KOZHIKOT PATINHARE KOVILAGATH THAMBATTI THAMBURATHI ALIAS VIYATHEN NOTTI ALIAS VALIZA THAMBURATHI AVERGAL, MANAGER OF THE KOVILAGAM (DECEASED) Vs. KATTAYAHAT VATAKARA THEIZHATH TARAVATHIL KARNAVAN SANKARA MENON

JUDGEMENT

(1.) The facts, so far as they are necessary for the arguments which we propose to consider, are that the second plaintiff, here one of the appellants, is's melcharthaar under a meleharth given by the first plaintiff, the senior lady of a Kovilagam. Third plaintiff was the senior male member of the Kovilagam. Many years back, the first plaintiff's predecessor had been removed from management under Exhibit XI. Subsequently, the first plaintiff, as she contends, was restored to management by Exhibit Frexecuted by the senior male member, who had in due course succeeded the person who took office under Exhibit XI. The suit is for redemption of a previous kanom of the Kovilagam property, and the main question raised is whether the first plaintiff had authority to give the melcharth, Exhibit B. There is a subsidiary question as to whether, if she had no authority to give Exhibit B. that was made good by the ratification of her action in doing so, constituted by the third plaintiff's pleadings. And, lastly, there is a question as to the effect of the proceedings and the conduct of the third plaintiff in the lower Appellate Court and of his death during their pendency in this Court and the refusal of his legal representative to follow his original pleadings.

(2.) Dealing first with the two points last mentioned, we have the conduct of the third plaintiff in the Appellate Court described in paragraph 5 of this Court's judgment. Third plaintiff's connection with the case began, when he applied to be made a plaintiff in the Court of first instance, stating in his affidavit that he approved of Exhibit B and that a decree for redemption of Exhibit B might be given to the second plaintiff. In the lower Appellate Court, the Pleader for the third plaintiff as stated in paragraph 5 of the judgment under appeal, represented that he did not ask for a decree on the strength of title. The language of the lower Appellate Court is not felicitous. But we understand it to have meant that the third plaintiff did not ask for a decree in favour of the Kavilagam or himself, not that he in anyway withdrew his support of the second plaintiff or his suggestion that a decree should be passed in the second plaintiff's favour. So far, we cannot see how the third plaintiff did anything which in any way detracted from the effect of his previous affidavit as a ratification of the plaintiff's act in giving Exhibit B; whether it did effect a ratification of that act we shall consider in the sequel.

(3.) Next, the legal representative of the third plaintiff in this Court was really joined as the legal representative of the second defendant although he does not now rely on that character and has appeared before us only as representing the third plaintiff. His claim to do so is not being disputed by any of the other parties. Mr. Krishna Varior on his behalf states that he desired to oppose the second plaintiff's claim and to repudiate the action of the third plaintiff, in so far as it approved or ratified the grant of Exhibit B. We are not able to understand how this can be justified by Order XXII Rule 4, Clause 2, or how that provision can he applied to the case of a legal representative whose predecessor never made or could have made a defence at all. In Birendra Kishore Manikya Bahadur V/s. Akram Ali 13 Ind. Cas. 513 : 15 C.L.J. 194 : 39 C. 439 : 16 C.W.N. 304 and Rangasami Gounden V/s. Nachiappa Gounden 50 Ind. Cas. 498 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N.777 : (1919) M.W.N. 262 : 26 M.L.T. 5 : 10 L.W. 105 : 461. A. 72 (P.C.) it was laid down as settled law that "he who has the right to complain must do so when the right of action is properly open to him and he knows the facts." We are not able to understand how the present legal representative of the third plaintiff has any different legal character from the third plaintiff himself or any which would enable him to abandon the third plaintiff's contentions in the present proceedings, with which alone we are concerned.