ORDER
Devadoss, J.
1. The only point for consideration in this appeal is whether an appeal lay to the lower appellate Court from the order of the District Munsif on a petition filed under Order 21, Rule 58, and Section 47, Civil P. C. A decree was obtained in O. S. No. 345 of 1912 by one Narayanan Nambudri against Krishnan Nair and his brother Ramunni Nair for Rs. 344. Krishnan Nair was made liable as karnavan of the tarwad in addition to his personal liability. In execution of that decree certain moveables belonging to the tarwad were attached. The junior members objected to the attachment on the ground that the tarwad was not bound by the decree. They failed in their petition and 22 junior members brought O. S. No. 38 of 1920 to set aside the decree so far as the tarwad was concerned and they succeeded in the suit with the result that Krishnan Nair and Ramunni Nair were made personally liable for the decree amount. The decree-holder attached some of the properties of the tavazhi and the sister of Krishnan Nair and Ramunni Nair objected to the attachment on the ground that the properties belonged to the Putravakasam tavazhi and that the judgment-debtors had no exclusive interest over it. This petition was presented under Order 21, Rule 58, and Section 47, Civil P. C. The District Munsif dismissed that petition; on appeal to the lower appellate Court it was contended that no appeal lay as the members of the tavazhi were not parties to the suit. But the Subordinate Judge overruled that objection and on the merits allowed the appeal. Narayanan Nambudri, the decree-holder, has filed this civil miscellaneous appeal. The contention of Mr. Krishna Menon for the appellant is that the appeal to the lower appellate Court was incompetent as the petitioners who objected to the attachment were not parties to the decree or their legal representatives.
2. To O. S. No. 345 of 1912 Krishnan Nair and Ramunni Nair were parties as well as the tarwad of which Krishnan Nair was the karnavan. The objection now put forward is that the property under attachment does not belong to the tarwad, but is the property of the tavazhi which was not represented in the suit. The Subordinate Judge, in para. 3 of his judgment, says:
No doubt the property is now claimed as belonging to a tavazhi within the common tarwad, but on the same principle the tavazhi must also be considered to have been a constructive party.
3. The argument of the Subordinate Judge amounts to this: that if a tarwad is sued by making the karnavan a party or all the members of the tarwad parties, the tavazhis of which the tarwad is composed must necessarily be considered to be parties to be suit. This view is against the theory that a tavazhi is a distinct entity so far as the holding of property is concerned from the tarwad and though according to the peculiar system of Malabar law members of a tavazhi may form a tarwad, yet each tavazhi is entitled to own property separately and a tarwad cannot utilize the properties of the tavazhi for its purposes. In other words the tarwad and the tavazhi are two distinct entities or bodies for the purpose of owning property. The tavazhi property cannot benefit the members of the tarwad as a whole though the tavazhi members are entitled to get a share of the income of the tarwad property.
4. This distinction unfortunately has not been given effect to in some of the decisions quoted at the Bar. Even though all the members of a tarwad are made parties to a suit eo-nomine, yet if the suit is only against a tarwad it would not be right to say that the tavazhi also was represented in the suit merely because the members of the tavazhi were made parties in their capacity as members of the tarwad. If a person occupies two distinct positions or fills two different offices his being sued in his capacity as representing one body, cannot be held as his being sued in another capacity representing another body which was not sued. Suppose A and B are the trustees of a certain trust; suppose they also happen to be the trustees of another trust If J suit is brought against them in respect of one trust would it be right to say that they being the trustees of the second trust it must be held that the second trust was a party to the suit in order to attract the provisions of Section 47, Civil P. C. When the karnavan of a tarwad is sued as karavan I think it would not only be doing violence to language, but it would be against all principles of construction of pleadings to hold that he is also sued as representing the tavazhi. Where he is sued as representing the tarwad and the tavazhi it may be said that he must be taken to represent both in the suit. But where the suit is confined to some relief against the tarwad only I think it would be opposed to all principles of justice to hold that he must be taken to have represented the tavazhi. It is not the name of the person that is of importance, but the substance and the nature of the suit. With these observations I proceed to consider the cases relied on by both the parties.
