1. The first defendant is the Karnavan of the plaintiffs' tarwad and in Suit No. 1077 of 1877 suffered a money decree to be passed against him for money alleged to be borrowed for tarwad purposes. In execution of the decree property of the tarwad was put up to sale, a claim preferred by plaintiffs having been rejected.
2. The plaintiffs then brought this suit to set aside the sales of the tarwad property.
3. According to what we have always regarded as a most erroneous practice, the Courts below, in executing the decree, went into the question of what the decree meant beyond what it plainly said.
4. The decree made the first defendant liable. The first defendant happens to be also the Karnavan of the plaintiffs' tarwad. The Courts, therefore, construed the decree as a decree against the tarwad, when, on the face of it, it was not so, and sold up the property of persons who were no parties to the decree. In the suit brought by these persons, they do not put their claim to recover expressly upon the ground that the decree does not make them in terms answerable, and they have gone to trial upon the following questions, which do not properly arise in such a suit, viz.:
Whether the debt for which the sale was made was binding on the tarwad property ?
Whether there was due notice given to the public and to the defendants of the karar alleged by the plaintiffs in the plaint as binding on first defendant ?
Whether first defendant has been acting upon the contract that has been executed ?
5. The two last issues referred to allegations on the part of the plaintiffs that the Karnavan's authority had bean expressly limited by the other members of the tarwad.
6. The District Munsif found that there had been bona fides in second defendant in purchasing the decree and proceeding to the execution of it, and bona fides in third defendant, one of the purchasers, in making his purchase.
7. He says: 'Here what second defendant bought was the right of plaintiffs' tarwad over Nos. 1 to 4,' etc. This is an entire mistake. What he purchased was simply the right, title, and interest of the judgment-debtor, and the judgment-debtor was first defendant alone, and his interest was all that was or could be sold under the decree.
8. The question of whether the purchase was made bona fide and for value does not arise in such cases, as the purchaser is not in any way led to suppose that be purchases more than the interest of the judgment-debtor. He is not, therefore, a sufferer if his right of purchase is strictly confined to the right of the judgment-debtor in the property.
9. The District Munsif also found that the karar by which the first defendant's authority may have been limited had not been consistently upheld by the Courts as binding upon him.
10. He also found on the evidence of third defendant that the debt was contracted by first defendant when he was pressed for Government revenue due on other lands of the tarwad, and he held that the sale was binding on the tarwad.
11. The District Judge, in appeal by plaintiff, affirmed the Munsif's judgment. He considered that the real question involved in the suit was whether the bond sued on in Suit No. 1077 of 1877 was executed for a debt binding on the tarwad, and that the Munsif had to some extent lost sight of that question. He does not give his own opinion upon it. He considers that the obligee had no notice of the karar D, and if he dealt bond fide with the Kama-van in lending the money, the presumption in Malabar is that he did so on the supposition that the Karnavan had authority to pledge the family credit; and if the original debt was binding on the family, all the subsequent proceeding's in the suit and in execution were also binding. He was of opinion that there was a fundamental error in the frame of the suit, as all the judgment-creditors who shared in the proceeds ought to have been made parties. He agreed with the Munsif in dismissing the suit.
12. The District Munsif has not recorded a distinct finding, and the District Judge has recorded no finding at all, as to whether the debt was one that was binding on the family.
13. It is true that in a case of this kind (Deendyal Lal v. Jugdeep Narain Singh) L.R. 4 IndAp 247. What was the character of the debt? is not the real question, which is simply. What passed under the sale in execution of the money decree? but the plaintiffs have gone to trial on the footing that they will consider the decree and all the proceedings in execution binding on them, provided that it is shown that the debt was incurred for family necessities, and we think it would not be doing justice between the parties if we insisted on a stricter rule in their favour. We shall remit to the District Court the issue as to the character of the debt and also require a more precise finding upon the other questions.
14. The issues we remit for trial are--
(1) Was the debt for which the decree was obtained against first defendant incurred for the benefit of the family or for proper family necessity or purpose, or did the lender make enquiry and satisfy himself that the money was borrowed for proper tarwad purposes ?
(2) When the debt was incurred, had the Karnavan authority to borrow the money for the tarwad without the consent of the members of the tarwad ?
(3) If the authority of the Karnavan was limited, had the lender (second defendant) notice of the limitation of authority ?
15. Upon receiving the findings of the District Court on the issues sent down, the Court delivered the following
16. It is now found by the District Judge that there was no consideration for the bond upon which the decree was obtained by second defendant against first defendant.
17. But Mr. Shephard contends that it is not competent to the Courts to go behind a decree against a Karnavan; and that such a decree, by virtue of the position of the Karnavan, is binding on the tarwad in the absence of fraud. We do not find that the decisions go to the length contended for. In the case referred to by the District Judge, Anacaren Cherrea Moideen Cooty v. Macatchy Coonjee Kalendar M.S.D. 1852, p. 48 it is said that property belonging to a tarwad is answerable for debts contracted by a Karnavan unless it can be clearly and satisfactorily proved that they were not contracted for the benefit of the tarwad.
