NARAYANI Vs. PSANKUNNI MANNADIAR

JUDGEMENT

(1.) The main question in this second appeal is whether an ex parte decree in O.S. No. 134 of 1926 on the file of the District Munsiff's Court at Palghat obtained by the second defendant against the third and fourth defendants and the first plaintiff is binding on the plaintiffs and the tavazhi to which they belong. The plaintiffs 1 and 2 and the fourth defendant are daughters of the third defendant; the third plaintiff is the daughter of the fourth defendant. They form members of a tavazhi, the third defendant being its manager. The suit property belongs in Jenm to the first and second defendants who are members of a tarwad. In 1912 the management of the tarwad was vested in one Ravunni Mannadiar since deceased and the second defendant. They gave a kanom demise of the said property by a deed dated 14th October, 1912, to one Ananthakrishna Pattar who assigned his interest to the tavazhi of the plaintiffs by an assignment deed dated 24 February; 1916. The parties to the said deed were Ananthakrishna Pattar on the one hand and the third defendant and her minor children fourth defendant, first plaintiff and one Devaki since deceased. The said Ravunni Mannadiar died in October or November, 1923 and disputes arose between the first and second defendants as to the management of the tarwad property, the result of which was a suit by the first defendant against the second defendant to establish his right being O.S. No. 283 of 1923 on the file of the Additional District Munsiff's Court of Palghat. There was a decree in favour of the first defendant in or about 1924,. Subsequent to the decree the first defendant collected the michavaram due from the plaintiff under the kanom demise for 1099 and 1100. (Vide Exs. H and H-1.) Against the said decree the second defendant appealed, the decision of the Trial Court was reversed and the second defendant was declared the rightful manager. This was about March, 1925. There was a second appeal to the High Court against this decision by the first defendant. While the second appeal was pending the second defendant filed a number of suits against various kanom tenants of the tarwad including the plaintiff's tavazhi. The said O.S. No. 134 of 1926 was the suit instituted against the third defendant, fourth defendant and first plaintiff being a minor represented by the third defendant. It may be noticed that the term of kanom demise under which the plaintiff's tavazhi were holding expired in or about August or September, 1923, and the tarwad was entitled to sue for redemption. Ignoring the payments of michavaram made to the first defendant, the second defendant sued to recover the arrears of michavaram, and for redemption of kanom property, and possession thereof. It does not appear what specific pleas were raised on behalf of the defendants but from the evidence in the present suit it would appear that they pleaded that michavaram was paid to the first defendant and it ought to have been given credit to and that they are also entitled to the value of improvements on the property. Apparently a plea was also taken that the second defendant was not entitled to maintain the suit. After a number of adjournments there was an ex parte decree for redemption and surrender of possession on the second defendant depositing into Court a sum of Rs. 314-4-7 being the kanom amount less a sum of Rs. 90-8-0 the alleged arrears of michavaram and also costs of the suit. There was an application to set aside an ex parte decree but the same was dismissed by an Order dated 30 April, 1927. (Vide Ex. VIII.) Thereupon the third defendant filed a suit against the first defendant for recovery of the michavaram paid to him. While the suit was pending the second appeal filed by the first defendant with regard to his right of management was allowed by the High Court, the result of which was the first defendant was declared the rightful manager. In consequence of this decision the third defendant withdrew the suit against the first defendant. Before the second appeal was decided in the High Court the second defendant executed the decree in the said O.S. No. 134 of 1926 and recovered possession of the properties from the plaintiff's tavazhi. This suit has been filed by the plaintiffs for a declaration that the decree in the said O.S. No. 134 of 1926 is not binding on them, and for recovery of possession of the suit properties with mesne profits or in the alternative for recovery of the michavaram and costs of redemption action illegally recovered from them. The grounds alleged were (1) that the suit O.S. No. 134 of 1926 by the second defendant was incompetent in that he did not represent the tarwad; (2) the suit against the plaintiff's tavazhi was not duly constituted in that the suit was not against the tavazhi as such and all the members of the tavazhi were not made parties (3) the third defendant was guilty of gross negligence and fraud in the conduct of the said litigation. The first defendant at first supported the plaintiff but later on compromised the suit with the second defendant and ratified all that he did. The. second defendant alleged that he duly represented the tarwad and filed the said suit bona fide and the third defendant was not guilty of any negligence or fraud and no loss resulted to the plaintiffs by reason of the failure of the defendants in the said litigation. The learned District Munsiff upheld the contentions of the plaintiff and gave a decree for possession and mesne profits but the learned Subordinate Judge reversed his decree. Against this decision the present second appeal has been filed.

(2.) The first contention advanced by Mr. Unnikanda Menon is that in view of the decision of the High Court declaring the first defendant to be the rightful manager of his tarwad, the second defendant had no right to represent it and take any action on its behalf; a suit instituted by him on behalf of the tarwad would therefore be incompetent and the decree obtained therein inoperative and tantamount to a decree obtained by a stranger. I am unable to uphold this contention. The second defendant was himself a member of the tarwad and in certain circumstances he can himself file a suit for redemption on behalf of the tarwad but on the date the second defendant instituted the said suit O.S. No. 134 of 1926, he was declared to be the rightful manager by a decree of competent Court and the said decree until reversed in appeal was binding as between the second defendant and the first defendant. The second defendant was therefore the proper person to represent the tarwad and in any suit instituted by him a behalf of the tarwad it will not be open to a third party to set up the title of the first defendant. Therefore all actions taken by him will be binding on the tarwad unless it is shown that it was mala fide and against the interests of the tarwad. In this case when the said suit was instituted, the term of kanom demise expired and the cause of action for redemption accrued in favour of the tarwad and it has not been shown in this case that the suit for redemption was not sustainable. I asked Mr. Unnikanda Menon whether if the suit for redemption was filed by the first defendant, the plaintiffs would have had any defence and he was unable to say they would have had any. The second defendant therefore in bringing the said suit represented the tarwad and the decree obtained by him will enure to its benefit.

(3.) The next contention of Mr. Unnikanda Menon is that the decree in O.S. No. 134 of 1926 cannot bind the plaintiff's tavazhi as there was no representation of it in that all the members were not parties and the third defendant was not sued as representing the tavazhi. This contention also is untenable. The parties to the assignment deed were the third defendant, the fourth defendant, the first plaintiff and one Devaki. They represented the tavazhi in the deed and on the date of the institution of the suit, Devaki having died the remaining parties to the deed were made parties. They sufficiently represented the tavazhi. Further the third defendant was the eldest female member in management of the tavazhi. No doubt she was not specifically impleaded as such. But as pointed out by Wallace, J., in Vesu V/s. Kannamma1, the question is not so much whether a karnavan was specifically impleaded as representative of his tarwad as whether he was as a matter of fact not conducting the litigation for the tarwad and if it is found that he was, it does not matter if the other members were added or omitted to be added. There is nothing to indicate in this case that the third defendant was not conducting the litigation on behalf of the tavazhi.