@JUDGMENTTAG-ORDER
V.R. Krishna Iyer, J.@mdashThe facts which have led up to these three revision petitions may be briefly set out. There were three suits for injunction against trespass, O. S. No. 292 of 1960 O. S. No. 342 of 1961 and O. S. No. 177 of 1962, all of which were instituted by the Valiya Thampuratti of the Ayiranazhi Kovilagom to which the Malavaram, which is the subject matter of the suits, belonged. (C. R. P. No. 450 of 1967 relates to I.A. No. 837 of 1966 in O. S. No. 292 of 1906, C. R. P. No. 495 of 1967 relates to I. A. No. 839/66 in O. S. No. 177/62 and C. R. P. No. 449/67 relates to I. A. No. 838 of 1966 in O. S. No. 342 of 1961). In each suit junior members of the plaintiff''s Kovilagom applied to get themselves impleaded and the defendants, who are joint proprietors of the Kerala Estate and claim ownership and possession of the suit properties, applied for recording of a compromise and decree in terms thereof. The plaintiff''s suits were for the protection of the forests belonging to the family known as Chenkode Malavaram alias Kalikavu Malavaram. The defendants disputed the Kovilagom''s right and claimed the suit properties as included in their Kerala Estate. During the pendency of these suits a partition deed was executed by members of the Kovilagom on 20-11-1962 (marked as Ex. R1 in I.A. No. 837 of 1966). Years rolled by, and the suits were still pending probably in a state of suspended animation. While various items were set apart to the members under the partition arrangement, the Malavaram, portions of which form the subject matter of the three suits, was vested in a specially constituted committee for management thereof. The plaintiff was not a member of the committee and none of the members of the committee came on record in these suits; nor did the other co-owners, i.e. the quondam junior members, cared to get themselves impleaded or to disaffirm the act of the Valiya Thampuratti in continuing the litigation. While things stood thus, the three suits were compromised by Ex. A1 (in I. A. No. 939 of 1966) dated 29-12-1955 entered into between the plaintiff i.e. Valiya Thampuratti and the alleged president of the committee on the one part and the defendants, the owners of the Kerala Estate, on the other. It provides, inter alia, that "the First Party (i. e. the plaintiff and the President of the Committee together) agrees to give up all their claims and to recognise the right of the Second Party (The Kerala Estate, represented by the 5th defendant) to the lands which are subject matter of the................suits................and get the suits dismissed by filing Razi petitions in consideration for a sum of Rs. 15,000/- which the Second Party agrees to pay to the First Party before the Razi petitions are filed in court". There is reference in Ex. A1 to an application for the issuance of a permit u/s 3 (1) (a) of the M. P. P. F. Act applied for by the First Party to the Collector, as forest lands in Malabar cannot be sold without such permission u/s 3(1) (a) of the M. P. P. F. Act. Before the Collector, the Kerala Estate had raised objections to the grant of permit on the score of rival title and possession. Ex. A1 provides, with reference to this matter, that "the Second Party has withdrawn his objections filed before the Collector". It was represented before me by counsel for the respondents that in obedience to the agreement, Ex. A1, the objection to the grant of permit was withdrawn and the Collector accordingly granted the permit applied for, as per his proceedings dated 9-2-1966. It is averred in I. A. No. 1294 of 1966 (In O. S. No. 177 of 1962), which is one of the three similarly worded petitions to record settlement of the suits under Order 23 Rule 3 C. P. C. put in by the defendants, that "in pursuance of the said permit the plaintiff and other members of the Kovilagom have sold the Kalikavu Malavaram for a consideration of Rs. 3,60,000 in May 1966". It is also stated in March that petition that the advocates for both parties had represented to the Court in 1966 that the suits had been settled and that razi petitions would be put in on the reopening of the Courts after the summer recess. "We have offered several times the sum of Rs. 15,000/- which we have to pay to the plaintiff before filing the razi petitions before the Court", runs the affidavit supporting the petition. "Since the plaintiff was postponing to receive the same, a cheque for Rs. 15,000/- was sent by us..................the said cheque has been returned by the plaintiff saying that she could not accept it and act according to the agreement since some members of the kovilagom are objecting to it............"