5. Mr. Krishna Menon relies upon a recent decision of this Court reported in P. Mammad Haji v. Alam Ibram Haji [1915] 31 I. C. 393 The facts in that case were: A obtained a decree against the anandravan of a Malabar tarwad and in execution thereof attached certain immovable properties in possession of the judgment-debtor. He died; but on his death the karnavan of the tarwad was brought on the record as his legal representative. He set up the claim of the tarwad to the property, and contended that the judgment- debtor had no partible interest in the property and it was not attachable. The District Munsif dismissed the petition and on appeal by the karnavan the appellate Court set aside the attachment. Against that order a revision was filed in the High Court. The question was raised whether an appeal lay to the lower appellate Court. Justice Abdur Rahim and Justice Spencer held that no appeal lay to the lower appellate Court and that the point was covered by the Full Bench case in Ramanathan Chetti v. Lavvai Marakayar [1900] 23 Mad. 195 and a decision of the Calcutta High Court in Kartic Chandra Ghose v. Ashutosh Dhara [1912] 39 Cal. 298 They observe at 394:
The claim that he put forward in respect of the property was that it belonged not to the judgment-debtor, but to the tarwad. There seems to us no distinction in principle between this case and the case in which the person who was a party to the suit or was brought on record as a representative of the judgment-debtor claimed the property as the trustee for certain Other persons or as shebait of a temple.
6. This decision in P. Mammad Haji v. Alam Ibram Haji [1915] 31 I. C. 393 was followed by Sadasiva Ayyar and Philips, JJ., in Second Appeal No. 1 of 1916. The opening lines of that judgment make the point clear:
The plaintiffs’ Thiyya Makkathayam Tarwad was not impleaded as the legal representative of the judgment-debtor Ramutty in the proceedings in execution in the former suit. Five of the present plaintiffs were impleaded as such legal representatives in their individual capacity as sons and therefore heirs of Ramutty to his self-acquired and separate properties. The plaintiffs therefore as representing the tarwad were not bound to make an application under Section 47, Civil P. C. for redelivery of the property which belonged to the tarwad and which the decree-holder purchaser, wrongfully took possession of in execution, though it was neither attached nor sold in execution. They (plaintiffs) as representing the tarwad (a third party) were entitled to bring a separate suit to recover possession of the property so wrongfully taken possession of by the decree-holder purchaser Ramanathan Chetty v. Lavvai Marakayar [1900] 23 Mad. 195.
7. The law has been clearly laid down by Abdur Rahim and Spencer, JJ., in Mammad Haji v. Alam Ibram Haji [1915] 31 I. C. 393 and though one sentence in that judgment about Kuriyali v. Mayan [1884] 7 Mad. 255 may be inaccurate as pointed out in Kelu Achan v. Parasu Pattar [1917] 5 M. L. W. 158 the reasoning in that decision seems to us to be unimpeachable. Following Ramanathan Chetty v. Lavvai Marakayar [1900] 23 Mad. 195 and P. Mammad Haji v. Alam Ibram Haji [1915] 31 I. C. 393 we hold that a separate suit can be brought by the plaintiffs’ tarwad as it is not the legal representative of Ramutty. This clearly shows that where the tarwad is not brought in as the legal representative of a deceased judgment-debtor and if any of its property is attached it can apply under Order 21, Rule 58, as it is not a party either to the suit or the execution proceedings.
8. The facts in Ramanathan Chetti v. Lavvai Marakayar [1900] 23 Mad. 195 were, a decree-holder having attached certain property in the course of execution, two of the defendants in the suit in which the decree was passed presented a petition that the property may be released from the attachment on the ground that it had been set apart for charitable purposes and that it was held by the defendants as trustees. The Subordinate Judge upheld the trust and ordered the properties to be released from the attachment. The plaintiff then appealed to the High Court and a preliminary objection was taken to the appeal on the ground that no appeal lay against the order of the Subordinate Judge. The point was referred to a Full Bench and it held that the claim fell under Section 278 and not under 244, Civil P. C. and that no appeal lay against an order passed by the Court executing the decree. It was further held that the claims of third parties whether put forward by themselves or by a party to the suit must be dealt with under Sections 278 and 283 and not under Section 244. Mr. Justice O’Farrell, who delivered the leading judgment in that case, observed at p. 200:
I think, however, that there can be no doubt that the balance of authority is in favour of the view that the claims of third patties, whether put forward by themselves or by a party to the suit, must be dealt with under Sections 278 to 283 and not under Section 244.
