1. The suit under appeal has been brought as a representative suit by a junior member of a Marumakkathayam Tarwad for a declaration that the pattadharam granted on 18th July, 1922, by defendant 1, who is the present Karnavan, is not valid and binding on the plaintiff, his tarwad or the suit properties and for delivery of the suit properties to the plaintiff on behalf of the tarwad. The tarwad consists of two branches, the descendants of two women, Alliathe and Birambi, who were sisters. The defendants are all of the branch of Birambi, while the plaintiff belongs to that of Alliathe find claims to be the senior anandravan, though this claim is challenged. The plaintiff asserts that the suit pattadharam has been granted by defendant 1 to two members of his own branch with a view to defrauding the plaintiff of the benefit of the great improvements which he has effected to the suit lands, while it prejudices the tarwad, on whose behalf the suit is brought, in that the amount of rental fixed under it is far too low. The Court below has found that the suit pattadharam was not executed by defendant 1 in the bona fide exercise of his powers of management as karnavan of the tarwad, but for the purpose of enriching members of his own tavazhi at the sacrifice of the; interests of the entire tarwad, and it has, therefore, granted a decree to the plaintiff as prayed for. Against this decision defendants 2 and 3 are appealing.
2. It has been urged for the appellants and for defendant 1 as second respondent that the suit is not maintainable on two grounds. The former of these grounds is that leave has not been properly obtained by the plaintiff to sue in a representative capacity. This, however, is a point that we cannot allow to be taken. The plaintiff definitely states in paragraph 14 of his plaint that he has obtained the leave of the Court to sue on behalf of the tarwad and this recital has not been challenged in any written statement, nor was any issue taken as to it. We have to presume in these circumstances that there was no irregularity in the proceedings in the trial Court and that the plaintiff was properly permitted to bring the suit as a representative one.
3. The other ground is more important. It is that the grant of the pattadharam by defendant 1 was an ordinary act of management by the karnavan, in the exercise of his legitimate powers; and that consequently no suit can be brought by a junior member of the tarwad to have it set aside but that if the view of the learned Subordinate Judge in this particular instance as to the nature of the act of the karnavan that is in question is correct, then the proper remedy was to bring a suit for the karnavan's removal. There is no dispute as to the correctness of the view expressed in the Lower Court's judgment that, on the face of it, the suit pattadharam, which grants a kuzhikanom lease for a period of twelve years, is an ordinary act of management within the karnavan's competence. Stress is laid on Abdulla Koya v. Eackaran Nair (1917) 35 M.L.J. 405 in which a Bench of this Court has remarked in the matter of a suit as to a Melcharth granted, as it was contended, improperly, by a karnavan:
No doubt if a karnavan habitually grants improvident leases and thereby renders himself unable to fulfil his obligations towards the other members of the tarwad, this would be a ground for removing him from the- karnavasthanam, but we do not think that a particular lease can 'be declared to be invalid as against the lessee merely because it is not proved to be beneficial to the tarwad. To fetter a karnavan's discretion in this way would be to render his whole management of the property liable to criticism and reversal at any moment.
4. Again in Kizhakkumbrath Moidin v. Koyambraih Murkothkandi (1927) 108 I.C. 738 it has been held by a Bench of this Court that where a kanom is executed by a karnavan of a Malabar tarwad for the purpose of paying off a debt binding on the tarwad, the Court is not required to investigate with meticulous care whether the transaction was a prudent one or whether there was necessity for entering into such a transaction for the purpose of raising the necessary amount, On the other hand, a number of decisions have been quoted to us to show that in the case at any rate of kanoms that have been improperly granted, the Court will interfere, and that at the instance of junior members of a tarwad. One of these is Unni v. Kunchi Amma (1890) I.L.R. 14 M. 26, which dealt with a suit brought to recover property that had been improperly alienated by a karnavan under a kanom. The point, however, for decision in that case was one of limitation while the kanom had been executed by a previous karnavan who had been removed from office, and the suit was brought by two persons who claimed to have been appointed managers by a decree of Court. In Anantan v. Sankaran (1891) I.L.R. 14 M.101 it was held that, junior members of a tarwad could maintain a suit against their karnavan, senior anandravan and others for a declaration that a kanom was invalid and for recovery of properties. In that case, however, the kanom was granted not by the karnavan but by the senior anandravan to whom the karnavan had delegated the management under a karar, and emphasis was laid on the fact that the time for filing, the suit had almost expired and that the kajnavan, who was joined as a defendant had failed to sue. It is to be" observed that in V.K. Packi v. V.K. Muhammad (1925) 49 M.L.J. 513 it has been remarked that this decision in so far as it suggests the broad proposition that in all circumstances the junior members will be entitled to sue when the karnavan has failed to do so seems to be opposed to all the prior and subsequent decisions, but that on the actual facts the case came within the accepted principle that the anandravan may be permitted to sue when the karnavan has disabled himself from bringing such a suit, that is when the circumstances are exceptional. Vatavatta Nair v. Kenath Puthen Vittil Kuppassan Menon (1918) 36 M.L.J. 630 deals with a suit brought by a senior anandravan for having set aside a kanom granted by the karnavan in office who was defendant 2. The suit was allowed on the principle that a kanom granted, as had been in that suit, by way of renewal of an earlier kanom the term of which had not expired, was not binding on the tarwad except on proof of necessity or benefit to the tarwad of which proof was lacking. Chowkaran Kunhi Pocker v. Chowkaran Malikaimal Valia Bappotty (1919) 37 M.L.J. 544 is a case in which a junior member of a tarwad successfully sued to recover properties for which a kanom had been given, but it was a case in which the kanom had been granted by a previous karnavan. The plaintiff in that case had obtained permission to sue on behalf of all the members. In Koppassa Menon v. Kalliani Ammal (1923) 45 M.L.J. 258 the senior anandravan brought a suit to set aside a kanom that had been renewed prematurely by the karnavan in office who was a defendant, and lost the suit not because he had no right to maintain it but because it was held that in the circumstances the renewal was proper.
