1. This is an appeal by the plaintiffs against the decree of the Subordinate Judge of Tellicherry dismissing their suit for a declaration 'that the plaint properties belong to, their Thavazhi and that the decrees of the Temporary Sub-Court of Tellicherry in Original Suit No. 18 of 1914 and of the High Court of Judicature at Madras in Appeal No. 96 of 1916, preferred therefrom, are not binding on the Vazhayil Thavazhi' and for incidental reliefs. The plaintiffs' case is that they and defendants Nos. 41 to 60 are members of a Thavazhi, known as Oliyath Vazhayil Thavazhi, the first defendant is the Karnavan of the Tarwad of which the plaintiffs' Thavazhi is a branch, the defendants Nos. 1 to 37 are members of the Tarwad, the plaint properties are the Puthravagasam properties of the Oliyath Vazhayil Thavazhi, the other members of the Tarwad have no interest in the properties and that the first defendant as karnavan of the Tarwad is not entitled o be in, or to claim possession of then?. The first defendant contends that the properties belong to the Tarwad, and they never were the Puthravagasam properties of the plaintiffs Thavazhi, that the suit is barfed by reason of the decision in Original Suit No. 18 of 1914, and that the plaintiffs are not entitled to any relief. The other defendants who are not members of the plaintiffs' Thavazhi raise the same contentions as those of the first defendant.
2. Plaintiffs and defendants Nos. 41 to 60 are the descendants of one Nangomma. She has three sons and. two daughters, (1) Pokker, (2) Kunhamed, (3) Kunhayan, (4) Kunhacha and (5) Kunhahia. Defendant No. 43 is the son of Kunhama. He is the Karnavai of the plaintiffs' Thavazhi. Nangomma had an elder sister, Achotti, whose descendants are defendants Nos. 1 to 37. Defendants Nos. 38 to 40 are the descendants of Nangoma's maternal aunt Valia Aliumma. The first defendant who is the Karnavan of the Tarwad is the great-grandson of Achotti. The Subordinate Judge dismissed the plaintiffs' suit holding that although the present suit was not barred by reason of the decision in Original Suit No. 18 of 1914 yet the plaintiffs failed to make out that the properties were the Puthravagasam properties of their Thavazhi and that though they were acquired by some of the descendants of Nangomma, yet they were not impressed with the character of Thavazhi properties, and the plaintiffs were not entitled to any relief. The plaintiffs have preferred this appeal. The first point for consideration is, whether the present suit is barred by reason of the decision in the said Original Suit No. 18 of 1914, which was brought by the first defendant herein as Karnavan of the Tarwad, for a declaration that a document executed by Royamutti, the previous Karnavan, on 9th July 1909 in favour of the defendants Nos. 1 to 4 therein was not binding on the plaintiff of his Tarwad and for surrender of the properties to him by defendants Nos. 1 to 4. The defendants Nos. 1 to 4 filed a written statement; in which, among other contentions, they stated that they were members of a Thavazhi and that the properties in their possession were the Puthravagasam properties of the Thavazhi and that the Karnavan of their Thavazhi should be made a party, that the properties having been given to them for maintenance by the Karnavan of their own Thavazhi they were entitled to be in possession of them and that, owing to their separation from the Tarwad long ago, there was no community of interest between the first defendant's Tarwad and their Thavazhi: The 43rd defendant herein was added as the 14th defendant to that suit in his capacity as Karnavan of the Vazhayil Thavazhi. He filed a written statement and, among other things, he contended that the properties in dispute were Puthravagasam properties of the Vazhayil Thavazhi, that Nangomma and her children had separated long ago from the Tarwad and the properties having been acquired by the members of the Thavazhi became Puthravagasam properties to which the Thavazhi alone was exclusively entitled, that he as Karnavan was entitled Jo be in possession of them and also of the income, and that the plaintiffs had no sort of right to any of the properties of the Thavazhi. The Temporary Subordinate Judge of Tellicherry held that the properties were hot Puthravagasam properties of the Thavazhi but belonged to the Tarwad and that the defendants Nos. 1 to 4 should surrender possession to the plaintiffs. On appeal the late Chief Justice and Seshagiri Aiyar, J., upheld the decision of the Subordinate Judge and dismissed the appeal of the defendants. It has been found by the Subordinate Judge who tried this suit that the conduct of that litigation was bona fide, and it is now conceded in appeal that it was so.
