Abdur Rahim, J.
1. The main question in these appeals is as to the liability of the Kochipalli Tarwad, of which the 1st defendant Kochipalli Ussain Kunhi Haji is the Karnavan, for debts incurred on hundis drawn in the course of a trade which he carried on along with Kotti Kollone Muhammad Kunhi alias Mamu Haji the 2nd defendant in Original Suit No. 15 of 1914 (Appeal No. 417 of 1917) now deceased and represented in the suits subsequently filed, by the present Karnavan of Kotti Kollone tarwad, Kotti Kollone Pallikunyi. The claim against the latter tarwad has not been pressed.
2. The business was conducted in the firm name of 'Kochipalli Ussain Kunyi Haji Muhammad Kunyi' the names of the two defendants abovementioned, and the hundis were signed in the name of the firm. As found by the Subordinate Judge trade is the chief occupation of the male members of this tarwad as it is, I may observe, of many Moplas, and the proper-ties belonging to it were acquired by Kunyi Kuttiali Haji who was Karnavan until 1886 and by Bachi Kutty who succeeded him in karnavanship and held the position till his death in 1908 when he was succeeded by the 1st defendant. Kunyi Kuttiali Haji carried on his business in partnership at first with a stranger and then he and his younger-brother Hussain Kunyi bought up that partner's share and Hussain Kunyi became a partner with Kunyi Kuttiali Haji, and continued to be so until their business collapsed in 1901. Hussain Kunyi was not at the time the next in succession to Kunyi Kuttiali Haji but was only a junior Anandravan, the senior Anandravan being Bachikutty. That the business of Kunyi Kuttiali Haji and Hussain Kunyi did not belong to the tarwad but belonged to them personally cannot be doubted and has not been seriously disputed before us. It is sufficient in this connection to refer to the proceedings in Original Suit No. 485 of 1903 which was a suit instituted by Bachikutty claiming the shop in which the trade was conducted as belonging solely to Kunyi Kuttiali and that on his death it lapsed to the tarwad. It was never contended that the shop belonged to the Kochipalli Tarwad. The other evidence in the case also amply bears out that the business which Kuttiali Haji carried on did not belong to the tarwad. It is settled law that the self-acquisitions of a member of a tarward fall at his death to be inherited by the tarwad or, otherwise expressed, lapses to it. See the Full Bench decision in Govindan Nair v. Sankaran Nair I.L.R. (1909) M. 351.
3. Bachikutty during the life-time of the then Karnavan, Kunyi Kuttiali had a separate business of his own and apparently in his own name, since 1878. It is not seriously contended before us that that basiness belonged to the tarwad and it could hardly have been so contended, considering that-Bachikutty being an anandravan he would not have the authority to carry on any trade on behalf of the tarwad. When he died all his properties including the assets of the business were inherited by the Kochipalli Tarwad of which he was a member. It may be taken to be proved that the 1st defendant who became the karnavan on Bachikutty's death continued Bachikutty's trade along with Bachikutty's son the 2nd defendant who, as already stated, is a member of a different family. This is the finding of the Subordinate Judge and it is amply supported by the evidence and the facts of the case. The 1st and the 2nd' defendants purported to have acquired Bachikutty's business under an oral bequest from Bachikutty and these two persons obtained a succession certificate to collect the debts due to Bachikutty. In that petition, Exhibit U, they alleged that '' the deceased made a verbal will on the 22nd of April 1908 (i.e., shortly before his death) that the outstandings due to him should be collected by the 1st petitioner the direct anandravan of the deceased and the present karnaavan of the tarwad (meaning the 1st defendant) and the 2nd petitioner the son of the deceased and that the business of the deceased should be conducted jointly by the two petitioners together'. It does not appear that there was any opposition on behalf of any of the members of the Kochipalli Tarwad to the petition; and on the strength of the alleged will and the certificate so obtained the 1st and 2nd defendants, members of the two different tarwads, continued to carry on Bachikutty's trade. The debts now in question were incurred in the course of that business by the first two defendants for it is proved that when Bachikutty died he left no debts.
