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Judgment
Pandrang Row, J.—This is an appeal from the order of the Subordinate Judge of South Malabar at Calicut dated 23rd January 1936
dismissing an application for appointment of a receiver in respect of the properties belonging to Patinharekettu tavazhi of Pudia Kovilagam and for
a temporary injunction restraining defendants 2 to 5 from interfering with the management of the receiver. The application was made by the plaintiff
in O.S. No. 29 of 1935, a suit for removal of the managers appointed by a karar of 1090 M.E. (1914 A. D.) which vested the management of a
tavazhi properties in five persons, namely the four seniormost male members and the seniormost female members. Before this karar there was
another karar in 1895 which appointed the seniormost male member and the seniormost female member as managers subject to certain
restrictions. The tavazi properties were managed under these two karars from 1895 till the date of suit, that is to say, for nearly 40 years. Till about
1933 there does not appear to have been any serious dissatisfaction with the management of the tavazhi properties by the karar managers. There
was some difficulty experienced in paying the maintenance amounts due to the junior members of the tavazhi and several suits were filed against the
managers for maintenance and there was even a suit for removal of the managers. Better counsels however prevailed and the members of the
family came to some kind of settlement according to which one V. Krishna Menon was appointed power of attorney agent by all the managers to
collect the amounts due to the tavazhi and to meet the expenses.
The management by Krishna Menon began in July 1933, but soon afterwards the seniormost female member of the tavazhi, who was one of the
managers, is said to have become dissatisfied with the management by Krishna Menon. In any case she revoked the authority given by her, along
with the other joint managers, so far as she was concerned. Thereupon in 1934 Krishna Menon and the other four managers instituted a suit for a
declaration that in spite of the revocation of authority by defendant 5, Krishna Menon was still entitled to manage the affairs of the tavazhi under the
power of attorney granted to him. That suit was dismissed, and during the pendency of the suit Krishna Menon himself was apparently unwilling to
carry on the management on account of the obstructions put in his way, and he wanted to be relieved of his responsibility and was willing to hand
over the records and moveables in his possession and to render accounts. During the pendency of the suit it would also appear that three of the
male managers also went over to the side of the lady manager and these four acting in concert appointed one Ramunni Menon as manager in place
of Krishna Menon. It was at this juncture that the present suit was filed by a junior member of the tavazhi charging the karar managers with various
acts of negligence, mismanagement and fraud and praying for"" removal of all of them and for taking accounts of the management and for
appointment by Court of a receiver as manager.
The Subordinate Judge appears to have been of opinion that it was not competent for the Court to appoint an interim receiver so long as there
were persons in the tavazhi competent to manage the tavazhi affairs, and that as the appointment of a receiver permanently as manager was not
permissible the Court could not appoint an interim receiver for the same purpose pending disposal of the suit. He appears to have been also of the
opinion that as under the karar of 1914 it was provided that if there was any difference of opinion among the five managers, the voice of the
majority should prevail, the present deadlock and confusion in the affairs of the tavazhi were the result of the attempt of one of the five managers,
backed by the agent, Krishna Menon, to defy and set at naught the opinion of the majority of the managers, that is to say, the remaining four
managers. It was on these grounds that the application was dismissed by the learned Subordinate Judge, and the plain-tiff in the suit is the appellant
here. The question was argued at some length as to whether an interim receiver can be appointed for the management of the properties of a
Marumakattayam group. It is curious that there should be lack of clear authority on the question. It has not been seriously argued that a permanent
receiver can be appointed by the Court from outside for the management of the properties of a tarwad. The right of such management is one which
is vested by birth, and such a right can only be lost either by renunciation or when the person who has such a right is removed from office by a
decree of Court for mismanagement. Another exception is where the members of a tarwad including the persons entitled to the management by
right of birth agree among themselves to vest the management in any person or body of persons they think fit. If for any reason the agreement
becomes inoperative the position would be as if there had been no karar at all, and the person who is entitled by birth to be the karnavan and
manager would become entitled to management.
