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Ayancheri Kovilakath Sankara Varma Raja and Manager of Ayancheri Kovilakam Vs. Ayancheri Kovilakath Cheria Rama Varma Raja and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1939Mad902; (1939)2MLJ506
AppellantAyancheri Kovilakath Sankara Varma Raja and Manager of Ayancheri Kovilakam
RespondentAyancheri Kovilakath Cheria Rama Varma Raja and ors.
Excerpt:
.....and not for securing any benefit to the petitioner for himself. it is obvious, however that when a member sues a karnavan for his removal, he is trying to enforce a right in which he is interested with the other members of the tarwad jointly, and he would apparently be doing so not only in his individual interest but in the interest of all the members of the tarwad as well or at all events he is taking a step which will not affect him alone but the other members of the tarwad also. if the petitioner has a right to sue for the removal of the karnavan, what does it matter if as a result of his success, defendant 3 or any one else would have to function as such? if a particular karnavan has failed to act in accordance with the well-recognised rules and custom and has behaved in a manner..........what the learned author was trying to convey to his readers was that the right to maintain an action for removal of a karnavan vested in the members of the tarwad; but there is no justification to construe those words to mean that they could only do so jointly. it is obvious, however that when a member sues a karnavan for his removal, he is trying to enforce a right in which he is interested with the other members of the tarwad jointly, and he would apparently be doing so not only in his individual interest but in the interest of all the members of the tarwad as well or at all events he is taking a step which will not affect him alone but the other members of the tarwad also. it is therefore only proper that if he has not filed the suit in a representative capacity, he should.....
Judgment:

Abdur Rahman, J.

1. This is a petition for revision against the order passed by the Subordinate Judge of Tellicherry granting leave to the petitioner to sue as a junior member of a Malabar tarwad for the removal of a karnavan from his office and for certain other incidental reliefs in forma pauperis. It has not been contended before me that the petitioner, who is a student in the Zamorin's College at Calicut, is in a position to pay the requisite court-fee. Learned Counsel for the petitioner has confined his attack mainly on the grounds that the petition discloses no cause of action and even if it did, the petition should be held not to have been presented in good faith, as the object of the petition is to help defendant 3 to become a karnavan and not for securing any benefit to the petitioner for himself. In other words, the petitioner is alleged to have been instigated by defendant 3 to fight his cause and it has been contended that it would be wholly against public policy to permit him so to do.

2. In order to substantiate his argument that the petition disclosed no cause of action, Mr. Krishna Variar contended that a junior member of a tarwad had no right to maintain an action for the removal of a karnavan and he could do so only in conjunction with all the other members of the tarwad against whom no relief was sought in the suit. No satisfactory answer was given when a question was put to him as to what would happen if the other members of the tarwad happened to have either conspired with the karnavan or did not wish to array themselves as plaintiffs either because they took no interest in the affairs of the tarwad or were not inclined to exhibit any hostility to the karnavan openly. Reliance was placed in this connection by the counsel for the petitioner on certain observations made by Mr. Sundara Aiyar in his work on Malabar Law (Chapter VII) where the learned author has referred to the members of the tarwad in plural wherever he has stated that they had a right to sue for the removal of a karnavan. I was not impressed by this argument. Every member of a tarwad has a right to see that the tarwad affairs are conducted by the karnavan properly and if he finds that a karnavan has not been acting in the interests of the tarwad, he would have a right to sue for his removal. What the learned author was trying to convey to his readers was that the right to maintain an action for removal of a karnavan vested in the members of the tarwad; but there is no justification to construe those words to mean that they could only do so jointly. It is obvious, however that when a member sues a karnavan for his removal, he is trying to enforce a right in which he is interested with the other members of the tarwad jointly, and he would apparently be doing so not only in his individual interest but in the interest of all the members of the tarwad as well or at all events he is taking a step which will not affect him alone but the other members of the tarwad also. It is therefore only proper that if he has not filed the suit in a representative capacity, he should implead them as parties to the action. It is not denied that all the other members of the tarwad are parties to the suit. 1 am therefore of opinion that the plaintiff has a locus standi to maintain the suit and it cannot be held that the plaint discloses no cause of action.

3. There is no merit in the other objection either. If the petitioner has a right to sue for the removal of the karnavan, what does it matter if as a result of his success, defendant 3 or any one else would have to function as such? If a particular karnavan has failed to act in accordance with the well-recognised rules and custom and has behaved in a manner that justifies his removal and the next member - let me assume this for the sake of argument - is found not to be fit enough to act as a karnavan, the office will have to devolve on the next person in the order of the precedence in the ordinary course. In the absence of any other reliable evidence, it is impossible to come to the conclusion, as the learned Counsel for the petitioner wants me to do, that this circumstance alone is sufficient for a finding that the petition for leave to bring the suit in forma pauperis is not bona fide. It was alleged on behalf of the contesting defendant that the petitioner had entered into an agreement in regard to the subject-matter of the proposed suit. After a full consideration of the evidence led on behalf of the parties, the lower Court came to the conclusion that the contention had not been made out. Had it been found that this petition was filed in consequence of an arrangement or agreement as alleged by defendant 1, one would be called upon to determine whether the agreement related to the subject-matter of the proposed suit. But in the absence of a finding of fact in favour of defendant 1, it is unnecessary for me to take that aspect of the case into consideration. In the circumstances it must be held that the petition for leave to sue in forma pauperis has not been filed in bad faith. A number of authorities were cited on behalf of the petitioner before me but in as much as there is no valid reason to hold that the petition before the lower Court was not bona fide, they need not be referred to here.

4. The contentions that the petition for leave to file the suit in forma pauperis was not bona fide or that it would be against public policy for the petitioner to be permitted to sue in that form are based on the assumptions that the petitioner is not alone entitled to maintain an action even in his own interest and for his own benefit and secondly that he is doing so to help the third defendant. There appears to be no reasonable basis for these assumptions and the petition for revision must therefore be rejected with costs.


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