Sundara Aiyar, J.
1. The application which gave rise to this appeal was one under Act XXXV of 1858 to adjudicate the Karnavan of a Malabar tarwad a lunatic and to appoint a Manager for his estate. The application was dismissed by the District Judge of South Malabar, he being of opinion that no application would lie under the provisions of Act XXXV of 1858 to adjudicate a member of an undivided Malabar tarwad a lunatic. He did not, on the view he took, consider it necessary to hold an enquiry as to the question whether the Karnavan was in fact a lunatic or not.
2. The question for our decision is whether that view is right. No decision bearing on the precise question has been brought to our notice. The competence of the court to adjudicate an undivided member of a Mitakshara family a lunatic has been considered in some cases. In Trimbaklal Govindas v. Hiralal I.L.R. (1895) B. 659 it was not necessary for the court actually to decide the question, an adjudicaton having as a matter of fact been previously made in that case and a manager having been appointed. The question before the court was whether the manager so appointed who was another member of the undivided family was bound to render accounts in* accordance with the provisions of Section 17 of the Act. Farran C.J. and Parsons J. held that the court would not make him render an account under the section. At p. 666 Farran C.J. observed 'The Act provides no machinery nor does it confer any power upon the court to deal with joint family property or interfere in the affairs of a joint family '. This observation tends to show that if the question had actually arisen the learned Judges would probably have decided that no adjudication could be made with reference to the member of an undivided Mitakshara family. In the matter of the petition of Boopendra Narain Roy I.L.R. (1880) C. 539 'It has been objected before us and apparently the judge seems to have been of opinion that Act XXXV of 1858 cannot and does not apply to members of a Mitakshara family. We are unable as at present advised to admit that as a correct proposition. It appears to us that there may be cases where it is essentially necessary that a guardian should be appointed for a member of a Mitakshara family as much as for a member of any other family. It is not necessary however, for us to decide that question because we think the application fails on other grounds.' It was argued before the learned Judges that the application for adjudication in that case was made with a view to enforce partition of the share belonging to the alleged lunatic. Dealing with that argument the learned Judge observed. ' Now, with respect to the supposition of the Judge that these proceedings were taken with the intention of ultimate proceedings for a partition without deciding whether or not a partition could be had under such circumstances, if the lunatic were declared a lunatic under the Act, it may be not improper to refer to the policy of the Lunacy Enactment in England. Under these Acts it has always been the policy of the Legislature not to interfere with the course of inheritance of the lunatic's property and provisions for that purpose have been inserted into these Acts, so that even when it is necessary, for payment of debts or otherwise, that the lunatic's real property should be sold, it is provided that the surplus monies should be considered as in the same condition as if invested in land, leaving them heritable as if they were land. Possibly therefore, even if an application for partition were made, it might be refused in accordance with that policy.' If the Court would refuse a partition at the instance of the manager of a lunatic, then it is difficult to see what object would be served by the appointment of a manager for his undivided share in the estate.
3. The learned Judges do not point out in what circumstances it would be permissible to appoint a manager for a lunatic coparcener of an undivided family. In several cases the Indian Courts have held that a guardian cannot be appointed under the Guardians and Wards Act for an undivided member of a Mitakshara family. See Sham Kuar v. Mohananda Sahay I.L.R. (1891) C. 301 Virupakshappa v. Vilgangava I.L.R. (1892) B. 309 Bhaund Prasad v. Dhiraji Kuar I.L.R. (1898) A. 400. That question is really concluded by the opinion of the Privy Council in Ghasib-ul-lah v. Khalak Singh 7 C.W.N. 681. Sir Arthur Wilson, delivering the judgment of their Lordships in that case,.observed : ' It has been well settled by a long series of decisions in India that a guardian of the property of an infant cannot properly be appointed in respect of the infant's interest in the property of an undivided Mitakshara family. And in their Lordships' opinion those decisions are clearly right, on the plain ground that the interest of the member of such a family is not individual property at all and that therefore a guardian, if appointed, would have nothing to do with the family property.' These ovservations are, in my opinion, equally applicable to the appointment of a manager for a lunatic co-parcener in a Mitakshara family. The question then is, can a different view be taken with respect to the Karnavan of a Malabar tarwad? Mr. T.R. Ramachandra Aiyar, the learned vakil who appears for the appellants, has strenuously contended that the Karnavan should, for all practical purposes, be regardrd as the owner of the property: and that although in theory the property of a tarward may be vestad in all its members the ownership of the others is practically worthless, their substantial rights being confined to the receipt of maintenance and to prevent the Karnavan from wasting or misusing the property of the