OLIYATH VAZHAYIL ABUVAKKAR Vs. OLIYATH KUNHIKUTTIYALI

JUDGEMENT

(1.) This is an appeal by the plaintiffs against the decree of the Subordinate Judge of Tellicherry dismissing their suit for a declaration "that the plaint properties belong to, their Thavazhi and that the decrees of the Temporary Sub-Court of Tellicherry in Original Suit No. 18 of 1914 and of the High Court of Judicature at Madras in Appeal No. 96 of 1916, preferred therefrom, are not binding on the Vazhayil Thavazhi" and for incidental reliefs. The plaintiffs case is that they and defendants Nos. 41 to 60 are members of a Thavazhi, known as Oliyath Vazhayil Thavazhi, the first defendant is the Karnavan of the Tarwad of which the plaintiffs Thavazhi is a branch, the defendants Nos. 1 to 37 are members of the Tarwad, the plaint properties are the Puthravagasam properties of the Oliyath Vazhayil Thavazhi, the other members of the Tarwad have no interest in the properties and that the first defendant as karnavan of the Tarwad is not entitled o be in, or to claim possession of then?. The first defendant contends that the properties belong to the Tarwad, and they never were the Puthravagasam properties of the plaintiffs Thavazhi, that the suit is barfed by reason of the decision in Original Suit No. 18 of 1914, and that the plaintiffs are not entitled to any relief. The other defendants who are not members of the plaintiffs Thavazhi raise the same contentions as those of the first defendant.

(2.) Plaintiffs and defendants Nos. 41 to 60 are the descendants of one Nangomma. She has three sons and. two daughters, (1) Pokker, (2) Kunhamed, (3) Kunhayan, (4) Kunhacha and (5) Kunhahia. Defendant No. 43 is the son of Kunhama. He is the Karnavai of the plaintiffs Thavazhi. Nangomma had an elder sister, Achotti, whose descendants are defendants Nos. 1 to 37. Defendants Nos. 38 to 40 are the descendants of Nangoma's maternal aunt Valia Aliumma. The first defendant who is the Karnavan of the Tarwad is the great-grandson of Achotti. The Subordinate Judge dismissed the plaintiffs suit holding that although the present suit was not barred by reason of the decision in Original Suit No. 18 of 1914 yet the plaintiffs failed to make out that the properties were the Puthravagasam properties of their Thavazhi and that though they were acquired by some of the descendants of Nangomma, yet they were not impressed with the character of Thavazhi properties, and the plaintiffs were not entitled to any relief. The plaintiffs have preferred this appeal. The first point for consideration is, whether the present suit is barred by reason of the decision in the said Original Suit No. 18 of 1914, which was brought by the first defendant herein as Karnavan of the Tarwad, for a declaration that a document executed by Royamutti, the previous Karnavan, on 9 July 1909 in favour of the defendants Nos. 1 to 4 therein was not binding on the plaintiff of his Tarwad and for surrender of the properties to him by defendants Nos. 1 to 4. The defendants Nos. 1 to 4 filed a written statement; in which, among other contentions, they stated that they were members of a Thavazhi and that the properties in their possession were the Puthravagasam properties of the Thavazhi and that the Karnavan of their Thavazhi should be made a party, that the properties having been given to them for maintenance by the Karnavan of their own Thavazhi they were entitled to be in possession of them and that, owing to their separation from the Tarwad long ago, there was no community of interest between the first defendant's Tarwad and their Thavazhi: The 43 defendant herein was added as the 14 defendant to that suit in his capacity as Karnavan of the Vazhayil Thavazhi. He filed a written statement and, among other things, he contended that the properties in dispute were Puthravagasam properties of the Vazhayil Thavazhi, that Nangomma and her children had separated long ago from the Tarwad and the properties having been acquired by the members of the Thavazhi became Puthravagasam properties to which the Thavazhi alone was exclusively entitled, that he as Karnavan was entitled Jo be in possession of them and also of the income, and that the plaintiffs had no sort of right to any of the properties of the Thavazhi. The Temporary Subordinate Judge of Tellicherry held that the properties were hot Puthravagasam properties of the Thavazhi but belonged to the Tarwad and that the defendants Nos. 1 to 4 should surrender possession to the plaintiffs. On appeal the late Chief Justice and Seshagiri Aiyar, J., upheld the decision of the Subordinate Judge and dismissed the appeal of the defendants. It has been found by the Subordinate Judge who tried this suit that the conduct of that litigation was bona fide, and it is now conceded in appeal that it was so.

