VAYYAPRATH KUNNATH PACKI Vs. VAYYAPRATH KUNNATH MUHAMMAD

JUDGEMENT

(1.) The main question for determination in this appeal is whether a junior member of a Malabar tarwad can sue on behalf of the tarwad, even when there is a karnavan in existence, who can bring the suit. The powers of a karnavan have been considered on many occasions and it has always been held that he is the controlling authority of the tarwad and that all the powers of management are vested in him. In fact, over sixty years ago, it was held by Mr. Holloway, with regard to a karnavan : " A Malabar family speaks through its head, the karnavan, and in Courts of Justice except in antagonism to that head can speak in no other way. " That principle has been upheld in Vasudevan V/s. Sankaran (1897) ILR 20 M 129 :7 MLJ 102 (FB) and what is practically the same principle has been laid down later in Soopi V/s. Mariyoma (1919) ILR 43 M 393 : 38 MLJ 207. adopting a decision in S.A. No. 959 cf 1917 in which it was held that " only under very special circumstances could the anandravan of the tarwad maintain a suit for redemption of a kanom granted by their karnavan, as such a suit would amount to an act of interference in the karnavan's management of tarwad affairs. " In Cheria Pangi Achan V/s. Unnal Achan (1916) 32 MLJ 323 it was held by Sadasiva Aiyar, J. that " unless the karnavan himself is disabled from suing to recover possession of or obtain other relief regarding the tarwad property an anandravan cannot be allowed to sue on behalf of the tarwad for the relief claimable by the tarwad in respect of the tarwad property. " We find the same principle in Rajah of Arakal V/s. Churia Kunhi Rannan (1915) 29 MLJ 633. Acting on this principle the Lower Courts have held that the appellant has no right of suit and accordingly dismissed it. There is one authority which would appear to support the appellant and that is Anantan v. Sankaran (1890) ILR 14 M 101. It is a very brief judgment and does not discuss the principle at all. The material portion of the judgment runs as follows: The karnavan is included as a defendant in the suit and as he has failed to sue till the period of 12 years has almost expired, we are of opinion that the suit by the junior members cannot be validly objected to.

(2.) If this be taken as a broad proposition of law that in all circumstances the junior member will be entitled to sue when the karnavan has failed to do so, it seems to be opposed to all the prior and subsequent decisions which deny such a right of suit to anandravan unless there are special circumstances which justify his bringing such a suit. But if we look to the facts of that case we rind that the two members of the tarwad whose actions were impeached were defendants and all the other members of the tarwad were plaintiffs. Applying the facts to the judgment, the case does come within the principle mentioned above that an anandravan may be permitted to sue when the karnavan had disabled himself from bringing such a suit. In this case the karnavan had, through his agent, another member of the tarwad, made an alienation which was sought to be set aside it would have been difficult for him to have brought the suit to set aside his own transactions and in that view this case is perfectly consistent with the other cases that I have mentioned above and I think that the decision must be read in the light of these facts. There appears to be no other authority opposed to the cases I have cited.

(3.) On the facts of the present case the appellant has nothing particular in his favour. The karnavan who made the alienation is dead. He was succeeded by another and he is also dead, and very recently the 1 defendant has become the karnavan. In the plaint it is not alleged that plaintiff consulted the 1 defendant or that the 1 defendant was neglecting the interests of the tarwad. In fact, no allegation of misconduct is made against him. It is only here in second appeal that it is said for the first time that the 1 defendant was acting in collusion with the alienee. The suit was brought by the plaintiff nine months before the claim would have become barred and inasmuch as the 1 defendant had only recently assumed office, there is nothing to show that the plaintiff believed that he would not take action if approached in the matter. I think it would be very undesirable to extend the right of an anandravan to bring a suit on behalf of the tarwad for it would lead to multiplicity of litigation and there would be no finality whatever. The case cited have laid down the restrictions which should be imposed on such suits and 1 entirely agree. In that view the plaintiff has not disclosed any cause of action, that is to say, he is not entitled to bring such a suit and the decree of the Lower Court is right.