Case: Dr. C. Annacheriam And Another Vs. Achotha Menon And Others

Tarwad to another person so long of course as the transfer or delegation of power is revocable. According to the learned Judge a delegation of the power of management in favour of even a stranger would be valid. This view is not in consonance with that taken in Chappan Nayars case, ILR 12 Mad 219, which the learned Judge has not chosen to follow. It is also opposed to that taken in certain other cases. For the purposes of this case it is not necessary to say which of the two views is correct because here the delegation is in favour of anandravan, though not the seniormost anandravan.20.The decisions referred to above thus recognise that by a family karar a Karnavan s power of management, can be restricted and also that a Karnavans power of management can be delegated, so long as what is delegated is not the totality of the powers enjoyed by a Karnavan by virtue of his status. The question then is whether it follows from this that a Karnavans duties arising in connection with the management of the Tarwad can be delegated. One more concept of the Malabar law has to be borne in mind. The concept is that the properties belong to all the members of the Tarwad and that apart from the right of management the Karnavan has no larger right or interest than the other members. This is clear from the decision of Seshagir Ayyar, J., in Govindan Nairs case, 23 Mad LJ. 706, and the decisions referred to therein.By virtue of his status the Karnavan owes certain duties to the members of the Tarwad and one of such duties is to manage the properties in the best interest of the members. Those to whom the duties are owed may find that is their own interest the duties can be best performed by an anandravan in particular circumstances. This would be good reasons to justify the delegation of a Karnavans power of management to an anandravan by a family karar and to uphold such karar. Thus where for some reason the Karnavan is not able to discharge his duties in respect of management of the Tarwad property such as in the case before us, that is, where the Karnavan has left the country for an indefinite period or taken up a job in another country which would keep him away for years from his mother country, there must be someone who could look after the family property and who would have the power to manage it.If delegation of the Karnavans power of management is regarded as incompetent the necessary result would be that the interests of the family would suffer.It is by no means a practical proposition to expect the family members to approach the Karnavan, when he is at some far off corner, for his consent in regard to each and every transaction, be it sale, mortgage or lease. Again it may be too expensive for the Karnavan to come all the way back to his native place whenever an occasion arises for alienating or encumbering the Tarwad property for family necessity. No recognized concept underlying the Marumakkatayam law will be violated by holding that an agreement or karar entered into by the Karnavan and the members of the family by which the power of management of the Tarwad carrying with it the duty to decide during the absence of the Karnavan whether a particular alienation should be effected for meeting a family necessity is delegated to a Mukthiar so that he can exercise that power with the concurrence of the adult members during the absence of the Karnavan as and when occasion arises is a perfectly valid agreement. On the other hand to hold that this is permissible would be in consonance with the concept of joint ownership by all the members of the Tarwad properties and with the settled legal position that the powers of a Karnavan could be restricted by the consent of all, which, of course, includes the consent of the Karnavan himself. The execution of a power of attorney of this kind would, in effect, be a restriction placed by a family karar on the power of the Karnavan. The delegation merely of a power of management which is revocable cannot be regarded as a delegation of the office of the Karnavan. The Karnavan continues to be Karnavan but during his absence from the spot his managerial powers are exercisable by the Mukthiar. After he returns he can resume the management and carry on the affairs of the Tarwad. Or again, the delegation being through a power of attorney he can in a proper case put an end to it by revoking the power of attorney. Thus despite the execution of such a power of attorney he does not fade out completely and, therefore, there is no question of its operating as renunciation.21. The power of attorney given by the plaintiff No. 1 to defendant No. 3 has quite clearly been suppressed by them and we are, therefore, entitled to infer from this fact that, if produced, it would have gore against the. interests of the plaintiffs and other members of the Tarwad It would, therefore, be legitimate for us to assume that the power of attorney empowered the third defendant to sell family property with the consent of the other adult members of the family for family necessity if he formed the opinion that it was necessary to do so. The fact that the plaintiff No.1 executed the power of attorney before leaving for Borneo and thereafter several properties were alienated by the Mukthiar in conduction with the other anandravans and none of the alienations except the one in suit has been challenged by the plaintiff No.1 in all these years justifies the inference that these dispositions were in pursuance of the power of attorney and alto that the power of attorney was Itself executed by the plaintiff No. 1 in pursuance of a family karar.