1. The plaintiff alleging himself to be the present karnavan of the Rayaroth tarwad, sued to recover properties which he alleged had been acquired by a former karnavan, one Kunhi Soopi Haji, who died in 1874, and which are now in the possession of the descendants of the said Soopi Haji or tenants under them. The Subordinate Judge decreed in plaintiff's favour for certain of the properties sued for, and the Appeals Nos. 125, 126, 127, 128, 140 of 1889, and Appeal No. 12 of 1890 are preferred by some of the defendants, while plaintiff appeals in Appeal No. 141 of 1889 as to some of the plaint items disallowed.
2. Preliminary objections were taken as to (1) misjoinder of causes of action, (2) the right to a karnavan to sue alone, and (3) limitation. Upon the first point we entertain no doubt that plaintiff can implead the several defendants in one suit to recover the tarwad property--Vasudeva Shanbhaga v. Kuleadi Namapai 7 M.H.C.R. 290 Mahomed v. Krishnan I.L.R. Mad. 106--upon the second the right of a karnavan to sue for the tarwad property is well established--Subramanyan v. Gopala I.L.R. Mad. 223--while the question of limitation will, it appears to us, depend upon the date in each instance on which the possession of the several defendants became adverse to the tarwad. It was further alleged that the whole suit was barred, inasmuch as it was not instituted within 12 years of the date of Kunhi Soopi Haji's death. Upon this point, we are satisfied that Exhibit A is not a copy, but is the duplicate register of deaths kept in the amshom in the ordinary course of official business, and it fixes the date of Soopi Haji's death as having occurred on 24th August 1874. We accept that date accordingly.
3. We pass, therefore, to the second and principal issue in the suit, viz., whether Kunhi Soopi Haji followed Marumakkatayom or Muhammadan law. The Subordinate Judge found that the Marumakkatayom system governed the descent of the tarwad property, but that the self-acquisitions of members of the family were governed by the Muhammadan law.
4. Kunhi Soopi Haji was the sister's son of Jokkian Soopi, who died about 1822, and who is alleged to have been the original karnavan of the Rayaroth tarwad, so far at least as it is necessary to go back for the purposes of this litigation. We find, however, that the revenue registry of the 28 nunjah lands and 77 parambas which stood in his name were continued in his name till Fasti 1270 (1860), i.e., for about 38 years after his death. Exhibit 115 shows that the registry was then transferred, 14 out of the 28 nunjah lands and 55 out of the 77 parambas being transferred to the name of Rayaroth Cheriya Soopi Haji, who is represented by plaintiff to have been the fourth karnavan in succession from Jokkian Soopi, the first karnavan. The other lands and parambas were transferred to the names of eight other persons, and the Subordinate Judge states that it was conceded these were distant relations; but there is nothing in the evidence before us to show what the precise relationship was, and their names do not appear in the pedigree, as made out from the evidence of plaintiffs' witnesses.