9. He further observed:
The Court should look to the substance of the objection, and not to the accident that it is put forward by A rather than by B. If it is in substance, an objection that falls under Section 278, it should be dealt with under that section.
and he observed that this view is in accordance with a number of cases cited by him. This decision is right in principle if I may say so. If A is sued in his individual capacity, property of which he is only a trustee cannot be attached and brought to sale in execution of a personal decree against him and if such property is attached the proper course is for him to apply under Order 21, Rule 58 of the present Code corresponding to Section 278 of old Code. The mere fact that a person is a party to a suit in his personal capacity does not make the trust of which he is a trustee a party to the suit. The question is complicated by the peculiar system obtaining in Malabar under which the tavazhis which compose a tarwad are district legal entities from the tarwad itself so far as the ownership of property is concerned. All the members of the tarwad are entitled to be maintained out of the income of the property of the tarwad. Even though some of the members may be members of a tavazhi which is rich yet they as members of the tarwad are entitled to receive maintenance from the tarwad so that the tarwad and the tavazhi cannot be said to be one and the same judicial person and when a tarwad is sued as such either by making the karnavan or all the members of the tarwad parties, the suit is not one against any or all the tavazhis composing the tarwad.
10. Mr. Ramkrishna Ayyar for the respondent very strongly relies upon M. Muthu Ammo, v. P. Kunnot Cherukot [1907] 30 Mad. 215 as supporting his contention that an appeal in this case lay to the lower appellate Court, The facts in that case were, a decree was obtained against the karnavan of a tarwad. In execution of that decree certain properties were attached and some of the members of the tarwad put in a petition for release of the properties attached on the ground that the properties belonged not to the common tarwad but to their own tavazhi. The petition was rejected. On appeal the Subordinate Judge of South Malabar held that no appeal lay to his Court. The expression District Court in the report is obviously a mistake for sub-Court. A civil miscellaneous appeal was presented to the High Court against the order of the sub-Court. A Bench of this Court consisting of Justice Benson and Justice Wallis held that an appeal lay. Benson J., observed:
Not only defendants 2 to 6 but also all the members of the tavazhi must be held to be bound by the decree against the tarwad and parties to the suit on the .principle laid in Kamal Kutti v. Ibrayi [1901] 24 Mad. 658.
11. Wallis, J., observed:
In this case a decree has been given against the karnavan as representing the members of the whole tarwad, In accordance with the decision in Kamal Kutti v. Ibrayi [1901] 24 Mad. 658 all the members of the tarwad must be taken to be parties to the suit for the purpose of execution proceedings, and, if parties, they must proceed under Section 244 and not under Section 278. The fact that they claimed the property, which has been attached, adversely to the other members of the tarwad does not make them any the less constructive parties to the decree.
12. He refers to Ramanathan Chetti v. Lavvai Marakayar [1900] 23 Mad. 195 and says:
a defendant who objected to the attachment of property of which he was a trustee was allowed to proceed under Section 278, because he was claiming as trustee on behalf of persons who were not parties to the suit, and similarly in Abdurrahiman Kutti Haji v. Kunhammad Koya [1900] 10 M. L. J. 85.
13. With very great respect to the learned Judges I must observe that they did not keep before them the distinction between a tarwad and a tavazhi. The mere fact that the tarwad members are members of the tavazhi would not make the tavazhi a party to a suit in which the tarwad alone is concerned. Though this decision may be distinguished from the present on the facts I think the better course would be to canvass the correctness of this decision for the learned Judges have expressed themselves in such a wide language that it would not be right to go behind the plain meaning of their language by making reference to the facts of the case. If the principle of this decision is that when a tarwad is sued in the name of the karnavan, the karnavan being the representative of all the anandravans, all the tavazhis which compose the tarwad must be considered to be parties to the litigation, I am unable to accept any such proposition as correct. When there are two separate bodies which can hold properties independently of one another and whose interests may clash with one another, it cannot be said that one represents the other simply by reason that for some purposes the members composing the one happen to be members composing the other. If this decision had been consistently followed in a number of cases one should hesitate before questioning its correctness. Though the matter has been fully argued and though we gave every opportunity to both the parties to refer to the cases in which this decision has been followed we have not been referred to any case in which the principle of this decision was given effect to. In Rangan Pattar v. Lakshmi Neithiar [1904] 14 M. L. J. 137 it was held that
an objection by a defendant that immovable property attached in execution of a decree is not the private property of the judgment-debtor but that of the tavazhi consisting of the defendant, the judgment-debtor and others is one falling within Section 244, Civil P. C. and an appeal will lie from the order of the Court of first instance.
