William Phillips, Kt., Officiating C.J.
1. The question that has been referred for our opinion is:
Is the decision in Marivittil Mathu Amma v. Pathram Kunnot Cherukot ILR (1906) M 215 : 1906 17 MLJ 377 correct?
2. In that decision it was held that, where a decree is passed against the karnavan of a tarwad in his representative capacity, all the members of the tarwad must be held to be parties to the suit and such members in execution proceedings must proceed under Section 244 of the Code of Civil Procedure and not under Section 278. The decree had been passed against the tarwad, but certain members of the tarwad objected to the attachment of certain properties on the ground that they belonged not to the tarwad but to a separate tavazhi to which the claimants belonged. In order to consider the validity of this decision, it is necessary to consider the decision in Kamal Kutti v. Ibrayi ILR (1901) M 658 which was relied on as authority for it. In Kamal Kutti v. Ibrayi ILR (1901) M 658, the decree had been passed against the karnavan of the tarwad as senior member and manager and it. was held that members of the tarwad who claimed certain property in their individual right must be deemed to be parties, or representatives of parties, to the decree and, as such, any claim made by them came within Section 244 of the Civil Procedure Code (S. 47 of the present Code). The judgment is that of Shephard and Benson, JJ. Benson, J., who was also a party to Marivittil Mathu Amma v. Pathram Kunnot Cherukot ILR (1906) M 215 : 1906 17 MLJ 377, wrote the leading judgment in Kamal Kutti v. Ibrayi ILR (1901) M 658, whereas Shephard, J., merely said
I concur, though I must say that I have had considerable doubt about the question.
3. The decision is based upon the Full Bench ruling in Vasudevan v. Sankaran : (1897)7MLJ102 , where it) was held that decree against the karnavan of a tarwad sued as such in a suit which he defended bona fide was binding on all the members of the tarwad, as they must be deemed to be represented in that suit by their karnavan It must be observed that it was only as members of the tarwad that they were so represented and not in any other capacity that they might hold. Therefore, the decision in Kamal Kutti v. Ibrayi ILR (1901) M 658, in which it was held that members of the tarwad in their individual capacity and not as members of the tarwad must also be deemed to be parties to the decree, is a considerable extension of the principle laid down in Vasudevan v. Sankaran : (1897)7MLJ102 . The karnavan undoubtedly represents the members of the tarwad as such, and the decision in Vasudevan v. Sankaran : (1897)7MLJ102 is merely to that effect; but to go further and say that he represents them in any other capacity, e. g., as members of a separate tavazhi, or as individual owners, whose interests may be, and probably are, opposed to the interests of the tarwad, seems to be contrary to the principle of the decision. In fact, in Ramanatan Chettiar v. Levvai Marakkayar ILR (1899) M 195 : 10 MLJ 64 (FB), it was held by a Full Bench of this Court that, when a decree had been obtained against a person in his individual capacity, a claim by him as a trustee for others who were not parties to the decree was one that fell under Section 278 of the Civil Procedure Code and not under Section 244. The ratio decidendi of this case is that the persons interested in the trust had not been parties to the decree and, consequently, were not bound by it, and, therefore, any claim made by them was a claim made by a stranger to the decree. It is difficult to distinguish this case on principle from Marivittil Mathu Amma v. Pathram Kunnot Cherukot ILR (1906) M 215 : 1906 17 MLJ 377 and Kamal Kutti v. Ibrayi ILR (1901) M 658. As members of the tarwad, the claimants in both cases were deemed to be constructive parties to the decree; but their interests as members of a tavazhi or as individual owners were not represented at all in the suit, which was concerned merely with their interests as members of the tarwad. If they were not represented in their individual capacity in the suit, it is difficult to see how they could be deemed to be parties even constructively to the decree. They were not actual parties and, therefore, they could only come under Section 244 (now Section 47) if they were representatives of the parties; but it is not in their capacity as representatives of the parties that they now come forward with their claim, but as representing them-selves, whose interests are adverse to those of the karnavan, who is deemed to be their representative in so far as they were members of the tarwad. Hence it would appear that they, in their individual capacity, were not represented in the suit and cannot, therefore, be held to be representatives of parties to the suit. The conclusion, therefore, is that, in accordance with the Full Bench decision in Ramanathan Chettiar v. Levvai Marakkayar ILR (1899) M 195 : 10 MLJ 64 the decisions in Kamal Kutti v. Ibrayi ILR (1901) M 658 and Marivittil Mathu Amma v. Pathram Kunnot Cherukot ILR (1906) M 215 : 1906 17 MLJ 377 are wrong. If the claimants had been impleaded in the suit personally, they would undoubtedly be parties and would come within the meaning of Section 47, although the interests put forward in execution might not be the interests in respect of which they were made parties, for it has been held that, when a trustee is sued in his capacity as trustee and in execution puts forward his individual rights, he must be deemed to be a party to the suit also in his individual capacity. Where, therefore, a person is an actual party to the suit, his rights in any other capacity must be deemed to be rights of a party to the suit and he must, consequently, come under Section 47 of the Civil Procedure Code; but when he is not an actual party, but is merely a constructive party represented by another, he can only be deemed to be a party or representative of a party in the capacity in respect of which he was so represented. In any other capacity; more especially when such capacity is adverse to the person who represented him, he can in no sense be deemed to be a party to a decree or representative of a party.
