(1.)BY Ext. P-1, dated 13th Vrischikam 1120 W. E. (28th November 1944) one raman Namboodiri, the Karnavan of a Namboodiri joint family illom as it is called governed by the Travancore Malayala Brahmin Act, III of 1106 (which has been inaccurately referred to by the courts below as the Namboodiri Act) granted the suit property, a piece of Illom land, 47 cents in extent, (and worth, according to the evidence of the 1st defendant himself about Rs. 1,000) on kanom to the 1st defendant for a sum of Rs. 50 and a michavaram of Rs. 8 a year. Two years later, on 30th Makaram 1122 M. E. (12th February 1947), the 1st defendant assigned the kanom to the 2nd defendant and put the latter In possession. Ramaa Namboodiri died on 12th July 1951, and on 22nd September 1952, kesavan Namboodiri the succeeding karnavan (who now figures in the suit as the 1st plaintiff) brought the present suit professedly on behalf of the illom, in his capacity as Karnavan thereof, for a cancellation of the kanom deed and for recovery of the property from the hands of the two defendants with mesne profits, past and future, on the ground that the hanom was void under the provisions of section 5 of the Malayala Brahmin Act. (The former was an unnecessary relief; the suit was in truth a suit for possession on the footing that the kanom was void; the kanom could be ignored and there was no need to have it set aside; and the courts below rightly repelled the attempt of the 2nd defendant to bring the suit within Article 91 of the Limitation Act, an attempt which has not been repeated before me, and rightly held that the suit was in time having been brought within 12 years of the date on which possession passed, whether It Is Article 142 or article 144 that applies ). The suit was decreed ex parte on 25th October 1952. Three years later, there was a partition in the illom under Ext. P-2, dated 9th November 1955, and the suit property fall to the share of the branch of one Parameswaran Namboodiri who now figures as the 2nd plaintiff in the suit. Some time in 1957, Parameswaran namboodiri applied for execution of the ex parte decree claiming to be the transferee of the decree. On receipt of notice of this application, the 2nd defendant came forward with an application under 0. IX, R. 13 of the Code to set aside the ex parte decree. To this application, he made only Kesavan Namboodiri (now the 1st plaintiff and then the only plaintiff) a party. On 27th March 1957, the court ordered notice of the application to Parameswaran Namboodiri whom it described as the assignee-decree-holder. The court itself seems to have construed this order as an order impleading Parameswaran Namboodiri as a party respondent to the application, and, under the initials of The Judge, the name of Parameswaran namboodiri was entered In the application as 2nd plaintiff-2nd respondent. Thereafter, on 13th July 1957, the 2nd defendant applied for the issue of notice to parameswaran Num-boodiri and in this application lie described Parameswaran namboodiri as the 2nd plaintiff. The 2nd defendant's restoration application was dismissed lay the first court but was allowed in appeal, and the appellate order was upheld by the High Court in revision on 27th January 1951. Thereafter, the first court took up the trial of the suit and the trial proceeded on the footing that Parame-swaran Namboodiri was the person entitled to relief in We suit and that he was a plaintiff therein--in fact, it was he that prosecuted the suit. There was, however, no formal order impleading him as a plaintiff and no amendment of the plaint until the Court, on noticing the omission after the close of the trial but before judgment, had his name entered in the plaint as the 2nd plaintiff on the strength of the order of 27th March 1957.
(2.)SECTION 5 of the Travancore Malayala Brahmin Act runs as follows :
"5. Except for consideration and illom necessity, and with the written consent of all the major members of the illom, no karnavan or other managing member shall sell illom immovable property or execute kanom deeds in respect thereof, or mortgage it with possession for a period of more than twelve years or lease it with or without premium for a period of more than twelve years. Nothing in this section shall affect the right of the karnavan to execute solely renewal of kanom deeds already executed. "
It is clear from the section that three things are necessary for the validity of a hanom of illom property by a karnavan. There must be consideration, there must be illom necessity, and there must be the written consent of all the major members of the illom. The case of the plaintiffs was that none of these three conditions was satisfied, whereas, the defence put forward by the 2nd defendant was that there was consideration and necessity and also the consent of all the members of the Illom and that, in any case, the members, In particular the two plain-tiffs, having subsequently acquiesced in, and affirmed the kanom ware precluded from questioning it. The 2nd defendant disputed the rate of mesne profits claimed in the plaint and also pleaded that, in the event of eviction, he was entitled to compensation for Improvements.
(3.)THE first court found, what Indeed was not disputed, that there were major members in the Illom other than the karnavan, Raman Namboodiri, at the time of the execution of the kanom--the plaintiffs themselves were two of them--and that there was not the written consent of these major members. It found that the kanom was for consideration and for illom necessity. It found further that the plaintiffs had acquiesced in the kanom and were therefore not entitled to question it. And, after it had reserved judgment, it took upon itself to raise a new point not taken by the parties, and, without hearing them in the matter, it held that the 2nd plaintiff had not been properly brought on record, that by reason of the partition, the 1st plaintiff had ceased to have a cause of action to maintain the suit, that the cause of action which the 1st plaintiff had, did not, in the absence of an assignment of the ex parte decree, devolve on the 2nd plaintiff, and that, so far as any independent cause of action which the 2nd plaintiff might have had was concerned, that had become barred by the time he came to court on 29th January 1957 seeking execution of the decree, that being the earliest date on which he could be regarded as having been made a party for the purpose of Section 22 of the Indian Limitation Act if he indeed was made a party at all. In this view, it dismissed the plaintiffs' suit, and it left the issues regarding mesne profits and compensation or improvements undetermined.