14. The facts were, a decree was obtained against defendants 1 to 3. In execution of the decree, the properties in dispute were attached. Defendant 6 objected to the attachment on the ground that the properties were not private properties of defendants 2 and 3, but belonged to a tavazhi consisting of defendants 1 to 9. The District Munsif rejected the claim. On appeal the Subordinate Judge held that it was the property of the tavazhi and directed the raising of the attachment. From the facts it is clear that the properties were gifted to defendants 2 and 3 and the question was whether the gift was exclusively for defendants 2 and 3 or for the tavazhi which they represented. Arnold White, Chief Justice, and Justice Bashyam Ayyangar held that this point was covered by the Full Bench ruling in Ramaswami Sastrulu v. Kameswaramma [1900] 23. Mad. 361 In this case the question was whether it was the property of defendants 2 and 3 or the property which belonged to them as well as to the other members of the tavazhi, and it is distinguishable from the cases in Ramanathan Chetti v. Lavvai Marakayar [1900] 23 Mad. 195 and P. Mammad Haji v. Alam Ibram Haji [1915] 31 I. C. 393 Where a person is sued and property belonging to him and some others is attached, a claim has to be made only under Section 47, for the property which is attached belongs to him though it belongs to others as well. But when he is sued in one capacity he cannot be said to be sued in all the capacities in which he could be sued. In other words, when one institution is sued, it cannot be said that another institution of which the defendant happened to be the manager or trustee is also sued.
15. In re Kelu Achan v. Parasu Pattar [1917] 5 M. L. W. 158 is relied upon by Mr. Ramakrishna Ayyar. In that case a decree was obtained against an anandravan of a Malabar tarwad. Certain properties alleged to belong to him were attached after his death, and the karnavan of the tarwad was brought on the record as the legal representative of the deceased anandravan. He contended that the attached properties had been appropriated towards a debt due from the anandravan. The Subordinate Judge held that the karnavan was not the legal representative of the anandravan, and under the above circumstances rejected the tarwad’s petition. On appeal the District Judge held that no appeal lay to him as the matter arose in claim proceedings. The High Court held that an appeal lay. Ayling and Seshagiri Ayyar, JJ., after referring to a number of cases, observed:
Thus there has been a course of decisions in this presidency which has recognized the correctness of the principle that, where a person’s claim is traceable to the same capacity in which he is brought in as the legal representative, the executing Court should hear and determine the matter.
16. This observation is not against the principle of the decision in Ramanathan Chetti v. Lavvai Marakayar [1900] 23 Mad. 195 The real question is in what capacity was the defendant impleaded in the suit. If he was impleaded in the suit in one capacity he cannot be held to have been impleaded in another capacity so as to prevent him from putting forward the claim of the body which was not made a party to the suit. The decision in Meyappa Chetty v. Chidambaram Chetty [1920] 39 M. L. J. 603 has nothing to do with the present question. In C. M. A. 143 of 1920, this point is not discussed. Ayling and Venkatasubba Rao, JJ., observed:
It is specifically stated by the District Munsif in his order on the claim petition that the case fell under Section 47, Civil P. C., and we must take it that his order was passed under that section. This being so, an appeal lies: vide Lakshmannan Chetty v. Ramanathan Chetty [1905] 28 Mad. 127 no matter whether the petition should properly have been treated as one under Order 21, Rule 58, or not.
