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Thimmakke and ors. Vs. Akku and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Judge
Reported in(1911)ILR34Mad481; 7Ind.Cas.153
AppellantThimmakke and ors.
RespondentAkku and anr.
Cases ReferredP. P. Kunhamod Hajee v. P. P. Kuttiath Hajee I.L.R.
Excerpt:
.....suit. not only did she fail to take any steps to secure these properties, which we have held were wrongly alienated, for the benefit of the family, but when the question was raised in the court below she took the side 'of the defendants and want into, the witness box to give evidence on their behalf. lobo has contended that it is within the power of the ejman of an aliyasanthana family or the karnavan of a malabar tarwad, after making due provisions for the maintenance of the members of the family, to do what he liked with the surplus income. and be has contended that as regards the rs 500, the subject-matter of the second mortgage, she was perfectly within her rights in giving the son, the second defendant, the benefit of it since he was a member of this aliyasanthana family. well i am..........older daughter of chennamma and her son. they were the sixth and seventh defendants in the other suit. the plaintiffs in this suit ask for a declaration that two mortgages which stand in the name of the second defendant belong to the family and they also ask for an order removing the first defendant from the position of ejman. 2. according to the finding in the other suit which we have accepted the first defendant in this suit is the de jure ejman of this aliyasantaua family and also de facto joint ejman together with devapparai. the finding of the learned subordinate judge with reference to these two mortgages is in paragraph 12 of his judgment. he says 'i find that exhibit i,' (that is the first mortgage) 'was obtained from private funds,' he therefore upholds that transaction. ho.....
Judgment:

Arnold White, C.J.

1. This is an appeal by the plaintiffs from the decree in a suit in which the plaintiffs are the same parties as the plaintiffs in the suit which we have just disposed of on appeal. The first and second defendants are respectively the older daughter of Chennamma and her son. They were the sixth and seventh defendants in the other suit. The plaintiffs in this suit ask for a declaration that two mortgages which stand in the name of the second defendant belong to the family and they also ask for an order removing the first defendant from the position of Ejman.

2. According to the finding in the other suit which we have accepted the first defendant in this suit is the de jure Ejman of this Aliyasantaua family and also de facto joint Ejman together with Devapparai. The finding of the learned Subordinate Judge with reference to these two mortgages is in paragraph 12 of his judgment. He says 'I find that exhibit I,' (that is the first mortgage) 'was obtained from private funds,' He therefore upholds that transaction. Ho says: 'Exhibit II,' i.e., the second mortgage, to the extent of Rs. 500 was from family funds.' I suppose inferentially he finds as to the residue that it was obtained from private funds of the first defendant. He therefore decides in favour of the plaintiffs to the extent of Rs. 500 in regard to the second mortgage and in favour of the defendants with regard to the residue. The first defendant being a de jure manager and for certain purposes, at any rate de facto manager with the deceased Devapparai, the onus is no doubt upon her to show that these transactions were entered into out of her own private funds. In this case we have specific affirmative evidence the definite findings with reference to the question as to the source from which, it might reasonably be inferred, the monies which were advanced under these two mortgages were obtained, In paragraph 6 of his judgment, the learned Subordinate Judge aya 'The first defendant swore in the connected suit' --by agreement the evidence in the connected suit is treated as evidence in this suit--'that she received Rs- 1,500 from her father.' The learned Subordinate Judge does not say so in so many words, but I think it must be taken that he accepts her evidence, because in paragraph 8 has says: 'there is further indubitable evidence of first defendant having obtained money from her husband,' Now these two sums of money would be sufficient if not entirely, at any rate to a substantial extent, to provide funds for these transactions, which the first defendant says were entered into for the benefit of her son and with regard to which the title-deeds stand in the name of her son, the second defendant. I may say the evidence is not very strong; but we are not pro-pared to say that the learned Subordinate Judge in holding that the evidence is sufficient to rebut the presumption which arises in a case of this sort in plaintiff's favour, or, in other words, to discharge the onus which rests on the defendants, we are not prepared to say the learned Subordinate Judge in so holding was wrong. Therefore as regards this portion of the appeal, we are of opinion that it should be dismissed,

3. We now come to a question which, to my mind, is one of greater difficulty, and as to which, I confess, I have bean in some doubt; and that is the question whether the plaintiffs have made out a case for the removal of the first defendant from the management of this family. Now the grounds of alleged misconduct on the part of the first defendant in her capacity as joint manager wore: first, that the two mortgages in the name of the second defendant really belonged to the family and that she acted in fraud of the family rights in entering into the so transactions on behalf of hot: won. As to that I have said we are not prepared to differ from the learned Subordinate Judge.

