1. This suit was brought for redemption of a kanam and for setting aside a prior renewal granted by the 19th and 24th defendants. The suit was decreed in the District Court, and in second appeal several objections have been taken.
2. The 4th plaintiff is a minor and the 5th plaintiff was put forward in the District Munsif's court as his agent. But in the District Court, he was brought on record as the next friend of the 4th plaintiff and allowed to prosecute the suit. It is objected that this procedure was not legal on the ground that the property in suit was that belonging to a devaswom belonging to an Illom and that the 4th plaintiff as a minor was not competent to represent the illom. Order 32, Rule 2 provides that 'where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file'. But there is no legal objection to the course taken by the District Court of impleading the 5th plaintiff as the next friend of the 4th plaintiff and allowing him to continue the suit.
3. The frame of the suit as finally constituted is not open to objection. We have not been shown any authority for holding that a minor is incompetent to be an uralan of a dewaswom.
4. The second point argued is that the present suit should have been dismissed as barred by res judicata on account of the prior suit O.S. No. 8 of 1901 filed for the same purpose having been dismissed for non-joinder and that decree having become final on account of the failure of the plaintiffs to appeal to this Court. But it cannot be said that the questions decided in the present suit were directly and substantially in issue in the former suit and decided between the parties.
5. The defendant's (appellant's) counsel wished to raise another point regarding the failure of the plaintiff's to join the attaladakkam heirs in this suit. But as this was not raised in first appeal we cannot allow it to be taker? here.
6. The last and substantial point in the case is whether the renewal of 1911 was invalid. The District Judge found that it was so because the 24th defendant had introduced a stranger (19th defendant) who was not an uralan in the deed of renewal. So far as the inclusion of this stranger tended to support pretensions on his part to have a right to deal with the properties of the Dewasworn, the action of the 24th defendant was a breach of trust, and the lower court's decision can also be supported on the ground that the renewal was manifestly bad for want of consultation with the other members of the illom. In my opinion the lower appellate court was right, and the second appeal should be dismissed with costs. Time for redemption is extended for 4 months. The memo, of objections is dismissed with costs.
7. This Second Appeal is against the decision of the District Judge of South Malabar in O.S. No. 97 of 1912 brought before the Principal District Munsif of Calicut, for the redemption of a kanom granted by the then uralars of the Cheruvannore Devaswom in the year 1856. The District Judge has granted the redemption as prayed for, and the appeal is against that decree.
8. The appellants are the 1st defendant who represents the mortgagee's interest at present and the 24th defendant who is one of the Urallers of the Devaswom. The suit was originally brought by five plaintiffs, the first four plaintiffs being the members of Kanholi Illom, and the 5th plaintiff their agent or muktiyar. The plaint had been signed by this 5th plaintiff and not by any others. There was also another defect in the plaint that the 4th plaintiff who was admittedly a minor was not represented by his next friend on record. The case as it was originally before the District Munsif was however dismissed not on any of these technical grounds but on another technical ground that all the Urallers of the plaint temple were not parties to the suit. That decree having been affirmed by the District Judge we had to interfere in S.A. No. 847 of 1914 where we pointed Out that the dismissal for non-joinder was not a proper disposal of the case and directed the necessary parties to be added and a decree passed in the case on the merits. The case went back again to the District Munsif and before him several technical pleas were again taken and some of them found favour with him. As they are also pressed before us I shall deal with them now.
9. The first point taken is that the plaint had not been signed by the 1 to 4 plaintiffs and that the 5th plaintiff was not the properly constituted agent of the plaintiffs, that the plaintiffs 1 to 3 had no interest in this Devaswom, but that the 4th plaintiff was the only Urallan of the Devaswom as representing his illom and as he was on record only in his own name without there being a next friend, as required by Order 32 Rule 1 he being admittedly a minor, the suit should have been dismissed on that ground alone. The District Munsif upheld this plea. But I agree with the District Judge in thinking that he was wrong. There is no reason for holding that the omission to put in the next friend was due to any design or in any way mala fide, but it was a case of mere inadvertence. The District Judge was, therefore, right in holding that an opportunity should have been given to cure this defect. The defect has now been cured by the 5th plaintiff being brought on record as the next friend of the minor and the plaint as it is before us and as it was before the District Judge at the final hearing is free from any defect on this score.
10. The next point argued before us is again one of non-joinder of certain attaladakkam heirs of Erampanpalli Illom who owned Uraima rights in this plaint temple. The finding of the District Munsif is - and that was supported by that of the District Judge - that this illom had become extinct, and that, though the last male member of the Illom attempted to vest the uraima right by a will in his sons, that had no effect, as the trusteeship of a temple could not be alienated in that manner. That has been laid down very long-ago.
11. Then it was said that there were some attaladakam heirs of this family and that they must be treated as the representatives of the Erampalli Illom's Uraima right and as Uralars of this temple. I am inclined to agree with the District - Munsif that it is doubtful if such a right will pass by attaladakkam as it is confined to a particular illom or family and will not pass to any other illom by inheritance or otherwise; it is not however necessary to decide this point in this case, as the appellants before us made no attempt whatever to raise the question before the District Judge. Having apparently abandoned the point in the lower Court, they cannot be allowed to raise the point before us again.