4. In the absence of a valid bequest the trade assets including the outstandings and the goodwill, if any, would be inherited by the tarwad and there can be little doubt that the alleged oral will of Bachikutty, if true, is not valid. The provisions of the Malabar Wills Act, V of 1898 are, to my mind, clear on the point. Section 9 of that Act says; 'All wills and codicils made on or after the date of the commencement of this Act within the Presidency of Madras, and all such wills and codicils made outside the said Presidency so far as relate to immoveable property situated within the said Presidency, must be executed according to the rules' laid down therein. And those rules contemplate that the will must be in writing and signed by the testator and attested by two or more witnesses. The contention on behalf of the respondent that only wills relating to immoveable property are required to be in writing is manifestly untenable, because that section and other sections of the Act undoubtedly imply that all wills made within the Presidency, whether relating to immoveable property or other properties, must be made in writing. And it may be taken that so far as the 1st defendant the karnavan of the Kochipalli Tarwad is concerned the tarwad having inherited the assets of the business in the absence of a valid bequest he as karnavan could not acquire any right to it by adverse possession against his tarwad. That would not apply to the 2nd defendant who is a stranger to the tarward. The question, however, now is not as to the right of the tarwad to the assets of Bachikutty's trade but as to their liability for debts incurred in the course of the trade by the 1st defendant and the 2nd defendant. The properties of the tarwad which are sought to be made liable for these debts were not acquired by the 1st defendant or by him and the 2nd defendant with the profits of the business but had been acquired, mainly, as already stated, by the two preceding karnavans, Kunyi Kuttiali Haji and Bachikutty with the income of their private and separate business.
5. The question, therefore, that has to be determined is whether the karnavan of a Malabar tarwad is entitled to carry on a trade on behalf of the tarwad and thus saddle the tarwad with liabilities arising in the course of that business. It is a significant fact that neither the learned pleader for the appellant nor the learned counsel for the respondents has been able to bring to our notice a single instance of a Malabar tarwad carrying on trade in its corporate capacity. On the other hand there are numerous instances in this Presidency of trading families governed by the ordinary Hindu Law, in tact, there are trading castes like Nattukottai Chetties in which most families carry on trade as the concern of the entire family. In such cases, all the properties of the family which may and often do consist of minors are liable for trade debts. The nature of the liability of a member of a joint Hindu family for debts incurred in the course of an ancestral trade was fully discussed by Chief Justice Sausse of the Bombay High Court in the oft-cited case of Ramlal v. Lakshmichand (1861) 1. B.H.C.R. App. Li. and the law laid down there may be taken to be the accepted law in all the Presidencies. It is stated at p. Ixxi. 'the case of Petum Doss v. Ramdhone Doss (1884) TR. 279 : (2 Ind. Dec. O.S.) 168 before Sir L. Peel is an authority that an ancestral trade, like other Hindu property, will descend upon the members of a Hindu undivided family; and we think that such a family can, by its manager or its adult members acting as into managers, enter co-partnership with a stranger. In carrying on such a trade, infant members of the undivided family will be bound by all acts of the manager, or the adult members acting as managers, which are necessarily incident to and flowing out of the carrying on of that trade, whether it be singly or with a co-partner. The power of a manager to carry on a family trade necessarily implies a power to pledge the property and credit of the family for the ordinary purposes of that trade.' In that case the trade was carried on by a Hindu widow, who had succeeded to it as the heiress of her deceased husband. To the same effect are the rulings of this Court: See South Indian Export Company v. Subbier : AIR1916Mad449 , and Malaiperumal Chettiar v. Arunachala Chettiar (1917) 6 L.W. 417. See also Joykisto Cowar v. Nittianund Nundy I.L.R. (1878) Cal. 738. In Raghunathji Tarachand v. The Bank of Bombay I.L.R. (1909) Bom. 72, Chandavarkar, J., traces the law on the subject to ancient authorities. He observes at page 76: 'According to Hindu law-givers from Manu downwards, traders formed a part of the Hindu polity, and the profession of trade was meant for the third and last of the twice-born castes, namely, Vaishyas. The Brahmins and the Kshatrias were allowed to trade only in case of necessity and in times of distress. There are special rules laid down for traders. Where a caste or a joint family takes to trading and that is handed down from one generation to the next and so on, it is called a trading caste or a trading family and trade becomes its duty or practice. In that case the duty or practice is called Kulachara.' Later on at p. 81, 'Where a minor is a co-parcener in a joint family, his share in the family property is liable for debts contracted by his managing co-parcener for any family purpose or any purpose incidental to it. If the family is a trading firm, the same rule must apply with this difference that the term family purpose or purposes incidental to it must here give way to the expression trading purpose or purposes incidental to it, having regard to the nature and objects of the family business '. On the other hand the manager of a joint family is not entitled to embark on a new business, that is, which is not a family or ancestral business and bind the members of the family with liabilities incurred in the course of it. See D. McLaren Morrison v. S. Verschoyle (1901) 6 C.W.N 429.