17. In S. A. No. 647 of 1921, the karnavan of a tarwad was made a defendant to a suit. The decree was finally passed exonerating the tavazhi properties altogether and the decree was only against the assets of one Raman Nair in the hands of defendant 3 as his legal representative. The learned Judge observed that
as the karnavan of the tavazhi was joined in suit by the defendant 1 in his capacity as karnavan, I must hold that the other members of the tavazhi are constructively parties to that suit and the plaintiff must also be treated as if he was a party and his remedy in putting forward the claim of the tavazhi is by way of an application under Section 47 and not by a suit.
18. This case does not touch the present point. Where a person is a party to a suit even though he may be exonerated still, for the purposes of Section 47, he is a party. This is clear from the Full Bench ruling in Sannamma v. Radhabhayi [1918] 41 Mad. 418 and from the explanation to Section 47.
19. The decision in Wahed Ali v. Mt. Jumaee 11 B. L. R. 149 is discussed in Ramanathan Chetti v. Lavvai Marakayar [1900] 23 Mad. 195 and it is unnecessary to discuss it here. The case in V. T. Arunachellam Chetty v. Mg. San Ngwe A. I. R. 1924 Rang. 823 does not help the respondent. There it was held that where a person is brought on the record as a legal representative of the deceased judgment-debtor, the question whether the property attached is part of the assets or his own property is one arising under Section 47, Civil P. C. In cases of persons who are brought in as legal representatives they represent the deceased person and any question as to what is or what is not the property of the deceased is a question which naturally arises under Section 47. If improperly the legal representatives’ separate property or private property is attached he has to show that it is not part of the assets of the deceased, But that is different from saying that where a person is brought in as the legal representative in possession of the assets of the deceased person he cannot set up the right of a trust which had nothing to do with the deceased person. The question is not one of form, but one of substance. Section 47 is clear. All questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, etc., shall be determined by the Court executing the decree. It must be first a question arising between the parties to the suit or legal representatives and must relate to execution, etc. But where property which is attached or which is sought to be proceeded against is not the property of a party to the suit, I fail to see how an application in respect of it could come under Section 47. It can only come in under Order 21, Rule 58. The decisions in Vengapayyan v. K. Parvathi [1903] 26 Mad. 501 and Sivarama Sastrial v. Somasundara Mudali [1905] 28 Mad. 119 do not touch the present question. On the facts in Sivarama Sastrial v. Somasundara Mudali [1905] 28 Mad. 119 it was held that Section 244, Civil P. C., applied, for the person putting forward the claim put it forward on the ground that he stood in the shoes of the person who was the party to the suit in which the decree was passed.
20. As the decision in M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 is opposed to the Full Bench ruling in Ramanathan Chettiar v. Lavvai Marakayar [1900] 23 Mad. 195 we should follow the Full Bench ruling in preference to the ruling of a Bench, but as the matter is one of considerable importance, and as it is likely to arise very often, I would refer the following question to the Full Bench: Is the decision in M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 correct?
Madhavan Nair, J.
21. The Full Bench is requested to examine the correctness of the decision in M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 I do not object to this reference. But speaking for myself, I am quite content to stand by the decision in M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 The question is essentially one of procedure, and if the procedure has been followed for a long number of years I think it is not desirable to set about altering it even if it is not deemed to be correct according to the strict letter of the law. Neither party has been able to refer to cases which have reached this Court wherein this Court has expressly followed M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 or refused to follow it. The paucity of the decisions would rather suggest that the procedure is well understood; but, however that may be, I am not satisfied that M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 requires re-consideration.
