1. The appeal is concerned only with the lands Nos. 1 and 2. As to these, the plaintiff claimed them as having been purchased by his illam in 1852. He said that the illam was in possession till 1878, when he was dispossessed in execution of the decree in Original Suit 656 of 1876, a suit against his elder brother, to which he was not a party.
2. The District Munsif decreed as to portions of these numbers for plaintiff. On appeal to the District Court, that Court held that plaintiff was bound by the decree in Suit 653 of 1876 against his elder brother, and dismissed plaintiff's suit.
3. On appeal to the High Court, that Court (KERNAN and Forbes, JJ. held that plaintiff was not bound by that former decree, as he was no party to it, and remanded the suit for re-trial.
4. The District Munsif on re-trial has dismissed plaintiff's suit as to Nos. 1 and 2. On appeal, the District Judge has found that the former decision in the suit of 1876 was wrong on the merits, and has held plaintiff entitled to recover the two plots Nos. 1 and 2. He finds that they were in fact sold by defendants' illam to plaintiff's illam in 1852. He takes occasion, however, in his judgment to point out to the High Court that the Judges must have been misinformed as to the position of the parties. He says:
A Nambudri illam is, with certain exceptions, governed by the same customary law as a Nayar tarwad. Descent is in the male, not in the female, line, but the male members are not, in the ordinary sense of the word, co-parceners. The absolute control of the family affairs is vested in the senior male member, who represents the family, and, as was pointed out in Nambiatan Nambudri v. Nmnbiatan Nambudri 2 M.H.C.R. 110 should he delegate the powers of management to a junior member, he may at any time resume them. The junior members have a right to maintenance in the family house, but they have no right to partition. The Vakil for the plaintiff could not dispute the proposition that, in the absence of fraud or collusion, a decree against the head of an illam or tarwad is binding against the junior members. Such, as far as I know, has been the law of Malabar unchallenged. I myself have never doubted that such was the law, and, in a recent case from Tellieherry, in which the parties were Nambudris, a Division Bench of the High Court has expressly decided the point. For the purposes of the present appeal I must, however, assume that plaintiff is not bound by the decree in Original Suit 656 of 1876.
5. He heard the appeal, therefore, on the footing that he was bound to act according to the views he assumed to have been expressed by the High Court, though he considered those views erroneous. In appeal to this Court, we have to determine whether by the former decree the question was res judicata, as that contention is again maintained, and, as it appears, the Court, in remanding the case for re-trial, was under some misunderstanding as to the status of the family, having been led to suppose that the plaintiff was in the position of an ordinary Hindu co-parcener. The views of the District Judge, who has had great experience in Malabar, are entitled, no doubt, to great respect. But I am unable to agree in the proposition that, in the absence of fraud or collusion, a decree against the head of an illam or tarwad is binding against the junior members. There has grown up for some years past a notion that not merely rights of property on the Western Coast and hereditary rights, but also rules of procedure in the Courts, are to be governed by Malabar law; and whereas, by the ordinary rules of procedure, a man is not held to be bound by a decree against another to which he was no party, in Malabar it has come to be regarded as the law that the status of a Karnavan is such that a decree against him, whether personally or as Karnavan, is ordinarily binding upon the rest of the members of the tarwad. When the objection is taken that this might lead to collusion and fraud to the prejudice of the tarwad, the answer is, of course, if fraud is shown, the decree may be set aside. But, if this be examined in its working, it will be found to operate very unfairly.
6. Any Anandravan desiring to question the justice of a decree for an alienation, to which he was not a party, must on this view become a plaintiff and undertake the burden of proof, which, if he had been originally made a party defendant to the suit, would have rested with the plaintiff in that suit; and, unless the Karnavan holds a position which is recognized by the rules of procedure as authorizing him to sue and be sued on behalf of the tarwad, I cannot understand upon what footing the well recognized rules of procedure upon this head should be departed from. Further, the Courts since 1859 have been bound by statutory rules of procedure from which it is not open to them to deviate, and there is nothing that I can see in Act VIII of 1859 or its successors which authorizes the proposition that a suit may be brought against a Karnavan to bind the family.
