been paid the full amount due to him under the rules.

(3.) IT was held in Vasudevan v. Secretary of State for India, I.L.R. (1887) Mad. 157 and Vishnu Nambudiri v. : (1910)20MLJ938 that Nambudiri families are governed by Hindu law except to the extent to which it can be shown that they have by custom assimilated the peculiarities of their neighbours who follow the Marumakkattayam system. The chief peculiarity established in the case of Nambudiri illoms which might affect the consideration of this question is that the family was until the Nambudri Act XXI of 1933 impartible. In other respects the power of the karnavan to impose liabilities on the family seems to have been substantially the same in the Nambudiri families as it is in ordinary Hindu families. It is a little difficult to see how the irnparti -bility of the family would by itself add to the karnavan's power of imposing liability upon the family property. No doubt impartibility makes it more difficult to enforce a personal liability against the karnavan for his acts, but the difficulty experienced by the creditor will not of itself increase the borrowing power of the debtor. Apart from the question of kuris it does not appear to us to have been recognised in any of the cases to which our attention has been drawn that the karnavan of a Nambudiri illom has any greater power of imposing liability upon the family property than the manager of an ordinary Hindu joint family.