Commissioner of Income-tox
¥. Mysore Sugar Co., Lid.
Tidayatullah J.
May 3.
986 SUPREME COURT REPOK.:S [1963]
year’s orop and paying an amount in advance out of the price, so that the growing of the crop may not suffer due to want of funds in the hands of the growers. There was hardly any element of investment which contemplates more than payment of advance price. The resulting loss to the assessee Company was just as much a loss on the revenue side as would have been, if it had paid for the ready crop which was not delivered.
In our judgment, the decision of the High Court is right. The appeal fails, and is dismissed with costs..
Appeal dismissed.
Dr. C. ANNACHERIAM AND ANOTHER v. ACHUTHA MENON AND OTHERS
(A. K. Sarkar, K. Suspa Rao and J. R. Mopworxar, JJ.)
Marumakkattayam Law—Karnavan—Power of delegation —Extent — —If includes right to manage property and duties arising in connection with management of tarwad— Marumakkatiayam Act, 1932 (Mad. 22 of 1933), a. 33.
A karnavan of a tarwad who was leaving for Bornes where he had taken up a job, appointed one M, who was. the second senior most enandravan, as his mukthiar by executing a power of attorney, for the reason that the senior most anandravan was away in Madras. The said mukthiar in conjunction with other adult members of the tarwad sold several properties of the tarwud for discharge of debts of the tarwad, under the said power of attorney, including the property in suit.
The karnavan along with two minor members of the tarwad brought a suit for setting aside registered assignmen;y y
2 8.0.R. 1 SUPREME COURT REPORTS: 987 deed executed by his said mukthiar and all other adult members of the turwad. « So
‘The Trial Court held that the sale in favour of Ist respondent was binding on the tarwad and dismissed_the suit. On appeal the High Court reversed the decree, While it held the sale was justified on the ground of necessity it came to the conclusion that the transaction was not binding on the tarwad because the karnavan had not joined in it. The power of attorney executed by the arnavan in favour of the mukthiar cannot be -effective as delegation to the mukthiar of the karnavan’s power with respect to the tarwad property and, therefore, the transaction must fail as an act of the farwad.
It was contended that though the Karnavan can under a family Karar delegate his right to manage the property to another, he cannot delegate the performance of the duties arising in connection with the management of the farwad and that therefore it was not competent for the defendant No. 3 acting as mukthiar of the Karnavan, to-effest the sale in association with other adult members of the tarwad. ;
Held, that by a family Karar Karnavan’s power of management can be restricted and also that a Karnavan’s power of management can be delegated, so long as what is delegated is not totality of the powers enjoyed by a Karnavan by virtue of his status... The properties belong to all the members of the tarwad and that apart from -the right of matiagement the Karnavan has no larger right or interest than the other members.
That by virtue of his status the Karnavan owes certain ‘duties to the members of the tarwad and one of such duties ig to manage the properties in the best interest of the members, Those to whom the duties are owed may find that in their own interest the duties can be best performed by an Anathdravan in particular circumstances. These would be good
‘reasons’ to- justify the delegation of a Karnavan’s power of management to an Anandravan by a family Kearar. Thus where for some reason the Karnavan, is-not able to discharge his duties in respect of the management ofthe Tarwad property, there must be someone who could look after it and who would have the power to manage it. If the delegation of the
Kartiavan’s power of management is: regarded as incompetent the nécessary result would be that the interests of the family would suffer. It is by nomeans 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;
C. Annacheriam v. Achutha Menon v. Achutha Menon
988 SUPREME OOURT REPORTS [1963]
An agreement (or Xarar) 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 Xarnavan whether a particular alienation should be effected for meeting a family necessity is delegated toa 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.
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 Xarnavan but during his absence from the spot his managerial powers are exercisable by the Mukthar.
The delegation being through a power of attorney, the karnavan 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 q estion of its operatiag as renunciation.