3. It is contended by Mr. Menon for the appellants that that decision in Original Suit 18 of 1914 is not res judicata as between plaintiffs and < first defendant inasmuch as the plaintiff hi that suit did not admit the existence of the Thavazhi. He further argues that though the matter now in dispute was directly are substantially in issue in the former suit, yet that suit was not between the game parties inasmuch as the 14th defendant therein was only brought on record on the objection of the defendants, and the suit as framed was not against the Thavazhi as represented by its Karnavan. No doubt, in that suit the plaintiff sued for possession of certain properties from persons who, according to his contention, were not entitled to be in possession of them. But the defendants vehemently urged that the properties belonged exclusively to their Thavazhi and that the 14th defendant was its Karnavan and, therefore, was the proper person to represent the Thavazhi. It was on the objection of the defendants Nos. 1 to 4 that the plaint was amended on 4th September 1914 and Olieth Pallikutti, the Karnavan of the Thavazhi, was added as the 14th defendant and he filed a written statement alleging among other things that the suit properties were Puthravagasam property of his Thavazhi that there was no community of interest between his Thavazhi and the Tarwad of which the plaintiff was Karnavan and that the rights, if any, of the Tarwad were barred by limitation and that the plaint properties had been given for maintenance to defendants Nos. 1 to 4 who were members of his Thavazhi and that he was, therefore, entitled to the income of the properties. It is difficult to appreciate the contention that the Thavazhi was not represented in that suit simply because the plaintiff ignored its existence when he filed his plaint though he joined issue with the defendants on the questions--whether there was a Thavazhi and whether the properties in dispute were the properties of the Thavazhi or of the Tarwad. It was held in Vasudevan v. Sakanran 20 M. 129 7 C.L.J. 102 : 7 Ind. Dec. 90 that 'a decree in a suit in which the Karnavan of a Nambudri Mom or a Marumakkattayam Tarwad is, in his representative capacity, joined as a defendant and which he honestly defends is binding on the other members of the family not actually made parties.' The leading judgment in that case Is that of Mr. Justice Shephard who observes at page 141: 'Now it is conceded that, when a Karnavau sues on behalf of the family, he fully represents all its other members and an adjudication therein, it there is no fraud or collusion, is binding on the whole family Subramanyan v. Gopala 10 M. 223 : 3 Ind. Dec. (N.S.) 908. It is obvious that in such cases it is not possible to maintain any other view. For the entire executive authority being exclusively vested in the Karnavan, it is not open to the party sued by him to raise any objection to the action on the ground of the non-joinder of the other members Byathamma v. Avulla 15 M. 19 : 5 Ind. Dec. 363'*** 'By parity of reasoning, then, it follows that a Karnavan can be sued on behalf of the family. It is difficult to see how this conclusion can be avoided, unless the argument of the defendant based on the provisions of the Civil Procedure Code were correct.' It was contended in that suit that, under Section 30 of the Code of Civil Procedure, all the members of the family should have been made parties. Under the old Section 30, which was only an enabling section it was not obligatory on the plaintiff to make all the members of a Tarwad parties to the suit. The learned Judge further observes: 'There are instances, where even though the difficulty with reference to the application of the general rule has nothing to do with the fact that the persons interested are numerous, yet the law does allow, apart from statute, certain persons to prosecute or defend suits in their representative capacity, e.g., Hindu widows with reference to reversioners other persons having an estate analogous to that of a Hindu widow with reference to those entitled to take after such qualified owners, and so on. In the cases last mentioned the limited owners possess the representative capacity to sue or defend by