Muttusami Ayyar and Hutchins, JJ.
1. This second appeal arises in a suit instituted by the respond-ants, Kumararichath Chimmu Amma and Lakshmi Amma, to redeem two mortgages evidenced by documents A and B. The two respondents on the one hand and the defendants 6 to 8 on the other, who are no parties to this appeal, represent two branches of the same tarwad. They have for many years lived apart from each other, enjoyed separate properties, and joined in instituting suits for the recovery of tarwad lands. The District Munsif has found that there has been ho division between them, and that their separate residence, possession and management are the results of a family arrangement which has been made, as a matter of convenience, without prejudice to their community of interest as members of the same tarwad. This finding has not been questioned either by the appellants, Kumaranchath Thenju Mannadiar and Ittikander Mannadiar, or the respondents, or the defendants 6 to 8, and we take it, therefore, to be one of the undisputed facts of the case.
2. The appellants' contention was that the mortgages set up by the respondents were not true, and that the items of land 1 to 3 formed part of their property. The lower Courts have, however, found that the mortgages were proved, and upon this finding, which we are bound to accept, we must hold that the respondents' claim is good on the merits.
3. But it is urged (1) that the respondents, who are the junior members of a tarwad, are not entitled, as such, to recover possession of tarwad lands, and (2) that the claim is res judicata in so far as it relates to item No. 1. As to the first objection, it would suffice to observe that anandravans may in Malabar recover, or retain, possession either by the express consent or sufference of their karnayan, while in this case the two branches are found to have had separate enjoyment for many years, and the sixth defendant who is their karnayan has not appeared in either of the lower Courts to dispute the appellants' claim. It will also presently appear that there is reason for the belief that the karnavan's conduct in suit 19 of 1882 was at all events negligent, if not fraudulent. In these circumstances, we do not think that the appellants, as mortgagees of the tarwad property, are entitled to oppose the claim to its redemption advanced on behalf of the tarwad and substantially for its benefit.
4. As to the second objection, it appears that the sixth defendant brought suit 19 of 1882 to redeem item No. 1, which had been mortgaged under document B. But, without attempting to prove the mortgage as the respondents have done in this case, he apparently ignored the means of proof then at his command, and agreed that if one of the opposing defendants swore in a particular way that document B was not true, that statement might be accepted as conclusive evidence under the Indian Oaths' Act. Although the respondents charged him with fraud, the lower Courts have not considered it proved.
5. The question, however, for decision is whether, when a karnavan fails to utilize the means of proof at his disposal, and loses the tarwad property by negligently or credulously trusting to the oath of the opposing defendant, the anandravans are bound by his act, and precluded from showing that it was negligent, even if not fraudulent, and therefore prejudicial to the interest of the tarwad, which it was his duty to protect with ordinary diligence. His position like that of a Hindu father is fiduciary, though his acts are binding on the anandravans as those of the head of the family, until they show that such acts are in excess of his authority, or negligent, or fraudulent. A decree against him is binding on the tarwad, because it is a decree against the head, or representative, of the family, but his power, as the head of the family, is a qualified power, qualified by his fiduciary position and the duties which, by the usage of the district, attach to such position. The decided cases have not been uniform. They suggest two propositions--(l) a judgment is only binding inter partes and the judgment against the karnavan is in no case binding on the anandravans, (2) a karnavan is the head and representative of the family and the judgment against him binds the anandravans unless be was guilty of fraud or collusion. Neither proposition seems to us to be free from doubt. The karanvan's position and power, as the recognized head and representative of the family, is ignored in the first case, whilst the qualified nature of his power is ignored in the second.
6. It is not however necessary in the present suit to attempt to reconcile the decisions. It is enough to say that, when fraud or breach of duty as karnavan is shown, his act must be treated as a fraud upon his power, and as the karnavan's conduct in suit 19 of 1882 was negligent, if not fraudulent, the decision against him in that suit does not bind the respondents. For these reasons this second appeal must fail and is dismissed with costs.