Held, further, that the plaintiff No 1 not executed the power of attorney before leaving for Borneo and thereafter several properties were alienated by the mukhiser in conjunction with the other aaandravan: and none of the alienations except the one in suit has been challenged in all these years justifies the inference that these dispositions were in pursuance of the power of attorney and also that the power of attorney was itself executed by the plaintiff No. : in pursuance of a family karar.
Oherukomen v. Ismaia, (1871) 6 M. H. C. R. 145, Kenath Puthen Vittil Tavazht v. Narayanan, (1904) I. L. R. 28 Mad. 182, Chappan Nayar v. Assen Kutti (1889) I.L.R. 12 Mad. 219, Krishnan Kidavu v. Raman, (1916) ILL.R. 39 Mad, 918, K. Ramankutty Menon v. Seevi Umma, A.LR. 1929} Mad. 266 and P. KX. Govindan Nair v. P. Narayanan air, (1912) 23 M. L. J. 706, referred to.
Crvit APPELLATE JURISDICTION : Civil] Appeal No. 426 of 1960.
Appeal from the judgment and decree dated October 14, 1958, of the Kerala High Court, Ernakulam in A. 8. No, 297 of 1956-E.
_
£8.0.R. © SUPREME COURT REPORTS 929
M. K. Nambyar, 8.N.. Andley, Rameshwar Nath, P. L. Vohra, for the appellants.
A, V. Viswunatha Sastri and Sardar Bahadur, for respondents Nos. 1—3. .
1962. May 3. The Judgment of the Court was delivered by _,
MupnHoLkar, J.—This isan appeal from a decree of the High Court of Kerala by a certificate granted by it under Art. 133(1) of the Constitution. .
The appeal arises out of a sait instituted by a Karnavan of a tarwad along with two minor
‘member of the tarwad for setting aside a registered assigament deed (hereafter referred to as sale deed) executed by his Mukthiar Karanakara Menon, who is junior member of the tarwad and by ail the other adult member of the tarwad on 17.6.1117
(MLR.). We have not been able to ascertain the correct date according to the Gregorian calender; but it has been accepted before us that the document was executed in the month of February, 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 Re. 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.
The grounds on which the sale is challenged by: the plaintiffs are briefly theses : (3) That the sale outright of the suit proper- ties for Ke. 8,000/- was not justified for . eatisfying the. decretal debt of Re. 5,250/-
C. Annacher"am Vv. Achutha Menon
C Annecher am ¥. Achutha Menon
—_——— because the prevailing price of immovable property would be Rs. 40,00( /- or
80.
That the sele was effected by a collusion between the first defendant and the third defendunt Karunakara Menon who was the Mukhiiar of the plaintiff No. 1.
That upon a proper construction of the power of attorney the Mukhtiar could exe ute a sale deed only if the Karnavan inhis 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 cons- trued as having vested in the third defendant with the discretion and judgment of thy Karnavan regarding the necessity aud expediency of alienting the tarwad property such a delegation is beyond the the powers of the Karnavan and would be void and imoperative in law. An act purporting to be done under the colour of such authority is uct valid and cannot bind the tarwad.
That tho plaintiff; 2 and 3 were not represents 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 ia, therefore, null and void.
That the defendants 2, 4 and 5 who had joined in the sale deed had obviously
Pe tr fa ce ‘
&
2 s. ¢. R. _ SUPREME COURT REPORTS | 991 done 80 on. ‘the footing ‘that it’ was. an’
- .. © intended coriveyance of the: rights ‘of the - taward’ and that if the deed is not legal- ly 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
_ 1962.
é. Annachers fam:
: Achaia ‘Menon
———
. Mudholkar’ 4 those . three defendants. . Further, that a these defendants did. not’ apply. their.
minds to the propriety or necessity of the transaction but were merely:misled’ ~ by the statements and representations of the third defendant: as'to the neces”
sity for executing the deed...