6. Here what the family of the Kochipalli Tarwad inherited was not a business carried on by Bachikutti as karnavan of the tarwad but only a private and separate concern of his own. Therefore, it could not be said that the present case falls within the principle of the rulings above mentioned. Even supposing that that principle could be applied to a Malabar tarwad, it cannot be said that trade is the chief occupation or Kulachara of the Nairs who mainly form the community in which the legal conception of a tarward is the peculiar feature of the family system. One of the earliest cases in regard to the competence of a Karnavan to engage in commercial pursuits on behalf of the family was raised in O.S. No. 14 of 1874 on the file of the Subordinate judge of North Malabar--Mr. K. Kunjan Menon. That learned judge held 'It is clear that as a rule the coffee or cardamom trade is not within the ordinary scope of a Karnavan's authority. It was simply a private concern which he chose to carry on. A Karnavan is simply a manager of the common property of the members of the tarwad who are all joint tenants with him. This position entitles him to pledge their credit for all purposes requisite for the preformance of the said duty and no further. The carrying on of a trade like this was clearly without the ordinary duty of a Karnavan and any liability he has incurred in the carrying on of it must be presumed to be an individual one. The Judgment of the High Court in the appeal against the Subordinate Judge's decree is not available but the above propositions were apparently confirmed, as the decree would show.
7. A similar question arose in another case, Suit No. 145 of 1885 which came up on Second Appeal to the High Court. This Court directed the Subordinate Judge who had heard the first appeal to try two issues, 'whether the trade carried on by the Karnavan was carried on with the knowledge and consent of the tarwad,' and 'whether the amount secured by the bond sued on was borrowed by the Karnavan for the purposes of that trade.' Mr. K. Kunjan Menon in his finding on the issues remitted to him observed in that case 'His evidence, read as a whole, would clearly lead to the conclusion that the trade he carried on was his own private trade, and mercantile pursuits do not usually fall within the scope of the ordinary duties of a Malabar Karnavan. He does not say that any part of the plaintiff's money was utilised by him for his own trade, and there is nothing to show that the trade he carried on was a family trade or that the other members assented to his carrying on such trade. Even granting that this explanation is false, the mere fact that the anandravans of a tarwad had agreed to pay off a portion of a trade-debt contracted by their Karnavan cannot, in itself, render the tarwad liable for all his debts contracted in such trade, unless there is clear evidence that the trade was a family trade or that the other members were assenting parties to such trade, and, as the evidence now stands, I have no alternative but to return a finding in the negative on both the issues remitted to me for trial.' That finding was accepted by the High Court and a decree was passed accordingly. The fact that the male members of a particular Malabar tarwad habitually pursue trade as their occupation would not in itself make the trade which an individual member carried on his own account and which on his death is inherited by the tarwad, a family concern unless the tarwad inheriting the assets of the deceased member's trade can be held to have continued it as the business of the tarwad through its Karnavan. Can, then, the Karnavan at his option and without any special authority or consent of his tarwad carry on such a trade on behalf of the family and not merely for the purpose of winding it up? That again depends on the more general question wheher the carrying on of trade is within the scope of his ordinary authority as Karnavan.
