(THAZHEKKAT MANAYIL KARNAVAR) NARAYANAN THIRUMUMPU Vs. POONTHURUTHI EDAVALATH ANADIL KIZHAKKINAKATH KAMMARAN MOOTHA PODUVAL

JUDGEMENT

(1.) This appeal arises out of Original Suit No. 18 of 1925 on the tile of the Sub-Court of Tellichery, which was a suit for an account of the management of the Payyanur Devaswam by defendants 1 to 6 in their capacity as uralers 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 devaswam by plaintiff 11 who was appointed samudayi by plaintiffs 1 to 10. The claim in respect of plaintiff 11 was dismissed by the Subordinate Judge, but the relief in respect of the account was decreed. Defendant 1 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, appellant 2.

(2.) The suit devaswam is known, as "Grama Kshetram" i.e. village temple, and is a famous temple of North Malabar. It was originally managed by the village council consisting of the karnavans of 16 Nambudri manas and 15 Poduval Karalars, 10 of them being Mootha Poduvals and 5 Elaya Poduvals. Ten 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 first seven plaintiffs in this suit are Mootha Poduvals and plaintiffs 8 to 10 are Elaya Poduvals. Plaintiff 11 also claimed to be an Elaya Poduval. After the suit was filed plaintiff 4 became a Mootha Poduval after having performed the Moopu Thozhal ceremony and his place as Elaya Poduval devolved upon plaintiff 12. Defendants 1 to 6 are karnavans of six of the Nambudri manas and they are admitted to be uralers. Defendants 7 to 13, are, some of them, Mootha Poduvals and some Elaya Poduvals have not performed the Moopu Thozal and Elama Thozal ceremonies. The plaintiffs claimed that defendants 1 to 6 should render them an account in respect of the management of the devaswam from 1909. The defendants pleaded that defendant 1 acquired the hereditary right of samudayam by prescription. They also pleaded, that there were, seven other manas who have co-uraima right in the temple and the suit is bad on account of their non-joinder. They denied the right of plaintiff 11 to manage the temple and the liability of defendant 1 to render an account. As already mentioned, the Subordinate Judge found that the appointment of plaintiff 11 could not be upheld and dismissed that portion of the suit. In appeal the appellant urged several objections; (1) that the karnvans of the Tazhekkat mana are perpetual and hereditary samudayis, (2) that the suit is bad for non-joinder on account of not having impleaded at least two Nambudris, namely, the karnavans of Thavath and Thattiyeri manas, (3) that a suit for accounts by a uraler against a co-uraler-without an allegation of breach of trust or a threatened breach of trust is not maintainable, (4) that the tarwad of defendant 1 is not liable, for the misfeasance of defendant 1 unless the tarwad is in possession of the assets of defendant 1 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 defendant 1 became karnavan only in December 1922 the relief for an account should not extend beyond the period from December 1922 to October 1924 when defendant 1 died.

(3.) There have been continuous litigation between the Poduval karalars on the one hand and the Nambudri Tirumumpus (uralars) on the other for a number of years in respect of this devaswam. For a long time the karnavans of Thazekkat mana were claiming to be the perpetual samudayis of the devaswam under a document which has been found not to be genuine and latterly defendant 1 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 adoptions into those manas seem to have been made. One such attempt in respect of the Tayara Mangalath mana seems not to have been questioned and to have been recognized even by the Poduvals. The karnavan of that mana is defendant 2 in the present case. In respect of two other manas, the Thavath and Thattiyeri manas, similar adoptions were set up and the persons so affiliated into these manas having married female members of the Thazhekkat 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 deed and in Ex. 11, a kuzhikanom deed, and in fact wherever the document did not stand in the name of defendant 1 alone but in the name of several uralers 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 uralers. The judgments in connexion with that litigation are Exs. HH, JJ and KK (AA.A being the decree). It came up on second appeal to the High Court. In another litigation the suit was by some of the uralers 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 Munsiff found against the right (Ex. 7). On appeal by them the Subordinate Judge of North Malabar found that there was a usage according to which their adoption into the Nambudri families of Thavath and Thattiyeri manas should be recognized as valid and allowed the appeal (Ex. 8). 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 non-joinder. 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 these two individuals. They have given evidence as D. Ws. 4 and 9 showing that they were recognized. Ex. 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 simple grounds.