4. The second ground of complaint is 'allowing'--that is how it is put allowing the wife and children of Devapparai to claim the four items of property in the other suit. The third ground of complaint is playing into the hands of Devapparai's wife's brother. I do not quite know what that means. Mr. Naraina Rau did not explain what it means,- At any rate he did not press the point, Therefore I am leaving it out of consideration, The question therefore is 'was the conduct of the first defendant with reference to the attempt made by Devapparai to secure the four items of property, which were the subject matter of the other suit, for the benefit of his wife and children a good ground for removing the first defendant from the office of Ejman?' Now the principles which have been relied on in the cases where this question has arisen are to a certain extent, at any rate, in conflict. In the case of Eravanni Revivarman v. Ittapu Revivarman I.L.R. (1876) Mad. 158, it was held that 'the position of a Karnavan' of a Malabar tarwad--and the law I take it is the same in the case of an Ejman of an Aliyasan-tana family--'the position of a Karnavan is not analogous to that of a mere trustee, officer of a corporation or the like. The person to whom the Karnavan bears the closest resemblance is the father of a Hindu family. He should not be removed from his situation except on the most cogent grounds.' And the learned Judges in the course of that judgment observe that ' the question is not merely whether a man is unworthy of his position, for that is not the ground for removing him, but whether the removal will benefit the family.' In the later cases, I do not find that this question as to what would be the effect of the removal with regard to the interest of the family was a matter which was considered relevant or at any rate taken into consideration. In a later case on the subject if. P. Kunhamod Hajee v. P.P. Kuttiath Hajee I.L.R. (1881) Mad. 169 it was held that the grant of a very improvident lease following on a course of Conduct pursued for some years, in which the interests of the tarwad' were persistently disregarded, is sufficient ground for removing a Karnavan from the management of the tarwad property.' And the same principle seems to have been applied in the case of Kunhan v. Sanhara I.L.R. (1891) Mad 78. The question, as 1 have said, as to whether the appointment of a new Karnavan or a new Ejman would be likely to be more beneficial or less beneficial to the family than the existing Karnavan or Ejman does not seem to have been considered. In the P. P. Kunhamod Hajee v. P. P. Kuttiath Hajee I.L.R. (1881) Mad. 169 case the alleged misconduct in the Karnavan was in connection with what he did and what he purported to do as a Karnavan and it was there held that although one isolated improvident transaction is not in itself a sufficient ground to remove him, if an improvident transaction was established, that coupled with a long course of unbusinesslike or improvident conduct as Karnavan constituted a ground for his removal. Here we have a good deal more than that. The allegation is not that the first defendant in the discharge of her duties as Ejman neglected the interests of the family but that she took advantage of her position as Ejman to enrich her son at the expanse of the other members of the family. The learned Subordinate Judge with regard to this question which is raised in the second issue says in paragraph 13 of his judgment: 'There is no evidence to show that first defendant allowed Devapparai to alienate family properties to his wife and children under exhibit VIII, the deed of settlement which is the subject of dispute in the connected suit, Original Suit No. 42 of 1903, although she supported the alienation in the course of that suit. It will be seen from the judgment in the connected suit that the alienation has not been set aside in its entirety.' Well, the conclusion at which we arrived in the case which we have just disposed of was that the plaintiffs had made out a case for setting aside the alienations made by Devapparai in their entirety. And it may well be that if the Subordinate Judge had himself arrived at that conclusion he might have felt constrained to hold that a case was made out for the removal of the first defendant, the Ejman in the present suit. That may or may not be so, But we have to deal with the case, of course, by the light of the conclusions at which we have arrived in the other suit; and as we have arrived at the conclusion that the plaintiffs are entitled to have the alienations set aside, it seems to me to follow almost as a corollary that we must hold that a case for the removal of the first defendant from the Ejmanship has been established. True, in that case she was not the party who made the alienations, but it was her duty as the Ejman of the family to protect the interests of the family. Not only did she fail to take any steps to secure these properties, which we have held were wrongly alienated, for the benefit of the family, but when the question was raised in the Court below she took the side 'of the defendants and want into, the witness box to give evidence on their behalf. It seems to me that being so, we must hold that it is impossible to reconcile her conduct in connection with Devapparai's alienations and the consequent litigation with a due regard for the interests of the family.

5. As regards-the question whether the present agent is physically incapable of discharging the duties of bar office, I do not think one need consider that. In that respect I do not think there is very much to choose between the two old ladies. They are both considerably over 60. There is no evidence to show that either of them is physically or mentally incapacitated.

6. It may be when the present plaintiff succeeds to the office of agent, she will seek to avail herself of the opportunity to benefit her own children, I do not think we are entitled to assume that she will do this.

7. In coming to the conclusion at which I have arriyed, I rely mainly upon the conduct of the first defendant in connection with the litigation with reference to Devapparai's alienations to his wife and to his children. Mr. Lobo has contended that it is within the power of the Ejman of an Aliyasanthana family or the Karnavan of a Malabar tarwad, after making due provisions for the maintenance of the members of the family, to do what he liked with the surplus income. And be has contended that as regards the Rs 500, the subject-matter of the second mortgage, she was perfectly within her rights in giving the son, the second defendant, the benefit of it since he was a member of this Aliyasanthana family. Well I am not prepared to say that I accept that contention. But as I have said I prefer to rest the conclusion at which I have arrived in the main on the conduct of the first defendant with reference to Devapparai's alienations and the consequent litigation. It seems to me that the plaintiffs have, for the reasons I have stated, made out a case for the removal of She first defendant. do not think it necessary therefore to consider whether it is in the family interest that she should be removed or not, In fact, to speak of' family interests ' in this case is rather a misuse of terms, because the family consists of the elder daughter of Chennamma, i.e., the first defendant and her only son and the younger daughter of Chennamma and her children. It is therefore a, tight between two old Iadies. Perhaps it may be said, and not unreasonably, that as the younger daughter and her progeny are much more numerous than the elder daughter and her one child, it is more consistent with the interest of the family that we should take away the management of the family from the first defendant, and put it in the hands of the younger daughter. However that may be, for the reasons I have stated the plaintiffs have in my opinion made out a case for the removal of the first defendant, and that follows as a corollary to the conclusion at which we have arrived in our judgment in the other appeal. Accordingly I would modify the decree of the Court of First Instance by giving the plaintiffs a decree for the removal of the first defendant and make an order for the appointment of the first plaintiff as Ejman in her stead. In the circumstances we think the fair order as to costs will be that each party do bear their own costs. The memorandum of objection is dismissed,

Abdur Rahim, J.

8. I agree.


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