7. What is the Karnavan? He is simply that person of the family in whom the management of the family property in which he is interested equally with the other members is vested for the time being. He may not alienate the property without the consent (express or implied) of the Anandravans, and yet it is contended that he may suffer a decree against him, individually, either for money or property, under which the entire estate may be sold up and the tarwad ruined, and that such a decree, unless the members can come forward afterwards, and, with the burden of proof upon them, show that the decree was obtained by fraud or collusion, is binding upon the whole tarwad.
8. Is there any authority for saying that such managers of property can, under the Civil Procedure Code, past or present, devolve these serious consequences on the persons interested in that property
9. The rule as to who are to be made defendants will be found in Clause 6, Section 26,1 of Act VIII of 1859.
10. Sections 28, 29, and 30 of the existing Procedure Code contemplate making all persons interested parties to the suit, either by actual summons or by notice, leaving it to their option to defend the suit or not; and neither in Act VIII of 1859 nor in the existing Procedure Code can any person be made liable under a decree against whom the decree has not been passed. In the case of the State, there is an express provision whereby an officer is made the defendant. In the case of a corporation (which is deemed to be a person) the suit is against the corporation (Section 435).2 When there is special authority in a company to sue or be sued in the name of an officer, that officer may be sued and the company will be bound by the decree, but, in other cases, every member of the company must be served.
11. Similarly, every member of a partnership must be made a defendant.
12. In the case of trustees, executors, and administrators (Section 437)3 there are special rules, whereby in a contention between the persons beneficially interested and a third person, the trustee, executor, and administrator shall ordinarily represent the persons so interested.
13. A farwad is something in the nature of a corporation, but is not the kind of corporation contemplated in Section 435. A Nambudri family, roughly speaking, only differs from an ordinary Malabar tarwad in this--that it follows the law of descent through sons. The feature in both which distinguishes them from the ordinary Hindu joint family as regards the enjoyment of the property is that there is no partition without the consent of all the members, and that the head of the family is more distinctively recognized as manager than the head of an ordinary Hindu family.
14. Every member of the tarwad is interested in the joint property and ought to be made a party or have notice under Section 30, so that he may have the option of coming in as a party in any suit, the object of which is to affect the property. Explanation 5 of Section 13, Civil Procedure Code, has been sometimes regarded as authorizing a departure from the usual procedure and as making a decree binding on a person not a party, where the person, who was actually the party defendant, was jointly interested with him in the subject-matter of the suit and defended the suit bond fide; but Hazir Ghazi v. Sonamonee Dassee I.L.R. 6 Cal. 31 is an authority the other way and the explanation does not seem to me to refer to bond fide defences but bona fide claims. In Varanakot Narayanan Namburi v. Varanakot Narayanan Naviburi I.L.R. 2 Mad. 328 the plaintiff sued on the footing that the defence of his brother in the former suit had been collusive and left it to be assumed that he did not dispute that he was bound by the decree, if the conduct of his brother was not shown to have been collusive. The District Judge in appeal found that there was no proof of collusion, and plaintiff's case necessarily failed. It was found, also, in that case that the plaintiff had been assisting his brother in the former suit, and, though not formally, was substantially a party. The Munsif stated, in the first trial of the present suit, that the plaintiff' had been seen by him assisting his brother in the former suit. This, however, is not evidence and is necessarily founded upon a recollection which may be mistaken. There was no finding to this effect by the District Judge.
15. In the present suit also, the plaintiff does not proceed upon the ground that the former suit was collusive, in which case, unless he showed fraud or collusion, the suit must fail. He stands upon his right as yet unbound by any decree, and it appears to me that he is not bound by the former decree to which he was not either formally or substantially a party, and that the remand order was right, and, as Mr. Wigram has found that the property was the property of the plaintiff's illam, and the plaintiff was not a party to the former suit, he was not bound by the decree, and that he is entitled to the decree the Judge has now given him, and that this appeal should be dismissed with costs.
16. The plaintiff, Narayanan Nambudri, a South Malabar Brahman, filed the Original Suit No. 838 of 1878 in the Court of the District Munsif of Palghat against the two Defendants to recover possession of certain properties numbered in the plaint 1 and 2 on the ground that they belonged to him as part of his Vadasheri illam, and that they were wrongly taken possession of by the defendants under a decree obtained by them in Suit No. 656 of 1876.
