KRISHNAN KIDAVU (MEPPAT PARKUM ANANDRAVAN) AND ELEVEN ORS Vs. RAMAN ALIAS PUTHALATHUNNAVAL SHYLED KOTAKKAT PANIKKAR AND SIX ORS

JUDGEMENT

(1.) The facts of this case are not in dispute. Defendants Nos. 1 to 17 are members of a Malabar tarwad. The first defendant is the karnavan. The eighteenth defendant was the karnavan before him. This tarwad along with four others possesses three atanams. Succession to the stanams is by seniority. The eighteenth defendant became a atani, He was then succeeded in the karnavanship by the first defendant. It was found that ha was not capable of managing the tarwad affairs. Thereupon, he (the first defendant), the eighteenth defendant, the previous karnavan and the senior female member entered into a karar (Exhibit I) on the 12th May 1884. It is said there were other members. They were not parties to the karar.

(2.) Mr. Anantakrishna Ayyar says that they were all minors. The effect of the karar is to vest the management in the eighteenth defendant, although he was no longer a member of the tarwad. At the time of the karar, the defendant s tarwad had obtained an otti deed of the properties in suit from the predecessor in title of the plaintiff. This was in 1817 (Exhibit B) and the money was payable twelve years after, It is not disputed that the time for the redemption of this otti had not expired when Exhibit I was entered into. In March 1890 after the eighteenth defendant had been given the rights of management, the first defendant obtained a renewal of Exhibit B. It is exhibit A in this case. The plaintiff brings this suit for redemption. The plea of She defendants is that at the time of Exhibit A the first defendant had no right to obtain the renewal on behalf of the tarwad, and that consequently it did not affect the rights of the tarwad, and as plaintiff s right to redeem would be barred but for Exhibit A, the defendant s tarwad had acquired a title by prescription to the property. The Subordinate Judge held that Exhibit I did not deprive the first defendant of his right to obtain a renewal and decreed the plaintiff s claim. Hence this second appeal. The question is not free from difficulty; but after giving my very careful consideration to it, I have come to the conclusion that the lower Appellate Court is right.

(3.) Before dealing with the construction of Exhibit I, I may dispose of some of the contentions raised by Mr. Rosario for the respondents in support of the decree of the Subordinate Judge. The learned vakil contended that as the karar was entered into only by two of the members of the family with a person who ceased to belong to it by virtue of his having attained to one of the stanams, it had not the sanctity which attaches to family karars in Malabar. I am not satisfied that this position is correct. In Ratinbarkara Cullabhan Chassan Rajah v. Kamabarma (1916) 28 M.L.J. 669 I had to examine the relationships to the tarwad of a person who had succeeded to a stanam. It is clear that if in his new sphere the stani acquires property and does not dispose of it, his tarwad will be entitled to it. The converse position is at least arguable. If the tarwad becomes extinct, the quondam member who had become a stani may lay claim to the property. It cannot, therefore, be said that the attainment to a stanam severs the relationship altogether. The parson thus ceasing to be a member is not in the position of a stranger, As at present advised I am unable to agree with Mr. Rozario that the karar loses vitality because the eighteenth defendant was one of the parties to it. His further contention was that as by the karar, the management was vested in a person who was not a member of the tarwad at the time, the document is of no effect whatever. Reliance was placed upon the decision in Chappan Nayar v. Assert Kutti (1889) I.L.R. 12 Mad. 219 for this argument. In that case, the learned Judges held that an arrangement by which the right of management was delegated to the son of the karnavan was invalid. I am very unwilling to express dissent from a judgment to which Muttuswami Ayyar, J., was a party. His long experience on the Bench and his special knowledge of Malabar Law and Customs invest his pronouncements with great authority. It is with considerable diffidence, therefore, that I venture to express my doubts regarding the correctness of the dictum in Chappan Nayar v. Assert Kutti (1889) I.L.R. 12 Mad. 219. The karnavan has two capacities--a temporal and a spiritual one. In the former he is the manager of the family properties, maintains the junior members, represents the tarwad in transactions with strangers, etc. In his latter capacity he presides at the ceremonies and performs all the religious, duties which are incumbent on him. A stranger cannot supplant him in this latter office: but I fail to sea why his duties as manager could not be delegated to a stranger. If a receiver is appointed pending a suit for the removal of a karnavan, this officer will have all the rights of a karnavan so far as management is concerned. An agent who acts with the consent of all the members in managing the temporal affairs of a tarwad cannot be in a worse position. I am therefore not prepared to rest my decision on the authority of Chappan Nayar v. Assen Kutti (1889) I.L.R. 12 Mad. 219 and to hold that as the karar gave one management; to the eighteenth defendant who had ceased to be a member of the tar wad, it did not deprive the first defendant of any of his rights.