tarwad. Whatever may be the extent of the Karnavan's powers of management, I cannot doubt that the tarwad property is not, to use the language of the Privy Council, the individual property of the Karnavan and that a manager appointed for him will obtain no rights over the tarwad property. Observations are, no doubt, to be found in Varanakot Narayana Namburi v. Varanakot Narayanan Namburi (1880) 2 M. 328 which might encourage the notion that the property of a tarwad is vested in the Karnavan. The question in that case was, whether a decree obtained against a Karnavan in a properly contested suit would be binding on the other members. It was with reference to that question that Kernan J. observed that the tarwad property was vested in the Karnavan and that he had large powers of dealing with itThis observation was referred to in Vasudevan v. Sankaran I.L. R. (1896) M. 129 where also the question was similar to that raised in Varanahot Narayana Namburi v. Varanakot Narayana Namburi 2 M.K 328 Subramzny Aiyar, J. observed : 'The family property is not liable to partition except with the consent of all, the right of the members, other than the Karnavan, being practically limited to claim maintenance and to prevent the Karnavan from wasting or improperly alienating the family property; and the title to hold possession of the estate and to receive and expend its income is vested in the Karnavan, not by the sufferance of the other members, but of right which is indefeasable so long as he exercises his functions without injury to the family. Therefore, according to the substantive law to which he is subject, a Karnavan is necessarily the natural representative of the family in all matters concerning it as between it on the one hand and outsiders on the other.' These observations, understood with regard to the context, cannot, in my opinion, be taken to lay down that the Karnavan has any larger right of ownership than any junior member over the tarwad property. What is vested in him according to the learned Judge is the right ' to hold possession of the estate and to receive and expend its income;' and this right, he observes, is one not derned by appointment or sufferance of the other members, but under the law of the land.' The Karnavan's power of management, extensive as it may be, is, in my opinion, in no respect, different in character from that of the managing member of a Mitakshara family. The only difference between the latter and the Karnavan of a Malabar tarwad arises from the fact that partition cannot be enforced except with the consent of all the members. But the substantive right of the Karnavan in the tarwad property is of exactly the same character as that of the managing member of a Mitakshara family.
4. In Narayani v. Govinda 7. M.K 352it was pointed out by this Court that the Karnavan has no higher rights over the income of the tarwad than any other members. The equal ownership of all the members was also recognized in Moidin Kutti v. Krishnun I.L.R. (1887) M. 322. In Kunichekkan v. Lydia Arukendanr (1912) M.W.N. 386, I have referred to other cases in which the same view was adopted. My obesrvations in Kalliani Amma v. Govinda Meiion (1911) 22 M.L.J. 23 do not, I think, throw any doubt on the equal ownership of all the members of a tarwad. The question in that case was whether the Karnavan had the right to claim the actual possession and custody of all the property of the tarwad against any other member who might take possession of any part of it and I expressed the opinion that he had the right. There can be no doubt that both In a Malabar family and in a Mitakshara family, so long as it remains undivided, the manager is the person entitled to the actual possession of all the property of the family, although in the case of a Mitakshara family this right is of comparatively small value because a partition could be enforced by any of the co-parceners at his will. The case of Kenath Puthen Vittil Tavazhi v. Narayanan 28 M.K 182 merely laid down that the Karnavan was not bound to account to the other members or to pay them the surplus profits. This really has no bearing on the question of the equal ownership of all the owners. The case cannot be taken to lay down that the Karnavan himself has any right to use the surplus profits for his own purposes. This he has not, as pointed out in Narayani v. Govinda L.R. 7 M. 352. He has the right to dispose of the income for the benefit of the members of the tarwad and, as the manager, he has considerable discretion in the actual distribution of the income. The right to distribute, however, can be exercised only in the interest of the tarwad and of its members and unequal distribution cannot be supported on the larger right of any one member to the income than of any other. Ordinarily, no doubt, the right of a junior member would be to receive maintenance and to prevent waste of the tarwad property. But the equal ownership of all is demonstrated by the fact that the members by joining together may divide the property between themselves. If a Karnavan wastes tarwad property, it has been held that a junior member may recover the property for the use of the tarwad a position inconsistent with anything but his right of ownership. The Karnavan's rights of management may be modified by a Karat entered into by all the members of the family. The members concurring with each other may dispose of the property as they please. The right of disposition is the crucial mark of ownership. If any one of the members does not join in the alienation, unless justified by family necessity, it would be invalid because the ownership is as much in any one dissenting member as in all the other members together.
