(PUTHIYAKATU) KUNHAMMAYAN Vs. (EACHALI) NALAKATH KUNHI SOW

JUDGEMENT

(1.) The suit out of which this second appeal arises was brought by plaintiff 1, as the assignee of plaintiffs 2 and 3 of their jenm rights under Ex. B and of their rights under the marupat Ex. A, to recover the suit property which is a shop from the three defendants or whichever of them who may be found by the Court to be in possession. To understand the position of the other defendants in the case we must go to the earlier history of the Cheeramoolayil Pookkoth tarwad of which defendant 2 is now the karnavan. The suit property originally belonged to one Kutti Acha, a member of the Cheeramoolayil Pookkoth tarwad and after her death it has become the property of the Cheeramcolayil Pookkoth tarwad. This was not originally admitted by the present plaintiffs, but the lower Courts have now found it and the plaintiffs do not question this finding before me now. After the death of Kutti Acha, her son Kunhikutti Ali became the karnavan of the tarwad. He died in November 1912 while on his return journey from Arabia where he had gone on a pilgrimage. So he is referred to as Hajee. Before he went on pilgrimage it would seem he was able to induce most of the adult members of the Cheeramoolayil Pookkoth tarwad to agree to a certain karar Ex. E according to which some arrangements were made. One of those arrangements was that Rs. 100 were to be paid by the tarwad to his three children by the second wife-they are the present plaintiffs 2 and 3-and his deceased son named Ammad. If the Rs. 100 are not to be paid within six months after his death, the suit property was to vest in the children as their property.

(2.) To this arrangement most of the adult members of the tarwad agreed. One of such agreeing members is the present defendant 2 who was then an anandravan of the tarwad but now karnavan of the tarwad. After Kutti Ali's death, the succeeding karnavan was one Kunhi Ali. It does not appear that he did anything to pay the Rs. 100 within six months. It looks as if he was willing that the suit property or shop should vest in the present plaintiffs 2 and 3. His conduct also supports to some extent the propriety of the arrangement made by the Hajee. After him, one Pookkoth Sow was the succeeding karnavan. It does not appear that Sow did anything either to question the validity of the karar or help the plaintiffs right under the karar. It is said Suit No. 505 of 1915 was filed to question the karar by some of the members of the tarwad, but the papers connected with it are not filed and therefore we may ignore that suit. Another suit, 512 of 1915, also filed by some of the junior members of the tarwad, ended in a compromise, Ex. 2, according to which the provision in favour of plaintiffs 2 and 3 was made not binding on the tarwad. But this compromise cannot bind plaintiffs 2 and 3 because they were not parties to it and it was a collusive compromise between the members of the tarwad. Kunhi Ali was defendant 1 in that suit. From Ex. 2 it does not appear that he was even a party to the compromise. The property itself was held originally by one K. Ammad under a marupat executed to Kunhi Kutti Ali dated 11 July 1912, Ex. 5.

(3.) He afterwards assigned his lease rights to Hajee's eldest son, defendant 1, who was Hajee's son by a different wife from the mother of plaintiffs 2 and 3 and who therefore belonged to a different tarwad, namely, Eachal Nalakath. Defendant 1 afterwards executed a marupat Ex. A to plaintiffs 2 and 3. This produces the impression that at that time certainly defendant 1 and perhaps the senior members of the Cheeramoolayil Pookkoth tarwad were siding with the plaintiffs and were inclined to support the arrangements in the karar. Plaintiffs 2 and 3 afterwards sold their jenm right under Ex. B and their rights under the marupat Ex. A. In the present suit both the District Munsif and the Subordinate Judge in observing that the Hajee brought about the arrangement to benefit his children thought that Ex. E was not binding on the Cheeramoolayil Pookkoth tarwad. But it has been held in Cheria Pangi Achan V/s. Unnalachan (1917) 38 IC 513, that a karar to which the majority of the adult members of a tarwad or tavazhi are parties is binding on the tavazhi in general and it is not binding on the dissentient members only to the extent of not depriving them of their right to succeed as karnavan and of not depriving them of their right to maintenance. Apart from these two it is binding even on the dissentient members. If there are no dissentient members but if all the adult members are present at the spot and the other members are absent and if that was the reason why they were not parties to the karar, the position seems to become somewhat stronger.