1. Plaintiff as the karnavan of his Tarwad sues to recover possession from the defendants. His case is that his tarwad is the jenmi of the properties in suit, that its title was recognised by the 1st defendant in O.S. No. 142 of 1868 on the file of the Court of the District Munsif of Kavvayi, (under the Zilla Court at Tellicherry), and that the 1st and other defendants who are Anan-dravans of the defendants' tarwad hold the property under a kanom from the plaintiff's tarwad. The plaintiff further stated that a sum of Es. 400 was paid towards the kanom and that the defendants are bound to surrender on the receipt of the balance, The defendants contended that the jenm title belonged to their tarwad and not to the plaintiff's tarwad.
2. The Subordinate Judge dismissed the suit. The plaintiff has appealed. A preliminary objection is taken by the respondent that the appeal filed in this Court is barred by limitation. The original valuation of the suit was below five thousand rupees. The plaintiff first presented an appeal to the District Court which admittedly was in time. Objection was there taken that the appeal should be preferred to the High Court. Upholding this objection, the District Judge returned the appeal for presentation to this Court on the 24th of January 1916 : and it was filed on the 31st of January 1916.
3. Mr. Menon contended that the filing of the appeal in the District Court was due to an error of law and that Section 5 of the Limitation Act is not applicable to such a case; and he relied on Ramjiwan Mal v. Chand Mal I.L.R. (1888) A. 587. That and other decisions were considered by the Judicial Committee in Brij Indur Singh v. Lala Kanshi Bam (1917) 33 M.L.J. 486 where it was pointed out that it is not the rule that delays due to an error of law are not within Section 5 of the Limitation Act. We hold therefore, that we have power to excuse the delay. As regards the interval between the return of the plaint and its presentation in the High Court, having regard to the fact that a fresh vakalat had to be obtained from the parties and to the distance between Madras and Tellicherry, we do not think there wasany negligence. We therefore overrule the preliminary objection.
4. On the merits the facts are these. The property in suit admittedly belonged to a Devas wom. The plaintiff claimed that he acquired the trusteeship as well as the right to be in possession of the properties of the temple from the Uralan. He has produced no documents in support of the claim excepting the Razinama decree to which we shall presently refer. The defendants also trace their title to the Devaswom. They base their title on an alleged Saswatham grant from a person who at one time called himself the Samudayee, but whom defendants assert was really the Uralan of the temple. Exhibits I and III, are the title-deeds. It is not necesary to examine the respective titles of the parties any further, as the basis of the present litigation is the compromise decree passed in the Kavvayi Court. The parties to that litigation were the then Karnavan of the plaintiff's tarwad, the present 1st defendant and the assignor of that defendant. The plaintiff's tarwad then contended that the property Was in their possession for a long time and that the defendants who claimed through a Samudayee were not entitled to it. It is said that bsfore the written statement was filed the parties entered into a compromise, which was embodied in the decree of the court The result of that compromise was to recognise the title of the plaintiff's tarwad to the property and to grant a kanom in favour of the defendants' tarwad. This was in the year 1868. The present suit is to enforce the terms of that compromise. The main contention of the defendants 2 and 3 was that the compromise which gave up the rights of their tarwad was not binding on them.
5. The Subordinate Judge bases his judgment upon three conclusions : (1) that the compromise did not confer any rights to the property and was not receivable in evidence, for want of registration : (2) that as there were no doubtful rights to be settled, the compromise was not binding upon the tarwad : and (3) that the defendants have been in adverse possession. As regards the 1st contention reliance was placed upon the absence of an exemption for registration in favour of decrees of court in the Registration Act of 1866. Under that Act the court passing a decree for property over a hundred rupees in value was directed to send that decree to the registering officer for registration. See Sections 41 and 42. Under Section 17 of the same Act, documents executed by the parties for similar properties were compulsorily registerable. The contention of the learned Counsel for the respondents is that the provisions of the Act of 1877 which exempted decrees from registration should not be applied retrospectively, and that as at the time of the compromise, the decree could not confer any title to immoveable property, it was not. receivable in evidence. In the first place it must be noted that parts III and VIII of the old Registration Act dealt with two different classes of cases. Sections 17 to 21 which are in part III dealt with documents interpartes. Section 41 referred to documents sued upon being superseded by a decree of the court and Section 42 to decrees otherwise declaring rights in immoveable property. In Section 49 the reference was not to documents mentioned in Part VIII but to documents referred to in Section 17. It is clear therefore that the validity of a decree was not dependent upon registration under the old Act. The provision in part VIII is only to complete the record of rights by the Registration Department, If it was intended by the legislature that a decree should not confer rights of property unless registered, it would have been included in the prohibitory Section 49. We hold that the compromise decree did confer title on the plaintiff's tarwad, not withstanding non-registration. The decisions in Purmanand Das Jivandas v. Vallabdas Walji I.L.R. (1887) B 506 and in Raju v. Krishna Rov Ramachandra and Anr. I.L.R. (1877) B. 278 although they related only to the admissibility in evidence and not to the conferring of rights, contain observations which support our view. There can be no doubt that the document is receivable in evidence as well.