8. The legal incidents of a Malabar Tarwad differ in some important respects from those of an ordinary joint Hindu family. In the case of the latter, each member of the family has a share in the family properties which he can enforce by partition and which he can alienate at least according to the law in this Presidency. The member of a Malabar Tarwad is not entitled to any share and he cannot sue for partition. All that he is entitled to is maintenance from the family properties. But neither the manager of an ordinary joint Hindu family nor the Karnavan of a Tarwad can alienate the family property without necessity. It may be said generally that, as regards the disposal of the income, the karnavan of a tarward has a much larger discretion than the manager of a joint family. The ordinary function of a karnavan, however, is to manage the family property to its best advantage and maintain the members of the tarwad in a manner benefitting the position of the tarwad. The law is well summarised in one of the older decisions of this Court in these words: ' In cases where the Marumakkathayam rule of inheritance prevails the property is considered indivisible, the management thereof and the collection of the rents and income being invariably vested in the senior male on whom devolves the duty of providing for the support and maintenance, as far as the funds will admit, of the other branches of the family, especially of the women and children.' (See Moore's Malabar Law p. 95). Then at page 99 the learned author cites another judgment of the High Court (Kernan and Kindersley, JJ.) in which the position of a karnavan is thus described: 'In him (i.e., the karnavan) is vested actually (though in theory in the females), all the property, moveable and immoveable, belonging to the tarwad. It is his right and duty to manage alone the property of the tarwad, to take care of it, to invest it in his own name (if it be moveable) either on loans on kanatn or other security, or by purchasing in his own name lands, and to receive the rent of the lands. * * * His management may not be as prudent or beneficial as that of another manager would be, but, unless he acts mala fide or with recklessness or incompetency, he cannot be removed from such management. Almost the only restraint on him in such management is that he cannot alienate the lands of the tarwad.' In P.P. Kunahamod Hajee v. P.P. Kuttiath Hajee I.L.R. (1881) Mad. 169 this is how the law is stated by Turner, C.J., and Muthuswami Aiyar, J., at P. 175: ' The respect for elders which is a marked feature of all Hinduism is nowhere stronger than in Malabar, and, consequently, although the individual interest of the manager of a tarwad in tarwad property is considerably less than that of a manager of a Hindu family, he has, in the management of the tarwad property, somewhat larger powers than are accorded to a Hindu Manager. While, equally with the manager of a joint Hindu family, be is incompetent to alienate the estate without the consent of the other members of the tarwad, except to supply the necessities of the tarwad or to discharge its obligations, he can not only make leases at rack-rents ordinarily for the term of five years for cultivation, but also leases with fines repayable on the expiry of terms, in the nature of mortgages (kanams and ottis) in which little more than a right to redeem may be left to the family.'
9. I am unable to find that the pursuit of trade comes within the ordinary powers of a Malabar Karnavan within the rule enunciated in the passages I have cited. I take it, therefore, that the unreported cases referred to above correctly indicate the circumstances in which the members of a Tarwad can be held to be bound by debts contracted by a Karnavan in the course of a trade carried on by him; that is to say, it must be shown that the business was a family business as explained above or that the members of the tarwad consented to the trade being carried on behalf of and for the family. As regards such consent, the presence of minors in the family would give rise to difficulties. But assuming that the consent of the adult members would be sufficient--and as at present advised, I am rather inclined to think it would--I have to see whether the evidence in this case makes out such a consent. There is no evidence to show that any of the anandravans took part in the business or helped the 1st defendant in the conduct of it. The defendants however tried to suppress the accounts and it was only two days before the closing of the case that they were produced. The writer of the accounts examined by the plaintiff, as observed by the learned Subordinate Judge, was not willing to render any assistance to the plaintiff. From the accounts, such as they are (Exhibit A series) it is difficult to come to a definite conclusion that the proceeds of the business were used for the benefit of the members of the family. That some portion of the income might have been so utilised by the 1st defendant who was the karnavan may be taken for granted. But without any clear evidence as to the amount of the income from the business which was so spent, or the way in which it was spent, for the benefit of the family and as to whether any of the members were aware of the source from which such moneys came, it is not possible to draw any very definite conclusion. The only other evidence on which reliance is placed on behalf of the appellant consists of certain statements made by the 1st defendant. In Exhibit EE a power of attorney executed by him in favour of the 2nd defendant in 1912 there is a passage to this effect: ' As I desire to go to Calcutta on trade business, I hereby entrust you to manage till my return all properties, moveable and immoveable, and also all trade concern that appertain to Kochipalli Tarwad and to cause the same to be managed and conducted; and you have undertaken to do this, and you are to conduct my trade business with my partners and cause the same to be conducted, to conduct renewals of tarward properties, etc.' This cannot be said to be at all a clear statement that the trade belonged to the tarwad. Then in Exhibit XI which is a power of attorney executed in the year 1910 he speaks of 'our joint trade' which would prima facie read as belonging to himself and the 2nd defendant. It has already been noticed that soon after the death of Bachikutti, he and the 2nd defendant obtained a succession certificate on the allegation that the trade had been bequeathed to them by Bachikutti and not bequeathed to them on behalf of the tarwad. Upon these facts, though the matter is not free from doubt, I am not prepared to differ from the conclusion of the learned Subordinate Judge that it was not proved either that the trade which gave rise to these liabilities was a family business or that it was carried on by the 1st defendant with the consent of the members of the tarwad. There is also evidence, as pointed out by the Subordinate Judge, that the plaintiff and other creditors who dealt with defendants Nos. 1 and 2 acted under the belief that the trade carried on by them was their separate trade.
