KUNHI KUTTI ALI Vs. MUHAMMAD HAJI (DIED)

JUDGEMENT

(1.) The suit under appeal has been brought as a representative suit by a junior member of a Marumakkathayam Tarwad for a declaration that the pattadharam granted on 18 July, 1922, by defendant 1, who is the present Karnavan, is not valid and binding on the plaintiff, his tarwad or the suit properties and for delivery of the suit properties to the plaintiff on behalf of the tarwad. The tarwad consists of two branches, the descendants of two women, Alliathe and Birambi, who were sisters. The defendants are all of the branch of Birambi, while the plaintiff belongs to that of Alliathe find claims to be the senior anandravan, though this claim is challenged. The plaintiff asserts that the suit pattadharam has been granted by defendant 1 to two members of his own branch with a view to defrauding the plaintiff of the benefit of the great improvements which he has effected to the suit lands, while it prejudices the tarwad, on whose behalf the suit is brought, in that the amount of rental fixed under it is far too low. The Court below has found that the suit pattadharam was not executed by defendant 1 in the bona fide exercise of his powers of management as karnavan of the tarwad, but for the purpose of enriching members of his own tavazhi at the sacrifice of the; interests of the entire tarwad, and it has, therefore, granted a decree to the plaintiff as prayed for. Against this decision defendants 2 and 3 are appealing.

(2.) It has been urged for the appellants and for defendant 1 as second respondent that the suit is not maintainable on two grounds. The former of these grounds is that leave has not been properly obtained by the plaintiff to sue in a representative capacity. This, however, is a point that we cannot allow to be taken. The plaintiff definitely states in paragraph 14 of his plaint that he has obtained the leave of the Court to sue on behalf of the tarwad and this recital has not been challenged in any written statement, nor was any issue taken as to it. We have to presume in these circumstances that there was no irregularity in the proceedings in the trial Court and that the plaintiff was properly permitted to bring the suit as a representative one.

(3.) The other ground is more important. It is that the grant of the pattadharam by defendant 1 was an ordinary act of management by the karnavan, in the exercise of his legitimate powers; and that consequently no suit can be brought by a junior member of the tarwad to have it set aside but that if the view of the learned Subordinate Judge in this particular instance as to the nature of the act of the karnavan that is in question is correct, then the proper remedy was to bring a suit for the karnavan's removal. There is no dispute as to the correctness of the view expressed in the Lower Court's judgment that, on the face of it, the suit pattadharam, which grants a kuzhikanom lease for a period of twelve years, is an ordinary act of management within the karnavan's competence. Stress is laid on Abdulla Koya V/s. Eackaran Nair (1917) 35 M.L.J. 405 in which a Bench of this Court has remarked in the matter of a suit as to a Melcharth granted, as it was contended, improperly, by a karnavan: No doubt if a karnavan habitually grants improvident leases and thereby renders himself unable to fulfil his obligations towards the other members of the tarwad, this would be a ground for removing him from the- karnavasthanam, but we do not think that a particular lease can be declared to be invalid as against the lessee merely because it is not proved to be beneficial to the tarwad. To fetter a karnavan's discretion in this way would be to render his whole management of the property liable to criticism and reversal at any moment.