PADMAVATHI AMMA & ORS. Vs. MADHAVAN NAIR & ORS.
LAWS(KER)-1963-10-48
HIGH COURT OF KERALA
Decided on October 17,1963

Padmavathi Amma And Ors. Appellant
VERSUS
Madhavan Nair And Ors. Respondents


Referred Judgements :-

C A CHERIAN VS. A MENON [REFERRED TO]


JUDGEMENT

Madhavan Nair, J. - (1.)6. Ext. B. 119 is assignment of 20 items of landed property by Panchu Nair to his nephew, Narayanan Nair, whose legal representatives are defendants 42 to 45. It was upheld by the court below as an alienation by the karnavan supported by consideration and necessity. In A.S. No. 454 of 1959 the plaintiffs challenge that finding and further contend that the deed is invalid for want of written consent of the majority of the major members of the tarwad. Section 33(1) of the Madras Marumakkathayam Act, which reads
No sale or mortgage of any immovable property of a tarwad... shall be valid, unless it is executed by the karnavan for consideration, for tarwad necessity or benefit, and with the written consent of the majority of the major members of the tarwad.

prescribes three conditions as necessary to validate an assignment by the karnavan. If any one of them be lacking, the alienation would be voidable at the instance of any member of the tarwad. Admittedly on the date of Ext. B. 119 there were several major members in the tarwad besides the karnavan; but none, except the karnavan and the assignee, has joined the document or expressed his consent thereto. Counsel for the defence contended that all the major members of the tarwad having expressed in Ext. B. 135 their written consent to any alienation being made by Panchu Nair, Ext. B. 119, executed in pursuance of Ext. B. 135, cannot be said to be without the written consent of the majority of the major members. Ext. B. 135 was in the year 1933; and Ext. B. 119 in 1945. The consent of the members required by Section 33 of the Madras Marumakkathayam Act is, in our view a consent to the particular alienation concerned. An anticipatory general consent given years ago, when the particular alienation in question was not in the contemplation of the parties, cannot be said to relate to that alienation. In Dr. C. A. Cheriyan v. Achutha Menon ( : A. I. R. 1963 S. C. 128 : 1962 K. L. J. 1105) the Supreme Court has observed:

The concept (in Malabar law) 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.

(2.)THE property being of the 'corporate body' composed of all the members of the tarwad, the law has imposed a condition that when the karnavan, as its representative, alienates its properties there shall be the written consent of the majority of the major members thereof. It is obvious that the condition would be satisfied only if the consent related to the particular alienation concerned. In identical circumstances this question had arisen in Narayanan Namboori v. Kunhunni Menon (27 Cochin 63 F. B.) when it was held:
The written consent contemplated by the section is obviously one specifically in respect of the particular transaction which comes into controversy, and not a general power given to the karnavan beforehand in connection with the management of the tarwad. Otherwise, the safeguard intended to be provided by the section would prove to be illusory, and would defeat itself.

That dictum has been followed in Unnimaya Brahmani Amma v. Ikkandan Nair (38 Coc. 101 F. B.) when Krishnaswami Iyengar C. J. added:

.....a general authority given to a karanavan long prior to the disputed transaction is of no value whatsoever. The written consent must be to the particular transaction of mortgage, sale, etc. which is in controversy in the suit.

The so -called consent given under Ext. B. 135 is not a real consent to the transaction; it is only an authorisation given to Panchu Nair to make such alienation as he pleased with the properties specified therein. Ext. B. 119, not having had the written consent of the other members of the tarwad, has to be held not binding on the tarwad.

X X X

In the result,......Ext. B. 119 is declared invalid as against the plaintiffs' tarwad;......

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