5. It would thus appear that a junior member of a tarwad may bring a suit to set aside even a kanom that has been executed by a karnavan who is still in office; but that he can only do so in exceptional circumstances is shown by the decision in Ottaparakkal Thazhath Soopi v. Chanchal Pallikkal Mariyamma (1919) 38 M.L.J. 207. There it was held that except in very special circumstances where the karnavan is proved to be guilty of gross misconduct and collusion, it is not competent to the junior members of the tarwad to sue for redemption of a kanom granted by their karnavan.
6. Bikulti v. Kalendan (1890) I.L.R. 14 M. 267 : 1 M.L.J. 227 deals with a case of a deed of gift and holds that-junior members of a tarwad could bring a suit for the cancellation of such a deed, but this was in exceptional circumstances in that the karnavan, who was defendant 1, could not maintain the deed in that it had been granted by himself.
7. P.P. Kunhamod Hajee v. P.P. Kuttiath Hajee (1881) I.L.R. 3 M. 169 indicates what is an appropriate remedy in the event of a grossly improper lease being granted by the karnavan in office, what it finds being 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 the karnavan from the management of the tarwad property. That this is an appropriate remedy is also indicated in Abdulla Koya v. Eacharan Nair (1917) 35 M.L.J. 405 to which reference has been made in para. 3 above. No case has been shown to us in which a suit has been brought successfully by a junior member of a tarwad against his karnavan, praying for such relief as has been granted to the plaintiff in respect of such an ordinary act of management as the granting of a twelve-year kuzhikanom lease. Our attention has been called to Chappan v. Raru (1912) I.L.R. 37 M. 420 in which it has been remarked that the property of a tarwad is vested in its members, who, when the karnavan makes an alienation that is not binding on them, can sue to recover possession and may do so on their title without even asking for the alienation to be set aside, it being for the alienee to prove that the alienation was binding on them. That, however, was a case in which the alienation by the karnavan was by way of a mortgage. The case for the plaintiff 1st respondent in this connection receives most assistance from some remarks of Jackson, J., in Manavadan v. Srtedevi (1926) I.L.R. 50 M. 431 : 52 M.L.J. 277. In his judgment in that case the learned Judge has stated that the rights of the junior members of a tarwad are confined to suing for maintenance, to suing for cancellation of any transaction entered into by the karnavan to the detriment of the family and to suing for his removal. The junior members sued in that case for the removal of the karnavati on allegations of fraud and misappropriation of family funds and it was held that they could not as a matter of right, when suing for such relief, ask for the karnavati to render general accounts. As a matter of fact the karnavati, a woman, ceased in the course of the suit to occupy her position as such because by the rule of family succession she moved to a higher sphere. In such circumstances it was found that the plaintiffs had no cause of action. They were entitled to sue for a decree removing defendant 1 from management and to contend that, if she gave no account by way of rebutter of their proved allegations, such a decree should be granted and defendant 1 should be removed. As, however, the removal was already an accomplished fact such a contention would be idle. The judgment then goes on to remark that the plaintiffs might have brought their suit in a different way, that each proved defalcation might be set aside and defendant 1 held liable. These remarks, however, as to the kind of suits which junior members of a tar wad are entitled to bring, are by the way and have no bearing on the point which the case actually decided and, in any case, they have to be considered along with what has been laid down in the other decisions to which reference has been made already. These make it clear that when the alienation which is attacked as fraudulent, improper or to the detriment of the tarwad does not amount to more than a lease, a suit to set it aside can only be brought in exceptional circumstances. It is unnecessary in this particular case to say more than this, apart from reiterating that no precedent has been shown to us for such a relief as has been granted in this suit, in a suit framed as this has been, as we are satisfied that in this case no circumstances have been shown to exist which would justify its being regarded as one in which the plaintiff is entitled to exceptional treatment.
8. [His Lordship dealt with the evidence and continued.]
9. We come, then, to the question of rental in which connection the learned Subordinate Judge has taken largely into consideration the reports of two Commissioners, both of whom have reported on the probable yield of the suit lands.
10. We have in the first place to remark that the Lower Court should not have issued two separate commissions to deal with one and the same subject and to treat the reports of both the Commissioners as evidence in the case. The exact circumstances in which he came to issue the second commission do not appear from the record that has been placed before us, but the second commission should not have been issued, unless it was thought that the report of the first Commissioner was not satisfactory in which case the earlier commission should have been wiped out altogether and attention should have been paid only to what was reported by the second Commissioner. Instead of this the learned Subordinate Judge has balanced the report of one Commissioner against that of the other and has expressed a preference for the views of the first Commissioner. In taking this course he has acted with great impropriety and contrary to what is contemplated by Order 26, Rule 10 (3) of the Civil Procedure Code. Though the practice which he has adopted may be one that is prevalent in Malabar it is one that should no longer be continued as has been pointed out in clear terms by this Court in Ambi v. Kunhi Kavamma (1929) 118 I.C. 296.
11. [His Lordship then examined the evidence and held that there was no evidence to justify the finding of the Lower Court about the inadequacy of the rent fixed under Exhibit VI arid concluded as follows:]
12. The result, then, is that the appeal succeeds. The decree of the Lower Court is reversed and the suit is dismissed with costs to the defendants 1, 2 and 3 in this Court and in the Court of first instance.