(Paragraph 4). Thus it is seen that after the compromise, Ex. A1 there was some serious hitch and while the defendants stood by Ex. A1, the plaintiff shifted her stand and symptomatic of this volte face some junior members filed three petitions to get themselves impleaded in the three suits to enable them to oppose the recording of the compromise. The defendants contested them with the result that the Trial Court refused to implead the parties and recorded the compromise in all the suits, allowing the petitions of the defendants in that behalf. The three Revision petitions before me are against the orders of the trial Court refusing to implead the petitioners who, as I have said earlier, are co-owners of the Kovilagom Malavaram. The plaintiff, having changed her front, filed Civil Miscellaneous Appeals against the orders recording the compromise to which she admittedly was party. Those appeals are now pending in the District Court, Palghat. She has moved the High Court by C.M.P. Nos. 8777 to 8780 of 1968 praying for transfer of those C. M. As. to the High Court so that they may be heard and disposed of along with the C. R. Ps. During the pendency of the suits interim injunctions had been sought by the plaintiff for restraining the defendants from cutting trees and planting rubber. The trial Court granted the injunction, but, in appeal, the Subordinate judge vacated it directing the defendants to deposit Rs. 15,000/-. Against the order in this appeal C. M. A. No. 41 of 1964, C. R. P. No. 185 of 1967 has been filed and heard by me along with the three C. R.Ps. I shall deal with it presently, after disposing of the three Revision petitions filed by the junior members.
2. Learned counsel on both sides have addressed considerable argument on the right of the junior members to come on record. In this context a few facts need to be highlighted. The suits were instituted by the karnavathy of a Marumakkathayam tarwad. While the suits were pending she ceased to be the manager of the joint family on the execution of Ex. A1 partition deed in 1962. The Malavaram which takes in the suit property was committed to the management of a special committee consisting of six persons but the plaintiff was not included in it. None of the members of this committee nor, for that matter, any junior member of the Kovilagom sought to get himself impleaded or to raise any objection to the continuance of the litigation by the plaintiff till 1966 when the present three applications for impleading were filed. It is significant that the compromise agreement, Ex. A1 (I. A. No. 939 of 1966) was entered into only on 29-12-1965, more than three years after the partition in the Kovilagom but several months before the application was made by the junior members for getting themselves impleaded. In between these two dates, a large tract of forest land held by the Kovilagom under the same title as the suit properties is alleged to have been sold by the plaintiff and the other members, a course of conduct which was pressed before me as disclosing an acceptance of the agreement, Ex. A1, by the other members of the Kovilagam. This sale was rendered possible only because the Collector granted the permit requited u/s 3(1) (a) of the M. P. P. F. Act which, in turn, was facilitated by the withdrawal of objection by the defendants, and so they cannot be heard to urge to the contrary by getting themselves impleaded for the stated purpose of opposing the recording of the compromise. Of course, the petitioners repudiate Ex. R1 razi. The compromise, they aver, was entered into without their knowledge and in a manner highly detrimental to the members of the Kovilagom and was the product of collusion between the plaintiff and the defendants. They were not parties to the deed but would be adversely affected if a decree was passed thereon and claim the right to be impleaded to urge this ground.