5. It is impossible for me to come to any other conclusion than that the property of a tarwad is not the individual property of the Karnavan and that is the test, according to the view of the Privy Council, which must decide whether a guardian can be appointed under the Guardians and Wards Act and, as I take it, a manager under Act XXXV of 1858. As observed by their Lordships, a manager appointed would obtain no right of management over the property of the tarwad, but only over the individual property of the lunatic for whom he is appointed. The appointment of a manager, therefore would bs absolutely of no use. If the Karnavan becomes a lunatic, then the next senior member of the tarwad has the right to succeed to the management. How then can the court displace that right by appointing a stranger? If the court could appoint a manager, it may appoint any one to that position. It is unnecessary to consider whether lunacy would automatically work a forfeiture of the karnavan's right of management, or whether it would be necessary to get him removed by court. It is quite clear that in either case lunacy would be conclusive ground on which the next Anandravan could claim to have the Karnavan removed. Such a right cannot be prejudiced by any appointment of a manager under Act XXXV of 1858. It would, therefore, be absolutely useless to take any proceedings under that Act. It was pointed out that the Karnavan has large powers and that the powers vested in a lunatic may be exercised by hia manager. Apart from the answer already given, namely, that the right of junior members could not be affected by any order made under Act XXXV of 1858,1 should observe that a power which may be exercised by a lunatic's manager must be a power attached to his beneficial estate. See Halsbury's Laws of England, Vol. 19, page 449. The right of management of a Karnavan of a tarwad and the powers attaching to that right are not incidental to the Karnavan's beneficial right in the tarwad property, but to his being the seniormost member of the tarwad, or to his being allowed to be the manager by the tarwad including the seniormost member. His beneficial interest, as already pointed out, is no more than that of any other member and does not carry any powers which the Karnavan could exercise in virtue of it.
6. I am, therefore, of opinion that the order of the lower court is right and that the appeal must be dismissed with costs.
Sadasiva Aiyar, J.
7. 23 out of the 28 junior members of a Malabar tarwad applied to the District Court of South Malabar,under the Lunacy Act XXXV of 1858, for a declaration that their old Karnavan (Chathu Nair) was of unsound mind and for the appointment of a manager of his properties and of a guardian for his person. The District Court refused to grant their prayer and hence they have appealed to this Court.
(2) The alleged lunatic has evidently no property except what he was managing as Karnavan of the tarwad. This application to the District Court was mads, not because the bowels of compassion of the petitioners were moved towards their Karnavan by his alleged lunacy or because they wished to protect the Karnavan (who has one foot in the grave, being nearly 90 years old). The 4th para of the petition is as follows:-'?' As the (tarwad) properties are not properly managed ' owing to the Karnavan's lunacy, the petitioners are pat to great hardship and inconvenience as they do not get their maintenance and other expenses. Besides this, it is likely that the properties to which the petitioners are also entitled will be wasted.
(3) The District Judge's reasons for dismissing the petition areas follows:-'A consideration of the (Lunacy). Act XXXV of 1858 shows that the property of which the person alleged to be a lunatic (is possessed of) should belong to the lunatic and that it is not intended that the court should deal with joint family property nor interfere in the affairs of a joint family. In Tirmbacklal Govindas v. Hiralal I.L.R. (1895) B. 659 it was held that the Act provides no machinery nor does it confer any power upon the court to deal with joint family property or interfere in the affairs of a joint family. In the analogous case of the appointment of a guardian under the Guardians and Wards Act of 1890, it has been held that a guardian cannot be appointed of the property of a minor who is a member of a joint Hindu family governed by the Mitakshara law and possessed of no separate property. Sham Kuar v. Mohanunda Sahay I.L.R. (1891) C. 301' 'A fortiori does this reasoning apply in the case of a Karnavan of a Malabar tarwad in which partition cannot be demanded.' 'I do not think that it is desirable that the provision of the Lunacy Act should be invoked to remove the head of a tarwad from office when the obvious and ordinary remedy of suing for his removal is available to the members of the tarwad. It is not improbable that the petitioners have devised an inexpensive method of attaining their object by means of this petition.