(3.) It is contended by Mr. Menon for the appellants that that decision in Original Suit 18 of 1914 is not res judicata as between plaintiffs and first defendant inasmuch as the plaintiff hi that suit did not admit the existence of the Thavazhi. He further argues that though the matter now in dispute was directly are substantially in issue in the former suit, yet that suit was not between the game parties inasmuch as the 14 defendant therein was only brought on record on the objection of the defendants, and the suit as framed was not against the Thavazhi as represented by its Karnavan. No doubt, in that suit the plaintiff sued for possession of certain properties from persons who, according to his contention, were not entitled to be in possession of them. But the defendants vehemently urged that the properties belonged exclusively to their Thavazhi and that the 14 defendant was its Karnavan and, therefore, was the proper person to represent the Thavazhi. It was on the objection of the defendants Nos. 1 to 4 that the plaint was amended on 4 September 1914 and Olieth Pallikutti, the Karnavan of the Thavazhi, was added as the 14 defendant and he filed a written statement alleging among other things that the suit properties were Puthravagasam property of his Thavazhi that there was no community of interest between his Thavazhi and the Tarwad of which the plaintiff was Karnavan and that the rights, if any, of the Tarwad were barred by limitation and that the plaint properties had been given for maintenance to defendants Nos. 1 to 4 who were members of his Thavazhi and that he was, therefore, entitled to the income of the properties. It is difficult to appreciate the contention that the Thavazhi was not represented in that suit simply because the plaintiff ignored its existence when he filed his plaint though he joined issue with the defendants on the questions--whether there was a Thavazhi and whether the properties in dispute were the properties of the Thavazhi or of the Tarwad. It was held in Vasudevan V/s. Sakanran 20 M. 129 (F.B.) 7 C.L.J. 102 : 7 Ind. Dec. (N.S.) 90 that "a decree in a suit in which the Karnavan of a Nambudri Mom or a Marumakkattayam Tarwad is, in his representative capacity, joined as a defendant and which he honestly defends is binding on the other members of the family not actually made parties." The leading judgment in that case Is that of Mr. Justice Shephard who observes at page 141: "Now it is conceded that, when a Karnavau sues on behalf of the family, he fully represents all its other members and an adjudication therein, it there is no fraud or collusion, is binding on the whole family Subramanyan V/s. Gopala 10 M. 223 : 3 Ind. Dec. (N.S.) 908. It is obvious that in such cases it is not possible to maintain any other view. For the entire executive authority being exclusively vested in the Karnavan, it is not open to the party sued by him to raise any objection to the action on the ground of the non-joinder of the other members Byathamma v. Avulla 15 M. 19 : 5 Ind. Dec. (N.S.) 363"... "By parity of reasoning, then, it follows that a Karnavan can be sued on behalf of the family. It is difficult to see how this conclusion can be avoided, unless the argument of the defendant based on the provisions of the Civil Procedure Code were correct." It was contended in that suit that, under Section 30 of the Code of Civil Procedure, all the members of the family should have been made parties. Under the old Section 30, which was only an enabling section it was not obligatory on the plaintiff to make all the members of a Tarwad parties to the suit. The learned Judge further observes: "There are instances, where even though the difficulty with reference to the application of the general rule has nothing to do with the fact that the persons interested are numerous, yet the law does allow, apart from statute, certain persons to prosecute or defend suits in their representative capacity, e.g., Hindu widows with reference to reversioners other persons having an estate analogous to that of a Hindu widow with reference to those entitled to take after such qualified owners, and so on. In the cases last mentioned the limited owners possess the representative capacity to sue or defend by virtue of their position. This, as already shown, is eminently true in the case of a Karnavan. Consequently, he does not require the aid of Section 30 to be a representative, but has the inherent right to act Vis such, provided, of course, there is in the particular case no conflict between his own interest and that of the family" . . . "Therefore, unless there is shown in the words of Jessel, M.H., "fraud or Collusion or anything of that sort or that the Court was cheated into believing that the case was fairly fought or fairly represented when in point of fact it was not, "Commissioners of Sewers of the City of London V/s. Gellatly (1876) 3 Ch. D, 610 : 45 L.J. Ch. 788 : 24 W.R. 1059 a decision in a suit, defended by a Karnavan in his representative capacity, must be held to be binding upon all those represented by him." In Gobind Chunder Koondoo V/s. Taruck Chundef Bose 3 C. 145 : 1 C.L.R. 35 : 2 Ind. Jur. 349 : 1 Ind. Dec. (N.S.) 682 (F.B.) it was held by a Full Bench that "when once it is made clear that the self same right and title is substantially in issue in two suits, the precise form in which either suit was brought or the fact that the plaintiff in the one case was the defendant in the other became immaterial." In Meethala Veetil Kaitheri Kelu Nambiar V/s. Kaitheri Chathu Nambiar 52 Ind. Cas. 258 : (1919) M.W.N. 34 : 9 L.W. 34 : 9 L.W. 84 : 25 M.L.T. 66, it was held by a Bench of this Court, that if a matter be in issue under Section 11 of the Civil Procedure Code, it is enough if the decision about it is necessary for the decree and it is not further, necessary that there should be an express issue about it. In Original Suit No. 18 of 1914, Issue No. 4 "whether the plaint "properties belong to the Olieth Tarwad as alleged by plaintiff or to the Olieth Vazhayil Thavazhi as alleged by defendants Nos. 1 to 4 and 14, and whether there is such a Puthravagasam Thavazhi as alleged "was distinctly raised and Issue No. 7 "whether plaintiff is entitled takeover possession of the plaint properties" was also, considered. It is difficult to see how it can" be contended that in the previous suit the Thavazhi was not properly represented, and the question in issue in this suit was not distinctly raised. Mr. Menon's vehement contention that the suit which was brought was net against the Thavazhi and, therefore, the decision in that suit could not operate as res judicata has no foundation when it is remembered, that the defendants raised the question of the existence of the Thavazhi and had the Karnavan of the Thavazhi brought on record as the 14 defendant, and he honestly defended that suit by contending that the plaint properties were Puthravagasam properties of his Thavazhi and that, he was its Karnavan and, therefore, entitled to be put in possession of them, should the Court for any reason hold that the document under which defendants Nos. 1 to 4 held them should be set aside. Whatever may have been the frame of the suit when it was filed, defendants Nos. 1 to 4 and the 14 defendant were arrayed as appellants and the plaintiffs and the other defendants as respondents in the High Court, and it is impossible to contend that the plaintiffs Thavazhi was not a party to the appeal on the face of the records of the Appellate Court. I, therefore, hold that the plaintiff's suit is barred by reason of the decision of the Temporary Sub-Court, Tellicherry, in Original Suit No. 18 of 1914. The argument founded on the frame of the plaint cannot be urged against the Memorandum of Appeal to the High Court. The decision of the High Court in Appeal Suit No. 96 of 1916 on the points now in dispute is res judicata between plaintiffs and defendants.