18. If this decision is to be followed, it impliedly negatives the right of a creditor to charge a tarwad where evidence is given on the part of the tarwad that the debt contracted by the Karnavan was not for proper family purposes. In the litigation with which that suit was connected, the position of the parties was similar to what it has been in the litigation in the case before us. There had been a decree against a Karnavan, and, on the creditor executing the decree, other members of the tarwad came forward to question the liability of the tarwad for the debt in respect of which the decree had been obtained. It was decided in an earlier case Regular Appeal 37 of 1844, that the. family property is not liable for a debt contracted by the head of the family for his own use. The recent decision to which we were referred, Varanakot Narayanan Namburi v. Varanakot Narayanan Namburi I.L.R. 2 Mad. 328 was a case in which a Karnavan had been sued in Original Suit 2 of 1875 in respect of certain property in possession of the tarwad, which, in the result of that suit, was found to be the jenm of the therein plaintiff, the tarwad having only a kanam right over it. That was a decree against the Karnavan, and in a suit by an Anandravan of the tarwad to set it aside and to have it declared that the Karnavan had acted fraudulently and collusively with the plaintiff in Suit 2 of 1875 in defending that former suit, it was held that the plaintiff' was bound by the decree in that suit, fraud or collusion not being shown. There was the additional circumstance in that case that the plaintiff had himself assisted in defending the suit, and might have applied to be made a defendant, but had not done so. That case is an authority for saying that a decree against the Karnavan, the recognized manager of the property in respect of which he is sued, when the suit has been bona fide defended on behalf of the other members of the tarwad, is binding on them.
19. That is a very different thing from saying that a decree against a Karnavan in a suit against him to recover a mere debt is binding on the tarwad in the absence of fraud or collusion.
20. The earlier cases referred to are distinct authorities for the position that a tarwad is not bound to satisfy such a decree if it can be shown that the debt was a personal debt of the Karnavan or was not contracted for the uses of the tarwad. The District Judge observes in regard to the judgment of the High Court remitting the issue, 'In conclusion I trust I may be pardoned if I offer one or two observations on the dicta of the High Court contained in the earlier part of their judgment. The doctrine affirmed, if I understand it rightly, is that a decree against a Karnavan is a personal decree and is not binding on the family, and that the Courts are not at liberty to go behind the decree. I respectfully submit that this is opposed to the current of decisions for the last forty years. It would be impertinent on my part to enter into any discussion as to what was the actual decision in Deendyal Lal's case, but I venture to submit that the ratio decidendi in that case was that each member of an undivided family has a definite share, which can be ascertained by partition, and that the reasoning is inapplicable when, as in Malabar, partition cannot be enforced by suit.'
I will pass over the argument (which, however, appears to me to be a sound one) that if, as has been frequently held, a Karnavan has implied authority singly to create encumbrances binding on the family property, a fortiori he has a right to contract simple debts which will bind the family.
21. We did not intend to imply in our judgment that individual liabilities against a person could be enforced by sale of the tarwad property to the extent of that person's interest in the property, but that (peculiar customs notwithstanding) the rules of procedure binding on the Courts elsewhere are equally binding in Malabar. If it is sought to make a decree in a suit binding on a corporate body, it should be sued as such corporate body in the mode required by the Code of Civil Procedure, and the decree, to be binding on it, should declare the liability of the corporate body. If a tarwad does not strictly fall within the denomination of a corporation (Chapter 29, Civil Procedure Code), Section 30 in cases in which the members of the tarwad were numerous, would at all events apply, which, while authorizing one of the persons interested to defend by leave of the Court on behalf of all, requires notice of the institution of the suit to be given to all; and a decree in such case, it is presumed, would be a decree against the entire body defending by such person. By Section 235, in proceeding to execute the decree, the decree-holder must state among other particulars the names of the parties and the name of the person against whom the enforcement of the decree is sought. It is obvious that the execution of the decree applied for is intended to be limited to the person or persons so named, and it is not contemplated that enforcement should be effected against persons against whom the decree has not been passed, or to whom due notice, at all events, under Section 30 has not been given.
22. The authority of a Karnavan to make alienations of the immoveable family property stands upon a different footing from his power to pledge the credit of the family. The former power is not unlimited. The assent of the other members of the family must be shown to the particular alienation. The assent of the senior Anandravan is regarded as sufficient evidence of the assent of the family. The Karnavan is not therefore the agent of the family to make alienations, but must have special authority in each case. As the manager of the family property he has authority to pledge the credit of the family for necessary purposes, but it would be too much to hold that the family property is liable to be dissipated by enforcement of decrees against the Karnavan for any simple debt, of whatever character, contracted by him. The result would be that though tied down by the rule which requires him to have the assent of the members of the tarwad to an alienation of immoveable property, the Karnavan might enter upon a career of extravagance and ruin the tarwad by suffering involuntary alienations of the tarwad property in execution of decrees against him.
23. In matters of contract the Courts are not bound by Hindu Law, nor are we aware of any peculiar law or custom of Malabar which does or ought to displace the ordinary rules of evidence as to proof of the liability of principals for acts of their agents. It depends on the circumstances, and not on any presumption invariably arising out of Malabar institutions, on whom, in any particular case, the burden of proof lies as to the necessity for the loan. No invariable presumption, therefore, ought to be applied to the settlement of such questions.
24. On the findings now returned in this particular case we must reverse the decrees of the Courts below and direct that the sale be set aside.
25. Mr. Shephard raised the question whether the other judgment creditors who had shared in the proceeds of the sale ought not to be made parties to the suit; but the Civil Procedure Code provides (section 315) that the purchaser may receive back his purchase money from persons to whom the purchase money has been paid, so that he is not without a remedy against them.
26. The appeal is allowed with costs.