3. Counsel for the petitioner argued that the plaintiff had admittedly brought the suit on behalf of the joint family. Therefore, all the junior members of the family were constructively parties to the suit and it was perfectly open to them to come on record if they felt dissatisfied with their representative, particularly because she had sought to scuttle the litigation started for the benefit of the family and at its expense by entering into a compromise with the defendants who had challenged the title of the kovilagam to the Malavaram. When they found that their interests were in jeopardy and the family properties were being bartered away for a song they were entitled to intervene and protect their interests. This right of the junior members became indubitable after the partition in 1962 since the plaintiff had lost her capacity as Karnavathy thereafter and could not enter into a compromise to bind the other co-owners or get the said compromise recorded by Court behind the back of those who were really the owners of the suits lands. Even assuming that a karnavan who sues on behalf of the trawad has the right to represent it, even after partition, in that litigation, such capacity can be put an end to by the others repudiating it. And, in no case can such right to represent extend to extinguishing instead of prosecuting the litigation. Counsel for the respondents, in his turn, urged that the plaintiff and the junior members were playing a big fraud and the Court should not permit it to succeed by allowing them to come on record. According to him, the plaintiff had validly instituted the suit on behalf of the family, that her representative capacity continued notwithstanding the partition, that for years the litigation had persisted without any of the co-owners disaffirming her act and that with respect to the transaction of litigation she was entitled to enter into a bonafide compromise binding on all of them. It was further contended that as a fact the compromise was not a hole and corner affair but was effected with the concurrence of the Committee whose President had signed in token thereof, that the junior members were aware of, assented to and obtained benefits under the compromise.
4. Prima facie, I am impressed with the moral indignation of the defendants but without fuller enquiry how can I say that the razi was a just deal? And there is sometimes a hiatus between law and justice, the former being too petrified and and the latter too relative for a judge to weave a reconciliation between the two with success. Anyway, the Court is concerned mainly with the application of the law to a given situation. So let me address myself to the five questions that arise here which I may formulate right away to discipline the discussion that is to follow:
(1) Can the validity of a compromise or rather its voidability be enquired into in proceedings under Order 23 Rule 3 C.P.C. or can that be done only by way of separate suit ?
(2) If it cannot be done, can the junior members be permitted to come on record for the sole purpose of opposing the recording of the compromise? or can they insist on being heard as constructive parties to the suit wanting to become eo nomine parties so that no decree may be passed against them as constructive parties without being heard?
(3) Can the Karnavan who instituted a suit on behalf of the tarwad continue to represent the Anandiravans in that litigation even after the tarwad has been divided?
(4) If he can, what is the remedy of those so represented when they find him betraying their interests or desire to come on record and speak for themselves ?
(5) In any case, can a Karnavan who continues to represent a tarwad in litigation even after partition exceed the limited power of carrying on the litigation bonafide, by entering into a compromise? or even retreat by submitting to a decree by consent? In such situations, can the co-owners come in, repudiate the authority and speak for themselves ?
5. There is no doubt that a Malabar family speaks through its head and in Courts of justice, except in antagonism to its head, can speak in no other way. So long as the family remains undivided, the manager''s authority cannot be revoked or controlled except with his own consent and if a decree is passed against him, the binding character of this decree upon the interests of the other members depends not upon their having or not having been parties to the suit, but rather upon the authority of the manager to enter into the transaction impeached. Can the junior members be regarded as parties to the suit through the manager? In a recent ruling of a Division Bench of the Kerala High Court reported in
When a person is, either by operation of law, or by act of parties, duly authorised to represent another in a litigation, that other is, we should think, in truth a party to the litigation even if not eo nomine so. The case of manager litigating on behalf of his joint family, which under their personal law he is competent to represent, would, we think, satisfy the requirement of identity of parties in the body of Section 11 of the Code with regard to members of the family claiming as such in a subsequent litigation-all the members of the joint family being represent by the manager are, in truth, parties to the suit......
In a ruling reported in
It has been held in Vasudevan v. Sankaran (20 Mad. 129) that a suit filed by a Karnavan as such is a representative suit and there is no question that the adjudication in that suit is binding upon the members of the tarwad.
In a later Full Bench decision of the Madras High Court reported in A. I. R. 1937 Mad 610 Venkataramana Rao J. observed:
I think the theory of representation must imply that the respondent, though not eonomine on the record, should be treated as though he himself were a party to the suit. If this be so, it follows in my opinion that unless he has done something which has had the effect of removing him from the record, he must be treated as continuing to be a party till the date of the decree.