22. The two decisions that are relied on as departing from the principle embodied in M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 are: (1), P. Mammad Haji v. Alam Ibram Haji [1915] 31 I. C. 393 and [1900] 23 Mad. 195 S. A. No. 1 of 1916. The facts in P. Mammad Haji v. Alam Ibram Haji [1915] 31 I. C. 393 are stated in my learned brother’s judgment. It would appear that M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 is referred to neither in the arguments of the counsel who appeared in the case nor in the judgment. In that case, on the death of an anandravan against whom a decree was obtained, the karnavan of the tarwad was brought on the record as his legal representative in the course of execution, and he put forward title to the property on behalf of the tarwad. The judgment is based on the ground that as the anandravan cannot be said to represent the tarwad, the tarwad was not constructively a party to the suit; and as the karnavan was putting forward a claim on behalf of those who were not parties to the suit it was held that the claim put forward by him could not be investigated under Section 47, Civil P. C. This decision in no way departs from the principle laid down in M. Mathu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 S. A. No. 1 of 1916 followed the decision in P. Mammad Haji v. Alam Ibram Haji [1915] 31 I. C. 393 The Full Bench decision in Ramanathan Chetti v. Lavvai Marakayar [1900] 23 Mad. 195 is referred to and distinguished in the judgment in M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 The other decisions referred to, as pointed out by my learned brother, do not bear directly on the question. That a karnavan of a Malabar tarwad sued as such, represents constructively all the members of the tarwad and a decree so obtained against him is binding on the tarwad was laid down as early as Vasudevan v. Sankaran [1897] 20 Mad. 129 and this principle was made applicable to execution proceedings in Kamalkutti v. Ibrayi [1901] 24 Mad. 658 and M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 Without calling into question the correctness of the Full Bench decision in Vasudevan v. Sankaran [1897] 20 Mad. 129 I do not think it is possible to re-consider M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 As observed in Kamal v. Ibrayi [1901] 24 Mad. 658.
to allow the junior members to make a claim as strangers under Section 244, Civil P. C. (Section 47 of the present Code) seems to be inconsistent with their being bound by the decree and with the policy of Section 244 and of the decision in Vasudevan v. Sankaran [1897] 20 Mad. 129.
23. I do not think that the fact that the tarwad and tavazhi are two distinct entities capable of owning separate property has been ignored in M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 or in any of the decisions applying the principle embodied in it. For the sake of convenience, the karnavan is recognized as representing the entire tarwad in a suit when he is made a party to it as karnavan. The fact that the members of the tarwad fall into various tavazhis does not in any way affect the representative character of the karnavan when he is sued as the karnavan representing the entire tarwad, which, of course, includes all the tavazhis. The interests of the tavazhi, which may be adverse, are not jeopardized by this procedure. So far as the decree binds the tarwad, no one can question it; but if the tavazhi properties are attached in the course of execution of that decree, the tavazhi, if it has any right, may put forward its claim to the attached properties. When this is done, the question raised will be one between parties to the suit and will relate to the execution, discharge or satisfaction of the decree, and Section 47, Civil P. C., will be applicable to such proceedings.
24. On the facts, it is possible to distinguish the present case from the decision in M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 as the decision in the subsequent suit by the junior members may be said to convert the decree under execution into a decree merely against two individual members of the tarwad, one of whom happened to be the karnavan. However, as I have said, though I am willing to stand by that decision, I have no objection to the question decided in it being referred to a Full Bench for fresh consideration.
Opinion
Phillips, Offg. C. J.
25. The question that has been referred for our opinion is:
Is the decision in M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 correct?
26. In that decision it was held that, where a decree is passed against the karnavan of a tarwad in his representative capacity, all the members of the tarwad must be held to be parties to the suit and such members in execution proceedings must proceed under Section 244, Civil P. C., and not under Section 278. The decree had been passed against the tarwad, but certain members of the tarwad objected to the attachment of certain properties on the ground that they belonged not to the tarwad, but to a separate tavazhi to which the claimants belonged. In order to consider the validity of this decision, it is necessary to consider the decision in Kamalkutti v. Ibrayi [1901] 24 Mad. 658 which was relied on as authority for it. In Kamalkutti v. Ibrayi [1901] 24 Mad. 658 the decree had been passed against the karnavan of the tarwad as senior member and manager and it was held that members of the tarwad who claimed certain property in their individual right must be deemed to be parties, or representatives of parties, to the decree and, as such, any claim made by them came within Section 244, Civil P. C., (Section 47 of the present Code). The judgment is that of Shephard and Benson, JJ. Benson, J., who was also a party to M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 wrote the leading judgment in Kamalkutti v. Ibrayi [1901] 24 Mad. 658 whereas Shephard, J., merely said:
I concur, though I must say that I have had considerable doubt about the question.
