1. The facts necessary for the consideration of this second appeal are; plaintiffs 1 to 3 and defendants 1 to 3 are members of a Malabar tarwad. Plaintiff 1 is the senior male member, defendant 1 the senior female member and the mother of defendants 2 and 3. In 1876, by Ex. 13 this tarwad lived off from two other tarwads owing to quarrels after the death of the last female member, and an allotment of the property was made, the property being described as Stri Swothu. It was agreed, as is sat out in Ex. 13, that:
hereafter the Government assessment and renewal demises shall be in the name of the senior female member and that the senior male member shall collect rents and purapads.
2. It does not state in whom the right of management is vested, and that is one of the main points now in controversy.
3. In accordance with this stipulation the tarwad documents after that period were in the name of defendant 1's mother and after her in the defendant 1's name and none appears in the name of any male member. In 1909, Ex. C a renewal of a demise of the suit property is in favour of defendant 1 and the property is again described as Stri Swothu, and the tenants agreed to pay their rents to her. It is admitted that plaintiff 3 was a consenting party to this document. The period fixed in this expired in 1915. In 1917 there were renewals, Exs. E and F, for the eastern and western portions respectively again in favour of defendant 1. In 1920 the tenant of the eastern portion surrendered his lease by Ex. F and the defendant 1 renewed it by Ex. G in favour of one of her sons, defendant 2. Ex. H is a similar lease in his favour for his maintenance, and Exs. J and K are similar demises in favour of her other son defendant 3. The present appellants-defendants, 4, 6 and 10, are sublessees under them. The plaintiffs, of whom plaintiff 1, as noted, is the senior male member of the tarwad, sue on behalf of the tarwad to have these documents Exs. G H J and K declared invalid and not binding on the tarwad, and to eject the sublessees. The trial Court dismissed the suit. The lower appellate Court after remanding the case on certain points has, subject to a certain option on behalf of the sitting tenants, decreed the suits.
4. The main question argued was, who was the de facto manager of this tarwad? The tarwad property is known as Stri Swothu Jenm and considerable discussion has been devoted to the meaning of that term. There is no oral evidence about it. From certain reported cases a contention has sometimes been put forward that the term imports a tarward or tavazhi exclusively composed of females: see Umah v. Keloth Cheriyoth Kutti  M.W.N. 693. The final pronouncement of this Court in Muhammad Khuni v. Packrichi Umma A.I.R. 1924 Mad. 28 declined to go into the question of the existence of such tarwads. It is not necessary to consider that contention in this case as there is no doubt that the property in its origin was putravakasam, and as it is admitted that plaintiffs 1 to 3 who are males are members of the tarwad. The meaning for which the appellants contend is that the management was vested not as usual in the senior male member but in the senior female member. There is nothing contrary to law in such an arrangement, and there are known cases of it: see para 3 of the remand judgment of the District Judge in High Court printed papers in second appeals Nos. 1493 and 506 of 1919. Now such an arrangement could be established, I take it, in one of two ways, either by proof of general custom or by proof of general consent of the tarwad. No allegation of general custom was put forward in this case, nor was any issue framed to that effect. Nevertheless the lower Courts have allowed themselves to be led along this track and have pronounced against this custom and have lost sight of the alternative. The allegation in the written statement was merely to the effect that in this tarwad defendant 1 and her mother before her had the right of management and that it therefore did not vest in the male members. Now I take it that there is nothing to prevent the members of a tarwad agreeing to or acquiescing in the management being in the senior female, and, if the evidence be sufficient to establish their consent or acquiescence, there would be nothing illegal in such an arrangement. The point therefore to which the lower Courts ought to have addressed themselves on issue 1 was whether as a fact the management was in the hands of the senior female or not. This was the more necessary as it was admitted that the senior male, plaintiff 1, has never been in the management being employed somewhere outside. Plaintiff 3 claimed that the management was delegated to him by plaintiff 1, but plaintiff 1 did not go into the witness-box to speak to that fact nor do we know when the delegation was made. There was also the admitted fact that renewals of lease were as a matter of fact being taken by defendant 1, and that there is no instance of such a renewal by plaintiff 1 or 3. The general trend of the evidence is that such renewals were in the hands of defendant 1 and that plaintiff 3 took no part in such matters but left all such arrangements with the tenants on the expiry of their leases to be carried out by her, while the collection of rents was in the hands of plaintiff 3. Who then was the actual manager? The lower Courts have given inadequate attention to these points and the lower appellate Court in fact has merely decided that the senior male member must have been the manager since the family is a tarwad although we know as a matter of fact that the senior male member was not managing. The lower appellate Court has really not given any finding on issue.
5. Possibly it did not consider it necessary to answer that issue because it held that otherwise the suit renewals of demises were invalid because not in the interests of the tarwad, and that is the second point which falls to be decided. But before I go into this I may just in one sentence note another argument which found favour with the trial Court, namely, that even if the plaintiffs had the right to manage the properties they have lost it by adverse possession. This view I do not follow, as any arrangement with defendant 1 and her mother must have been by consent and therefore not adverse to the plaintiffs.
