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Mohammad and ors. Vs. Kunhi Kutti Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1929Mad451; 117Ind.Cas.725
AppellantMohammad and ors.
RespondentKunhi Kutti Ali and ors.
Cases Referred and Kalliani Amma v. Sankaran Nair
Excerpt:
- - the next senior anandravans are said to be defendants 2 or 3 themselves, and they have clearly disqualified themselves for an order of this nature. but when it is remembered that the suit is really on behalf of the tarwad, that any junior member may bring such a suit, and that all members have, or should have, an equal interest in its success, i can discover no ground of principle which prevents a court from permitting any junior member who expresses his willingness, from carrying on the cause......suit begun by him.7. the reasoning employed in this decision appears to me to apply equally to a suit, representative in character, brought by an anandravan to dispute, on behalf of his tarwad, an act prejudicial to the tarwad's interests committed by its karnavan; and if i am right, it is permissible, upon the death of the plaintiff, to allow another anandravan to carry on the proceedings. it has been urged that at most such permission should only be accorded to the next senior anandravan of the tarwad. the next senior anandravans are said to be defendants 2 or 3 themselves, and they have clearly disqualified themselves for an order of this nature. the petitioner in civil miscellaneous petition no. 1780 of 1928 describes himself as the seniormost member of the tavazhi the special.....
Judgment:
ORDER

Curgenven, J.

1. There are two competing applications by persons to be declared legal representatives of the deceased respondent 1 in A.S. No. 128 of 1925 on the file of this Court, who was the plaintiff in the Court below. This man filed his suit as senior anandravan of a marumakkathayam tarwad for a declaration that a pattadharam, or lease for a term of years, executed by the karnavan, of some tarwad property in favour of two other members of the tarwad, was not binding on the tarwad, and for the recovery of the property. The Sub-Judge of South Katiara decreed the suit, and the appeal has been filed by the two alienees, defendants 2 and 3, the karnavan, who was defendant 1 having been impleaded as respondent 2. Of the two applications now before me the first to be filed is by another of the anandravans, and the second by the karnavan himself.

2. Under Rule 3(1), Order 22, Civil P.C., where a sole plaintiff dies and the right to sue survives, the Court shall cause the legal representatives of the deceased plaintiff to be made a party; and who is a legal representative is explained in Section 2 (11) of the Code. He is the person who in law represents the estate of the deceased person or, in the case of a representative suit, the person on whom the estate devolves. Now the junior member of a tarwad has no separate estate in the family property. He has no more than a right jointly to share in the enjoyment of it, which in practice takes the shape of a right to maintenance. When he dies this right dies with him. There is thus no question of the devolution of any estate, and for that reason neither the karnavan nor any anandravan can be substituted as legal representative under these provisions of. Civil Procedure Code.

3. That, however, does not necessarily dispose of these applications. It has been urged that the suit is in substance a representative one. Proof indeed that the plaintiff received the Court's permission, under Order 1, Rule 8, Civil P.C. to bring it as a representative of the tarwad has not been rigidly given. There is an application (I. A. No. 356 of 1922) for such permission, upon which the Subordinate Judge passed an order:

The notice will be published in the newspapers mentioned in three successive issues thereof,

and since Rule 8, as I understand it, means that, if the Court orders publication, it grants permission subject to any objections received, it may be reasonable to infer from the record here available that permission was granted. At the time of hearing the arguments I was disposed to think that an express order granting permission was necessary. But I have since discovered a case Dhunput Singh v. Paresh Nath Singh [1894] 21 Cal. 180 in which it was held that, where an objection that no permission was granted was taken on appeal, the Court may infer such permission from the proceedings of the Court. Paras. 11-a and 14 of the plaint recite that the plaintiff claims possession on behalf of the tarwad, and that since the tarwad consists of numerous members, the plaintiff sues on its behalf with the leave of the Court. I cannot discover any objection in the written statements to the plaintiff's competence, so to sue, except an allegation that he is not the senior anandravan, which was not made the subject of an issue and appears to have been untrue. The Court must have dealt with the suit as a representative suit because in its decree it directs the defendants to deliver possession to the plaintiff on behalf of the tarwad. I think therefore that the Court, the plaintiff and the defendants equally believed the suit to be representative in character, and to have been brought with the permission required by Order 1, Rule 8. If I am wrong in drawing this inference, and in myself treating it as a representative suit upon these grounds it still remains true that any anandravau is entitled, as part of his personal law, to challenge by suit on behalf of his tarwad an alienation made by his karnavan; and although such judgment as he may obtain or have to submit to may not be binding upon members of the family not made parties or operate as res judicata against them, it-is difficult to see how such suit is not in substance of a representative character.