In an unreported decision of a Division Bench of the Kerala High Court of which I was a member (A. S. No. 81 of 1968) Raman Nayar J., as he then was, put the matter strongly and clearly thus:
Acting within the scope of his authority......the manager of a joint family represents not merely himself but also every other member of the family in respect of the family affairs as effectively as if he were the latter''s duly constituted attorney. To every transaction which the manager so enters into, each member of the family is, in truth, and not by a fiction or a construction of the law, as much a party as if he had figured in it by name and when a manager sues or is sued on behalf of the family...... The other members are actually and not merely constructively parties to the suit. They are parties for all purposes (of course only in so far as joint family interests are concerned.......) for purposes of res judicata as well as for execution; as much parties as if they were parties eo nomine.
It is thus clear that the junior members of the Kovilagom were at least constructive if not actual parties to the suits when they were instituted. Can a person who is a party to a litigation, not eo nomine but constructively not directly but through his representative, be refused the right to come on record and be heard when he finds that his representative is betraying his interests? A Court cannot condemn a man unheard and if a person, being constructively a party, can be bound by a decree, it stands to justice that he should be heard before such a decree is passed, particularly if he asks for it on the score that his erstwhile representative is no longer representing him fairly. Otherwise, a principal who sues or is sued through his agent cannot but suffer the misfortune of his proxy''s betrayal. There may be some difference between an agent and a karnavan because the latter derives his right to represent by virtue of status and not by contract. That status of his cannot be revoked by a junior member at his pleasure. Even so, when he violates his fiduciary obligation he forfeits his power as manager to represent the others. That is why it is a valuable right of an Anandiravan recognised by the law to protect, by direct intervention, the joint family interests when he finds the karnavan, by action or inaction, injuring the family in a representative litigation. Thus, in special circumstances, a junior member may seek to redeem a mortgage, recover possession of family property and otherwise act on behalf of the family in Court. (See 1964 K. L. J. 243). On this reasoning, a junior member is entitled to come on record at least when reasonable grounds exist to suspect the Karnavan''s defence of the tarwad interests. It may be admitted that a karnavan has the right not merely to litigate on behalf of the tarwad but also to enter into bonafide compromise if he thinks that it is in the best interests of the family not to carry on a ruinous and protracted litigation. The right to settle a dispute being incidental to his management, ordinarily, a karnavan may bind the family by such a compromise. But if such compromise is injurious it can be impeached and it stands to reason that in a pending action, a junior member may exercise his right as constructive party to speak for himself and, as one entitled to protect the tarwad even in litigation when the manager acts mala fide, to intervene and oppose the karnavan''s unauthorised compromise being made a binding decree. In this context, counsel for the respondent demurred and relied on a ruling reported in 1964 (2) K. L. R. 247 which deals with a situation seemingly resembling the present case but with a fundamental difference I will indicate presently. In that case, the Yajman of a family i.e. its manager under the personal law, brought two suits for injunction relating to a property of the family, obtained decrees and, while appeals were pending, entered into a compromise which, the junior members complained, were detrimental to the interests of the family. Those junior members sought to oppose the application for recording the compromise by applying to get themselves impleaded in the appeals. The lower Court had allowed them to be impleaded and dismissed the petitions to record the compromise. Allowing the revision petitions, His Lordship Vaidialingam J., as he then was, made certain important observations which certainly help the respondents in this case on two of the questions arising here. One contention raised there by the junior members was "that the proposed compromise is highly detrimental to the interest of their family, and if it is to be recorded and the suit dismissed, the family would suffer irreparable loss, injury and hardship and they would be left without a pathway............that they are proper and necessary parties to the appeal and that therefore they may be impleaded as supplemental respondents to the appeal". Of course, there, unlike here, the manager of the family also opposed the application by the junior members and the family remained joint throughout. The second question mooted was as to whether a compromise entered into by the manager of a family was liable to be challenged in the proceedings for recording the compromise or whether such impeachment of the manager''s act should be relegated to a separate suit. It was also considered whether the presence of junior members was necessary for a proper consideration of the beneficial or prejudicial nature of the compromise and further whether that matter could be decided only alter bringing on record the junior members and giving them an opportunity to state their case. Vaidialingam J., as he then was, adverted to the pertinent question "as to whether.... the court had jurisdiction to allow the junior members of the family to intervene in these proceedings for purpose of an enquiry regarding the binding nature of beneficial nature of the compromise that is sought to be entered into" and ruled "So far as that is concerned, the principle is now well settled that even a party to a compromise cannot be allowed to resile from it on the mere ground that it is voidable, in proceedings under O. XXIII, R. 3. If that is so, in my view the position of outsiders, though they may be junior members of the 1st plaintiff''s family is that they cannot have far higher rights than the rights given to parties to the compromise itself. Therefore, the impleading of the junior members as supplemental respondents to the appeals was absolutely unwarranted and not justified in the circumstances."