17. The defendants, in their written statement, denied that Nos. 1 and 2 belonged to plaintiff's Vadasheri illam.
18. The plaintiff claimed the possession of other lands 3 to 7, but it is not necessary now to refer further to them, as defendants did not claim them, and plaintiff has got a decree for possession of them, and from that part of the decree there is no appeal.
19. One issue alone was framed, viz., 'Whether the lands were in possession of the plaintiff up to the 5th of April 1878 on his own account, or whether they were in possession of the defendants in Suit No. 656 of 1876 ?'
20. The Munsif made a decree on the 17th day of September 1879, and thereby gave plaintiff a decree for the possession of certain parts of Nos. 1 and 2.
21. On appeal, the District Judge held that the decree in Suit 656 of 1876 decided that plaintiff was not entitled to Nos. 1 and 2 or any part of them.
22. In that suit (656 of 1876) the defendants here were plaintiffs and the elder brother of the present plaintiff was a defendant. In that suit the plaintiffs, alleging they were jenmis of Nos. 1 and 2, sued to redeem a mortgage granted of those properties for Rupees 400. The plaintiff's brother, defendant in Suit 656 of 1876, set up the defence that Nos. 1 and 2 were the jenm of his Vadasheri illam. There was a decree made for redemption, thus establishing the title of the plaintiffs in that suit, and negativing the title set up by the defendant (plaintiff's brother). The decree in Suit 656 of 1876 was final.
23. A second appeal (No. 408) was filed by the plaintiff in this suit, and, on the argument, it was contended that the plaintiff was not bound by the decree of Suit 656 of 1876, as he was not a party to it, and as he claimed to be a coparcener, according to the ordinary Hindu law, with his brother. It appeared to Mr. Justice Forbes and myself that the Munsif had held the plaintiff bound by the decree in Suit 656 of 1876, because he was alleged to have been aware of that suit and assisted his brother in the conduct of the defence and that the District Judge did not set out how it was that the decree in Suit 656 of 1876 bound the plaintiff.
24. We therefore directed the case to be re-tried.
25. This District Munsif has now found the issue against the plaintiff and dismissed the suit as regards Nos. 1 and 2.
26. On appeal to the District Judge, he considered that, under the order remanding the suit, it was not open to him to decide whether the plaintiff in this suit was bound by the decree against his elder brother in Suit 656 of 1876. The Munsif did not take this view of our order, and we did not intend to decide so wide a question. What we decided was that, in the absence of anything to show that the plaintiff and his brother were not governed by the ordinary Hindu law of co-parceners, there was nothing on the record to lead us to conclude that the plaintiff was so bound.
27. On the first hearing, it was not contended that the plaintiff's brother was Karnavan of the tarwad, or that the plaintiff was in consequence bound by the decree.
28. Although the Judge did not decide this question, he has stated in his judgment, for the information of the Court, what his view of the rights of the plaintiff would be, treating the parties as bound by Makatayam law, and his view is that the plaintiff is bound by the decree as the Karnavan, his brother, was a defendant in that suit. The Judge, however, assuming that plaintiff was not bound by the decree of Suit 656 of 1876, has come to the conclusion that the decree made in Suit 656 of 1876 was erroneous and made a decree for the plaintiff for possession of Nos. 1 and 2 and 3 to 7. From that judgment the present second appeal has been brought on the ground that the plaintiff's brother represented the illam in Suit 656 of 1876 and that plaintiff was bound by the decree made in that suit.
29. The point in dispute, the defendants contend, depends upon whether the plaintiff's elder brother sufficiently represented the plaintiff in Suit 656 of 1876 so that the decree in that suit binds the plaintiff. The defendants, however, did not raise this question in their written statement. They alleged that plaintiff was the adopted heir of the Perindalakat illam, and that, such being the case, the plaintiff had no right to sue on behalf of the Vadasheri illam and that Nos. 1 and 2 were not purchased by plaintiff's illam. The only issue was--Whether the plaintiff was in possession on his own account up to the 5th April 1878 or whether the lands 1 and 2 were in the possession of the defendants in Suit 656 of 1876? '
30. Though the Munsif found against the plaintiff as to the title, he did not find as to possession. But the District Judge has found that there was a sale of Nos. 1 and 2 by defendants' illam to plaintiff's illam (Vadasheri) in 1852-3, and that the plaintiff and his brother were in possession under that sale when Suit 656 of 1876 was brought.