10. I, therefore, concur in the conclusion of my learned brother whose judgment I have had the advantage of reading, that the appeals should be dismissed with costs.
11. The memoranda of Objections are not pressed and are also dismissed with costs.
12. The outstanding question in all these appeals is whether the trade conducted by the 1st and 2nd defendants, who are the karnavans of Kochipalli and Kottikollon tarwad respectively, was the trade of the tarwads or whether it was their individual trade. Upon the answer to this question depends the liability of all the junior members of the tarwads. As the plaintiff did not press his case against the 2nd defendant's tarwad we have only to consider the liability of the defendants in respect of the Kochipalli tarwad. Decrees have been given against the 1st and 2nd defendants personally and the suits were dismissed as against the tarwads of the defendants.
13. The history of the Kochipalli tarwad is given in paragraph 5 of the lower Courts judgment. It appears from this that the trade was started by Kunhi Kuttiyali Haji and that up to 1873 he was trading as a partner with a stranger named Mammi Kutti. Under Exhibit LL he bought out this partner in 1873 and thereafter traded with his own brother Assam Kunhi. Bachi Kutti joined this partnership. Kunhi Kuttiyali Haji and Assam Kunhi were his cousins, that is to say, his mother's sister's sons. At that time Bachikutii was not the karnavan of his tarward but he became so afterwards. Kunhi Kuttiyali Haji died in 1886, Assam Kunhi in 1907 and Bachi Kutti in 1908. After Kunhi Kuttiyali Haji's death Assam Kunhi became involved in debts and his trade collapsed in 1901. Defendants 1 and 2 countinued the trade of Bachit-kutti after his death and in the course of the trade they executed the hundies, Exhibits BB and CC. series, which are the subject-matter of these suits.
14. The plaintiff has to prove that the defendants are liable upon these hundies. If this were a family with an ancestral trade it might be assumed that all the members of the family were liable for the trade debts. But we have not been referred to any case of a trading Tarwad with an ancestral trade like the trade of a family of Nattukottai Chetties or Marwadis in whose case a presumption would generally arise that the entire family credit and the joint family properties were devoted to the business of the family. See Malaiperumal Chettiar v. Arunachala Ghettiar (1917) 6 L.W. 417 in which such a presumption was raised in the case of a Nattukottai Chetti family. There are other cases of Nattukottai Chetti families in which similar presumptions have been raised. The Subordinate Judge has found that in this case all the male members of thisTarwad have taken trade as their occupation. But he observes that 'in the case of Marumakkathayam Tarwads it should be admitted that Tarwad trade is very rare.' The defendants are Mappillas following Marumakkathayam law. The junior members of a Tarwad cannot compel the Karnavan to partition the family property nor can they ask him for accounts of the manner in which he spends the family assets. Even in the case of a Hindu family it has been held in Vadilal v. Shah Khushal I.L.R. (1902) Bom. 157 that there is no presumption that all the co-parceners are partners in the business because one of the persons carrying on business is a co-parcener in a joint family, and that partnership has to be proved by evidence of an agreement to combine property, labour and skill in the business and to share the profits and losses thereof. In the case of a co-parcenery it must be shown that at least the family funds were utilized in order to start the business. There is no evidence here that the tarwad properties were made use of in the first instance. It is only proved that the properties of the tarwad were acquired by the trade of the male members. There is no presumption of law that properties acquired by one member of the tarwad in his own name belong to the tarwad, and that is a matter which must be proved like any other question of fact, see Govinda Panniker v. Nani I.L.R. (1911) Mad. 304. In the case of families governed by the ordinary Hindu law there are certain trading castes among whom trade becomes the duty or habit of a particular caste and it is handed down from one generation to the next, and in such a case the trade becomes one of the Kulacharas of the family and that fact attracts to itself all the necessary incidents of trade, such is the explanation given by Chandavarkar, J., in Raghunathji Tarachand v. The Bank of Bombay I.L.R. (1909) Bom. 72 of the origin of trading families. It is difficult to conceive of the existence of a Kulachara among Mappillas who are Mussulmans by religion and follow either the Mahomedan or the Marumakkathayam law of succession.