5. Some confusion has been introduced into the ease from the fact that the Subordinate Judge did not understand that the Rayaroth Cheriya Soopi, to whose name these lands were transferred in 1860, was not the Kunhi Soopi Haji whom he takes to have succeeded Jokkian Soopi as karnavan No. 2. Kunhi Soopi Haji was alive in 1860, and according to plaintiff was de jure karnavan; but he is said to have then been an old man, and we are asked to believe that the patta was issued in the name of Cheriya Soopi Haji as he actually collected the rents and paid the assessments on the property (see Exhibit K). This document is objected to as not furnishing legal evidence of the contents of the joint petition by Kunhi Soopi Haji and Cheriya Soopi which it recites, and we were referred to the decision in Subramanyan v. Paramaswaran I.L.R. Mad. 116 in which the learned Judges stated hat they followed the Full Bench decision in Gujju Lall v. Fatteh Lall I.L.R. Cal. 171. It is not clear what was the precise nature of the documents rejected in the Madras case, but we think the decision in Parbutty Dassi v. Purno Chunder Singh I.L.R. Cal. 586 is applicable to the present case, and is not inconsistent with the Full Bench ruling above referred to. We may point out that in Gujju Lall v. Fatteh Lall I.L.R. Cal. 171 the sole object for which it was sought to prove the former judgment was to show that in another suit against another defendant the plaintiff had obtained an adjudication in his favour on the same right claimed, and it was held that the opinion expressed in the former judgment was not a relevant fact within the meaning of the Evidence Act. In the case before us, it is not the adjudication which it is sought to prove,--for the point was never adjudicated upon--but the judgment is tendered in evidence as proof that in a particular instance the plaintiff's predecessor acted in the capacity of karnavan of a Marumakkatayom tarwad wholly irrespective of the particular decision arrived at in the suit. This, we think, is a relevant fact, and the entry is therefore admissible under Section 35 of the Evidence Act--See also Ramasami v. Appavu I.L.R. Mad. 9.
6. Exhibit A K is the revenue register of the 14 items of nunjah and 51 parambas which were entered in Cheriya Soopi Haji's name in Fasli 1290, and in coming to the conclusion that the Marumakkatayom rule governed the descent, the Subordinate Judge has been greatly influenced by the fact that several items of property which he enumerates are shown by Exhibit 115 to have stood first in the name of Jokkian Soopi, that they were transferred to that of Cheriya Soopi in 1860 and were in the interval dealt with by Kunhi Soopi Haji under various documents. For the defendants it is not denied that Kunhi Soopi Haji came into possession of various properties which originally belonged to Jokkian Soopi, but it is contended that he took them as sister's son under Muhammadan law, and hence that from that fact alone no inference favourable to Marumakkatayom can be drawn.
7. We may here observe that there is no evidence to show that Kunhi Soopi Haji's mother, Byathumma, survived her brother, Jokkian Soopi. If she did, and if the family followed the Muhammadan law, she would be a legal sharer, and we might expect to find traces of her having dealt with portions of the property and of her share being divided among her several children at her death. There are no such indications. If, on the other hand, (still assuming that Muhammadan law ruled the descent) Byathumma did not survive Jokkian Soopi, Kunhi Soopi Haji as the sister's son, would have come under the head of distant kindred anil have been altogether excluded by the brother's sons, the descendants of Jokkian Mammi and Jokkian Kutti Ali.
8. It is admitted, however, that Kunhi Soopi Haji did in fact succeed--whether under Marumakkatayom or under Muhammadan law--to a great deal of property which originally stood in the name of Jokkian Soopi. He was alive in 1860, and it is inexplicable if these properties were really governed by Muhammadan law, that he, and the descendants of his brothers and sisters would have permitted the revenue registry to be transferred to the name of Cheriandi Soopi; Kunhi Soopi Haji was an old man, and his death could not be far distant; and his own nephews, who would be his natural heirs under Muhammadan law, would hardly have allowed the transfer to the name of a distant cousin, who was no heir at all. If, on the other hand, we accept the theory of Marumakkatayom and the explanation given by Exhibit K, the situation becomes intelligible.
9. It is objected by the defendant's pleader that many of the documents referred to in paragraphs 50 to 61 of the judgment of the Subordinate Judge were not proved, and that it is not shown they came from proper custody. With regard to his objection, we observe from the B diary in the suit that these documents were put in by the plaintiff's pleader, and may fairly be taken as having come from the plaintiff's custody, though the formality of examining plaintiff when they were put in was not observed. No objection appears to have been taken at the time; indeed the defendant's pleader was allowed to take precisely the same course with some of his documents. Many of these documents are judgments and public records as to whose genuineness there is no doubt,--while others (marupats and sale-deeds) purported to be more than 30 years' old and came from proper custody if the plaintiff is the karnavan of a Marumakkatayom tarwad. If he is not, his possession of them is unexplained, and no objection to their genuineness appears to have been taken at the proper time. We do not think it necessary to remand the appeal for further evidence on these points.