31. This decision appears to me to dispose of the only question raised between the parties on the record. The defendants do not raise any objection to this suit on the ground that the plaintiff is not the Karnavan of his illam or that, if his illam has title, he is not entitled to maintain the suit. There was not raised by the plaintiff on the record the question argued at the Bar that plaintiff is not governed by Makatayam law, but is governed by the ordinary Hindu law. He made no such case in his plaint, and such contention would contradict the description, given by the plaintiff, of his status in the plaint; But if it was open to him to do so, he has given no proof on the subject in point of fact. On his own statement, he is a member of a Nambudri Brahman illam in Malabar, and prinid facie he is governed by the Malabar law, and not by the ordinary Hindu law.
32. I fully assent to the proposition that all persons, whose interests are sought to be prejudicially affected by a suit, should be parties to it. But there are exceptions to that rule when such interests are considered to be sufficiently represented and protected by parties to the suit. Whether the case of a Malabar tar wad, represented by the Karnavan alone, in a suit to affect the interest of the tarwad, is within any exception to the rule is, on the view I take of the record, not necessary to be determined in this suit. The case Varanakot Narayanan Namburi v. Varanakot Narayanan Namburi I.L.R. 2 Mad. 328 is distinguishable from this case, as pointed out by Mr. Justice INNES, and may stand as a decision on the facts of that case, relating to the plaintiff and his Karnavan and the rest of the family irrespective of the application of Section 13, Explanation 5, of Act X of 1877 to that suit and of the necessity for notice under Section 30.
33. I have felt some difficulty in holding that the plaintiff is entitled, on the finding, to a decree for Nos. 1 and 2. The finding is that the property was sold to plaintiff's illam and that plaintiff and his brother were in possession. If plaintiff obtains a decree, then his brother, the defendant in Suit No. 656 of 1876, may perhaps participate in the property, which in that suit it was held he was not entitled to as against the defendants, and further, practically, this suit is on behalf of plaintiff's brother as well as on his own behalf.
34. Again, the finding is not in the terms of the issue, viz., 'Whether plaintiff was in possession on his own account?' However, the words 'on his own account' in the issue were not intended to raise any question whether the plaintiff was in possession on behalf of his illam and not on his private account, but were used to raise the question whether the plaintiff was in possession claiming under the defendants in Suit 556 of 1876. The finding as to the title of plaintiff's illam is clear, and the merits of the suit being with the plaintiff, I do not think that we can legally do otherwise than give effect to that title.
35. I would dismiss the appeal with costs.
1Particulars to be given in the plaint.
[Section 26:-The plaint shall be distinctly written in the language in ordinary use in proceedings before the Court, and shall contain the following particulars:
* * *
Clause 6. In all suits by or against, the Government, or one of its officers in his official capacity or any corporation, or any company authorized to sue and be sued in the name of an officer or trustees, the words 'The Government', or 'the Collector of...' or otherwise as the case may be, or the name of the corporation, or the name or names of the officer or trustees of the company, shall be inserted in Nos. 1 and 2 instead of the name and description of the plaintiff or defendant. But in all other cases is shall be necessary to specify the names of all the parties. See 21 and 22 Vic. c. 106.]
2 Subscription and verification of plaint.
[Section 435: In suits by a corporation, or by a company authorized to sue and be sued in the name of an officer or of a. trustee, the plaint may be subscribed and verified on behalf of the corporation or company by any director, secretary or other principal officer of the corporation or company, who is able to depose to the facts of the case.]
3 Representation of beneficiaries in suits concerning property vested in trustees.
[Section 437: In all suits concerning property vested in a trustee, executor or administrator the trustee, executor or administrator shall represent the persons benoficially interested in such property; and it shall not ordinarily be necessary to make such persons parties to the suit. But the Court may, if it think fit order them or any of them to be made such parties.]