1. This is a second appeal which has been preferred against the decree and judgment of the learned Subordinate Judge of Ottapalam in A. S. No. 100 of 1948 confirming the decree and judgment of the learned District Munsif of Chowghat in O. S. No. 11 of 1947.
2. The facts are: The plaintiff and defendants 1 to 15 are members of one Kanakkasseri tarwad. In a partition in the tarwad evidenced by Ex. A. 1 dated 26-8-1955, the tarwad properties were put in possession of various thavazhis. The plaintiff is a member and karnavathi of the 3rd tavazhi. Defendants 1 to 12 form members of the 2nd thavazhi while defendants 13, 14 and 15 each represent one unit. According to the terms of the partition deed (Paras. 3 to 6) certain items scheduled as schedule I, which are the plaint items, are set apart in common to be kept in possession by the second thavazi under certain conditions. The conditions are that the second thavazhi has to, from out of the income of these items, pay Rs. 25-8-0 to the then karnavans ten days before the due date of the performance of certain ceremonies. The ceremonies are also detailed in the I schedule. They include the Thiruvathira Oottu in the Kazhuvilangu temple, Dharmadeva Pooja, Samkrama Pooja and Pooja in the serpent grove and also three 'sradhas' of three deceased karnavans of the tarwad. The total expenses of all these ceremonies is fixed at Rs. 25-8-0 and the expenses for each is also given in the I schedule and these amounts have to be paid ten days before the ceremonies, to the karnavans. The karnavans have to perform the ceremonies and all the members are entitled to be present and witness the ceremonies. The other conditions are that none of the trees in the I schedule be cut, sold or damaged by the second thavazhi. The last condition is that the I schedule properties must not be transferred possession of by the thavazhi. The plaintiff complains that all the three conditions laid down in Ex. A. 1 have been violated by the thavazhi and that consequently she is entitled to recover possession as one of the members of the. tarwad. If it is found that there has been a breach of the conditions there is no doubt that the plaintiff can get possession as per the term's of Ex. A. 1. Defendants 1 to 5 deny that any breach has been committed by them, their contention being that they themselves have performed all the ceremonies under the directions of the karnavans, that they have not cut, damaged or sold any trees, and that no possession has been transferred to them.
3. Both the lower Courts have held that there has been no breach of the conditions in the partition deed which made the defendants liable to surrender possession of the suit properties and hence this second appeal by the defeated plaintiff.
4. It is contended by the learned advocate for the appellant Mr. Nambiar that there is no compliance with the terms of the partition deed and the trust created therein in regard to the performance of these ceremonies, if the sum of Rs. 25-8-0 is not paid Over to the karnavan or in the event of his being a pauper to the seniormost solvent anandravan ten days before the ceremonies and ensuring that these ceremonies are performed and that it is no answer to say that on account of the disruption of the tarwad there is no karnavan as such to be entrusted with the due performance of these ceremonies. In my opinion, both these contentions are correct and I shall deal with them in the next succeeding paragraphs.
5. There can be no doubt that under the relevant document viz., the partition deed, a trust has been created in regard to the performance of these religious ceremonies and the Second thavazhi has been made the trustees thereunder. The trustees have got a right to be in possession of the plaint properties included in the first schedule to the partition deed without powers of alienation and impairing the estate and realise the income and devote only an amount of Rs. 25-8-0 towards the performance of these ceremonies. They are under an obligation to pay Rs. 25-8-0 every year to the karnavan ten days before the date of the ceremonies and in the event of the karnavan becoming an insolvent pay over to the next senior most member of the common tarwad who was to perform the ceremonies. The makers of this trust, apparently well conversant with the ways of their own tarwad karnavan and senior-most anandravan in regard to the paramount performance of these ceremonies for the spiritual welfare of the entire family and their well being by securing the blessings of providence, have finally inserted a condition that in case the persons to whom the amount is paid pocketed the amount and did not perform the ceremonies, the second thavazhi was to perform the ceremonies and recoup themselves out of the trust properties. The learned Subordinate Judge seems to have felt difficulty as to how the second thavazhi after paying the money & when the ceremonies are not performed, could recover the amount from the trust and perform the ceremonies themselves. I may dispose of this difficulty, which is more imaginary than real, because the underlying intention of the makers of the trust was that the ceremonies must be performed and that even if they are not performed after the karnavan or the seniormost anandravan is paid over the amount the trustees should perform and recompense themselves from the trust property which is not their exclusive property but the common property of the tarwad which was not divided and had been set apart for this purpose and entrusted to the second tavazhi. The learned Subordinate Judge has also overlooked that if the money is paid over to the- karnavan of the seniormost anandravan and he did not perform the ceremonies, they need not be selected for the ensuing years because under the terms of the document it is only the solvent karnavan or the solvent anandravan who could do it and the fact that the money had been pocketed and not expended would be a clear case of not being solvent and the next eligible man has got to be selected for this purpose and which may include this very second thavazhi, provided there is a seniormost anandravan there. Therefore, if the second thavazhi had performed the ceremonies without reference to the karnavan or the seniormost anandravan they would certainly not have complied with the terms of this partition deed creating a trust.