(4). The appellants' learned Vakil attacked the District Judge's above observations at great length, but has left me unconvinced that there is any flaw in the reasoning of the learned District Judge whose language I adopt in toto. Act XXXV of 1858 was enacted ' to make better provision for the care of the estates of lunatics,' and not to enable junior members of a tarwad to deprive their Karnavan of his powers of management by charging him with lunacy. Act XIV and XL of 1858, (which were repealed by the consolidating and Amending Act VIII of 1890), were passed in the same year as the Lunacy Act XXXV of 1858 to protect the estates of minors. The analogous provisions in tthose Acts have been construed as not applying to cases of minors who are members of a joint Hindu family and whose only property is their undivided share in the joint family property. See Gourab Kooeree v. Gujadar Purshad I.L.R. (1879) C. 209, Sheo Nunden Singh v. Mussamut Ghutn-Sahoy Kooeree (1874) 21 W.R. 143, Mussamut Aghola Kooeree v. Baboo Digamber Singh (1875) 23 W.R. 206 and Sham Kuar v. Mohanunda Sahay I.L.R. (1894) C. 301, Ghasib-ul-lah v. Khalak Singh 7 C.W.N. 681. A member of a Malabar tarwad is in a position worse than that of a male member of a joint Hindu family in two respects.
(a) A tarwad member, even if he was the Karnavan, cannot enforce partition by suit and no partition of tarwad property can take place unless by a family arrangement assented to by all the members, whereas a male member of a Hindu co-parcenary can always sue for partition. (The suit can be brought even on behalf of a minor member if the court could be persuaded that it is for the minor's benefit, viewed in a broad sense, that the suit should be conducted.)
(b) A tarwad member cannot alienate for his own private purposes a particular fraction or share of the tarwad property as belonging to him, while a Hindu joint family co-parcener could do so.
8. I am, therefore, clear that Act XXXV of 1858 was not intended to authorize courts to entertain proceedings under it in respect of an alleged lunatic who is a member of a Malabar tarwad or of a joint Hindu family and owns no separate property. Though the learned Judges who decided Trimbahlal v. Hiralal I.L.R. (1895) B. 659 say that they express no opinion upon this general question, the inclination of their opinion seems clear. I do not agree with the obiter dicta in ' In the matter of the petition of Bhoopendra Narain Boy I.L.R. (1880) C. 539 and Soobanse Singh v. Juggesspur Koer (1883) 13 C.L.R. 86 that Act XXXV of 1858 may be applied to a member of a Mitakshara family who owns no separate property. I however, agree entirely with many of the other observations in the first case. One such observation is that sufficient cause must be made out by the petitioners for putting the Lunacy Act into operation against an individual alleged to be a lunatic, such sufficient cause being not certainly the benefit to the petitioners but the lunatic's benefit' and ' the proper protection and care ' of his, person and of his properties. In construing the provisions of statutes relating to minors and lunatics, the paramount consideration is the benefit of the disqualified person. I am of opinion that it would be an abuse of the powers granted to the court by the Lunacy Act to exercise such powers in the interests of persons other than the alleged lunatic. Further if (as the petitioners allege) the old Karnavan Chathu N air has become a lunatic, he has become civilly incapable of holding the office of Karnavan and the next senior Anandravan ipso facto has become the head of the family entitled to possession and, management of the tarvvad properties. Chathu Nair has ceased to possess even the right of management of the family property and the Lunacy Act which could only be invoked where the lunatic has got property becomes wholly incapable of application. It was argued that as a Karnavan who becomes blind does not loose his position merely by reason of his blindness, a Karnavan who becomes a lunatic does not lose his right to manage as Karnavan. There is absolutely no analogy between the two cases. A minor or a lunatic cannot be a Karnavan. If a Karnavan dies and the next senior male is the minor or a lunatic, he cannot succeed to the office at all, where as if he is merely blind, there is no legal objection to his succeeding. If his blindness is shown to have led to gross incompetency in management, he might be removed but a minor or lunatic can never hold the office at all till the minority ceases or the lunacy is cured. Lunacy deprives a man of all legal competence to contract or to manage affairs and the lunacy of even One partner dissolves the partnership (section 254 (1) of the Contract Act.) If the Karnavan is the agent or Karta of the tarwad, his powers as agent ought to terminate on his becoming of unsound mind (compare the provision in Section 201 of the Contract Act, which of course does not directly apply.) To hold that a Karnavan who can become such only if he is an adult of sound mind and who has to represent the. tarwad as its managing member could continue to be Karnavan and to possess the powers of representing the tarwad when he has become a lunatic seems to be a contradiction in terms.
9. In the result, I agree with my learned brother that the appeal fails and must be dismissed with costs.