6. As to the binding character of the demises the trial Court held that they were not invalid, apparently because they were made by the de facto karnavan. The lower appellate Court after remanding the case on this point agreed with the case on remand that the demises were invalid because not in the interests of the tarwad. It is argued hero that the plaintiffs have no right in law to challenge the alienation of the do facto karnavan, that their only right is a right to sue for her removal and that the only person who has a right to challenge them is the succeeding karnavan.
7. The trial Court in its judgment on remand held on this point that Ex. G. was binding on the tarwad and Exs. H.J.K. not binding. The lower appellate Court does not consider this aspect of the case but indicates its agreement with the view of the trial Court that Exs. J and K were improvident transactions, and as such not binding on the tarwad.
8. That being accepted, would it be a sufficient answer in law to say that they are still binding on the tarwad because the karnavan who granted them still remains in office? I think not. The appellant relies on Abdulla Koya v. Eacharan Nair : (1918)35MLJ405 which is in his favour. The respondent quotes Vattannatta Nair v. K.P.V. Kuppasan Menon : (1919)36MLJ630 which is to the opposite effect. The general argument now advanced by the appellant was considered by a Bench in Kunhammad v. Kunhunni : (1920)38MLJ461 and rejected. In this state of the law I am not prepared to differ from the finding of the lower appellate Court that Exs. J. and K are not binding on the tarwad. So that, in any case whoever was the manager, Exs. J and K will not bind the tarwad but as to whether Exs. G and H will, that depends, in my view, on who was the karnavan and whether they were justified by necessity. I must therefore call upon the lower appellate Court to record a finding in the light of the above remarks as to whether Exs. G and H bind the tarwad. If for the purposes of that finding it is necessary to decide who was the de facto karnavan the lower appellate Court will decide that point also.
9. The third point is as to the value of improvements. The contesting defendants 4, 6 and 10 claim the value of improvements if they have to be ousted. The right to this value does not depend upon the validity of the lease; the sole question is whether the land has been improved during the period of the lease. It is plain that the lower appellate Court has gone wrong here. It has assumed that the whole area was fit for paddy cultivation and that the defendants for no obvious reason deliberately raised the level of parts of it and planted cocoanuts thereon. Under Section 4, Malabar Tenants Improvements Act, planting of cocoanuts is an improvement unless the contrary is shown. That it lay upon the plaintiff to prove that the defendants had deliberately converted low lands fit for paddy into high lands and had thus lowered the value of the lands. If what these defendants really did was merely to plant cocanuts on existing high land, it cannot be doubted that they made an improvement. This question of fact therefore has not been dealt with property by the lower appellate Court, since it assumes without going into the evidence that real paddy land was raised and converted into a cocoanut garden. I must have a finding as to whether any of the paramba was at the time of the lease to defendants 4, 6 and 10 fit for paddy cultivation, and if so, how much, and the value of cocoanuts planted on such area by these defendants.
10. Respondents 6 and 7 have not appealed, but appear and ask me to interfere on their behalf. As they have not appealed against the disallowance of the value of improvements, I see no reason for calling for a special finding on that in their case. If they can claim any benefit after, the finding on the leases generally is received, the claim may be raised then. Time for submission of findings 6 weeks. For objection 10 days. [The following findings were submitted by the lower Court.
1. I find that both Exs. G and H are improvident transactions, and that they are not binding upon the tarwad of the plaintiffs and defendants 1 to 3.
2... My finding therefore is that the whole of the land was, at the time of the lease to defendants 4, 6 and 10 fit for paddy cultivation.
11. After receiving the above findings, the following judgment was delivered.]
12. The District Judge's finding on point (1) is accepted. On point (2) the District Judge has categorically answered the findings sent down but unfortunately they are not sufficient for a proper disposal of the case. That is because the frame of the issues sent down for findings was imperfect. The real point that had to be settled was whether defendants deliberately spoiled what was good double crop paddy land growing paddy by raising the level in order to substitute a crop of cocoanuts for a crop of paddy. There is, however, no evidence that they did that and it is almost incredible that they did. I take it then that the present levels of the land are their natural levels and have not been interfered with by defendants. It is reasonable further to infer that, in such circumstances, defendants would raise the better crop of the two, and did substitute cocoanuts for paddy because the lie of the land was better fitted for cocoanuts than if or paddy. The planting of such coaoanuts would then be an improvement, the value of which the appellants defendants are entitled to recover. The figures of compensation are, as valued by the commissioner Rs. 43-10-10 to defendant 4, and Rs. 66-5-6 to defendant 10 for cocoanuts plus Rs. 1-5-3 to defendant 10 for one jack tree. Defendants 4 and 10 will get a decree for these amounts. These defendants are now no longer bound to remove those trees, and the decree of the lower Courts will have to be modified here. In para (3) of the decree after the word 'improvement' insert 'excluding cocoanut and jack tree, in the case of defendants 4 and 10' and in para. 4 the figure of Rs. 100 is reduced to Rs. 75 (Rupees seventy-five). Time to remove other improvements is extended to three months from this date. Defendants 7 and 9 not having appealed, urge that I should make a similar award on their behalf, but I presume that they were content with the decree as it stood and refuse to interfere now. The parties to this appeal will pay each his and their own costs.