6. The learned advocate, Mr. Nambiar has properly pointed out that it is no answer for the respondents to say that on account of the disruption of the tarwad there was no karnavan as such for money being paid over. In advancing this contention the respondents overlook the position occupied, and the spiritual duties discharged, by a karnavan and which have been well pointed out in -- 'Kenath. Puthen Vittil Tavazi v. Narayanan', 28 Mad 182 (A) as follows:
'A karnavan in Malabar is the senior male member of a group of persons, all of them tracing their descent in the female line from a common female ancestor owning joint property under the absolute control and management of the karnavan. This group form a Marumakatayam tarwad. In this tarwad a mother and her descendants in the female line, by themselves, constitute a thavazhi, i.e. the line of a single mother. But this term is usually applied to any branch of a tarwad in separate possession of a portion of the joint family, property holding it thus for convenience of enjoyment. The term is also occasionally applied to such a branch even when there is a severance of interest and the main tarwad loses or is deprived of all interest in the property in the possession of this branch of tavazhi and the latter has really developed into a tarwad by itself. See -- 'Velia Kaimal v. Velluthadatha Shamu', 6 Mad H C R 401 (B). While the senior male member in a tarwad is the karnavan of all the members in the tarwad and hence is called the karnavan of the tarwad, every member is the karnavan of his junior in age and anandravan of those senior to him in the tarwad, the terms karnavan and anandravan being correlative. Every member is thus a karnavan or anandravan of every other member in the tarwad. A tarwad may be split into various branches, each branch holding its own property without community in the property held by another branch. When such division has taken place each branch or tavazhi, forms so far as Courts are concerned a separate tarwad by itself the senior male of each branch is treated in law as the karnavan of the tarwad. As pointed out by Holloway J. in -- 'Korappan Nair v. Chenen Nair', 6 Mad H C R 411 (C) in popular language all the members of the separated branches still belong to the same tarwad, but in the only sense with which Courts of justice are concerned, they do not.' The result is that the members of the original or larger tarwad continue to treat one another as karnavan and anandravans, though there may be no community of property between them and they do not strictly at any rate, as Holloway J. correctly points out, in a Court of law belong to one tarwad. To put it briefly, eyen though the members of a tarwad may divide all the property, they still continue karnavan and anandravan. For purposes of pollution, for the performance of. funeral ceremonies, for purposes of succession the relationship is recognised to subsist.'
Therefore, such relationship will continue to be the source of obligations, social and religious, and can subsist between persons without any community of property. In other words, as pointed out in -- 'Anandravan v. Raman', AIR 1917 Mad 95 (D), the karnavan has two capacities -- a temporal and a spiritual one. In the former he is the manager of the family properties, maintains the junior members, represents the tarwad in transactions with strangers etc. In his latter capacity he presides at the ceremonies and performs all the religious duties which are incumbent on him. A stranger cannot supplant him in this latter office.
7. If the matter had really stood thus, there would have been much substance in the contentions of the learned advocate Mr. Nambiar. But the finding on facts by both the lower Courts is that the ceremonies were being performed by the second thavazhi under the express delegation of the karnavan. This the karnavan is entitled to do because the performance of the ceremonies in this case is not such that it cannot be delegated to a member of the family. It consists of three Sradhas, a Thiruvathira Oottu, a Sankrama Pooja, a Dharmadeva Pooja and a serpent pooja. The Sradhas have to he performed only by the members of the tarwad under instructions from the Puruhit. The Sradhas. which have to be performed are Sradhas of three deceased karnavans. The plaintiff's husband P. W. 1 states that any member of the tarwad can perform the Sradhas of deceased karnavans ordinarily. The remaining ceremonies are to be performed by the priests in the presence of the tarwad members. In these circumstances the learned District Munsif Mr. Balakrishna Menon has pointed out:
'It is well known that when a karnavan of, the tarwad is not able to perform a Sradha on account of old age, any male member can take his place, and get through it. Similarly, for a pooja if the karnavan is not able to go to the temple for unavoidable reasons and when one member of the tarwad is present on behalf of the karnavan, it cannot be. said that that pooja has not been correctly performed.'
The learned Subordinate Judge Mr. Chandu Menon concurred and pointed out:
'These circumstances also will show that there was no special religious significance in the karnavan himself performing the Sradhas or the ceremonies.'
These opinions of two learned Malayalee Judges who are themselves members of tarwads well acquainted with the customs of the country are entitled to weight. Therefore, there has been compliance with the terms of the partition deed by the performance of these ceremonies by the second tavazhi under the. express delegation of the karnavan.
8. The learned advocate for the appellantdid not raise any other point. In the result,the decree and judgment of the lower appellate Court which are correct have got to beaffirmed and this second appeal is dismissedbut in the circumstances of the case withoutcosts. No leave.