4. The decision in Kamal Kutti v. Ibrayi ILR (1901) M 658 has stood for many years and it is contended on the principle of stare decisis that it should be upheld. We see, however, that it was a decision of one Judge in which the second Judge reluctantly concurred. The correctness of the decision has also been doubted by the late Mr. Justice Sundara Aiyar in his Treatise on Malabar and Aliyasantana Law and he was undoubtedly a great authority on Malabar Law. The decision was also not followed in Peetikayilakath Mammad Haji v. Alam Ibran Haji 31 IndCas 393 and in Second Appeal No. 1 of 1916 (unreported). If therefore the decisions are not correct in law they cannot be upheld, even though they relate merely to a question of procedure. On reference to the papers in Marivittil Mathu Amma v. Pathram Kunnot Cherukot ILR (1906) M 215 : 1906 17 MLJ 377, it would appear that the karnavan of the tavazhi was an actual party to the decree and on that ground the decision may be correct; but as the judgment did not proceed upon that basis, we must answer the question referred to us in the negative, and this will have the further effect of overruling Kamal Kutti v. Ibrayi ILR (1901) M 658 also.
5. I agree.
Anantakrishna Aiyar, J.
6. I agree with my Lord. The circumstance that a money decree obtained against the tarwad karnavan as such is binding on all the members of the tarwad does not make the other members parties to the suit. Under ordinary circumstances their interests in the tarwad property should be deemed to have been represented by the karnavan and it is only in this sense that the decree obtained against the karnavan in his representative capacity is binding on the other members. Vasudevan v. Sankaran : (1897)7MLJ102 The karnavan is taken to sufficiently represent also their interests in the tarwad property, the interests of the karnavan and the junior members in respect of the tarwad property with reference to such suit being ordinarily the same. From this circumstance that the decree is thus binding on the tarwad including the interests of junior members in the tarwad properties, it does not follow that the junior members are parties to the suit. Similarly under Section 11 of Civil Procedure Code, Explanation 6,
when persons litigate bona fide in respect of a right claimed in common for themselves and others, all persons interested in such right shall for purposes of this section be deemed to claim under the person so litigating.
This does not, I think, make all the other persons so interested parties to the suit.
7. It appears to me that it does not follow that because a decision is binding upon a person, therefore he must be taken to be a party to the suit. Prima facie only those are parties to the suit within the meaning of Section 47, Civil Procedure Code, whose names appear in the decree. If any person's name so appears, then all questions raised by him relating to the execution, etc., of the decree should be determined in the execution department, and not by a separate suit. If his name does not so appear, then the next question is--were his interests (that is, those put forward by him) represented in the suit. He may have his own separate or private interests, and he may have his common interests in the tarwad properties as a member of the tarwad. If only his common interests in the tarwad were represented, then it seems to me it is impossible to hold that his other interests (separate and private interests) should also be taken to have been represented in the suit, with the result that if in execution proceedings occasion arises for putting forward such; separate and private interests, he should be treated not as a stranger qua-such interests but as a party to the suit within the meaning of Section 47, Civil Procedure Code. The same remarks would apply to interests as co-owners possessed by two of the junior members of the tarwad in respect of some property owned by those two only as co-owners. The same remarks would also apply to properties owned by some only of the members of a tarwad as their exclusive tavazhi properties. It seems to me that in cases where such members were not eo nomine parties to the decree, and where only the karnavan of the whole tarwad was sued as such, the claims that might be put forward in the course of execution of such decree by the joint co-owner members or the tavazhi members aforesaid should not be dealt with as put forward by persons who are parties to the suit. Ordinarily the karnavan of a tarwad, as such, has no concern with the private and separate properties of the junior members or of any tavazhi. But on the other hand it often happens that his interests as karnavan representing the tarwad are adverse to the separate interests put forward by the junior members or the tavazhi in the circumstances mentioned above. The present case is not even complicated by any permission of Court granted under Order 1, Rule 8, Civil Procedure Code. The decision in Marivittil Mathu Amma v. Pathram Kunnot Cherukot ILR (1906) M 215 : 1906 17 MLJ 377 is based on the authority of the decision in Kamal Kutti v. Ibrayi (1901) 24 M 658. Justice Shephard had considerable doubt about the question. If the principle laid down by Benson, J., in Kamal Kutti v. Ibrayi (1901) 24 M 658 should be accepted, it would seem to follow that in the case of a decree obtained only against a Hindu father or joint family manager as such, claims preferred by other members of the joint family setting up private and exclusive right to properties attached would have to be decided under Section 47 of the Code; as also similar claims put forward by cestui que trust when their private and separate properties not included in the trust are sought to be proceeded against in execution of decrees obtained against the trustees only as such. I am not prepared to place such a construction on Section 47 which would involve the above consequences. In Kamal Kutti v. Ibrayi (1901) 24 M 658 the learned Judge argues:
If the decree can be executed against them (junior members) does not this imply that they are parties or representatives of parties?
8. With all respect, it is difficult to understand how a decree for money obtained against the karnavan alone as such could be executed against the junior members. Such a decree could be executed against the tarwad properties, but not against the junior members. If the learned Judge was right in saying that such a decree could be executed against the junior members, then the conclusion reached by him would of course be correct.
9. I accordingly agree in answering the question referred to us in the negative.