4. So much being said, I proceed to consider the applicability of a Privy Council decision Venkatanarayana Pillai v. Subbammal A.I.R. 1915 P.C. 124. In that case, which went up on appeal from this Court, an alleged next reversioner belonging to an ordinary Hindu family sued to set aside an adoption by the widow. He lost his case in both Courts in India, and died while his appeal to His Majesty in Council was pending. His grandson, as-succeeding reversionary heir, applied to have his name substituted on the records for that of the appellant. The application was resisted on the ground that the petitioner was not the deceased appellant's legal representative. Their Lordships, after observing that 'the right to sue' is based on the danger to the inheritance common to all the reversioners which arises from the nature of their rights, and that therefore such a suit, brought by a presumptive reversioner is in a representative capacity and on behalf of all the reversioners, proceed to hold that the test of res judicata is irrelevant to the inquiry whether the petitioner is entitled to continue the action, and then put the questions when 'the right to sue,' in the words of the Statute, 'survives,' and if it does, who can continue the action to obtain the relief that is sought?

5. The argument in the judgment then proceeds thus:

There is nothing to preclude a remote reversioner from joining or asking to be joined in the action brought by the presumptive reversioner, or even obtaining the conduct of the suit on proof of laches on the part of the plaintiff or collusion between him and the widow or other female whose acts are impugned. It is the common injury to the reversionary rights which entitles the reversioners to sue. Apart, therefore, from the question whether 'the next presumable heir' is 'the legal representative' of the deceased presumptive reversioner, there remains the outstanding fact of identity of interest on the part of the general body of reversioners, near and remote, to get rid of the transaction which they regard as destructive of their rights.

5. The pertinence of these observations to the circumstances now in point scarcely need stressing. Their Lordships next consider the applicability of' Rule 1, Order 22, to the case of the next surviving reversioner, and while expressing the opinion that the phraseology of the definition of

legal representative may be held to cover that case, they think that his right to be substituted rests on a broader ground. This ground arises from the terms of Order 1, Rule 1, Civil P.C., which enables all persons to be joined as plaintiffs in whom;any right to relief in respect of, or arising out of the same act or transaction, or series of acts or transactions, is alleged to exist, whether jointly, severally, or in the alternative, where, if such persons brought separate suits, any common question of law or act would arise'.

6. It was held that under this rule the contingent reversioners might be joined as plaintiffs in the presumptive reversioner's suit; and the final conclusion is thus stated:

If the contingent reversioners may be joined as plaintiffs in the presumptive reversioners' action, it follows that on his death the 'next presumable reversioner' is entitled to continue the suit begun by him.

7. The reasoning employed in this decision appears to me to apply equally to a suit, representative in character, brought by an anandravan to dispute, on behalf of his tarwad, an act prejudicial to the tarwad's interests committed by its karnavan; and if I am right, it is permissible, upon the death of the plaintiff, to allow another anandravan to carry on the proceedings. It has been urged that at most such permission should only be accorded to the next senior anandravan of the tarwad. The next senior anandravans are said to be defendants 2 or 3 themselves, and they have clearly disqualified themselves for an order of this nature. The petitioner in Civil Miscellaneous Petition No. 1780 of 1928 describes himself as the seniormost member of the tavazhi the special interests of which are said to have been affected by the karnavan's action. In is no doubt true that decided cases in this Court: see Rajah of Arkal v. Kunhi Kannan [1915] 29 M.L.J. 632 and Kalliani Amma v. Sankaran Nair [1919] 10 M.L.W. 220, have gone no further than to allow the next senior member of the tarwad to institute or continue proceedings upon proof of the karnivan's in-eligibility. But when it is remembered that the suit is really on behalf of the tarwad, that any junior member may bring such a suit, and that all members have, or should have, an equal interest in its success, I can discover no ground of principle which prevents a Court from permitting any junior member who expresses his willingness, from carrying on the cause. Indeed, such an order seems here to be imperative, ex debito justitice, since if it be not passed the fruits of the deceased plaintiff's action are likely to be lost.

8. I accordingly allow Civil Miscellaneous Petition No. 1780 of 1928, with costs and order that the petitioner be brought on record in Appeal No. 128 of 1925 and be allowed to resist the appeal. Civil Miscellaneous Petition No. 2692 of 1928, filed by the karnavan is dismissed.


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