6. His Lordship Mr. Justice Vaidialingam was dealing with a case where throughout the relevant period the joint family continued as such and the manager acted as such. There is no doubt that the karnavan of a Marumakkathayam family has the right to enter into a razi although such an act is liable to be impeached by the junior members. That means, that the act of the manager is voidable, not void. Indeed, a Full Bench decision of the Kerala High Court reported in 1962 K. L. T. 61 has held that an act of the Karnavan in excess of his powers or in violation of certain mandatory restrictions on their exercise cannot be treated as void altogether, but is voidable at the instance of a junior member. We therefore reach the conclusion that the Karnavan''s action in compromising a litigation is only voidable and therefore under Order 23 Rule 3 C. P. C. the Court is bound to record it and pass a decree in accordance therewith, the right of the junior members being only to avoid it and enforce their remedies, if necessary through Court by an appropriate suit. In the unreported Division Bench decision of the Kerala High Court it has been observed by me that "To the extent that the transaction was within the scope of his authority a manager, truly and effectively represents all the members of the family in a suit....But to the extent the transaction was outside the scope of his authority he can represent no one but himself in the litigation. For, by the very act of entering into the transaction he disqualified himself..........of defending the interests of the joint family in a litigation, and the law cannot be that you can be represented by a person whose interests are in conflict with yours, or who, at any rate, cannot protect your interests. The position then is that if the transaction is beyond the scope of the manager''s authority, then, in a suit to which the manager alone is a party, the manager does not and cannot represent the remaining members of the family and the remaining members are in no sense parties to the suit". Thus, when a karnavan sues or is sued in the ordinary course, all the junior members are virtually parties even though they may not be arrayed as such, But if in the course of and in connection with that litigation he enters into a transaction whereby a conflict of interest between him and the family crops up can he claim to continue to represent it? If A. S. No. 81 of 1968 states the correct law, adverse interest invalidates the power to represent. Thus, in two ways, we can reach the same conclusion. If the karnavan represents the members and enters into a compromise which is objectionable, they can come on record because they are already parties in fact and are seeking to come on record nomine. Being parties already, they are entitled to be heard before an order is passed on the compromise even as any other party eo nomine on record is entitled to be heard before the compromise affecting his interests is recorded. If the manager does not represent the family on the reasoning indicated in the above decision (A. S. No. 81 of 1968), then also, they are entitled to be heard for the reason that a compromise which affects third parties cannot be recorded and made a rule of Court before they are given an opportunity to be heard. In Sanjiva Row''s CPC there is an apt exposition of the true legal position on this aspect of the matter:
It has accordingly been said, that where the parties to the compromise are not the only parties to the suit, and the compromise purports to govern also the rights of persons, other than parties to the suit, that is, of persons who are not parties to the suit, and such persons have not been heard by the Court, nor represented before the Court, it is difficult to say that the compromise is a lawful agreement or compromise. Where the agreement contains some clauses, the performance of some of which is dependent upon the performance of the other and the subject matter of the suit is one, which certain other persons, besides those who join in the compromise, have as interest. It is not competent to the Court to pass a decree in accordance with such a Compromise.
