1. These two second appeals arise out of a suit by the plaintiff to recover a paramba demised by the 2nd defendant in favour of the 1st defendant. The parties to the suit are all members of a Marumakkathayam Tarwad. The plaintiff, 1st defendant, and defendants Nos. 3 to 6 are the children of the and defendant who is the senior lady of the Tarwad. The other defendants are the children and grand-children of the 2nd defendant's children. The plaintiff is the senior male member and according to the Marumakkathayam law the Karnavan of the Tarwad. Until about a year before the date of the suit the 2nd defendant was in actual management of the Tarwad. But in April 1907 she gave up the management to the plaintiff under Exhibit I. Prior to her doing so the executed in April 1906 a kanom deed, (Exhibit T), demising the paramba in question in favour of a junior sou, the 1st defendant, for a period of sixty years. The demise purports to be made expressly for the purpose of enabling the 1st defendant to erect a house on the property and entitle him to receive at the expiry of the kanom the value of the house as well as compensation for other improvements that he might make. The plaintiff impeaches the demise as an improvident transaction which the and defendant as manager has no power to make, and claims to recover the premises and to have the building erected by the 1st defendant pulled down and removed, and states that he is not bound to pay any compensation for the building. The 1st and 2nd defendants contend that the property in suit belongs to the 2nd defendant alone, that the other members of the Tarwad have no title to it during her life, and that the demise by her in favour of the 1st defendant is valid. The 1st defendant claims in case of eviction to be entitled to compensation for the value of the building. The property in dispute together with a large number of other items of property was the subject of a deed of gift executed in 1857 in favour of the 2nd defendant's mother, Ammu Amma, by her husband one K. Govinda Menon, and it is on the construction of this instrument that the 1st and 2nd defendants contend that the 2nd defendant is exclusively entitled to the property during her lifetime. Both the lower courts have negatived this contention and held that the properties included in the deed of gift, (Exhibit A), were taken by Ammu Amma to be held and enjoyed by her with the incidents of Tarwad property under the Marumakkathayam law, and that consequently they belonged to Ammu Amma and her children and the issue of her female children, with the result that the plaintiff and the defendants, other than the 2nd defendant, were equally entitled to them along with the 2nd defendant. The lower courts have further held that the demise is question was beyond the powers of disposition of the 2nd defendant, and that the 1ist defendant was bound to surrender the property. The District Munsif was of opinion, however, that the 1st defendant was entitled to receive compensation for the building. But the Subordinate judge held he was not. It would appear that the plaintiff, after the institution of the suit, applied for an ad interim injunction restraining the 1st defendant from erecting the building. But the application was not granted as the 1st defendant had already made some advance in the building of the house. The 2nd defendant has preferred S.A. No. 525 and the 1st defendant S.A. No. 526 aginst the judgment of the Subordinate judge.
2. The contentions urged by the learned Vakil for the appellants are:
(i) that on the correct construction of Exhibit A the 2nd defendant alone has a present title to the property in dispute ;
(ii) that even if the property belongs to the whole Tarwad the demise is not invalid ;
(iii) that even if the demise should be held not binding on the Tarwad on the ground that it is for the excessive period of 60 years, it should not be altogether set aside, but upheld for the period for which a Karnavan could lawfully grant a demise of the character of Exhibit T; and
(iv) that, if the demise be not upheld at all, the 2nd defendant, being a co-owner of the property with the plaintiff, did not act wrongfully in constructing the building, and the plaintiff is not entitled to have it demolished, and that 1st defendant is entitled to compensation on eviction.
