1. This was a suit to have it declared that a kanom granted by the first defendant to second and third defendants was not binding on the plaintiff's' tarwad. The first defendant, since deceased, was the karnavati of the tarwad and both appellants and respondents were her anandravars. It was contended for defendants, inter alia, that a suit for merely a declaratory decree could not be maintained and both the Courts below disallowed the contention. The District Munsif observed that as the first defendant was karnavati, the plaintiffs were not entitled to possession and that possession really remained where it was before the demise on kanom. The Subordinate Judge found that possession of the properties demised on kanom was held by the first defendant on behalf of the tarwad, that the plaintiffs had no objection to her possession, and that if second and third defendants obtained attornment from tarwad tenants subsequent to the kanom, it was inoperative as an attornment acquired ' on a vicious title.' The contention on appellants' behalf is that such attornment operates as a transfer of possession from the tarwad to the kanomdars and that the plaintiffs ought to have sued to recover possession, and hot merely for a declaration, under Section 42 of Specific Relief Act; but we do not consider that this view can be supported. So long as the property continues in the possession of the karnavan as a member of the tarwad, it is prima facie that of the tarwad ; and all that is necessary for a junior member to do in order to prevent its becoming adverse to the tarwad is to obtain a declaration that the kanom which is relied on as the cause of adverse possession is invalid. When the kanom is granted to a stranger to the family and he is in possession, the doctrine of unity of possession is not applicable and possession must then be sued for as relief consequent on the declaration. Our attention is called to the decisions in Subramanyan v. Paramaswaran I. L. R. 11 Mad. 116 Bikutti v. Kalendan I.L. R. 14 Mad., 267 Abdulkadar v. Mahomed I. L. R. 15 Mad. 15 and Narayana v. Shanknni I.L.R. 15 Mad., 255 It was held in Subramanyan v. Paramaswaran I. L. R. 11 Mad. 116 that where a title is in dispute, there may be third parties who are honestly in doubt and ready to acknowledge the title of either claimant, or who, having attorned to one, may be ready to acknowledge the person declared by the Court to have the title, and that in such a case, a suit for a declaratory decree will lie. This decision is against the appellants. In Bikutti v, Kalendan I. L. R., 14 Mad. 267 it was held that according to the plaintiffs' case, the land being in the possession of strangers, it was clearly the right of the plaintiff, as of the other members of the tarwad, to have the land restored to the possession of the tarwad. The decision in Abdulkadar v. Mahomed I.L. R 15 Mad. 15 proceeded on the ground that the office of Sheik and its emoluments were in the possession of the defendant and the doctrine of unity of possession had no application. Nor is the decision in Narayana v. Shankunni I, L. R. 15 Mad. 255 in point.
2. Another contention on appellants' behalf is that the consideration for the kanom was in part-payment of tarwad debts and our attention is drawn In this connection to Exhibit IX and other documents. The Subordinate, Judge observes in his judgment that if the appellants have paid any premium for the kanom grant, they may have a lien to that extent on the property. Though respondents may be entitled to have the kanom declared not binding on the tarwad, appellants are entitled to have any part of the consideration, which benefited the tarwad, or extinguished any of its debts, declared a charge in their favour. The Subordinate Judge has not come to any finding on this point. He is directed to try the following issue, viz., whether any, and what, debts due by the tarwad were discharged by the kanomdars from their private funds ?
3. In compliance with the above order the Subordinate Judge having returned a finding to the effect that tarwad debts had been discharged by the kanomdars to the extent of Rs. 695 from their private funds, the High Court delivered judgment as follows :
Judgment- The finding being one of fact must be accepted. We, therefore, modify the decree of the Courts below by declaring the kanom by first defendant to defendants 2 to 4 to be invalid, but that these defendants have a charge on the property to the extent of Rs. 695 with interest thereon at 6 per cent, per annum from the several dates of payment particularized in the finding.
4. Plaintiff's must pay the costs of the defendants 2 to 4 on the issue sent for trial. In other respects the appeal is dismissed with costs.