virtue of their position. This, as already shown, is eminently true in the case of a Karnavan. Consequently, he does not require the aid of Section 30 to be a representative, but has the inherent right to act Vis such, provided, of course, there is in the particular case no conflict between his own interest and that of the family' * * * 'Therefore, unless there is shown in the words of Jessel, M.H., 'fraud or Collusion or anything of that sort or that the Court was cheated into believing that the case was fairly fought or fairly represented when in point of fact it was not, 'Commissioners of Sewers of the City of London v. Gellatly (1876) 3 Ch. D, 610 : 45 L.J. Ch. 788 : 24 W.R. 1059 a decision in a suit, defended by a Karnavan in his representative capacity, must be held to be binding upon all those represented by him.' In Gobind Chunder Koondoo v. Taruck Chundef Bose 3 C. 145 : 1 C.L.R. 35 : 2 Ind. Jur 349. : 1 Ind. Dec. 682 it was held by a Full Bench that 'when once it is made clear that the self same right and title is substantially in issue in two suits, the precise form in which either suit was brought or the fact that the plaintiff in the one case was the defendant in the other became immaterial.' In Meethala Veetil Kaitheri Kelu Nambiar v. Kaitheri Chathu Nambiar 52 Ind. Cas. 258 : (1919) M.W.N. 34 : 9 L.W. 34 : 9 L.W. 84 : 25 M.L.T. 66, it was held by a Bench of this Court, that if a matter be in issue under Section 11 of the Civil Procedure Code, it is enough if the decision about it is necessary for the decree and it is not further, necessary that there should be an express issue about it. In Original Suit No. 18 of 1914, Issue No. 4 'whether the plaint 'properties belong to the Olieth Tarwad as alleged by plaintiff or to the Olieth Vazhayil Thavazhi as alleged by defendants Nos. 1 to 4 and 14, and whether there is such a Puthravagasam Thavazhi as alleged 'was distinctly raised and Issue No. 7 'whether plaintiff is entitled takeover possession of the plaint properties' was also, considered. It is difficult to see how it can' be contended that in the previous suit the Thavazhi was not properly represented, and the question in issue in this suit was not distinctly raised. Mr. Menon's vehement contention that the suit which was brought was net against the Thavazhi and, therefore, the decision in that suit could not operate as res judicata has no foundation when it is remembered, that the defendants raised the question of the existence of the Thavazhi and had the Karnavan of the Thavazhi brought on record as the 14th defendant, and he honestly defended that suit by contending that the plaint properties were Puthravagasam properties of his Thavazhi and that, he was its Karnavan and, therefore, entitled to be put in possession of them, should the Court for any reason hold that the document under which defendants Nos. 1 to 4 held them should be set aside. Whatever may have been the frame of the suit when it was filed, defendants Nos. 1 to 4 and the 14th defendant were arrayed as appellants and the plaintiffs and the other defendants as respondents in the High Court, and it is impossible to contend that the plaintiffs' Thavazhi was not a party to the appeal on the face of the records of the Appellate Court. I, therefore, hold that the plaintiff's suit is barred by reason of the decision of the Temporary Sub-Court, Tellicherry, in Original Suit No. 18 of 1914. The argument founded on the frame of the plaint cannot be urged against the Memorandum of Appeal to the High Court. The decision of the High Court in Appeal Suit No. 96 of 1916 on the points now in dispute is res judicata between plaintiffs and defendants.
4. The main contention on behalf of the appellants is, that the suit properties are Puthiavagasam properties of the plaintiffs Thavazhi, having been acquired by the sons of Nangomma with the help of funds furnished by their father Mayan Ali Nagha or by their mother Nangomma. It is further contended that even if the properties had been acquired by the sons of Nangomma without the help of the father's funds or the mother's funds, yet as the properties had been treated as the properties of the Thavazhi for a number of years they became the properties of the Thavazhi.