12. The next point urged before us was that even assuming that the plaint could be put right by allowing the 5th plaintiff to sue on behalf of the 4th plaintiff as his next friend, the suit must fail because the 4th plaintiff was a minor and as such could not be a trustee at all, and not being a trustee could not sue on behalf of the temple. The whole point depends upon whether a minor in an illom or tar ward can be considered to be the proper trustee of the temple when the trusteeship belongs to his illom or tarward. So far as I am aware there is nothing to prevent a minor from being a trustee. He may not be in a position to look after the trust; he may not also be in a position to execute or carry out the trust Nevertheless, there is nothing to prevent the minor trustee's work being done for him by a properly constituted guardian. At any rate, no authority has been cited before us to show that a minor cannot be a trustee. Two cases have been referred to us by the learned Counsel for the appellants, namely Somasundara Mudaliar v. Vythilinga Mudaliar I.L.R(1896) . Mad. 285, and Muthukumara Mudaliar v. Palaniappa Chettiar (1910) 10 I.C. 300, very different cases which arose under the Religious Endowments Act. In the former case their Lordships held that, as the case fell under Section 4 of the Religious Endowments Act and as there was a dispute as to the trusteeship after the death of the then holder of the office, it was open to the court acting under Section 5 to appoint a trustee till the question was decided by a properly instituted suit. In Muthukumara Mudaliar v. Palaniappa Cheitiar (1910) 10 I.C. 300 another Bench of this Court followed the previous ruling and, in upholding the removal of the trustees also under the Religious Endowments Act, thought that, as the other claimants 3rd to 5th plaintiffs were minors, it was suitable to put somebody else as a trustee, at least till one of them attained majority. There is nothing in this case to show that a minor could not be a trustee, although it may be inconvenient, if the court were appointing a trustee, to appoint a person who is a minor as he must necessarily act through another person as his guardian; and the courts would certainly avoid appointing any minor as a trustee. But so far as the present case is concerned it has not been shown that this is a temple to which the Religious Endowments Act applies or that there is anything to prevent the 4th plaintiff from continuing as trustee of this temple representing, as he does, the Karnavanship of the illom to which the trusteeship belongs. This point also, therefore, fails.
13. A plea was next taken on the ground of res judicata on account of a previous decision in O.S. No. 8 of 1901 brought to redeem this very kanom by one of the predecessors in title of the present 4th plaintiff. That suit, however, did not proceed to a decision at all but was dismissed on the ground of non joinder of parties. It has not been shown to us how a decision of that sort made without going into the merits of the case be treated as one in which the questions now raised were heard and finally decided by the court. The questions here were not heard and decided then, and no question therefore of res judicata could arise on the basis of that decision. It was suggested that explanation IV ought to be read with Section 11 and, for some reason or other, the dismissal of the former suit should be treated as involving a decision on all the points that could possibly arise in the case. I am unable to follow this argument. Explanation IV deals with a case which has been tried on the merits but not with a case which has been rejected on an objection like the want of parties, or failure to pay court fees or something of that sort. No authority has been cited to support this contention of res judicata. I think therefore that this contention also fails.
14. Finally coming to the merits the defence is this. The 1st defendant managed to obtain a renewal of the kanom now sought to be redeemed, in 1911 from the 24th defendant and the 19th defendant and he pleads that that renewal is valid as against the Devaswom and therefore this suit to redeem is premature as the 12 years' time fixed has not expired. The validity of this plea depends upon the validity of the renewal. The District Judge has held that it is not valid for two reasons, firstly because in granting this renewal no attempt was made to consult the 4th plaintiff who is the karnavan of the Illom in whom the uraima is vested or his guardian. That itself is a sufficient ground for holding the renewal to be invalid, See Cheeru v. Narayan Nambudri 8 I.L.R.(1918) Mad. 335 .
15. There is the further point taken by the District Judge, namely, that by this renewal an attempt has been made to introduce a stranger, 19th defendant into the uraima right in this temple by joining him as one of the persons granting the renewal. It was contended before us here that this was done bonafide, that the 24th defendant had no idea that there was anything unreasonable in doing so as he thought that the will executed by the last male member of the Erampanpalli Tarward in favour of the 19th defendant and others was a valid document. The appellant's counsel also pointed out that in the renewal deed itself this right of the 19th defendant under the will was recited. It is possible that the 24th defendant acted dishonestly and the District Judge was right in thinking that it was so. However we need not rely upon this ground for setting aside the renewal. The other ground is sufficient for its being set aside. The renewal failing there is no obstacle in the way of granting a redemption in favour of the 4th plaintiff as the District Judge has done.
16. As a last resort the counsel for the appellants suggested in his reply that the decree should be given in favour of the 4th plaintiff and the 24th defendant; but this point was not taken in the opening here or in his grounds of appeal to the lower appellate court. When possession is given under the decree to the 4th plaintiff it would be on behalf of the trust and any trustee who is entitled to have joint management of the property can get it. It is not necessary to interfere with the decree on that ground.
17. I therefore agree with my learned brother that this Second Appeal fails and must be dismissed with costs.
18. Time for redemption is extended by 4 months from this date.
19. The Memorandum of cross objections is dismissed with costs.