T. Chandrasekhara Menon, J.
1. One Koikkalazhi-kathu tarwad had mortgaged with possession 86 cents of land which takes in the suit property to one Matheru Sankaran and another on 27-11-1065. Ex. D-1 is the copy of the mortgage deed. Sometime afterwards Sankaran Pillai Govinda Pillai, a junior member of the tarwad filed a suit -- O. S. 622 of 1089 -- for redemption of the mortgage. On what allegations and under what capacity he filed the suit, it is not possible to find out as none of the said suit records are produced in this case. In pursuance of the decree passed in the suit, Govinda Pillai obtained possession of the suit property. It is not clear from the records produced in the case whether such possession was obtained by actual execution of the decree or out of court. On 3-8-1107, corresponding to 16-3-1932, Govinda Pillai mortgaged the property which was then in his possession as stated earlier to one Parame1swaran Pillai. Copy of this mortgage deed is marked as Ex. P-1 in the case.
2. Parameswaran Pillai gifted his right to his three sons, who it may be pointed out, are members of the original mortgagor tarwad. This right has now finally devolved on defendants 1 and 2 in the suit, who are the appellants in this court.
3. Plaintiffs and defendants 3 to 5 are members of Koikkalazhikathu tar-wad. In 1101 as per deed dated 23-7-1101 (6-3-1926) marked as Ex. D-5 in the case partition has been effected amongst the members of the tarwad. There is a provision in Ex. D-5 deed entitling the parties thereto to take-in equal shares, the properties belonging to the tarwad and not specifically taken-in by the deed. The suit property is an item that is not so taken-in by the deed of partition. Alleging that the plaint schedule property belonged to the tarwad and that in accordance with the above provision in the partition deed, plaintiffs and defendants 3 to 5 are entitled to it, the suit from which this appeal arises is brought for redemption of Ex. P-1 mortgage. The mortgage amount has also been deposited in court.
4. Defendants 1 and 2 contended that the suit is not maintainable and the plaintiffs are not entitled to redeem the plaint property. According to them the rights of the tarwad are barred by limitation. The original mortgage evidenced by Ex D-1 had not been redeemed by or on behalf of the tarwad. Govinda Pillai-who executed Ex. P-1 mortgage was only a junior member of the tarwad. He had obtained possession of the property for himself and not for the tarward. Defendants 1 and 2 further contested the plaintiffs' claim alleging that they had become absolute owners of the land. They also put forward the plea that the suit has to fail as it seeks redemption of only 40 cents out of the 86 cents mortgaged. Another contention that they raised was that all members of the Koikkalazhikathu tarwad who are necessary parties to the suit have not been impleaded and therefore, the suit is bad for non-joinder of parties. In case redemption is allowed they claim value of improvements effected by them. Both the courts below have held in favour of the plaintiffs and a preliminary decree for redemption has been passed.
5. After hearing counsel on both sides I am of the view that the appeal will have to be allowed as the suit is misconceived and it is not maintainable for the following reason.
6. The suit as brought forward is for redemption of Ex. P-1 mortgage executed by Govinda Pillai. The plaintiffs base their claim for redemption on their being members of the Koikkalazhikathu tarwad, and on the specific provision in Ex. D-5 partition deed by which the parties to the deed are to take-in equal shares, the properties if any left out in the deed and belonging to the tarwad. Govinda Pillai who, at the relevant period, was only a junior member of the tarwad. had not redeemed the earlier mortgage evidenced by Ex. D-1 and obtained possession of the plaint property for and on behalf of the tarwad. The plaintiffs themselves appear to have no such case.
7. The oft quoted observation of Mr. Justice Holloway (in A. S. No. 170 of 1862 of the Madras High Court) that 'the Malabar family speaks through its head and in all courts of justice, except in antagonism to its head, can speak in no other way', might be said to still hold the field in spite of the many inroads that various statutes have made into Marumakkathayam law. As stated in Narayanan Kumaran v. Velayudhan, (16 Trav LR 59 at p. 61) :
'For proprietary purposes, the members of a tarwad form a whole, somewhat in the nature of a corporation and as the Karnavan is the mouthpiece, manager and representative of the tarwad, he alone can bring a suit for recovery of the property.'