It is unquestionably the Law of Malabar that all acquisitions of any member of a family un-disposed of at his death form part of the family property and that they do not go to the nephews of the acquirer but fall, as all other property does, to the management of the eldest surviving male' Kallati Kunju Menon v. Palat Erracha Menon 2 M.H.C.R. 162. It Is also well-settled that the acquisitions with the help of the funds of the acquirer's own Thavazhi owning Puthravagasam properties, became the property of the Thavazhi and the Karnavan of the whole Tarwad cannot claim them in opposition to the Thavazhi. In order to succeed the plaintiffs have to make out.
(1) the existence of a Thavazhi;
(2)(a) that the plaint properties were acquired with the help of Puthravagasam funds by the members of the Thavazhi;
(2)(b) or that though they were acquired without the help of Puthravagasam funds yet they were impressed with the character of Puthravagasam properties;
(2)(c) or that the Thavazhi acquired by prescription a title adverse to the Tarwad. The plaintiffs' case is that the plaint properties were acquired by three brothers Pokker, Kunhamed, Kunhayan, the sons of Nangomma by Mayan Ali Nagha who was said to be the Captain of a Sailing Vessel and they must have acquired the properties with the help of the funds furnished by their father. A number of documents hate been filed to support the plaintiffs' contention. But none of them proves that any funds of Mayan Ali Nagha were used by the brothers for acquiring the large fortune they left at their death. Exhibit K3 is a Puramkadam deed of 1862 executed by Palikkandi Nalliyil Armnad, to, Olieth Pokker. In it there is a recital that the executant's Karnavan Palikkandi. Kunhi Ahmad had demised the shop to Mayan Ali Nagha on Kanom rights. This document is challenged to be a forgery. Doubts as to its genuineness were expressed in the judgment of Seshagiri Aiyar, J., in Appeal No. 96 of 1916 and nothing has since transpired to remove those doubts. Exhibit K4 is a sale-deed, dated 8th April 1866, executed by Palikundi Nelliyil Ahmed and his younger brother to Olieth Kunhammed and in it there is a reference to the document in favour of Pokker. Granting that some property was acquired by. Kunhammed in 866 for Rs. 350 with the help of his father's funds, that fact alone will not help the plaintiffs unless they can show that the properties acquired at Cannanore were acquired with the help of the income or the corpus of the property conveyed under Exhibit K4. There is no such evidence on the record. It is next urged, that the funds in the hands of the mother Nangomma were utilized for acquiring the properties and reliance is placed on Exhibits B4, B3 and K1. Exhibit B4 dated 14th October 1830, is a sale-deed of Jen mom right for Rs. 525 to Nangomma and Exhibit B3, dated 31st May 1856, is a sale-deed of another property to Nangomma for Rs. 775, Exhibit K1 is a sale-deed in favour of Nangomma, dated 4th January 1862 for Rs. 5,000 said to be taken in discharge of a debt-bond for the same amount in faovur of Kunhayan. By Exhibit K1 were conveyed the family house into which Nangomma and her children removed after the purchase. There is absolutely no evidence to show that any help was rendered to Pokker by Nangomma by supply of funds, whereas it is quite clear that Pokker began to acquire considerable properties so far back as 1849, vide Exhibit K21. It may be, that Pokker furnished funds for the purchase under Exhibit K1. It is easy to suppose that Pokker who began to make a large fortune wasted to put some property in the name of his mother. There is no evidence as to how Kunhayan came to lend such a large amount as 'Rs. 5,000 so far back as 1862. The properties conveyed under Exhibit K1 may be considered as a gift to the mother by a dutiful son who was in affluent circumstances.