15. In Appeals Nos. 6, 12, 20 and 21 of 1875, this High Court confirmed a decision of the Subordinate Judge's Court of North Malabar in which the learned Subordinate Judge made several interesting observations on the powers of Karnavans to bind their tarwards by trade transactions. He said that a Karnavan was certainly not authorised to embark on any hazardous enterprise by the usage obtaining in Malabar families. He observed that any judge who had any experience in Malabar and who had any idea of the constitution of Malabar tarwads could not for a moment doubt that the entering into any speculation connected with trade would be, not a duty of a Karnavan's office, but an individual act of a person of an exterprising character and therefore it was an exception to the general rule to find Karnavans conducting trading operations on behalf of the tarwad. On the evidence he found that there was no hereditary trade made out in the case of the family in that suit. But he pointed out that the members of the tarwad had no power to restrain the Karnavan from carrying on an individual business of his own so long as he committed no misconduct and the law would not make them liable for his private debts. In Second Appeal No. 223 of 1887 the Subordinate Judge's Court of North Malabar returned a finding in a case where the question was raised 'whether the trade carried on by the Karnavan was carried on with the knowledge and consent of the tarwad', that the trade carried on in that case was the karnavan's private trade and the learned Subordinate Judge observed that ' Mercantile pursuits do not usually fall within the scope of the ordinary duties of a Malabar Karnavan,' and that 'the mere fact that the Anandravans of a tarwad had agreed to pay off a portion of a trade-debt contracted by their Karnavan cannot, in itself, render the tarwad liable for all his debts contracted in such trade unless there is clear evidence that the trade was a family trade, or that the other members were assenting parties to such trade. In a case reported in Sircar v. Unniravi Kunjen 8 Trav L.R. 72 where the Karnavan of a tarwad rented an abkari farm jointly with a stranger it was held that the presumption was that it was not the concern of the tarwad but the learned Judges declined to express any opinion upon the general question whether the Karnavan of a tarwad was competent to bind the family by trade speculations. In the present case the onus clearly lies heavily upon the plaintiff to prove that the trade conducted by the 1st and 2nd defendants who happened to be the Karnavans of their tarwads, was in fact the trade of their tarwards. I will now deal with some of the more important documents. Exhibit EE is a power of attorney executed by the 1st defendant to the plaintiff's 5th witness. It contains the sentence 'All the powers of management and responsibility regarding all kinds of properties and the trade carried on in the town of Cannanore belonging to my Kochipalli tarwad rest with me'. It is argued that the words 'belonging to my Kochipalli tarwad' govern both 'properties' and 'trades'. If this were so, it would be a significant admission that the tarwad owned some interest in the trade conducted by the 1st and 2nd defendants. But the language is ambiguous and the effect is neutralised to some extent by the use of the words 'my trade' and 'my partners' further on in the document. On the side of the defendants there is also the evidence of Exhibits X and XI which are Muktears executed by this 1st defendant to Kochipalli Mahamad Kunhi and Kottikollon Mahamad Kunhi respectively two years before Exhibit EE. It is a material fact in defendants' favour that separate documents were drawn up, one in favour of the 1st defendant's Anandravan for the tarwad property and another in favour of his partner the 2nd defendant, for the trade which he speaks of as our joint trade. Then there is Exhibit U an application for a succession certificate which was granted to the 1st and 2nd defendants on the strength of an oral will made by the deceased Bachikutti to enable them to collect the debts left by Bachikutti. In it Bachikutti is described as the 1st petitioner's Karnavan and the father of the 2nd petitioner. The certificate was granted without any opposition on the part of junior members of Bachikutti's tarwad. It is argued that an oral will made in Malabar would be invalid under the Malabar Wills Act, V of 1898. This act applies to wills of all persons governed by the Marumakkathayam or Aliasantanam law whether they are domiciled in the Madras Presidency or not. It lays down that wills executed by such persons within the Madras Presidency, and even outside the Presidency if they purport to dispose of immoveable property within it, must be executed in a certain manner, namely the testator must sign or affix his mark to the will and the attesters, of whom there must be two, must sign in his presence and by his direction. It is not distinctly declared in the Act that oral wills are not valid. But assuming that that is implied by the language of Section 9, the inference of fact to be drawn in this case from the act of the parties would be the same. Bachikutti leaves his trade to be conducted after his death by the 1st defendant who happens to be the karnavan of his tarwad and by the 2nd defendant who is a total stranger and belongs to another tarwad. This is an indication that the trade was not considered by Bachikutti to be a tarwad trade.
