P K GOVINDAN NAIRAND ORS Vs. PNARAYANAN NAIR

JUDGEMENT

(1.) The application which gave rise to this appeal was one under Act XXXV of 1858 to adjudicate the Karnavan of a Malabar tarwad a lunatic and to appoint a Manager for his estate. The application was dismissed by the District Judge of South Malabar, he being of opinion that no application would lie under the provisions of Act XXXV of 1858 to adjudicate a member of an undivided Malabar tarwad a lunatic. He did not, on the view he took, consider it necessary to hold an enquiry as to the question whether the Karnavan was in fact a lunatic or not.

(2.) The question for our decision is whether that view is right. No decision bearing on the precise question has been brought to our notice. The competence of the court to adjudicate an undivided member of a Mitakshara family a lunatic has been considered in some cases. In Trimbaklal Govindas v. Hiralal (1895) I.L.R. 20 B. 659 it was not necessary for the court actually to decide the question, an adjudicaton having as a matter of fact been previously made in that case and a manager having been appointed. The question before the court was whether the manager so appointed who was another member of the undivided family was bound to render accounts in* accordance with the provisions of Section 17 of the Act. Farran C.J. and Parsons J. held that the court would not make him render an account under the section. At p. 666 Farran C.J. observed "The Act provides no machinery nor does it confer any power upon the court to deal with joint family property or interfere in the affairs of a joint family ". This observation tends to show that if the question had actually arisen the learned Judges would probably have decided that no adjudication could be made with reference to the member of an undivided Mitakshara family. In the matter of the petition of Boopendra Narain Roy (1880) I.L.R. 6 C. 539 at 541 "It has been objected before us and apparently the judge seems to have been of opinion that Act XXXV of 1858 cannot and does not apply to members of a Mitakshara family. We are unable as at present advised to admit that as a correct proposition. It appears to us that there may be cases where it is essentially necessary that a guardian should be appointed for a member of a Mitakshara family as much as for a member of any other family. It is not necessary however, for us to decide that question because we think the application fails on other grounds." It was argued before the learned Judges that the application for adjudication in that case was made with a view to enforce partition of the share belonging to the alleged lunatic. Dealing with that argument the learned Judge observed. " Now, with respect to the supposition of the Judge that these proceedings were taken with the intention of ultimate proceedings for a partition without deciding whether or not a partition could be had under such circumstances, if the lunatic were declared a lunatic under the Act, it may be not improper to refer to the policy of the Lunacy Enactment in England. Under these Acts it has always been the policy of the Legislature not to interfere with the course of inheritance of the lunatic s property and provisions for that purpose have been inserted into these Acts, so that even when it is necessary, for payment of debts or otherwise, that the lunatic s real property should be sold, it is provided that the surplus monies should be considered as in the same condition as if invested in land, leaving them heritable as if they were land. Possibly therefore, even if an application for partition were made, it might be refused in accordance with that policy." If the Court would refuse a partition at the instance of the manager of a lunatic, then it is difficult to see what object would be served by the appointment of a manager for his undivided share in the estate.

(3.) The learned Judges do not point out in what circumstances it would be permissible to appoint a manager for a lunatic coparcener of an undivided family. In several cases the Indian Courts have held that a guardian cannot be appointed under the Guardians and Wards Act for an undivided member of a Mitakshara family. See Sham Kuar v. Mohananda Sahay (1891) I.L.R. 10 C. 301 Virupakshappa v. Vilgangava (1892) I.L.R. 19 B. 309 Bhaund Prasad v. Dhiraji Kuar (1898) I.L.R. 20 A. 400. That question is really concluded by the opinion of the Privy Council in Ghasib-ul-lah v. Khalak Singh (1903) I.L.R. 7 C.W.N. 681. Sir Arthur Wilson, delivering the judgment of their Lordships in that case,.observed : " It has been well settled by a long series of decisions in India that a guardian of the property of an infant cannot properly be appointed in respect of the infant s interest in the property of an undivided Mitakshara family. And in their Lordships opinion those decisions are clearly right, on the plain ground that the interest of the member of such a family is not individual property at all and that therefore a guardian, if appointed, would have nothing to do with the family property." These ovservations are, in my opinion, equally applicable to the appointment of a manager for a lunatic co-parcener in a Mitakshara family. The question then is, can a different view be taken with respect to the Karnavan of a Malabar tarwad? Mr. T.R. Ramachandra Aiyar, the learned vakil who appears for the appellants, has strenuously contended that the Karnavan should, for all practical purposes, be regardrd as the owner of the property: and that although in theory the property of a tarward may be vestad in all its members the ownership of the others is practically worthless, their substantial rights being confined to the receipt of maintenance and to prevent the Karnavan from wasting or misusing the property of the tarwad. Whatever may be the extent of the Karnavan s powers of management, I cannot doubt that the tarwad property is not, to use the language of the Privy Council, the individual property of the Karnavan and that a manager appointed for him will obtain no rights over the tarwad property. Observations are, no doubt, to be found in Varanakot Narayana Namburi v. Varanakot Narayanan Namburi (1880) I.L.R. 2 M. 328, which might encourage the notion that the property of a tarwad is vested in the Karnavan. The question in that case was, whether a decree obtained against a Karnavan in a properly contested suit would be binding on the other members. It was with reference to that question that Kernan J. observed that the tarwad property was vested in the Karnavan and that he had large powers of dealing with itThis observation was referred to in Vasudevan v. Sankaran (1896) I.L. R. 20 M. 129 where also the question was similar to that raised in Varanahot Narayana Namburi v. Varanakot Narayana Namburi (1880) I.L.R. 2 M. 328 Subramzny Aiyar, J. observed : "The family property is not liable to partition except with the consent of all, the right of the members, other than the Karnavan, being practically limited to claim maintenance and to prevent the Karnavan from wasting or improperly alienating the family property; and the title to hold possession of the estate and to receive and expend its income is vested in the Karnavan, not by the sufferance of the other members, but of right which is indefeasable so long as he exercises his functions without injury to the family. Therefore, according to the substantive law to which he is subject, a Karnavan is necessarily the natural representative of the family in all matters concerning it as between it on the one hand and outsiders on the other." These observations, understood with regard to the context, cannot, in my opinion, be taken to lay down that the Karnavan has any larger right of ownership than any junior member over the tarwad property. What is vested in him according to the learned Judge is the right " to hold possession of the estate and to receive and expend its income;" and this right, he observes, is one not derned by appointment or sufferance of the other members, but under the law of the land." The Karnavan s power of management, extensive as it may be, is, in my opinion, in no respect, different in character from that of the managing member of a Mitakshara family. The only difference between the latter and the Karnavan of a Malabar tarwad arises from the fact that partition cannot be enforced except with the consent of all the members. But the substantive right of the Karnavan in the tarwad property is of exactly the same character as that of the managing member of a Mitakshara family.