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

2. The appeal arises out of a suit instituted by a Karnavan of a Tarwad along with two minor members of the Tarwad for setting aside a registered assignment deed (hereafter referred to as sale deed) executed by his Mukthiar Karunakara Menon, who is a junior member of the Tarwad and by all the other adult members of the Tarwad on 17-6-1117 (M.E.). We have not been able to ascertain the correct date according to the Gregorian Calendar; but it has been accepted before us that the document was executed in the month of Fcbruary,1942. Nothing however turns on the precise date of the execution of the document. This document is in fact a sale deed and thereunder certain property belonging to the Tarwad was sold to the first defendant to the suit, who is appellant No. 1 before us, for a consideration of Rs. 8,000/-. Out of the amount of Rs. 8,000/- a sum of Rs. 5,250/ was required for discharging the debt due under a mortgage decree against the Tarwad.3. The grounds on which the sale is challenged by the plaintiffs are briefly theseThat the sale outright of the suit properties for Rs. 8,000/- was not justified for satisfied the decretal debt of Rs. 5,250/- because the preveiling price of immovable property would be Rs. 40,000/- or so.(2) That the sale was effected by a collusion between the first defendant and the third defendant Karunakara Menon who was the Mukthiar of the plaintiff No.1.(3) That upon a proper construction of the power of attorney the Mukthiar could execute a sale deed only if the Karnavan in his discretion thought it to be necessary for meeting the pressing needs or for the benefit of the Tarwad to effect it and that as the Karnavan had not consented to the execution of the sale deed it is not binding upon the Tarwad.(4) That if the power of attorney is construed as having vested in the third defendant with the discretion and judgment of the Karnavan regarding the necessity and expediency of alienating the Tarwad prosperity such a delegation is beyond the powers of the Karnavan and would be void and inoperative in law. An act purporting to be done under the colour of such authority is not valid and cannot bind the Tarwad.(5) That the plaintiffs 2 and 3 were not represented by their legal guardian, that is, the Karnavan, and the purported representation by their mother the 5th defendant as their guardian is ineffective because she could not in law act as guardian in this transaction. The sale deed is, therefore, null and void.(6) That the defendants 2, 4 and 5 who had joined in the sale deed had obviously done so on the footing that it was an intended conveyance of the rights of the Tarwad and that if the deed is not legally effective to pass the rights of the Tarwad as not being a valid act of the Karnavan, it cannot be regarded as having been intended to be executed by those three defendants. Further, that these defendants did not apply their minds to the propriety or necessity of the transaction but were merely misled by the statements and representation of the third defendant as to the necessity for executing the deed.The transaction was challenged on three other minor grounds in the plaint but it is not necessary to refer to them because no arguments were advanced before us with regard to them.5. The first defendant who is a woman doctor contended that the transaction was valid and operative and was not liable to be set aside on any of the grounds on which it was challenged by the plaintiffs. She contended that apart from the decretal debt there were other outstanding debts of the Tarwad which had to be satisfied and that the properties in the suit were attached in execution of a decree obtained against the Tarwad in some other suit. The defendant believed, after making due enquiry and on the faith of the representations made by the assignors, that the whole of the amount of Rs. 8000/- was required for discharging debts binding on the Tarwad entered into the transaction bona fide. The price paid by her for the property was the prevailing market price for similar lands in the locality. Further, according to her, she had spent Rs. 8000/- after the purchase of the property for levelling the land and for strengthening the bunds. According to her it is because the value of the land has now gone up considerably that the plaintiffs and other members of the Tarwad are attempting to defeat her just rights.6. Then again, according to her, on a proper construction of the power of attorney it would appear that the third defendant was authorised by the plaintiff No. 1 as Karnavan to act on his behalf in all matters relating to the Tarwad. She also contended that it was wrong to construe the power of attorney as amounting to a delegation of the whole of the power of the Karnavan. She, however, admitted that at the time of the execution of the sale deed it was not possible to get the written consent of the Karnavan, the plaintiff No.1 Reference was made by her to several similar transactions entered into by the defendant No.3 in which the other adult members of the family had joined and it was pointed out that none of them has been challenged by the plaintiffs, suggesting thereby that they accepted the validity of transactors of a similar kind.7. The trial court held that the sale in favour of the first defendant was binding on the Tarwad and dismissed the suit. It may be mentioned that in addition to the claim for possession of the property in the suit, the plaintiffs had asked for mesne profits. Naturally, that claim also was dismissed by the trial court in view of the finding on the main issue. For the same reason it did not give any finding on the question of improvements alleged to have been made by the first defendant.8. On appeal the High Court reversed the decree of the first court. Before the High Court the validity of the alienation was challenged on three grounds:1. The non- joinder of the Karnavan in the execution of the sale deed.2. The inadequacy of consideration for the transaction.3. Want of legal necessity for the transaction.9. While it held that the sale was justified on the grounds of necessity and that the consideration was adequate, the High Court came to the conclusion that the transaction was not binding on the Tarwad because the Karnavan not joined in it. According to the High Court power of attorney executed by the first plaintiff on March 22, 1939, in favour of the third defendant cannot be effective as delegation to the third defendant of the first plaintiffs power with respect to the Tarwad property and, therefore, the transaction must fad as an act of the Tarwad While reversing the decree of the trial court and decreeing the suit the High Court ordered that the plaintiff would be entitled to the possession of the property on depositing Rs.8,000/- which was the amount of consideration paid by defendant No. 1 and of which the Tarwad had received benefit and, in addition, depositing Rs.2,530/- in respect of the money spent by defendant No 1 for improving the property The High Court however, ordered that the plaintiffs would be entitled to mesne profits from the date of suit at 1,200 pares of paddy per annum till recovery of possession.

Reasoning:
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.