KADIRI KANAKKAPILLANTAPATH ABDUR RAHEMAN KUTTI HAJI, MANAGING PARTNER OF M KUNHI KADIRI AND SON S Vs. KOCHIPALLI HUSSAIN KUNHI HAJI, KARNAVAN AND MANAGER OF KOCHIPALLI

JUDGEMENT

(1.) The main question in these appeals is as to the liability of the Kochipalli Tarwad, of which the 1st defendant Kochipalli Ussain Kunhi Haji is the Karnavan, for debts incurred on hundis drawn in the course of a trade which he carried on along with Kotti Kollone Muhammad Kunhi alias Mamu Haji the 2nd defendant in Original Suit No. 15 of 1914 (Appeal No. 417 of 1917) now deceased and represented in the suits subsequently filed, by the present Karnavan of Kotti Kollone tarwad, Kotti Kollone Pallikunyi. The claim against the latter tarwad has not been pressed.

(2.) The business was conducted in the firm name of "Kochipalli Ussain Kunyi Haji Muhammad Kunyi" the names of the two defendants abovementioned, and the hundis were signed in the name of the firm. As found by the Subordinate Judge trade is the chief occupation of the male members of this tarwad as it is, I may observe, of many Moplas, and the proper-ties belonging to it were acquired by Kunyi Kuttiali Haji who was Karnavan until 1886 and by Bachi Kutty who succeeded him in karnavanship and held the position till his death in 1908 when he was succeeded by the 1st defendant. Kunyi Kuttiali Haji carried on his business in partnership at first with a stranger and then he and his younger-brother Hussain Kunyi bought up that partner s share and Hussain Kunyi became a partner with Kunyi Kuttiali Haji, and continued to be so until their business collapsed in 1901. Hussain Kunyi was not at the time the next in succession to Kunyi Kuttiali Haji but was only a junior Anandravan, the senior Anandravan being Bachikutty. That the business of Kunyi Kuttiali Haji and Hussain Kunyi did not belong to the tarwad but belonged to them personally cannot be doubted and has not been seriously disputed before us. It is sufficient in this connection to refer to the proceedings in Original Suit No. 485 of 1903 which was a suit instituted by Bachikutty claiming the shop in which the trade was conducted as belonging solely to Kunyi Kuttiali and that on his death it lapsed to the tarwad. It was never contended that the shop belonged to the Kochipalli Tarwad. The other evidence in the case also amply bears out that the business which Kuttiali Haji carried on did not belong to the tarwad. It is settled law that the self-acquisitions of a member of a tarward fall at his death to be inherited by the tarwad or, otherwise expressed, lapses to it. See the Full Bench decision in Govindan Nair v. Sankaran Nair (1909) I.L.R. 32 M. 351.

(3.) Bachikutty during the life-time of the then Karnavan, Kunyi Kuttiali had a separate business of his own and apparently in his own name, since 1878. It is not seriously contended before us that that basiness belonged to the tarwad and it could hardly have been so contended, considering that-Bachikutty being an anandravan he would not have the authority to carry on any trade on behalf of the tarwad. When he died all his properties including the assets of the business were inherited by the Kochipalli Tarwad of which he was a member. It may be taken to be proved that the 1st defendant who became the karnavan on Bachikutty s death continued Bachikutty s trade along with Bachikutty s son the 2nd defendant who, as already stated, is a member of a different family. This is the finding of the Subordinate Judge and it is amply supported by the evidence and the facts of the case. The 1st and the 2nd" defendants purported to have acquired Bachikutty s business under an oral bequest from Bachikutty and these two persons obtained a succession certificate to collect the debts due to Bachikutty. In that petition, Exhibit U, they alleged that the deceased made a verbal will on the 22nd of April 1908 (i.e., shortly before his death) that the outstandings due to him should be collected by the 1st petitioner the direct anandravan of the deceased and the present karnaavan of the tarwad (meaning the 1st defendant) and the 2nd petitioner the son of the deceased and that the business of the deceased should be conducted jointly by the two petitioners together". It does not appear that there was any opposition on behalf of any of the members of the Kochipalli Tarwad to the petition; and on the strength of the alleged will and the certificate so obtained the 1st and 2nd defendants, members of the two different tarwads, continued to carry on Bachikutty s trade. The debts now in question were incurred in the course of that business by the first two defendants for it is proved that when Bachikutty died he left no debts.