SANKARAN ALIAS KUNHUNNI NAMBUDRIPAD Vs. VATAKKINIYEDATH KIRANGAT MANAKKAL SREEDHARAN ALIAS ANUJAN NAMBUDRIPAD

JUDGEMENT

(1.) The parties in this suit are members of a Nambudri illom in Malabar. The 1st plaintiff was the de jure karnavan and the other parties are anandravans. In 1918 the family entered into a karar which is filed as Ex. I and in this karar provision was made for the management of the illom. The 1 plaintiff, the de jure karnavan, gave up practically all his rights as such, retaining only certain privileges. The 1 defendant, who was then the senior anandravan, was appointed manager of one set of properties and the 3 plaintiff was appointed manager of another set of properties. The karar is a very long document and provides in detail for the various acts of management and for the succession to the managership. After the 1 defendant had been managing the properties allotted to him for some time, the 1 plaintiff and plaintiffs 2 and 3, who were the only other adult males in the illom were dissatisfied with him and called upon him to explain his conduct. He failed to do so and accordingly the plaintiffs sent him a registered notice informing him that he was dismissed from his office. This was in accordance with the procedure laid down in paragraph 25 of the karar. The 1 defendant was still obstructive and accordingly this suit was brought for a declaration that he was no longer entitled to manage and for an account and various other reliefs. After the suit was filed the 1 plaintiff died and the 1 defendant became the karnavan of the illom. Plaintiffs 2 and 3 wished to go on with the suit representing that the cause of action survived to them, but the 1 defendant contended that the suit must abate inasmuch as he was karnavan and the legal representative of the 1st plaintiff and that his rights as karnavan were not affected by the conditions in the karar and that no suit would lie. The Subordinate Judge has accepted the contention of the 1 defendant and has held that inasmuch as he has succeeded to all the rights of a karnavan, the practical effect of allowing the suit to continue would be to remove him from his karnavasthanam, and as that is not the original plaintiffs case the suit must abate.

(2.) It is argued in appeal that, as a matter of fact, the 1 defendant has not got the full rights of a karnavan because, he, being a party to the karar, is bound by the terms of it and has by that karar renounced his right to become a karnavan in the ordinary acceptation of the term. It is not disputed and it was laid down by a Full Bench in Kenath Puthen Veettil Tanazhi V/s. Narayanan (1904) ILR 28 M 182 : 14 MLJ 415 (FB) that a karnavan can renounce his rights. In that case an anandravan under family karar agreed to have his rights as karnavan restricted when he succeeded to the office and it was held that such an agreement was effective. A number of other cases have been cited on this point and this principle has never been disputed, but it has been laid down that such a renunciation must be clearly expressed in the karar. In a case in Krishnan Kidavu V/s. Raman (1915) ILR 39 M 918 relied on by respondents on the terms of the karar in question there, it was held that there was no renunciation; but every case must be determined on its own facts and here we have to consider what is the meaning of the karar, Ex. I. The 1 defendant in so many words does not say that he gives up his rights; but he is a party to all the conditions contained in the karar, and one of these is that the karar shall be in force until it is set aside by means of a registered document executed by all the adult members together. Admittedly that other document has not been executed and prima facie the karar would still be in force. It is, however, argued for the 1 respondent that the karar was not intended to have any force after the death of the 1 plaintiff, the then de jure karnavan. It is, however, significant that in paragraph 15 there is a provision that the document shall be in the name of the karnavan " for the time being, " which clearly contemplates the death of the present karnavan and the succession of somebody else. Again in paragraph 20 there is a provision that both the present and future karnavans shall do so and so. Here again it is obvious that the acceptance of the karar contemplated its continuing in force after the lifetime of the then karnavan, the 1 plaintiff. Again there is a provision in Clause 26 which runs as follows : " At also the death of the members who are managers, new members shall be appointed for management in accordance with the consent of the majority; at change of persons or change of office (sthanam) all matters shall be conducted in accordance with the karar. " The word translated as office is sthanam, and it is contended for the appellants that this refers to karnavasthanam inasmuch as there is no particular sthanam or estate attached to this illom and it cannot refer to a sthanam in that sense. On the other side it is contended that it merely means the office of manager of the two sets of properties mentioned in the karar. Those managers are referred to in the first sentence of Clause 26 and the word used is not sthanam. Similarly if it is to be interpreted as office of manager, the recital " at the change of persons, " (viz.,, the persons who are managers), "or the change of office, " (viz., the office of manager) is tautological and it seems unlikely that that can be the;meaning. Whether we say that it refers to karnavasthanam or anandravasthanam it does not make much difference, because when the karnavan died there is a change in the karnavasthanam, and one anandravan loses his anandravajsthanam and becomes a karnavan. The word sthanam seems quite applicable if interpreted in this sense; and taking all the recitals in the karar together, especially paragraphs 15 and 20, and the last part of paragraph 26, it certainly seems as if the karar was intended to have effect not only during the lifetime of the 1 plaintiff but also until all these executants chose to put an end to it by executing another karar. If it is so, and we think it is, the 1 defendant clearly renounced his right to become karnavan with unrestricted powers. In that view, he is not necessarily the only representative of the 1 plaintiff. He is the de jure karnavan but this suit does not relate to his acts as such but as manager of one of the two sets of properties or sthalams as they are called. Ordinarily the karnavan ought to bring a suit for the recovery of tarwad property and it has been held that an anandravan cannot sue unless the karnavan is under some disability such as cases where he has himself alienated the tarwad property [vide Cheria Pangi Achan V/s. Unnalachani (1916) 32 MLJ 323 on which the Lower Court relies]. Here there is a very clear disability in the case of the 1 defendant, for he would be bringing a suit to recover property from himself and for his own removal from office, and this is clearly impossible. The only other persons that can sue are the other members of the illom, and the only adult members are plaintiffs 2 and 3; the suit is therefore maintainable by them.

(3.) The Subordinate Judge does not seem to have considered whether, apart from the karar, the suit would not lie. The 1 defendant is charged with misconduct as an anandravan and the fact that he has become karnavan since he misconducted himself cannot absolve him from his liability for such misconduct. The mere fact of becoming a karnavan cannot do away with his responsibility for all his previous acts. He as an anandravan is liable, if the plaint allegations are true, to make good certain property to the tarwad. It may be that that property will have to be handed over into his own hands, as karnavan but it will be handed over to him on behalf of the tarwad. He is liable to the tarwad and it is on that account that he is sued. It is contended on his behalf that any suit brought by the illom must be brought within the provisions of Clause 18 of the karar which provides that it must be brought by the manager of each sthalam and the karnavan conjointly. That clearly refers to suits by the illom against third parties, and cannot refer to suits between the parties based on breaches of the karar itself. The further contention that there is no cause of action against the 1 defendant and that the suit is premature because not having been in office for one year, he is not bound by the karar to render accounts, cannot possibly be sustained. An agent who is bound to render accounts at the end of a year is not absolved from liability for the acts committed in the course of that year, and, even if he is dismissed before the time arrives for the rendering of accounts, he would have to make good any misappropriations, and, in doing so, the Court would call upon him to render an account to ascertain what they were. In this view also, so far as certain of the prayers in the plaint are concerned, the suit would be maintainable.