16. Similarly we find in 1873 Kochipalli Kunhi Kuttiyali severing his connection with his then partner and taking in as partner, not his next anandravan, but only his younger brother. Exhibit MM series are extracts from the income-tax registers in which certain amount of income derived by house-rent is included in the income-tax assessment of the 1st defendant and the 2nd defendants's brother (6th defendant in these suits.) There is nothing in these documents to prove that the Kochipalli tarwad admitted their liability to contribute to the income of the firm. The houses upon which house-rent is valued for the purpose of this income-tax case were houses belonging to the Kuttikoll on tarwad, No inference can be drawn against the Kochipalli tarwad from this circumstance.
17. Exhibit Q is a judgment in Original Suit No. 485 of 1903 on the file of the Cannanore Munsif's Court in a suit brought by Bachikutti to recover a shop and Exhibit R is the appeal judgment in the same case. A question arose whether the plaint property was the self-acquisition of Kunhi Kuttiyali Haji and whether after his death it lapsed to the tarwad represented by the plaintiff in that suit The District Munsif found that the shop did not become the property of the tarwad and that the plaintiff's title, as Karnavan of the tarwad to recover it was barred by limitation. The District Judge on appeal also found that the shop belonged to Kunhi Kuttiyali Haji exclusively and dismissed the appeal. Exhibit AA series are the account books of the firm, but as they have not been properly proved in evidence, no conclusion can be drawn from the entries therein.
18. On the oral evidence the Judge has come to the conclusion that all the male members of the tarwad have taken up trade as their occupation. At the same time he says that there is no reliable evidence that the other members of the Kochipalli tarwad assisted the 1st defendant in his trade. In Exhibit Q, the judgment already referred to, it was found that the Anandravans did assist Kunhi Kuttiyali Haji in his trade. But the statements of the plaintiff's 6th and 8th witnesses on this important point in this case have been discredited on account of their demeanours and therefore we cannot rely upon the fact as proved by the evidence in this case. The plaintiff's 7th witness states that the tarwad jewels were pledged for trade purposes, but he admits in cross-examination that they were Mamu Haji's wife's jewels. He also says that the 1st defendant admitted to him that the trade belonged to the tarwad and he states that he has seen the members of the tarwad taking articles from the shop in the cantonment.But as this witness is the plaintiff in O.S. Nos. 2 and 29 of 1916 out of which appeals 375 and 254 of 1917 have arisen no weight can be given to his evidence. This man when getting a conveyance executed for a small portion of immoveable property (see Exhibit F) insists on all the tarwad joining but not so when he lends money to the extent of Rs. 14,000 to the 2nd defendant's muktear, Hundis, Exhibits BB and CC series, have been signed by the muktear of the firm on behalf of the firm. There is no indication from these documents that the tarwad incurred any liability. In Exhibit DD the 2nd defendant and the 2nd defendant's brother, who was his muktear, notified to one of the persons with whom they had dealings that they were trading in partnership under the firm name of Kochipalli Hussain Kunhi and Kuttikolone Mamed Kunhi, that is, the name of the 1st and 2nd defendants. These two persons belong to different tarwads. There is no evidence that the tarwad property has been used or pledged in the business with the exception of the case of the jewels already referred to as to which there is no clear evidence that the jewels did not belong to the individual women who wore them rather than to the tarwad as a body.
19. On the whole I am of opinion that the conclusion formed by the Subordinate Judge that the plaintiff had failed to prove that the trade was that of the tarwad of Kochipalli was correct. So far as the custom of Malabar tarwads is known it would appear to be an exception to the general rule to find a Karnavan conducting a trade on behalf of the tarwad, though of course any profit that might be made by any individual by trading would on his death become part of the tarwad assets. I must confirm the judgment of the lower Court and dismiss these appeals with costs.
20. The Memoranda of objections have not been pressed and are dismissed with costs.