10. It is true that the items of property which the Subordinate Judge traces from Jokkian Soopi in this part of his judgment are not part of the property in suit,--but the evidence is relevant as showing that properties which originally stood in the name of Jokkian Soopi were afterwards dealt with by Kunhi Soopi Haji,--who would be the next karnavan if Marumakkatayom governed the descent,--but who is not proved to be the next heir under Muhammadan law, and that these properties were allowed without objection to be registered in the name of Cheriandi Soopi, who would be an heir under Marumakkatayom but not under Muhammadan law, there being no evidence whatever that he had acquired any title either by gift or purchase to Jokkian Soopi's property.
11. The litigation referred to in paragraphs 55, 56 and 60 of the judgment also support the plaintiff's case. It was argued that no connection was proved between the property sued for as shown by Exhibit A with that demised in Exhibits D and E,--but Exhibit A B shows that this property was sued for in 1828 by Kunhi Soopi Haji. It was demised in 1863 by the same person (Exhibit D) and again in 1875 by Cheriandi Soopi (Exhibit E) to the plaintiff's eighth witness who admits holding under the tarwad. If the property was not tarwad property it is not explained why Kunhi Soopi Haji's descendants allowed this witness to attorn to Cheriandi Soopi instead of to themselves.
12. Exhibit A D shows that Kunhali who is represented to have been karnavan from 1874 to 1878 sued as karnavan in 1877 to recover property given on a demise by his former karnavan Kunhi Soopi Haji and got a decree. In that case the plaintiff was brought in as supplemental plaintiff. It is objected that Cheriandi Soopi was the next senior anandravan and not the plaintiff, but Exhibit B executed on 2nd October 1877 shows that the plaintiff was given a power-of-attorney by Kunhali to manage the affairs of the Rayaroth tarwad during his absence in Arabia. The genuineness of this document is not disputed, and it is important as tending to show that Kunhali made separate arrangement for the management of his self-acquired property and of his tarwad property.
13. A suggestion was made by the defendant's pleader that several of the documents had been executed since the death of Kunhi Soopi Haji in 1874 with a view to create evidence. This, however, cannot be said with regard to several marupats executed in the early part of the century, and it is clear that the alleged successors of Kunhi Soopi Haji have not shown themselves in any hurry to assert their rights. Kunhali went to Arabia, and his successor is alleged by plaintiff to have been negligent of the interests of the tarwad. The plaintiff himself--as far as the evidence goes--did not become responsible for the management till 1885 and the suit was brought in 1886.
14. It is next urged that the Subordinate Judge omitted to consider several documents which would have tended to show that the descent of property in this family was governed by Muhammadan law, and in particular we were referred to Exhibits 120, 118, 123, 145 and 184.
15. In Exhibit 120 the plaintiff' is said to be the son of the brother of Kunhali (karnavan No. 3). He sued to recover property demised by his late brother, and the defence was that the land was held under his mother (fourth defendant). The District Munsif found that the document creating demise from the fourth defendant was a concoction and observed that under Muhammadan law the plaintiff would have a right to succession in preference to the wife. The observation was a mere obiter dictum, and the question of Marumakkatayom or Muhammadan law did not arise in the suit. Exhibit 118 is a certified copy of a decree, but there is nothing before us by which we connect the parties with the parties to this suit. Exhibit 122 hows that in 1837 some relations of Kunhi Soopi Haji had obtained from him some share in some property; but there is nothing to show what was the nature of that property, or on what ground the share was given. Exhibit 140 is a patta which snows that a bit of land was transferred from Kunhi Soopi Haji's name in 1874 to that of Cheriya Soopi 'with permission of son Ahmed Kutti Haji.' This does not necessarily show anything more than that no objection was made by Kunhi Soopi Haji's son to the transfer and is consistent with the suggestion that the property may have been tarward property. Exhibit 184 shows that Kunhi Soopi Haji purchased some property in 1844, but there is nothing to show how his vendors acquired a title, though it may have descended to them from their father.