The transaction was challenged: on ‘three a other minor grounds .in the plaint but it isnot necessary to refer to them because no arguments _ were advanced before us with regard to them.
SO The first defendant: who is a. woman doctor 7 contended that the. transaction ‘was valid-and . | operative and was not liable to be set. aside on any of.the groundson which ‘it was challenged by the" | plaintiffs. She contended that apart from thé ~:
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 execu: .:, ts tion of a decree obtained ‘against - the ‘tarwad ‘in ..”
some other suit. The defendant believed,: after: °°" .. making due enquiry and on the faith of the repre- 9 sentations made by the assignors, that the whole of |. * theamount of Rs. 8,000/-. was required for dis- .° ~.. charging debts binding on the .tarwadj -entered ~ . : into the transaction bona: fide. The price paid by: ~~ her for the property was the. prevailing market, ~~
« Price for similar lands in’ the lovality. © Farther, ~ the purchase of the property for levelling the land
“ acootding to her, she had'-spent Rs.:8,000/-‘after - a oo and for strengthening th the e bonds. Aeon! to bee oa : .
v. Ackuths A€eron
Mudhiker J.
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.
Then again, according to her, on a proper construction of the power ofattorney 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 concent of 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 has joined and it was pointed out that none of them has been challenged by the plaintiffs, suggesting thereby that they accepted the validity of transactions of a similar kind.
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 plaintiffa had asked for mesne profits. Naturally, that claim also was dismissed by the trial court in view of its finding on the main issue. For the same reason it did not give any finding on the question of improvements alleged to have beon made by the first defendant.
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 Karnaven in the execution of the sale deed;
‘ee ad
7”
28.C.R. SUPREME COURT REPORTS 993
(2) The inadequacy of consideration for the transaction;
(3) Want of legal necessity for the transaction.
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 had not joined in it. According to the High Court the 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 plaintiff's power with respect to the tarwad property and, therefore, the transaction must fail 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 1200 paras of paddy per annum till recovery of possession.
It is not contended before as on behalf of the plaintiffs-respondente that the transaction was not supported by necessity or that the consideration was inadequate and, therefore, the only question which we have to consider in relation to the validity of the transaction is whether it was competent for the defendant No. 3, acting as the Mukhtiar of the Karnayan, to effect the sale in association with the other adult mombers of the tarwad. On this part of the case the contention of Mr. N. K. Nambiar for the appellants who are defendant No. ) and
C. Annacheriam v. Achutha Menon
Mudhotkor J.
oN,
904° SUPREME COURT REPORTS [1963]:
“defendant No. 6, a person ‘cultivating the lands - under the defendant No. 1, are these:
AckuthY Menon ° (1) Where all members of the tarwad join co i — -... in the execution of a sale deed the ques- + _ Mudholkar J. tion of delegation by the Karnavan does — not arise.
--——- (2) Where a:-Karnavan challenges a sale on A ra ‘the ground that his Mukhtiar had not or. obtained his consent. for effecting it that sale. cannot. be set aside unless the a, ope Karnavan proves the terms of the power eA - of attorney and also proves that he did US ' not assent to the transaction.
(3)- When a Karnavan impugns a sale because it was effected by- virtue ofa power of
_ attorney which according to him amounts to a delegation of his powers as Karnavan the sale cannot be set aside unless the power of attorney is itself produced.
; The last two grounds are based upon the fact _. that the power of attorney has not been produced _1. <».- 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 produc-: ed it nor made a statement on the point.
