A NARAYANAN NAMBUDRI Vs. PUTHISSERI THEVA AMMA

JUDGEMENT

(1.) The only point for consideration in this appeal is whether an appeal lay to the lower appellate Court from the order of the District Munsif on a petition filed under Order 21, Rule 58, and Section 47, Civil P. C. A decree was obtained in O. S. No. 345 of 1912 by one Narayanan Nambudri against Krishnan Nair and his brother Ramunni Nair for Rs. 344. Krishnan Nair was made liable as karnavan of the tarwad in addition to his personal liability. In execution of that decree certain moveables belonging to the tarwad were attached. The junior members objected to the attachment on the ground that the tarwad was not bound by the decree. They failed in their petition and 22 junior members brought O. S. No. 38 of 1920 to set aside the decree so far as the tarwad was concerned and they succeeded in the suit with the result that Krishnan Nair and Ramunni Nair were made personally liable for the decree amount. The decree-holder attached some of the properties of the tavazhi and the sister of Krishnan Nair and Ramunni Nair objected to the attachment on the ground that the properties belonged to the Putravakasam tavazhi and that the judgment-debtors had no exclusive interest over it. This petition was presented under Order 21, Rule 58, and Section 47, Civil P. C. The District Munsif dismissed that petition; on appeal to the lower appellate Court it was contended that no appeal lay as the members of the tavazhi were not parties to the suit. But the Subordinate Judge overruled that objection and on the merits allowed the appeal. Narayanan Nambudri, the decree-holder, has filed this civil miscellaneous appeal. The contention of Mr. Krishna Menon for the appellant is that the appeal to the lower appellate Court was incompetent as the petitioners who objected to the attachment were not parties to the decree or their legal representatives.

(2.) To O. S. No. 345 of 1912 Krishnan Nair and Ramunni Nair were parties as well as the tarwad of which Krishnan Nair was the karnavan. The objection now put forward is that the property under attachment does not belong to the tarwad, but is the property of the tavazhi which was not represented in the suit. The Subordinate Judge, in para. 3 of his judgment, says: No doubt the property is now claimed as belonging to a tavazhi within the common tarwad, but on the same principle the tavazhi must also be considered to have been a constructive party.

(3.) The argument of the Subordinate Judge amounts to this: that if a tarwad is sued by making the karnavan a party or all the members of the tarwad parties, the tavazhis of which the tarwad is composed must necessarily be considered to be parties to be suit. This view is against the theory that a tavazhi is a distinct entity so far as the holding of property is concerned from the tarwad and though according to the peculiar system of Malabar law members of a tavazhi may form a tarwad, yet each tavazhi is entitled to own property separately and a tarwad cannot utilize the properties of the tavazhi for its purposes. In other words the tarwad and the tavazhi are two distinct entities or bodies for the purpose of owning property. The tavazhi property cannot benefit the members of the tarwad as a whole though the tavazhi members are entitled to get a share of the income of the tarwad property.