3. These contentions will now be dealt with seriatim.
4. With respect to the first contention relating to the construction of Exhibit A, the material terms of the instrument which, as already stated, is a deed of gift executed by K. Govinda Menon infavour of Ammu Amma are:-'I have now given properties consisting among others of land, paramba, and house, particulars whereof are given bellow * * * In all, properties to the value of Rs. 10.000 are as aforesaid given to you as yours, and I have delivered the documents, etc., relating thereto, and now in my possession. Therefore I have resolved 'that, acting in accordance with the terms and conditions thereof, you and your Santhanams should be in enjoyment for ever, along with me at the said Puthiaveedu as long as I live and in proprium thereafter,' The document recites that the donor had already given some properties to the donee and her Santhanams permanently and for ever. The provision entitling the donor to joint enjoyment with the donee during his lifetime may for the purposes of this case be neglected. At the time of the gift Ammu Amma had several children besides the 2nd defendant, but the 2nd defendant is the only survivor of them at present. The gift may be briefly stated to be one to Ammu Amma and her children. The appellant's contention is that it should be regarded as a gift, jointly to Ammu Amma and her children alive at the date of the gift, and that on the death of the other donees it survived to the 2nd defendant exclusively. This contention is absolutely untenable in the face of the cases already decided by this court. It is unnecessary to refer to precedents earlier than the Full Bench ruling in Kunhacha Amma v. Kutti Mammi Hajee I.L.R. (1892) M. 201. In that case a gift to a Mahomedan woman (governed by the Marumakkathayam law) and her children was held by the Full Court, concurring with Best and Suhrahmanya Aiyar JJ., the referring Judges, to enure in favour of the donee and her children with the incidents of Tarwad property, and that the property could not be attached for the debts of one of the children as he had no disposable interest in it. The decision was no doubt based on the principle enunciated by the Judicial Committee of the Privy Council in Sreemutty Soorjeemoney Dossee v. Denobundoo Mullic (1857) 6 M.I.A. 526 and Mahomed Shumsool v. Shewakram I.L.R. (1874) IndAp 7, that in the construction of instruments the law applicable to the parties and the mode in which the property is generally held by them should be taken into account in determining the intention of the donor and the estate which the donee would take under the instrument. According to the Marumakkathayam law, property, is held by the members of a Tarwad jointly without any right to compulsory partition and without any individual right of disposal so long as the Tarwad continues to exist. It follows therefore that the property gifted must be taken to belong to Ammu Amma and her children with the abovementioned incidents of Tarwad property. As according to theMarumakkathayam system all members born in the family acquire by birth a right in the Tarwad property, the issue of Ammu Amma's female children became entitled on their birth to the property equally with Ammu Amma and her children existing at the date of Exhibit A. This point was expressly decided in the subsequent case of Katankandi Koma v. Siva Sankaran (1909) 20 M.L. J. 134. In Pattatheruvath Pathumma v. Mannamkunniyil Abdulla Haji I.L.R. (1907) M. 228, the learned Chief Justice and Wallis J. and in Kunhamina v. Kunhambi I.L.R. (1908) M. 315, Miller and Munro JJ., held that none of the persons taking under such an instrument has any right of disposal of his or her interest contrary to theMarumakkathayam law. In Abdulla v. Chekkootti : (1910)20MLJ368 and in Parvathi Kattilammah v. Ramachandra Ejaman (1910) I.M.W.N. 124, it was held that those who take under such an instrument of gift would be regarded as a Tarwad for the purpose of management of the property and that the senior male member would have the right of management as in the case of ordinary Tarwad property. Mr. Ramachandra Aiyar relies on certain observations contained in the judgment of Moore and Sankaran Nair JJ., in Koroth Ammankutti v. Perungottil Appu Nambiar I.L.R. (1906) M. 322, in support of his contention that so long as the 2nd defendant should live the other members of the Tarwad would have no right to the property in question. In that case the gift was made to a woman and her children. A decree was obtained by a creditor against the assets of one of the children who had died prior to the suit. The decree-holder sought to attach his interest in the gifted property, but the learned Judges held that the share of the deceased passed by survivorship to the other children and that the creditor had nothing to proceed against. The case therefore affirms the joint holding by all the donees and the absence of any separate interest in any of them capable of being disposed of by him. The observation relied on by the appellants is this.-'The District Judge has held that Unichira and her sons formed a separate Tarwad by reason of their having obtained these properties by gift and therefore Koran Nambiar had no interest available for attachment and sale. We are unable to agree with the District Judge in his view that when a female and some of or all her children obtain any property from their father or Karnavan, as in this case, they are thereby constituted into a Tarwad by themselves, the senior member among them having the ordinary rights of the Karnavan of a Malabar Tarwad so far as the other members in his branch are concerned.' According to this dictum, it is contended that, as the female donee and her children are not constituted into a Tarwad, the children of the donee do not acquire an interest in the property under Exhibit A, and that consequently Ammu Amma's issue could not acquire a right in the property in dispute during her life-time. This construction of the dictum cannot be upheld. It must be noted that the decision in Kunhacha Amma v. Kutti Mammi Hajee I.L.R. (1892) M. 201, was expressly affirmed and adopted by the learned Judges. The proposition that the property gifted was taken by the donees with the incidents of Tarward property, was not departed from, and one