5. It is next urged that at least for the last thirty years, i.e., since 1891, the members of the Thavazhi have been asserting adverse title to the properties and, therefore, the Karnavan and the other members of the Tarwad are barred by limitation from claiming any interest in the properties. In 1801 Olieth Achotti, a grand-daughter of Achotti, the elder sister of Nangomma, and the maternal aunt of the first defendant, brought a suit for maintenance against Kunhamad, Karnavan of the plaintiffs' Thavazhi. He as the eldest member of the whole Tarwad happened to be at that time the Karnavan of the Tarwad as well. That Suit No. 475 of 1891 was evidently intended to test the rights of the members of the Tarwad to share in the income of the properties in the hands of the members of the Thavazh. Exhibit K7 is the written statement of Kunhamad. Therein he contended that the properties were the separate earnings of himself, of his elder brother Pokker and his younger brother Kunhayan who were dead at the time, having been acquired with the profits of the joint trade carried on by them at Cannanore with capital furnished by their father Mayata Ali Nagha, that the plaintiff and her Thavazhi were not entitled to be maintained out of the income of those properties. He further said that he was at least entitled to 173rd of the properties and that the rest 2/3rds had lapsed to the family of 'his Thavazhi. It is significant that he did not in that statement put forth the contention that they were Puthravagasam properties and that he was only entitled to be in possession of them as the Karnavan of the Thavazhi. He refused to act as guardian of the minor members of the Tarwad not belonging to his Thavazhi and on his objection the minor members were represented by the third defendant under the orders of the lower Court. The issues in that suit were: (1) 'whether the parties are members of a joint Marumakattayam Tarwad having community of property?' (2) 'Whether the defendants, i.e., the members of the thavazhi belong to a family of Tarwad separated in interest from that of the remaining defendants? 'There is evidence to show that the written statement, Exhibit K7, was drafted by very well, known legal practitioners quite familiar with Malabar Law and custom and it is not likely that if the properties were realty Puthravagasam properties Kunhamad would not have mentioned that fact to the Vakils nor is it likely that they' would not have questioned him about them if any materials had been placed before them to lead there to suspect that they might be Puthravagasam properties. His contention that he was entitled to 1/3rd of the properties as having jointly acquired with his two brothers is opposed to the contention that they were Puthravagasam properties. In 1891 there seem to have been a number of cases and in all of them the same contentions were put forward but till the year 1910 there is no document in evidence to show that any claim was distinctly put forward that they were Puthravagasam properties. It is next urged that the first defendant has made admissions that the Tarwad had no right to the properties and Exhibits K19 and K47 are relied on. The first defendant did not become a Karnavan till 1909 and any statement by him when he was only a junior Anandravan cannot be taken as an admission against the interests of the Tarwad. He hid no authority to represent the Tarwad or to make admissions binding on the Tarwad. It is alleged that he had a motive for making certain admissions as in Exhibit K19. Whether such statements be true or false they cannot bind the Tarwad.
6. It is next urged that the Tarwad did not assert its title to the properties after 1891 when its title was denied by Kunhamad. It mist be remembered that Kunhamad died in 1892 and Koyamutti, his nephew, succeeded to the Karnavanship of the Tarwad. He happened to be not only the eldest male member of the Thavazhi but also of the Tarwad. Koyamutti died in 1309. After his death the first defendant, who belongs to a different Thavazhi from that of the plaintiffs, became Karnkvan and the moment he became Karnavan, has began to contest the right of the 43rd defendant and others to withhold the properties from him. There can be no adverse possession against the Thavazhi inasmuch as the members of Nangomma's Thavazhi were Karnavans from 1871 to 1909. Mr. Menon relies on Williams v. Pott (1871) is Eq. 149 : 40 L.J. Ch 775, to show that a person could acquire by adverse possession a lesser title than he is entitled to. His contention is that Kunhamad and Koyamutti, by asserting that the properties in their possession were Puthravagasam properties, though they were Karnavans at that time, acquired by such as section adverse title to the Tarwad. No doubt, in law it is quite possible for a person entitled to a larger interest by asserting a title less than the one he is entitled to for the statutory period to acquire such title. But there is no evidence to show that Kunhamad and Koyamutti ever asserted that the plaint properties were Prthravagasam properties belonging only to their Thavazhi. Whenever occasion arose, they assorted that it was the self-acquisition of Pokker and his brothers and not that they were Puthravagasam properties. If they were self-acquisitions, the law is that of their death the Tarwad becomes entitled to them.