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. The last two grounds are based upon the fact that the power of attorney has not been produced in this case and no explanation is given for its non-production. It would appear from the averments made by the defendant in the written statement that she had taken out summonses both against the plaintiff No.1 and defendant No.3 to produce the power of attorney in court but they neither produce it nor made a statement on theAct has been amended by some later Madras Acts and Central Acts but with those amendments we are not concerned in thisdoubt the Karnavan has the exclusive right to manage the Tarwad property but his power is no more than that of a manager of a Mitakshara family. Nor again does the property vest in the manager alone but in all the members of the family or the Tarwad. The right of the Karnavan to manage the family property is also subject to regulation by the common consent of all members of the family and that family karars restricting the rights of the Karnavan are a common feature in Malabar. Where a Karnavans rights are so restricted by common consent-which necessarily includes his own consent - he cannot ordinarily dispute the binding effect of the karar uponview has not since been departed from.17. Though a Karnavan can thus renounce his office he cannot delegate or transfer that office. For, if he renounces his office the senior anandaravan has a right to succeed him as Karnavan and the rights of senior anandaravan would be jeoparadize it were open to a Karnavan to transfer or delegate his office.lf,therefore, a Karnavan delegates all his rights and obligations either to another member of the Tarwad or to a stranger without reserving any power of revocation the Court will not give effect to such delegation as that would amount to transfer of his office as a Karnavan. But if it is possible to say that the delegation is not absolute in its character and is subject to resumption by the Karnavan the courts would treat it merely as a power ofis, however, not clear from the report whether the delegation by the Karnavan was by virtue of a family karar to which all members of the Tarwad were parties. The case is, therefore, distinguishable from the one beforedecisions referred to above thus recognise that by a family karar a Karnavan s power of management, can be restricted and also that a Karnavans power of management can be delegated, so long as what is delegated is not the totality of the powers enjoyed by a Karnavan by virtue of his status. The question then is whether it follows from this that a Karnavans duties arising in connection with the management of the Tarwad can be delegated. One more concept of the Malabar law has to be borne in mind. The concept is that the properties belong to all the members of the Tarwad and that apart from the right of management the Karnavan has no larger right or interest than the other members. This is clear from the decision of Seshagir Ayyar, J., in Govindan Nairs case, 23 Mad LJ. 706, and the decisions referred to therein.By virtue of his status the Karnavan owes certain duties to the members of the Tarwad and one of such duties is to manage the properties in the best interest of the members. Those to whom the duties are owed may find that is their own interest the duties can be best performed by an anandravan in particular circumstances. This would be good reasons to justify the delegation of a Karnavans power of management to an anandravan by a family karar and to uphold such karar. Thus where for some reason the Karnavan is not able to discharge his duties in respect of management of the Tarwad property such as in the case before us, that is, where the Karnavan has left the country for an indefinite period or taken up a job in another country which would keep him away for years from his mother country, there must be someone who could look after the family property and who would have the power to manage it.If delegation of the Karnavans power of management is regarded as incompetent the necessary result would be that the interests of the family would suffer.It is by no means a practical proposition to expect the family members to approach the Karnavan, when he is at some far off corner, for his consent in regard to each and every transaction, be it sale, mortgage or lease. Again it may be too expensive for the Karnavan to come all the way back to his native place whenever an occasion arises for alienating or encumbering the Tarwad property for family necessity. No recognized concept underlying the Marumakkatayam law will be violated by holding that an agreement or karar entered into by the Karnavan and the members of the family by which the power of management of the Tarwad carrying with it the duty to decide during the absence of the Karnavan whether a particular alienation should be effected for meeting a family necessity is delegated to a Mukthiar so that he can exercise that power with the concurrence of the adult members during the absence of the Karnavan as and when occasion arises is a perfectly valid agreement. On the other hand to hold that this is permissible would be in consonance with the concept of joint ownership by all the members of the Tarwad properties and with the settled legal position that the powers of a Karnavan could be restricted by the consent of all, which, of course, includes the consent of the Karnavan himself. The execution of a power of attorney of this kind would, in effect, be a restriction placed by a family karar on the power of the Karnavan. The delegation merely of a power of management which is revocable cannot be regarded as a delegation of the office of the Karnavan. The Karnavan continues to be Karnavan but during his absence from the spot his managerial powers are exercisable by the Mukthiar. After he returns he can resume the management and carry on the affairs of the Tarwad. Or again, the delegation being through a power of attorney he can in a proper case put an end to it by revoking the power of attorney. Thus despite the execution of such a power of attorney he does not fade out completely and, therefore, there is no question of its operating as renunciation.21. The power of attorney given by the plaintiff No. 1 to defendant No. 3 has quite clearly been suppressed by them and we are, therefore, entitled to infer from this fact that, if produced, it would have gore against the. interests of the plaintiffs and other members of the Tarwad It would, therefore, be legitimate for us to assume that the power of attorney empowered the third defendant to sell family property with the consent of the other adult members of the family for family necessity if he formed the opinion that it was necessary to do so. The fact that the plaintiff No.1 executed the power of attorney before leaving for Borneo and thereafter several properties were alienated by the Mukthiar in conduction with the other anandravans and none of the alienations except the one in suit has been challenged by the plaintiff No.1 in all these years justifies the inference that these dispositions were in pursuance of the power of attorney and alto that the power of attorney was Itself executed by the plaintiff No. 1 in pursuance of a family karar.