of such incidents, viz., that the holders of the property have no right of disposal and that the property goes by survivorship to the remaining holders on the death of any, was affirmed and acted on. No question arose in the case whether the members of the Tarwad born after the date of gift would take an interest in it by birth or not. What then is the meaning of the state ment that the donees could not be taken to be constituted into a Tarwad by themselves, the senior donee having the ordinary rights of a Karnavan of a Malabar Tarwad so far as the other members in his branch are concerned ?' It can only be taken to mean that they do not become a Tarwad so as to give the Karnavan all the ordinary rights of a Karnavan over the members of his Tarwad. It is only in this sense that this statement could have been understood in Paltatheruvath Pathumma v. Mannamkunniyil Abdulla Haji I.L.R. (1907) M.228 and Kunhamina v. Kunhambi I.L.R. (1910) M. 315 which quote it with approval. The question--what rights a Karnavan of such special property held by a branch of a Tarwad would have with respect to the other members of the branch- has not been elucidated by the learned Judges who decided Keroth Amman Kutti v. Prungoitil Appn Nambiar I.L.R. (1906) M. 223. But there can be no doubt that he cannot have all the rights of a Karnavan over the junior members of his Tarwad. He is not their guardian and has no right of supervision or control over them. He is not responsible for their protection, education or maintenance. His right is confined to the management of the special property owned by him and the other members of his branch. His title to manage them has been upheld as already mentioned in Abdulla v. Chekkootti : (1910)20MLJ368 and Parvathi Kattilammah v. Ramachandra Ejaman (1910) 1 M.W.N. 12. What his duties are with respect to the disposal of the income of the property and what the rights of the other members of the branch are to receive a portion of the income are points that have not yet been judicially decided, and it is not necessary to make any further remarks on them as they do not arise for decision in this case. In Appeal No. 122 o 1905 it was held that, where a member of a branch of a Tarwad holding special property has certain properties standing in his own name, there is no presumption that such property belongs to the branch and not to himself, although it has often been held that there is a presumption that all the properties standing in the name of any member of a Tarwad belong to the Tarwad and that the onus lies on him to rebut such presumption. Whatever may be the scope of the dictum that the manager of special property belonging to a branch has not got all the powers of a Karnavan with respect to the other members of the branch, it certainly does not mean that the members who are born in the branch would not acquire a right in the property by birth. This contention must therefore fail.
5. The argument that the demise is valid, even if the property belongs to the whole Tarwad, must also fail. We cannot attach weight to the consideration that the demise is in favour of one of the junior members inasmuch as, if it be valid in his favour, it must be equally so in favour of any person to whom he may alienate. That a Karnavan ordinarily cannot make an alienation for such a long period as sixty years cannot be doubted, and no special necessity or special benefit such as would justify it has been shewn.
6. It is also impossible to uphold, on the facts in this case, the contention that the demise may be maintained for a portion of the term granted by it, namely the usual period of 12 years. To do so would necessitate the making of a new contract for the parties different from, what they intended. Then it provides for the payment of the value of improvement at the expiration of 60 years, the term fixed. It would not be reasonable to compel the 1st defendant to wait for 48 years for payment after his surrender or to require the plaintiff to make payment long before the time fixed in the document.
7. The next contention is that the 1st defendant being a co-owner, his action in constructing the building was 'not wrongful, that the Tarwad would sustain no injury by it, and that the plaintiff is not therefore entitled to the demolition of the building. We may say at once that it is not shewn that the Tarwad would sustain no injury at all by the 1st defendant's action. It is pointed out on the other hand that the Tarwad is growing in numbers, and that the demised paramba which is adjacent to the Tarwad house may be required for the construction of an additional residence for the members of the family. It is no doubt true that as between co-owners generally one of them who takes possession of a portion of the common holding cannot be said to be necessarily a wrong doer, and that this would be so even if he raised substantial buildings thereon. The principles applicable in such cases have been laid down in numerous decisions, which have benn collated in the elaborate Judgment of Mookerjee J. in Ananda Chandra Sen v. Parbadi Nath Sen (1906) 4 C.L.J. 198. The learned Judge states the principle thus-'Now, as was pointed out in Mohesh Narain v. Nawbut Pattak (1905) 1 C.L.J. 437. I.L.R. 32 C. 837, although in the case of immoveable property, jointly owned, each co-owner is in theory interested in every infinitesimal portion of the subject-matter, and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with the others; yet it does not follow that one joint owner is entitled to maintain an action in ejectment against a co-owner, merely on the ground that the latter has taken exclusive possession of a portion of the joint property. Such exclusive occupation may, under certain circumstances, be perfectly legitimate and may not constitute an invasion of the rights of the co-sharer ; if there is no assertion of a hostile title, no exclusion or ouster, an action in ejectment cannot lie. 