27. The decision is based upon the Full Bench ruling in Vasudevan v. Sankaran [1897] 20 Mad. 129 where it was held that a decree against the karnavan of a tarwad sued as such in a suit which he defended bona fide was binding on all the members of the tarwad, as they must be deemed to be represented in that suit by their karnavan. It must be observed that it was only as members of the tarwad that they were so represented and not in any other capacity that they might hold. Therefore, the decision in Kamalkutti v. Ibrayi [1901] 24 Mad. 658 in which it was held that members of the tarwad in their individual capacity and not as members of the tarwad must also be deemed to be parties to the decree, is a considerable extension of the principle laid down in Vasudevan v. Sankaran [1897] 20 Mad. 129 The karnavan undoubtedly represents the members of the tarwad as such, and the decision in Vasudevan v. Sankaran [1897] 20 Mad. 129 is merely to that effect; but to go further and say that he represents them in any other capacity, e. g., as members of a separate tavazhi, or as individual owners, whose interests may be, and probably are, opposed to the interests of the tarwad, seems to be contrary to the principle of the decision. In fact, in Ramanathan Chettiar v. Levvai Marakkayar [1900] 23 Mad. 195 it was held by a Full Bench of this Court that, when a decree had been obtained against a person in his individual capacity, a claim by him as a trustee for others who were not parties to the decree was one that fell under Section 278, Civil P. C., and not under Section 244. The ratio decidendi of this case is that the persons interested in the trust had not been parties to the decree and, consequently, were not bound by it, and, therefore, any claim made by them was a claim made by a stranger to the decree. It is difficult to distinguish this case on principle from M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 and Kamal Kutti v. Ibrayi [1901] 24 Mad. 658 As members of the tarwad, the claimants in both cases were deemed to be constructive parties to the decree; but their interests as members of a tavazhi or as individual owners were not represented at all in the suit, which was concerned merely with their interests as members of the tarwad. If they were not represented in their individual capacity in the suit, it is difficult to see how they could be deemed to be parties even constructively to the decree. They were not actual parties and, therefore, they could only come under Section 244 (now Section 47) if they were representatives of the parties; but it is not in their capacity as representatives of the parties that they now come forward with their claim, but as representing themselves, whose interests are adverse to those of the karnavan, who is deemed to be their representative in so far as they were members of the tarwad. Hence it would appear that they, in their individual capacity, were not represented in the suit and cannot, therefore, be held to be representatives of parties to the suit, The conclusion, therefore, is that, in accordance with the Full Bench decision in Ramanathan Chetti v. Lavvai Marakayar [1900] 23 Mad. 195 the decisions in Kamal Kutti v. Ibrayi [1901] 24 Mad. 658 and M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 are wrong. If the claimants bad been impleaded in the suit personally they would undoubtedly be parties and would come within the meaning of Section 47, although the interests put forward in execution might not be the interests in respect of which they were made parties, for it has been held that, when a trustee is sued in his capacity as trustee and in execution puts forward his individual rights, he must be deemed to be a party to the suit also in his individual capacity. Where, therefore, a person is an actual party to the suit, his rights in any other capacity must be deemed to be rights of a party to the suit and he must, consequently, come under Section 47, Civil P. C.; but when he is not an actual party, but is merely a constructive party represented by another, he can only be deemed to be a party or representative of a party in the capacity in respect of which he was so represented. In any other capacity, more especially when such capacity is adverse to the person who represented him, he can in no sense be deemed to be a party or representative of a party.
28. The decision in Kamal Kutti v. Ibrayi [1901] 24 Mad. 658 has stood for many years and it is contended on the principle of stare decisis that it should be upheld. We see, however, that it was a decision of one Judge in which the second Judge reluctantly concurred. The correctness of the decision has also been doubted by the late Mr. Justice Sundara Ayyar in his Treatise on Malabar and Aliyasantana law and he was undoubtedly a great authority on Malabar law. The decision was also not followed in Mammad Haji v. Alam Ibram Haji [1915] 31 I. C. 393 and in Second Appeal No. 1 of 1916 (unreported). If therefore the decisions are not correct in law they cannot be upheld, even though they relate merely to a question of procedure. On reference to the papers in M. Muthu Amma v. Kunnot Cherukot [1907] 30 Mad. 215 it would appear that the karnavan of the tavazhi was an actual party to the decree and on that ground the decision may be correct; but as the judgment did not proceed upon that basis, we must answer the question referred to us in the negative, and this will have the further effect of overruling Kamal Kutti v. Ibrayi [1901] 24 Mad. 658 also.