Relying upon certain passages in the late . Mr. Justice Sundara Aiyar’s. “Treatise on Malabar and Aliyasanthana Law” (1922ed.) Mr. Nambiar
_ contended that where al] the members of the- _.. tarwad join in transaction that transaction is: bind- _. .ing onthe tarwad. A Karnavan is of course entitled to alienate the tarwad property for family _ necessity but where a transaction is entered into, by ~ pall the members of the tarwad the existence of ench eR r
26.C.R, SUPREME COURT REPORTS 995 necessity need not be established. This, according to Mr. Nambiar, is the common law of Malabar. The family being resident in that part of Kerala which was formerly part of the Province of Madras, is governed by the common law as modified by statute. The main statute bearing on the point is the Madras Marumakkattayam Aot, 1932 (Madras Act. No. XXII of 1933). This Act has been amended by some later Madras Acts and Central Acts but with those amendments we are not concerned in this appeal. Under the common law of the Karnavan had complete power of alienating the tarwad property for necessity and in this regard-he was the sole judge of the necessity. Section 33 of the Act, however, restricts that power and provides that for certain transactions, including a sale for the tarwad’s necessity or benefit, the written consent of the majority of the major members of the tarwad must be obtained by the Karnavan. Accord-
‘ ing to Mr. Nambiar this provision does not in any
* way derogate from the right of all the members of the tarwad acting together to partition the tarwad property amongst themselves or to alienate it any manner they choose. Thus according to him, 3.33. of the Act deals only partly with the subject of alienation of tarwad property and not the whole of it.
Under the common law,. according to him, property belonging to a Tarwad is the property of all the male and female members composing it and that the Karnavan has no greater personal right in the property than the junior members thereof. In — fact the family consists of individuals with equal rights. No doubt 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
Ve Achutha Menon
Mudkolkar J.
v. Ashutha Menon
Mudhelkay 7,
996 SUPREME COURT REPORTS [1963)
or the tarwad. The right of the Karnavan to manage the family property is also subject to regula- .
tion by the common consent of all the members of the family and that family karars restricting the rights of the Karnavan are a common feature in Malabar. Where a Karnavan’s rights are so restricted by common consent which necessarily includes his own consent—he cannot ordinarily dispute the binding effect of the karar upon him.
The occasion for the execution of the power of attorney by the first plaintiff was admittedly the fact that the Karnavan left his native place for Borneo where he had taken up an appointment.
“
The senior anandaravan in the Tarwad was defend- | ant No. 2 but he was holding a post with the Madras Government which required his being away from the family house during the whole of his service. Karunakara Menon, the third defendant was next in seniority and as he was residing in the family house the first plaintiff Achuta Menon executed the power of attorney in his favour. We may incidentally mention that Leelavathi Amma the 5th defendant in suit is the wife of one Dr. P. B. Menon of Calicut and as she lives with him there she could not have been able to look after the family property. Nor again could the fourth defendant Govinda Menon attend to the work bacause he was also employed elsewhere. The family was clearly in difficulties and, therefore, according to Mr. Nambiar, it was essential for Achuta Menon to delegate as much authority to the person living in the family house as was permissible under law 40 as to enable him to manage the property in the best interests of the Tarwad. It was for this reason that the power of attorney was executed in favour of Karunakara Menon, the third defendant.
In its judgment the High Court has not said that there was no oopasion for theexecation of a
28.C.R. SUPREMECOURT REPORTS 997 power of attorney. But according to it even by executing such power of attorney in favour of the third defendant it was not legally competent for the plaintiff No. 1 to enable the third defendant to ali- enate family property except with his consent.
The power of attorney not having been produced,
C. Annacheriam v, Achutha Menon
Mudhothav J.
the High Court considered the matter from two angles, full delegation and partial delegation, It first considered the matter on the assumption that the power of attorney conferred full power upon the defendant No. 3 to act for the Karnavan, the plaintiff No. 1, and alienate the property without reference to him. The High Court, after. referring to certain decisions of the Madras High Court, came to the conclusion that such an empowerment by the Karnavan amounted toa delegation not only of his rights as a Karnavan but also of his duties to the tarwad and was, consequently, invalid in law. The High Court pointed out that where the power of attorney confers such wide powers on the Mukthiar, it ia nothing but a delegation .of the Karnavans power and this is not permissible under the Marumakkattayam law which is the common law of Malabar. If, on the other hand, the delegation was not so extensive and if the. power of attorney provided that the Mukthtar, the third defendant, was empowered to execute a sale deed on behalf of.
the tarwad as an agent of the Karnavan after obtaining the consent of the Karnavan—here admittedly no such consent was obtained—the transaction must be deemed to be beyond the. competence of the Mukthriar.