It follows from the statement of the law that if a compromise entered into by the manager on behalf of the joint family purports to bind the joint family, then the junior members are entitled to be heard before it is recorded. However, His Lordship Mr. Justice Vaidialingam (as he then was) has held that since it is not open even to parties eo nomine to challenge the validity of the compromise in a proceeding under Order 23 Rule 3 C. P. C., a fortiori, the junior members cannot do so, "............the position is" His Lordship observed "that even in respect of parties, who are signatories to a compromise agreement, have not been allowed to wriggle out of it in proceedings under O. XXIII, R 3; and, if at all, the Courts have uniformly held that if they feel aggrieved either by the terms of the compromise or a decree being passed in accordance with the terms of the compromise, the proper remedy to be adopted by them is by way of a regular suit." So His Lordship concluded ".........that the lower court had absolutely no jurisdiction at all to allow the junior members of the family to be impleaded as supplemental respondents to the appeals for the purpose of embarking upon an inquiry so to say as to whether the compromise which they wanted to be recorded is beneficial to the family or not, and that matter is totally foreign to the proceedings initiated by his clients under O.XXIII, R 3; C. P. C." With the greatest deference, the assumption that junior members are not impliedly and even actually, parties to the action runs counter to the later decisions of this Court I have already adverted to. The further assumption that the karnavan or Yajaman conclusively represents all the members of the family and that those others cannot come on record even when their grievance is of betrayal by that representative in the course of the litigation is also so sure a proposition, as I have already indicated. Still I agree it is a moot point whether the binding nature of the razi effected by the karnavan can be investigated in the very proceeding to record the compromise, because it has been ruled that a junior member''s right, as against a manager, is to avoid his act which otherwise is voidable and capable of affirmation or avoidance. The Full Bench decision reported in 1962 K. L. T. 61 lays down this proposition. It has been held that under Order 23 Rule 3 C. P. C. the Court, on being satisfied that a suit has been adjusted by any lawful agreement or compromise, shall record such agreement or compromise and shall pass a decree in accordance therewith so far as it relates to the suit. The question is whether a junior member''s impeachment of an act of the karnavan by way of compromise of the suit, on the ground that it is a fraudulent act, can make the compromise any the less a ''lawful'' one? ''Lawful'', in this context mean.- what is not unlawful, and not what may be voidable or may be declared unlawful later. For, an agreement may be lawful although it is voidable, the touchstone of illegality being furnished by Section 23 of the Contract Act and other similar provisions of law. The injustice or voidability of an adjustment cannot ipso jure stamp it as unlawful. And an unconscionable transaction of compromise may, nevertheless, have to be recorded as a lawful one, even though it may be successfully set aside in a separate suit. To my mind, such a construction of the expression lawful agreement or compromise does not accord with notions of morality and the principle of avoidance of multiplicity of suits. Even though morality is the conscience of the law unclear expressions authoritatively interpreted by the Courts must prevail. Suffice it to say for the present that the expression in question has been considered in a plethora of decisions by judges of various High Courts and I am bound by authority. After all, we are under the law, if I may be permitted to adopt a famous passage, of Chief Justice Hughes of U. S. Supreme Court "but the law is what the judges say it is. Therefore, all that I need do is to find out what the judges have said on the meaning of the Words ''lawful agreement''. His Lordship Mr. Justice Vaidialingam (as he then was) in 1964 (2) K. L. R. 257 has relied on a Division Bench decision reported in 1959 K. L. T. which contains an exhaustive survey of the precedents on the point. Opposing views have been expressed by judges, but the preponderant view is clearly expressed by Kania J. in
I am unable to construe the word ''lawful'' as wide enough to include an inquiry whether the agreement is voidable at the instance of one party. In my opinion, it includes only two classes of agreements; those which are unlawful and those which on their face are void and therefore not capable of being enforced.