7. It is further urged that several properties were given for maintenance to various members of the plaintiffs' Thavazhi and the claim of the Tarwad is barred by limitation. It is unnecessary to consider this contention seriously, when it is remembered that the plaintiffs' Thavazhi furnished Karnavans for the Tarwad continuously from 1871 to 1909, Mr. Menon's contention is that he has only to show that the family had a nucleus of property in order to succeed in the suit. There is no authority for the position that the mere fact that the mother or the father or the Thavazhi was possessed of some funds, is sufficient to make out that acquisitions by the male members of the Thavazhi were impressed with the character of Thavazhi property. I, therefore, hold that the plaintiffs have failed to prove that the properties in dispute are Puthravagasam properties.
8. The next contention urged by Mr. Menon is that the Full Bench decision in Govindan Nair v. Sankaran Nair 2 Ind. Cass. 183 : 6 M.L.T. 106 : 19 M.L.J. 350 is bad law and is opposed to the present consciousness of the people, and that we should re-open the question by referring this case for the opinion of a Full Bench. That decision was given in 190.8, and for the last 14 years it had been held to be good law notwithstanding the doubt expressed as to its soundness by Judges quite familiar with the Malabar Law and Customs, namely, Sir Sankaran Nair, J., Miller, J., and Snndara Aiyar, J., The Madras High Court has held in Krishnan Nair v. Damodaran Nair 17 Ind. Cas. 769 : 38 M. 485 : 13 M.L.T. 166 : 24 M.L.J. 240 that the principle of the decision in Govindan Nair v. Sankaran Nair 2 Ind. Cass. 183 : 6 M.L.T. 106 : 19 M.L.J. 350 (F.B.) did not apply to the self-acquisitions of a female member of a Tarwad which descend to her Thavazhi. It may be that the consciousness of the people is opposed to the principle laid down, namely, that the un-disposed of separate property of a male member of a Malabar Tarwad becomes the property of the Tarwad. It may be that the Malayalee Community, which is one of the most progressive communities of Southern India, feels shackled, by its peculiar laws and customs which are archaic and antiquated and quite unsuited to its present advancement and enlightenment. However much one may sympathise with the present feelings of the community, it is not the province of a Judge to alter the law, however opposed it may be to the consciousness of the people. It is his duty to administer it as he finds it. I respectfully adopt the language of the learned Chief Justice in Govindan Nair v. Sankaran Nair 2 Ind. Cass. 183 : : 6 M.L.T. 106 : 19 M.L.J. 350 (F.B.): 'I think this is a case in which we should act on the maxim stare decision, and that if the Law is to be altered it should be altered by the legislature which can make due provision for the safeguarding of vested interests and existing titles.' The decision in Govindan Nair v. Sankaran Nair 2 Ind. Cass. 183 : 6 M.L.T. 106 : 19 M.L.J. 350 (F.B.) followed a decision of Mr. Justice Holloway in Kallati Kunju Menon v. Palat Erracha Menon 2 M.H.C.R. 162, and seeing that the law has been uniform for the last 60 years it would not be proper to alter it by a judicial decision, when it could be done by an Act of the legislature.
9. In the result, the appeal is dismissed with posts of respondents Nos. 1 to 4 and 6 to 34.
10. The connected Appeals Nos. 337 and 338 follow the decision in the main appeal and are dismissed with costs of first and third respondents in Appeal No. 337 and with costs of first respondent in Appeal No. 338.