__ It would be useful to consider the decisions in which some aspects of the. question have been dealt with. In Cherukoman v. Ismala(') Holloway J., who is regarded as an authority on Marumakkattayam law expressed the opinion that Karnavanship could not. be renounced.. But his view has not been
4) (1871) 6 MELCR. 345,
C. Annacheriam Ve Achutha Menon
—
Mudhelkar J.
accepted in Kenath Puthen Vittil Tavasht v. Narayanan('), In the course of their judgment the Full Bench pointed out that there is nothing in principle in the position of the Karnavan opposed to renunciation by hin of his office of Karnavan. They say that just as a trustee may renounce his trusteeship with the sanction of the court or assent of the beneficiaries a Karnavan, who, though he bolds a fiduciary position and yet isnot a trustee, can also renounce, But since a Karnavan is not bound to render any account or to pay to the tarwad any surplus in his hands the reasons which exist in tho case of a trusteo to obtain the concurrence of the beneficiary before renouncing trust do not exist in the case ofa Karnavan. Then they point out at p. 196, ‘It is decidedly for the benefit of the tarwad that such power of renunciation should be recognised. An unwilling Karnavan usually makes a bad manager.” In conclusion thev held that it will be open toa Karnavan of a tarwad to renounce his Karnavanship including his right to manage tarwad affairs. This view has not siace been departed from
Though a Karnavan can thus renounce hie 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 jeoparadised if it were open to a Karnavan to transfer or delegate his office. If, therefore,a Karnavan delegates all hie rights and obligations either to another members 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 totransfer of his office as — 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 ssa power of attorney. (see Cherukoman v. Jemala (*).
(1) (1904) LL.R. 28 Mad. B82. (2) (1871) 6 M.HLC.R, 165.
Seen
-28.0.R. SUPREME COURT REPORTS 999
The question. then is to what extent can a
Karnavan delegate his right to manage the property
- to another. Referring to thia questi: n Muttusami
Ayyar J., observed in Chappan Nayar v. Assen Kutti (?).
“There can be no doubt, and itis not denied for the respondent, that karnavanship as recognised in Malabar is a birthright inherent in one’s status as the senior male member of a tarwad. It is therefore a personal right and as such it cannot be assigned to a stranger
‘ either permanently or fora time. If it can be delegated at all, it is capable of delegation only to a member of the tarwad, the principle being that the de facto manager thereby assists the karnavan during his pleasure, and is entitled to do so by reason of his, connection with the tarwad and his interest in its
2 property.”
Then referring to the document which fell to be construed in that case the learned Judge obser- ved: | “Tf it isan assignment of the right of karnavanship, itis void, though fora term only, on the ground that the delegate is not
« a member of the tarwad; if on the other hand it is a power of attorney limited to management of specific property as an agent subject to the general control of the karnavan, it may be valid on the ground that the karnavanship is not the interest assigned or delegated.”
In that case the karnavan of a Malahar tarwad having been sentenced to a term of impri-
» sonment, delegated to his son all his powers as karnavan for being exercised during the period he wus serving his sentence. The High Court held that the delegation was ulira vires and void having (1) (1889) I.L.R. 12 Mad, 219.
v: Achutha Menon
Mudhotkar J.