This view "in which so many eminent Judges have concurred and which has virtually held the field for a generation" has been accepted by the Division Bench of the Kerala High Court in the ruling aforesaid. That concludes the matter so far as I am concerned, although the rival view that--I am excerpting from Tyabji J. in A. I. R. 1946 Sind 81...."the words ''lawful agreement'' in O. 23, R. 3 mean exactly the same things as the words ''an agreement enforceable by law'' in S. 2(h), Contract Act" so that "a compromise alleged to be executed as a result of misrepresentation, undue influence, and coercion is voidable and becomes void, when the party entitled to avoid it, obstructs its enforcement" and an "application under this rule asking the Court to record a compromise and pass a decree in accordance with it is an application for enforcement of the compromise" appeals to me. As Tyabji J. has put it "A Court, therefore, cannot enforce a compromise unless it is satisfied that the agreement or compromise relied upon at the time when it was sought to enforce it was ''an agreement enforceable by law'' for which purpose the Court can look beyond the terms of the document or hold any inquiry where the validity of the compromise is disputed". Another usual argument against this view that a proceeding under Order 23 Rule 3 C.P.C. is too summary for investigation of questions of validity has been repelled by Their Lordships in
It is said that such questions are not fit for being enquired into in summary proceedings under O.23 R.3. It does not appear to us that the proceedings under O.23 R. 8 are so summary that an allegation of fraud cannot be investigated. It can be investigated in the same manner as the denial of an adjustment can be investigated.
Multiplicity of suits may also be avoided if the entire opposition to the recording of the compromise were exhausted at this stage. But it is too late in the day to revive that reasoning and I bow to the view held in 1958 K. L. T. 991.
7. Thus, one comes to the conclusion, in the present state of authorities, that the validity of a compromise, or rather its voidability, cannot be enquired into in proceedings under Order 23 Rules 3 C. P. C. One has also to accept the conclusion that, ordinarily, the act of a Karnavan of entering into a compromise of a suit on behalf of his tarwad is only voidable at the instance of the Anandiravanas Giving up of rights, virtually amounting to a sale but garbed as a compromise, may bear the badge of voidability on its face if the statute insists on the junction of the majority of the major members. Even so it is only voidable. But there is a fundamental difference between a Karnavan acting on behalf of a family and a co-owner acting on behalf of the body of co-owners. In the present case, the plaintiff instituted the suit as Karnvathy, but lost that status in the middle of the litigation. Thereafter, she was only a co-owner, may be a managing co-owner, and the other members were not mere junior members but full-blooded co-proprietors. It is true that even if there has been a partition of the joint family pending litigation, the manager, so far as that transaction of litigation is concerned, continues to represent those whom he could and did represent when the suit was instituted. The Full Bench ruling reported in A. I. R. 1937 Mad 610 is authority for this proposition. "I think" observed Venkatasubba Rao, J. as he then was, "the theory of representation must imply that the respondent, though not eo nomine on the record, should be treated as though he himself were a party to the sit. If this be so, it follows in my opinion that unless he has done something which has had the effect of removing him from the record, he must be treated as continuing to be a party till the date of the decree". His Lordship continued "Lastly the question remains, does the fact that subsequent to the suit there was a partition, make any difference? The reason for holding that the members not joined should be held liable is, that they are substantially parties to the suit through the manager, in other words, they are sufficiently represented, though not eo nomine parties on the record........In this view it is immaterial whether the family continues to remain joint or became divided". Venkataramana Rao J. observed on this aspect of the matter as follows:
The suit having been properly constituted, any severance of status between several members of the family would not divest the representative character of the manager therein till the other members choose to disaffirm it; he was entitled to carry on the litigation for and on behalf of the respondent and can be held accountable in respect thereof........much more so in respect of a transaction concerning the joint family, the manager who is empowered by law to represent the other members who are interested therein must be deemed to continue to represent them till the transaction is completed as until then the joint interest in the transaction cannot be said to have ceased.......... At the date of the partition he (respondent-junior member) must be deemed to have been quite aware of the pending litigation and when the suit property was assigned to the share of the father he must be deemed to have also been clothed with the necessary power to defend the appeal in regard thereto. If the present respondent thought that his father should not be allowed to represent him, it was his duty to have come on the record. Having failed to do so, he is precluded from now asserting that defendant 5 no longer represented him.