Beasley, J.
29. I agree,
Anantakrishna Ayyar, J.
30. I agree with my lord. The circumstance that a money decree obtained against the tarwad karnavan as such is binding on all the members of the tarwad does not make the other members parties to the suit. Under ordinary circumstances their interests in the taward property should be deemed to have been represented by the karnavan, and it is only in this sense that the decree obtained against the karnavan in his representative capacity is binding on the other members: Vasudevan v. Sankaran [1897] 20 Mad. 129 The karnavan is taken to sufficiently represent also their interests in the tarwad property, the interests of the karnavan and the junior members in respect of the tarwad property with reference to such suit being ordinarily the same. From this circumstance that the decree is thus binding on the tarwad including the interests of junior members in the tarwad properties, it does not follow that the junior members are parties to the suit. Similarly under Section 11, Civil P. C., Expl. 6.
when persons litigate bona fide in respect of a right claimed in common for themselves and others, all persons interested in such right shall for purposes of this section be deemed to claim under the person so litigating.
31. This does not, I think, make all the other persons so interested parties to the suit.
32. It appears to me that it does not follow that because a decision is binding upon a person, therefore, he must be taken to be a party to the suit. Prima facie only those are parties to the suit within the meaning of Section 47, Civil P. C., whose names appear in the decree. If any person’s name so appears, then all questions raised by him relating to the execution, etc., of the decree should be determined in the execution department, and not by a separate suit. If his name does not so appear, then the next question is: Were his interests (that is, those put forward by him) represented in the suit? He may have his own separate or private interests, and he may have his common interests in the tarwad properties as a member of the tarwad. If only his common interests in the tarwad were represented, then it seems to me it is impossible to hold that his other interests (separate and private interests) should also be taken to have been represented in the suit, with the result that if in execution proceedings occasion arises for putting forward such separate and private interests, he should be treated not as a stranger qua such interests but as a party to the suit within the meaning of Section 47, Civil P. C. The same remarks would apply to interests as co-owners possessed by two of the junior members of the tarwad in respect of some property owned by these two only as co-owners. The same remarks would also apply to properties owned by some only of the members of a tarwad as their exclusive tavazhi properties. It seems to me that in cases where such members were not eo nomini parties to the decree, and where only the karnavan of the whole tarwad was sued as such, the claims that might be put forward in the course of execution of such decree by the joint co-owner members or the tavazhi members aforesaid should not be dealt with as put forward by persons who are parties to the suit. Ordinarily the karnavan of a tarwad, as such, has no concern with the private and separate properties of the junior members or of any tavazhi. But on the other hand it often happens that his interests as karnavan representing the tarwad are adverse to the separate interests put forward by the junior members or the tavazhi in the circumstances mentioned above. The present case is not even complicated by any permission of Court granted under Order 1, R. S. Civil P. C.
33. The decision in M. Muthu Amma v. P. Kunnot Cherukot [1907] 30 Mad. 215 is based on the authority of the decision in Kamal Kutti v. Ibrayi [1901] 24 Mad. 658 Justice Shephard had considerable doubt about the question. If the principle laid down by Benson, J. in Kamal Kutti v. Ibrayi [1901] 24 Mad. 658 should be accepted, it would seem to -follow that in the case of a decree obtained only against a Hindu father or joint family manager as such, claims preferred by other members of the joint family setting up private and exclusive right to properties attached would have to be decided under Section 47 of the Code; as also similar claims put forward by cestue que trust when their private and separate properties not included in the trust are sought to be proceeded against in execution of decrees obtained against the trustees only as such. I am not prepared to place such a construction on Section 47 which would involve the above consequences. In Kamal Kutti v. Ibrayi [1901] 24 Mad. 658 the learned Judge argues:
If the decree can be executed against them (junior members) does not this imply that they are parties or representatives of parties?
34. With all respect it is difficult to understand how a decree for money obtained against the karnavan alone as such could be executed against the junior members. Such a decree could be executed against the tarwad properties, but not against the junior members. If the learned Judge was right in saying that such a decree could be executed against the junior members, then the conclusion reached by him would of course be correct. I accordingly agree in answering the question referred to us in the negative.