16. We are unable, therefore, to hold that these documents in any material way assist the contention of the defendants.
17. Passing to the oral testimony, we find that the plaintiff's second witness is the grandson of Jokkian Kutti Ali, brother of Jokkian Soopi. His testimony that the family is governed by Marumakkatayom law is therefore clearly against his interest, as he would have been a nearer heir than Kunhi Soopi Haji in succession to Jokkian Soopi under Muhammadan law. The third and fourth witnesses have also opportunities of knowing the facts, and the evidence of the first witness called by the defendants was to the same effect.
18. Upon the whole, therefore, we are of opinion that the Subordinate Judge was right in his conclusion that Rayaroth Kunhi Soopi Haji was a follower of the Marumakkatayom rule, notwithstanding that it is shown that other members of this family have dealt with property which is described to be self-acquired under the precepts of Muhammadan law. We may point out that the very execution of such documents as Exhibits F and G may tend to show the executants felt it necessary to make a special provision for their descendants to prevent the operation of the Marumakkatayom rule upon such property.
19. The next point is whether the plaintiff is the present karnavan of the tarwad. His seniority is disputed on account of the evidence of Kuruvangat Ahmed Kutti, first defence witness,--who alleged himself to be the plaintiff's senior and the eldest in the Rayaroth tarwad. We do not think much reliance can be placed upon the evidence of this witness. He was not called by the plaintiff, and the defendants complained that he had to be brought on a warrant and was hostile to them. It is difficult to reconcile his different statements. He at first declared that he belonged to the Kuruvangat tarwad, in which the plaintiff had no right, and then that he was the eldest in Rayaroth tarwad in which the plaintiff is undoubtedly a member. Had he really belonged to Rayaroth and been the eldest in it, we think he would have claimed the karnavanship on the death of Cheriya Soopi,--but he declares that He has no right to the property therein. We cannot give credit to the statement of this witness that he is the senior member of the Rayaroth tarwad.
20. It remains to consider whether the plaintiff is entitled to recover the property (Item No. 55) from; the appellant (71st defendant). The claim is resisted on the ground of limitation.
21. The 71st defendant was not a party to the suit till after the 15th December 1886, or more than 12 years after the death of Kunhi Soopi Haji. We think, however, we are bound to examine the original character of the possession, in order to see whether the 12 years' rule applies--Byari v. Puttanna I.L.R. 14 Mad. 38. The contention is that the property was given to the 71st defendant by Kunhi Soopi Haji in 1869 and has since been held by her adversely to the tarward. In proof of this contention we were referred to Exhibits 81, 189, 190 and 191.
22. It was objected that Exhibit 81 is inadmissible in evidence. We are satisfied that it is the rough draft of the plaint put in in Original Suit No. 270 of 1869 on the Badagara District Muniif's file and is not a copy but an original rough draft. It has been kept for record in the Vakil's office, bears the number of the suit, and the decision in the suit has been endorsed upon it. The plaint actually put in was a copy of this draft. We hold therefore that it is admissible and shows that in August 1869 Kunhi Soopi Haji admitted having alienated the property in a manner which would be adverse to the claim of his tarwad.
23. The razi decree in that suit was in favour of the present appellant (Exhibit 190, dated 6th November 1869) and on 2nd September 1869 the tenant attorned to her (Exhibit 189). The evidence of the 70th defendant's second witness proves that the 71st defendant held possession since 1869.
24. We are of opinion, therefore, that the plaintiff's claim to Item No. 55 is barred. The appeal of the 71st defendant must be allowed and the plaintiff's claim as against the property in her possession (Item No. 55) be dismissed with costs throughout.