No doubt in Krishnan Kidavu v. Raman 1917 39 Mad 918, Seshagiri Ayyar, J. assumes that a receiver can be appointed pending disposal of a
suit for removal of the karnavan from office. The appellant''s advocate has further made some stray references to the general powers of a Court to
appoint an interim receiver in cases of a different character, but no other authority has been quoted to show that an interim receiver can be
appointed for managing the properties of a tarwad pending disposal of a suit for removal of a karnavan. The question however cannot be decided
merely on the basis on which it has been decided by the learned Subordinate Judge, namely that, because a permanent manager or receiver cannot
be appointed by the Court to manage the tarwad affairs, an interim receiver cannot be appointed pending a suit for removal of a karnavan or
manager. A receiver can be appointed pending disposal of a suit whenever it appears to the Court that such appointment would be just or
convenient. The Court exercises its power to remove karnavans or managers not as a matter of punishment but as a means of protecting the
interests of the other members of the tarwad and for protecting the tarwad property generally from loss or waste by mismanagement. The same
reason would justify the Court; in appointing an interim receiver pending disposal of a suit for removal of the karnavan for protecting the rights of
the junior members and to save the tarwadi property from loss or extinction. It would be a futile proceeding to remove the karnavan from office
after he has had sufficient opportunity given to him during the pendency of the suit by the non-appointment of an interim receiver to dissipate most
of the tarwad property.
I am therefore of opinion that it is open to the Court, when the circumstances require it, to appoint an interim receiver, but at the same time, I am
of opinion that this power should be exercised only where the circumstances clearly not only justify, but also require it, as being the only means of
protecting the rights of the junior members of the tarwad. Mere charges of mismanagement and fraud would not be sufficient. They must be
established prima facie before the appointment of an interim receiver is made. In this particular case it cannot be said that these charges have been
established prima facie at this stage. No doubt there has been a failure by the managers to pay the maintenance allowances of some of the junior
members, but this failure has been explained and the explanation cannot be said to be wholly unsatisfactory. It has also been established that the
karar managers omitted to press the claim to maintenance which the tavazhi had as against the parent Kovilagam. For this omission also an
explanation has been offered, and that explanation also cannot be said to be unsatisfactory. No doubt, there is some confusion and deadlock in the
management of the tavazhi affairs at the present moment, but this cannot be regarded as being entirely due to the managers themselves.
On the whole I am of opinion that a sufficiently strong case has not been made out for the appointment of an interim receiver. The learned
Subordinate Judge''s view that the present suit is the result of an attempt by one of the five managers with the assistance of Krishna Menon to defy
and set at naught the majority of the managers appointed by the karar, appears to be not without foundation. In the view I have taken it becomes
unnecessary to decide whether as a matter of fact the suit is maintainable or not It was argued by Mr. T.R. Venkatarama Sastri that the head note
to the Full Bench decision in Chindan Nambiar v. Raman Nambiar 1919 41 Mad 577 does not correctly represent the point that was decided by
the Full Bench, inasmuch as the Full Bench did not decide in terms that any manager appointed by a family karar can be removed from office by
the Court, but only that the Court could remove a karnavan who was recognized as such by a family karar. The case decided by the Full Bench
was no doubt one in which the person sought to be removed from management was ""not only the de facto karnavan but also the de jure karnavan
under the karar "": see p. 581. The question whether the present suit is maintainable or not is not one for me to decide at this stage.
I have said what I have said on this point merely to avoid any presumption or argument being based on my silence on the point that the suit is
maintainable. I express no definite opinion on that point and it is not necessary for me to do so, because, as I have said already, the circumstances
of the case do not justify the appointment of an interim receiver even if it is assumed that the suit for removal of the manager is maintainable. Mr.
T.R. Venkatarama Sastri, on behalf of defendants 2 to 5, has offered to deposit into Court whatever sums of money may be realized in execution
of the decree obtained against the Pudia Kovilagam for maintenance due to the tavazhi and to be subject to all orders of Court regarding the
disposal of such sums and in particular for payment of maintenance allowances to persons to whom they are due. There will be an order of Court
to this effect directing defendants 2 to 5 to deposit into Court all such sums as and when they are realized, and the Court below will be at liberty to
direct as to how such sums should be utilized. The appeal is otherwise dismissed with costs.