'lam not prepared to hold, that an' exclusive appropriation by 'one co-owner of a part of the joint land to his own use by the erection of a permanent structure, is necessarily evidence of an ouster; it may well be, that the lands cannot be enjoyed, as each of the joint-owners is entitled to enjoy them, without making extensive and permanent improvements. Why should the co-owner, willing to bear the expense of such improvements be compelled to desist from making them and be required to leave his lands in a condition in which he cannot use them advantageously to himself, for he is necessarily so compelled and required, if his improvements are to be treated as hostile acts subjecting him to the penalties visited upon a co-owner found guilty of an ouster of his companion in interest. [Free-' man on Co-tenancy and Partition, Section 240]. The rule is '' well settled that the plaintiff, who complains of the act of his co-owner cannot obtain a decree for demolition of buildings or for joint possession, unless he can establish that he has sustained some substantial injury by reason of the act of which he complains.' This principle, however, is not applicable to the case of the members of a Marumakkathayam Tarwad. The property of such a Tarwad is no doubt vested in all the members of the family as owners. But it must be remembered that none of the members has a right to any particular portion of the property. On the other hand, the Karnavan of the Tarwad is entitled to manage the whole estate and to be in possession thereof for that purpose. His possession no doubt is the possession of all in law so far as its effect on the title of the members is concerned, but nevertheless no junior member is entitled to take actual possession of any portion of the property without the consent of the Karnavan. In Kannan v. Tenju I.L.R. (1882) 5 M.1, the Karnavan's right to actual possession as against an Anandravan has been recognised by this court. Any other rule would indeed destroy one of the most important rights of the Karnavan and make it impossible for him to carry on the management of the estate. It would therefore be impossible to hold that any Anandravan might take possession of any particular portion of the family estate he might choose and erect buildings on it and continue in occupation of it. Mr. Ramachandra Aiyar relies in support of his contention on Nocury Lall Chukerbutty v. Bindabun Chunder Chuckerbutty I.L.R. (1882) C. 708. In that case one of the coparceners of a Dayabhaga family in Bengal had occupied and constructed a building on a piece of land belonging to the family and the question was, whether the plaintiff in the suit, another member, (it does not appear that he was the manager) was entitled to have the building demolished. It was found that the plaintiff took no steps to prevent the erection of the building when it was actually going on, McDonell and Field JJ. held that in the circumstances of the case demolition should not be ordered as he had failed to show that injury had accrued to him by reason of the erection of the building. The decision is not applicable to the present case. In so far as it proceeds on any estoppel of the plaintiff in consequence of his conduct, it is inapplicable, as the plaintiff objected' to the demise in this case and the defendant according to the courts below at one time agreed to give up the demise but subsequently withdrew his consent and proceeded to build on it. The right of a coparcener of a Dayabhaga family is materially different from that of a junior member of a Marumakkathayam Tarwad in the matter of dealing with the joint estate of the family. The former may enforce a partition at any time he pleases. The latter can do so under no circumstances. Where a co-parcener entitled to partition erects a building on family land without the consent of the manager, the court may hesitate to direct its demolition, seeing that at a partition between the parties the court could, in the exercise of it's equitable jurisdiction, allot the land built on to the co-parcener who made the building and thus avoid the hardship caused by the demolition. But in a Marumakkathayam family no such course is possible, as the court has no power to decree a partition, and it would not be fair or equitable either to compel the Karnavan to purchase the building constructed by a junior member or to deprive the Karnavan of possession of part of the family property for ever. The conclusion must therefore be that the defendant cannot resist recovery or demolition of the building on general principles.
8. It remains to deal with the claim to compensation for improvements which is made on the ground that the 1st defendant honestly believed that the 2nd defendant was the sole owner of the property during her life-time and was therefore entitled to grant a demise, and that he believed himself bona fide to be a lessee, thus entitling him to compensation under Section 5 of the Malabar Tenants Improvements Act. Mr. Anantakrishna Aiyar for the respondent contends that no claim to compensation was made on the ground put forward in this court. We find on reference to the written statement that the right to compensation was not rested on any particular ground, and issue No. IV relating to the question was framed in general terms. The District Munsif dealt very briefly with the question, observing that 'even a trespasser when he makes improvements bona fide is entitled to the value of the improvements.' The Subordinate Judge observes-' He is not a trespasser believing in good faith that he had power to make improvements. He is not a tenant within the meaning of the Improvements Act.' We cannot say that the 1st defendant is disentitled either by the terms of his written statement or by the frame of the issue to contend that he bona fide believed that the 2nd defendant was the absolute owner of the property entitled to deal with it at her pleasure. We were at first inclined to direct an enquiry with reference to this point, but we find it would be useless to do so, as it is perfectly clear on the facts appearing on the record that the plaintiff objected to the Kanom before the defendant constructed the building and the latter at one time actually agreed to give it up but subsequently refused to do so. It is not, therefore, open to him now to say that he made the building bona fide under the impression that the land belonged absolutely to his mother. He was certainly put upon enquiry as to her real title ; and if he put a wrong construction on the deed of gift, on which the plea of bona fide is sought to be maintained, he must take the consequence. We must dismiss both the second appeals with costs.