6. The next point for decision is whether the compromise is not binding upon the defendants' tarwad. The 1st defendant having been a party to it, it is not open to him to dispute it. The main contention on behalf of the defendants 2 and 3 is that prior to the compromise the defendants' tarwad had been successful in every litigation against the plaintiff's tarwad, that the former were in possession of the properties, that there was no doubt as to their paramount title at the time and therefore the Karnavan, the 1st defendant, was not justified in surrendering the rights of the tarwad and in accepting in lieu thereof the subordinate right of a kanomdar. As to this, the materials which influenced the 1st defendant in consenting to the compromise have not been placed before the courts; the evidence of the 1st defendant does not show that in agreeing to the decree he was acting in fraud of the tarwad or that he was unduly iufluenced by the plaintiff.
7. Mr. Menon for the respondents argued with great insistence that as the decree was passed against the 1st defendant not as Karnavan but in his individual capacity, it is not binding on the tarwad. He relied upon the observations of Shephard, J., in Vasudevan v. Sanharan I.L.R. (1897) M. 129. The Full Bench in that case held that the Karnavan of a Malabar tarwad honestly defending a suit in his representative capacity will bind the tarward. Prom this judgment, the learned Counsel argued that the converse of the proposition namely that if the decree is not passed against the Karnavan in his representative capacity it is not binding on the tarwad follows. It was conceded (by Mr. Chamier for the appellant and Mr. Menon for the respondent) that there is no decision which establishes this converse proposition. In the Full Bench judgment Mr. Justice Shephard says : ' One negative proposition is clearly established by the cases to which I have referred--a decree made against a Karnavan is clearly not binding on the tarwad unless he sued or was used in his representative character.' The learned Judge does not say as was contended before us that the Karnavan should be impleaded as such. We do not understand from the above quotation that although in effect the suit was against the tarwad, yet if the Karnavan is not specifically impleaded as Karnavan the tarwad will not be bound. Under the Hindu law, if a suit is brought against a manager of a Hindu family although he is not impleaded as such in the suit, the result of the litigation will bind the other co-parceners. See Subbanna Bhatta v. Subbanna I.L.R. (1907) M. 524 Buldeo Sonar v. Mubarak Ali Khan I.L.R. (1902) C. 583 and Sheo Sankar Ram v. Jaddo Kunwar I.L.R. (1914) A. 383. It is not the form of the suit that is essential : but the question in each case will be whether in substance the person suing or sued conducted the litigation for his own benefit or as representing the family of which he was the head. We see no reason for not applying this principle to cases governing Malabar tar wads.
8. On examining the compromise we find that the rights secured were not for the individual benefit of the 1st defendant, but for the tarwad. The plaintiff questioned the right of the tarward and not of the individual defendant. We are satisfied upon the evidence of the 1st defendant and upon a perusal of the razinama that the 1st defendant was sued as representing his tarward, and that he agreed to the compromise in his representative capacity.
9. On the question whether it was a bona fide settlement of a disputed claim, the burden is on the defendants to show that the compromise was not honestly come to. In Pulliah Chetiy v. Vardarajulu Chetty I.L.R. (1908) M. 474 it was held that it is for the party who impeaches the compromise to prove that it was illegal or void. As regards Mussamat Kunjeswar Kunwar v. Durga Prasad Singh (1917) 84 M.L.J. 1 which was strongly relied on by the respondents' counsel, it is enough to say that the finding of the Judicial Committee in that case showed that one of the parties to the litigabion possessed information which he withheld from the other parties and induced that party dishonestly to agree to the terms of the compromise. In the present case there is nothing to show that both parties were not equally cognisant of all the facts which led up to the compromise. There is no evidence that the then plaintiff wrongfully induced the 1st defendant to accept the compromise to which he was not a willing party. The compromise has stood unquestioned for nearly half a century. We must therefore hold that it is binding on the defendants.
10. We agree with the Subordinate Judge that it has not been satisfactorily proved that any portion of the Kanom amount was paid by the plaintiff's tarwad to the defendants. The result is that the decree of the Subordinate Judge must be reversed and a preliminary decree for redemption must be passed in favour of the plaintiff.
11. There is an issue as to improvements which has to be decided befoire accounts are taken and the final decree is passed in the case. Costs hitherto incurred will be provided for in the revised decree.