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Kunhan Vs. Sankara and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1891)ILR14Mad78
AppellantKunhan
RespondentSankara and ors.
Cases ReferredNambiatan Nambudiri v. Nambiatan Nambudiri
Excerpt:
malabar law - suit to remove a karnavan for mismanagement as de facto karnavan--minor members of tarwad not joined--civil courts act (madras)--act iii of 1873, section 13--valuation of suit. - .....that he may, at his pleasure, put an end to the management of tarwad affairs by an anandravan, and that for that purpose, such management is to be taken to have continued by his sufferance or to have been that of his delegate. it is certainly no authority for exonerating the de facto manager from responsibility or blame for the maladministration of tarwad property. neither are we prepared to attach weight to the appellant's contention that some of the lands unnecessarily encumbered belong to a branch tarwad, and that his acts of mismanagement, so far as they relate to them, should be excluded from consideration whilst coming to a finding as to his fitness for the karnavanship of the whole tarwad. this second appeal fails and is dismissed with costs.
Judgment:

1. It is first urged that the District Munsif had no jurisdiction to entertain this suit, the encumbrances found to have been improperly created by the appellant being to the extent of more than Rs. 2,500. The plaint refers to the encumbrances as instances of mismanagement on the part of the appellant and it does not pray for a decree that they be set aside. The only relief prayed for is the removal of the appellant from his position of karnavan and it was held in Narangoli Chirakal Kunhi Raman v. Puttalathu Kimhunni Nambiar I.L.R. 4 Mad. 314 that such relief is incapable of valuation. The decision in Ganapati v. Chathu I.L.R. 12 Mad. 223 is not in point, for the plaintiff's in that case sued to obtain a declaration that the Uraima right to a certain devasom was vested solely in their tarwads and the ground of decision was that the value of a suit for declaration of title to specific property should be taken, for the purpose of jurisdiction, to be the same as that of a suit to recover possession of that property.

2. Another contention is that all the members of the tarwad have not been made parties to the suit. The Subordinate Judge observes that all the adult members have been made parties and this is not denied before us. Though minors in the tarwad may not have been made parties to the suit, yet we agree with the Subordinate Judge in thinking that the adult members sufficiently represent the interest of the tarwad for the purposes of this suit.

3. It is next said that Original Suit No. 442 of 1885 on the file of the District Munsif of Shernad bars the present suit. In that suit there was no adjudication, and when it was withdrawn, permission to institute a fresh suit was asked for, and granted. There is, therefore, no foundation for the contention that the present claim is either res judicata or barred by Section 373 of the Code of Civil Procedure. But the ground of objection chiefly relied on in support of this appeal is that the misfeasances imputed to the appellant were committed by him whilst he was de facto karnavan during the lifetime of Kunhi Krishnan Nayar and that they ought not to be accepted as a ground for depriving him of his present position as de jure karnavan. The question to be kept in view is, however, whether by reason of misconduct the appellant has rendered himself unfit for the office of karnavan, and on this point it can make no difference to the tarwad, whether the misfeasances were committed by him either solely or in conjunction with another; in either case, the interest of the tarwad requires that the management of its affairs should not be entrusted to him. It has also been found that he usurped the management during the life-time of Kunhi Krishnan Nayar, and acted not as his delegate and under his direction, but without any restriction or regard to Kunhi Krishnan's authority as de jure karnavan. The decision in Nambiatan Nambudiri v. Nambiatan Nambudiri 2 M.H.C.R., 110 shows only that the authority of a de jure karnavan is absolute, and that he may, at his pleasure, put an end to the management of tarwad affairs by an anandravan, and that for that purpose, such management is to be taken to have continued by his sufferance or to have been that of his delegate. It is certainly no authority for exonerating the de facto manager from responsibility or blame for the maladministration of tarwad property. Neither are we prepared to attach weight to the appellant's contention that some of the lands unnecessarily encumbered belong to a branch tarwad, and that his acts of mismanagement, so far as they relate to them, should be excluded from consideration whilst coming to a finding as to his fitness for the karnavanship of the whole tarwad. This second appeal fails and is dismissed with costs.


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