KACHAYI PUTHIAPURAYIL KUNHI KUTTIALI HAJI; ASSANAMPURATH MOIDEEN KUTTI Vs. UDUMPUMTHALA NALURAPATTIL KUNHI PATHA

JUDGEMENT

(1.) The plaintiff and the 1 defendant are Maho-medans following the Marumakkatayam system of law in South Canara. Many years ago when their tarwad was about to become extinct; the then surviving male member Kunhammad adopted two females Kanhamma and Beiyathumma. The former of these died leaving only a son Kutti Ammad. Tne said Beiyathumma having n,o issue adopted into the family, the first defendant - the daughterof a natural sister of hers and the first plaintiff, younger than the first defendant, the daughter of the first defendant's sister. The second and third plaintiffs are the minor children of the first defendant whose ages are stated to be 18 and 10 years respectively represented by their next friend, the natural brother of the first defendant. Cutti Ammad, who became the senior member of the Tarwad after Beiyathumma, died in September 1891. Before his death he had executed three bonds, one for Bs. 8,000 on the 28 January 1891 to one Vythan Kutti, another for Rs. 4,000 on the 21 August 1891 to the 2nd defendant, and a third for Rs. 1,500 on the same day to the 4 defendant, the advances having been, according to the instruments, made for the necessities of the Tarwad. The third defendant who is the assignee of the bond in favour of Vythan Kutti instituted O.S. No. 28 of 1898 for the recovery of the amount due under the bond in the District Court of North Malabar, against the 1 defendant and the plaintiffs. The second defendant brought O.S. No. 41 of 1898 in the same Court for the recovery of the amount due under his bond, against the same parties. The fourth defendant instituted O.S. No. 365 of 1898 in the Court of the District Munsif of Cannanore for the recovery of the amount due to him, impleading the same persons as defendants. In those three suits, the present 1 defendant was appointed guardian ad litem of the present plaintiffs, her co-defendants. In all of them, decrees were passed in accordance with compromises entered into by the respective plaintiffs with the first defendant on her own behalf and on behalf of the present plaintiffs, leave to enter into the compromises having been previously obtained from the Courts. Applications for execution of the decrees by sale of tarwad properties of the plaintiffs and the first defendant were made and granted and properties were advertised for sale. But no sales took place, the same having been adjourned from time to time at the request of the judgment-debtors up to the beginning of the year 1901. On the four March, of that year the present suit was instituted for the purpose of removing the first defendant from her position as Karnavathi of the tarwad and restraining defendants Nos. 2 to 4 from selling any of the tarwad properties in execution of their decrees. The District Judge granted decree to the plaintiffs as prayed for. The first defendant has acquiesced in the decree. The present appeals are by the second, third and fourth defendants only.

(2.) The decision of the District Judge against the appellants is upon the ground that Kutti Ammad was a minor on the dates on which the three bonds referred to were executed and that the first defendant though fully aware of the fact of Kutti Ammad's minority at the time of the execution of those bonds, wilfully refrained from setting up that point in defence in the suits brought by the appellants and in collusion with them entered into the compromises, upon which the decrees were passed. After careful consideration we are unable to accept the conclusions of the District Judge.

(3.) Their Lordships then proceeded to discuss the evidence on the points: - Ed.