It is thus clear that although a partition might take place, the Karnavan''s capacity to represent the other members in the litigation already started by him continues. But it continues only for that litigation and, even at that, he does not enjoy the exclusive right to represent the other members against their will. For, the joint family had ceased to exist and the other members had become full co-proprietors. The manager himself having become a mere ad hoc representative, his right to represent could, be disaffirmed by the other co-owners. But till they so disaffirmed it, the erstwhile representative had the authority to bind them. In the present case, the petitioners wanted to disaffirm the act of compromise entered into by their representative and further to repudiate her right to represent them any longer. For this purpose, they sought to implead themselves eo nomine and they were entitled to do so. However, the agency that may be imputed to the ex-Karnavan is limited to continuing the litigation fairly and not to withdraw from it by a settlement, without reference to his principals. He had the right to fight on, but not to retreat and give up territory without reference to the owners of the property. Viewed from any angle, the plaintiff had no right to exclude from the party array the petitioners nor could she claim the sole right of representation. If she could not, the defendant could not oppose the ex-junior members coming on record to put forward their claims. It is no longer a case of voidable transaction entered into by the manager of a joint family, but a transaction entered into by the managing co-owner purporting to act on behalf of the other co-owners. In such a case, prima facie, he has no power to bind the other co-owners and the transaction is not merely voidable but just does not affect those who have not consented to it. That question may be available for investigation in an application under Order 23 C. P. C. Of course, the petitioners may be muzzled by estoppel on other principle of law if they have accepted benefits under the compromise and are now trying to resile from it. Equally so, if the compromise has been assented to by them by actual participation in the negotiations and by authorising the plaintiff and the president of the committee to enter into the compromise on their behalf, in that event also they cannot treat the compromise as void. Also Ex. A1, the partition deed, which has created a special committee for the management for the forest, may have, on a true construction, authorised such committee to settle disputes affecting the forest as incidental to their power of management. In that event, the junction of the president of the committee on behalf of the members of the committee may be indicative of the exercise of that power by the committee to bind the other members. If this be the construction of Ex. A1, the challenge to the compromise can be only on the footing that it is voidable and not void. Such a contention cannot be heard by a Court recording a compromise under Order 23 Rule 3 C. P. C. as I have already explained elaborately. But this complex of questions connected with the recording of the compromise can be considered properly only in the presence of the petitioners and the other members like them who choose to disaffirm the act of the plaintiff and desire to be heard directly. Therefore, their right to be impleaded as parties cannot be denied and, indeed, may be desirable, not merely from their point of view of eliminating an avoidable subsequent litigation, but also from that of the defendants who will be able to meet and, perhaps, overcome the objections of the non-joining co-owners to the compromise even now.
8. I may sum up by stating that a Karnavan who institutes a suit on behalf of the tarwad continues 10 represent the Anandiravans even after a partition in the tarwad, the remedy of those represented by him being to come on record and speak for themselves if they have a grievance that the ex-karnavan is acting in the litigation contrary to their interests. Of course, the position may be very different if the tarwad remains joint throughout. In such a case, on the present state of the authorities, particularly the ruling in 1964 (2) Kerala 247, it may well be maintained that the only remedy of the junior members who have been let down by their karnavan is to impeach his act in an independent suit.
9. For the reasons given by me, I set aside the orders attacked in all the three Civil Revision Petitions and direct the petitioners to be made parties in the respective suits. I further direct the trial Court to give them a hearing on their opposition to the compromise to the extent outlined above, before it is recorded and made a rule of Court. No costs.
10. Now that I have disposed of the three Civil Revision Petitions, I do not think it necessary to transfer the three Civil Miscellaneous Appeals filed by the plaintiff. They will be disposed of by the learned District Judge expeditiously and taking due note of the present decision. C. R. P. No. 185 of 1967 is by the plaintiff who having signed the compromise has chosen to resile from it. Her attitude is hardly commendable and her attempt in the Civil Revision Petition is not a bona fide litigation for vindication of her rights at all. I dismiss the Civil Revision Petition, with costs.