This passage has been quoted with approval by Mathew, J., in Gopala Menon v. Kalyani Amma, 1964 Ker LJ 243 = (AIR 1964 Ker 81). The learned Judge said therein at page 249 :
'If the tarwad has a corporate character, and a personality of its own distinct from the members thereof for certain purposes, the question arises whether any member of the tarwad can institute a suit for redemption of a mortgage executed by the tarwad on tarwad property on the theory that every member is a part owner of that property. I think neither principle nor precedent would warrant the conclusion that a junior member can institute a suit for redemption, unless there are circumstances disabling the karnavan from filing the suit.'
Therefore, when Govinda Pillai. a junior member of the tarwad got possession of the property, which had earlier been mortgaged by the tarwad, his possession could not be deemed to be that of the tarwad. What Govinda Pillai mortgaged as per Ex. P-1 is only his possessory interest in the property. From Ex. P-1 it is clear that he himself has not purported to execute the document for and on behalf of the tarwad. In fact, by the time Ex. P-1 was executed the tarwad had become divided. Might be Govinda Pillai in redeeming the earlier mortgage cannot be equated to the position of an assignee of the earlier mortgage. It will be pertinent to quote here the following observation of Varadaraja Iyenger, J., speaking for a Division Bench in Sankara Pillai Kunjukrishna Pillai v. Ananda Pillai Bharathi Amma (1957 Ker LT 732 at p. 736) :
'Our view is that the redeeming junior member cannot be equated to the position of an assignee of the mortgage but is rather to be taken as the holder of a special interest in tarwad property with right to continue in possession until his accounts are settled, and paid off.'
8. I am quite aware of the view taken by Madhavan Nair, J., in Parukutty Nethiaramma v. Kesava Menon, (1962 Ker LJ 688) wherein his Lordship stated at page 691 :
'Thus the tarwad has always been understood as a group of persons, and not as a juristic person different from the group. The rights of the tarwad are the rights of the members collectively; in other words, the rights of the tarwad inhere in every member of the tarwad in part. The karnavan being the accredited representative of the entire group -- the tarwad, his competency to exercise the rights of the tarwad is full. But it does not mean that a member of the tarwad has no proprietary right in the tarwad property; as a part-owner he is entitled to exercise the rights of the tarwad in relation to tarwad properties demised to strangers when the karnavan is not a competitor with him in field. It is now beyond doubt that a junior member of a tarwad is entitled to redeem tarwad property outstanding on mortgage with a stranger. This right can be explained only by holding that right of the tarwad to redeem its properties inheres in every member of the tarwad in part. Every member of a tarwad is recognised to be a part-owner of its equity of redemption. Likewise must be the case of resumption of property outstanding on a demise of lease or kanam with a stranger. Every member of a tarwad is a part owner of its right of resumption; and a tenant cannot be heard to say that the landlord is only the 'tarwad' and that therefore a member of the tarwad cannot resume the property from him. Every member of a tarwad is, in respect of its property outstanding on a demise, a bit of the landlord, and as such entitled to claim its resumption from the tenant.'
In regard to this statement of law though I am in respectful agreement with the view expressed by Mathew, J. in 1964 Ker LJ 243 = (AIR 1964 Ker 81) (cited supra) at page 245 that if the tarwad or family properties are those that belong to the tarwad or family as a corporate body, it is not known how that would be consistent with the part ownership or the co-proprietorship of the members, I might state here that as far as the present case is concerned even on the basis of the view taken by Madhavan Nair, J., Govinda Pillai's right is only that of a part owner of equity of redemption who has redeemed the mortgage. It may be that he has got himself subrogat-ed to the rights of the earlier mortgagee whose mortgage he has redeemed.
9. Therefore, whatever be the nature of Govinda Pillai's right -- whether it be that of an assignee of the mortgage or that of the holder of a special interest in the tarwad property with right to continue in possession until his accounts are settled and paid off -- it is his interest that Govinda Pillai had mortgaged and not that of the tarwad. The members of the tarwad cannot, on the basis of the provision in the partition deed seek to redeem that interest. They do not, in this suit, seek to redeem the earlier mortgage which had been executed by the tarwad, as the suit is only one for redemption of Ex. P-1 mortgage. Nor is the suit brought forward by the plaintiffs as successors-in-interest of Govinda Pillai's estate. There is no prayer also in the suit for settlement of accounts of Govinda Pillai and recovery of possession on such settlement. On the short point stated above, this appeal will have to be allowed. In the circumstances it is not necessary for me to decide the other questions raised by the appellants.
10. I am also not venturing to decide, in this appeal, whether the members of Koikkalazhikathu tarwad have got any existing right in the property.
11. In the result, this appeal is allowed, the judgment and decree of the courts below are set aside and the suit is dismissed. The appellants are entitled to their costs in this court.