THAZHEKAT MANAYIL KARNAVAR NARAYANAN THIRUMUPU Vs. POONTHURUTHI EDAVALATH ANADIL KIZHAKKINAKATH KAMARAN MOOTHA PODUVAL

JUDGEMENT

(1.) This appeal arises out of Original Suit No. 18 of 1925 on the file of the Sub Court of Tellicherry which was a suit for an account of the management of the Payyanur Devaswom by defendants Nos. 1 to 6 in their capacity as Uralars from 1909, for the recovery of the sum that might be found due as a result of the accounts from the defendants personally and from their family property and for an injunction restraining them from interfering with the management of the Devaswom by the 11 plaintiff who was appointed Samudayi by plaintiffs Nos. 1 to JO. The claim in respect of the 11 plaintiff was dismissed by the Subordinate Judge but the relief in respect of the account was decreed. The 1 defendant filed the appeal. During the pendency of the appeal he died and his successor, the present karnavan of the Thazhekkat mana, has been added as his legal representative, the 2nd appellant.

(2.) The suit Devaswom is known as "Grama Kshetram" i. c, village temple, and is a famous temple of North Malabar. It was originally managed by the village Council consisting of the karnavans of 16 Nambu-diri manas and 15 Poduval Uralars, 10 of them being Mootha Poduvals and 5 Elaya Poduvale. 10 Poduval families of the village are each entitled to send one Mootha Poduval to the temple Council the nominees being the karnavans thereof. Five of the said families have the further privilege of sending their representatives, the senior Anandravans, to the same Council who would be styled as "Elaya poduvals." The 1 7 plaintiffs in this suit are Mootha Poduvals. The 11 plaintiff also claimed to be an Elaya Poduval. After the suit was filed the 4 plaintiff died and it was claimed for the plaintiffs that the 11 plaintiff became a Mootha Poduval after having pert formed the Moopu Thozhal ceremony and his place as Elaya Poduval devolved upon the 11 plaintiff. Defendants Nos. 1 to 6 are karnavans of 6 of the Nambudiri manas and they are admitted to be Uralars. Defendants Nos. 7 to 13 are some of them Mootha Poduvals and some Elaya Poduvals who have not performed the Moopu Thezhal and Elama Thozhal ceremonies. The plaintiffs claimed that defendants Nos. ] to 6 should render them an account in respect of the management of the Devaswom from 1909. The defendants pleaded that the 1 defendant acquired the hereditary right of Samudayam by prescription. They also pleaded that there were 7 other manas who have couraima right in the temple and the suit is bad on account of their non- joinder. They denied the right of the 11 plaintiff to manage the temple and the liability of the 1 defendant to render an account. As already mentioned, the Subordinate Judge found that the appointment of the 11 plaintiff could not be upheld and dismissed that portion of the suit. In the appeal the appellant urged several objections: (1) that the karnavans of the Thazhekkat manaare prepetual and hereditary Samudayis, that the suit is bad for non-joinder on account of not having impleaded at least two Nambudiris, namely, the karnavans of the Thavath and Thathi-yeri manas, 102 Ind. Cas. 225 : 29 Bom. L.R. 418 : A.I.R. 1927 Bom. 424 that a suit for accounts by one Uralar against a co-Uralar without any allegation of breach of trust or a threatened breach of trust is not maintainable, (4) that the tarwad of the 1st defendant is not liable for the misfeasance of the 1 defendant unless the tarwad is in possession of the assets of the 1 defendant or unless it is shown that the tarwad was directly benefited by getting possession of the funds belonging to the trust, and (5) that, in any event, as the 1 defendant became karnavan only in December, 1922, the relief for an account should not extend beyond the period from December, 1922 to October, 1924 when the 1st defendant died.

(3.) There have been continuous litigation between the Poduval Karalars on the one hand and the Nambudiri Thirumupus (Uralars) on the other for a number of years in respect of this Devaswom. For a long time the karnavans of Thazekkat mana were claiming to be the perpetual Samudayis of the Devaswom under a document which has been found not to be genuine and latterly the 1 defendant has been asserting the right by reason of adverse possession. Though some of the Nambudri manas became extinct, attempts to revive some of the extinct manas by adoption into those manas seem to have been made. One such attempt in respect of the Rayara Mangalath mana seems not to have been questioned and to have been recognised even by the Poduvals. The karnavan of that mana is the 2nd defendant in the present case. In respect of two other manas, the Thavath and Thathiyeri manas, similar adoptions were set up and the persons so affiliated into these manas having married female members of the Thazekkat family were allowed to take part in the management of the trust. They were joined as parties in Exs. 1, 2 and 3 which were kanom deeds and in Ex. XI, a kvzhikanom deed, and in fact whenever the document did not stand in the name of the 1st defendant alone but in the name of several Uralars they seem to have been allowed to come in. But the Poduvals never admitted their rights. On one occasion while not admitting their rights, the Poduvals impleaded these two individuals as defendants. That was a suit for defining the ceremonies which a karnavan has to undergo for becoming a Mootha Poduval and for an injunction against the Uralars. The judgments in connection with that litigation are Exs. HH, JJ and KK (AAA being the decree). It came upon second appeal to the High Court; in another litigation the suit was by some of the Uralars impleading the karnavans of the Thavath and Thattiyeri manas as defendants. The other defendants pleaded that these two had no uraima right and the District Munsif found against the right (Ex. VII). On appeal by them the Subordinate Judge of North Malabar found that there was a usage according to which their adoption into the Nambudiri's families of Thavath and Thathiyeri manas should be recognised as valid and allowed the appeal. (Exhibit VIII). We are now invited to consider the question of the validity of the adoption of these two individuals into their respective manas and if we find them valid, to dismiss the suit on the ground of nonjoinder. It is even suggested that we should first implead them as parties so as to avoid the inconvenience of deciding the question behind their back. We may at once say that we do not see any reason to follow the latter course and as we think that the case can be disposed of on other grounds we do not feel it necessary to decide on the status of those two individuals. They have given evidence as D. Ws. Nos. 4 and 9 showing that they were recognised. Exhibit DD is another judgment in a suit in which they joined as plaintiffs, but nothing was decided. In our opinion this question of non- joinder among other questions in the case need not be disposed of in this suit as we think that the suit can be decided on simpler grounds.