C. Aunacheriam Achutha Menen
Mudhelkar J.
been made in favour of a stranger. For, though the delegation was in favour of the son he was in fact member of his mothers tarwad and was, there- - fore, a stranger vte-a-vis his father’s tarwad. Referring to this decision Seshagiri Ayyar J., observed in Krishnan Kidaya v. Raman (')
“The karnavan has two capacitiea—a temporal and a apiritual one. Inthe former he is the manager of the family properties, maintains the union members, represents the tarwad in transactions with strangers, etc. In his latter capacity he presides at the ceremonies and performs all the. religious duties which are incumbent on him. A atranger cannot supplant him in this latter office: but I fail to see why his duties as manager could not be delegated to a stranger. Ifa receiver is appointed pending a suit forthe removal ofa karnavan, this officer will have all the rights of a karnavan so far as management is concerned. An agent who acts with the consent of all the members in managing the temporal affairs.
of atarwad cannot be in a worse posit on.”
For these reasons he held that a family karar which gave the management to a person who had ceased to be a member of the tarwad was good and effective. This decision has been referred to by the learned Judges of the Kerala High Court in their Judgment under appeal but they have apparently regarded the observation of Seshagiri Ayyar as obster. On the other hand they have placed reliance on the decision in K. Ramankutty Mennon v. Seevi Umma(*). Intbatcasethe Karnavan of a tarwad executeda document in the first partcf which he - renounced his powers of management of the tarwad (1) (1916) I.-L.R. 39 Mad. 918,920. (2) A.L.R. (1929) Mad. 286.
-
2S.0.R. SUPREME COURT REPORTS 1001 and in the second part delegated them to two of the junior anandravans for a consideration of Rs. 500 and future maintenance. The document recited that the said anandravans were to act asthe representativee of himself, the Karnavan. The High Court held that the- document must be held to -operate as either renouncing the Karnavan’s powers or as delegating them. Ifit was the former it was invalid because it did not amount to an out-and -out and unconditional renunciation, recognising the senior anandravan’s rights of succession. If it was the latter it was invalid because a karnavan has no right to delegate his powers. In support of its conclusion the High Court relied upon the decision in Chappan Nayar v. Assen Kutty (') and distinguished the decision of the Full Bench in Kenath Puthen Vittil Tavashi v. Narayanan (*). No doubt, asa deed of renunciation fhe document was invalid. Under the document the joint managers would not. become Karnavans but only be the Mukthiars of the Karnavan having -the right to manage the Tarwad property. That the Karnavan’s power of management can be restricted by a family karar cannot be disputed. (see P. K. Govindan Nair v. P. Narayanan Nair (*). It is however, not clear from the report whether the delegation by the Karnavan was by virtue ofa family karar to
Ԥ which all members of the Tarwad were parties.
A.
The case is, therefore, distinguishable from, the one before us. Minn
The view taken by Seshagiri Ayyar J., in Krishnan Kidava’s case (*) is that the power of management could be transferred by the Karnavan with the consent of all the member of the Tarwad to another person so long of course as the transfer or delegation of power is revocable. According to the learned Judge delegation of the power of
(1) (1889) I.U.R. 12 Mad. 219, (2) (1904) LLL.R. 28 Mad, 182. (3 {1912) 23 MeLJ. 706. (4) {i516} LLR. 38 Mad 216 920.
C. Annacheriam vv. Achutha Menon
C. Annacheriam ¥v. Achutha Menon
Mudkolkar J.
1002 +SUPREME COURT REPORTS [1963]
management in favour of evena stranger would be valid. This view is not in consonance with that taken in Chappan Nayar’s case (') 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 mot necessary to say whioh of the two views is correct because here delegation iain favour of an anandravan, though not the seniormost anandravan.
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 Karnavan’s power of management oan 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 Karnavan’s duties arising in connection with the management of the Tarwad can be delegated. One more concept of the Malabar Jaw has to be borne in mind. ‘Ihe 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 Seshagiri Ayyar, J., in Govindan Nair’s case (*) 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 tbe duties are owed may find that in their own interest the duties oan be best performed by an anandravan in praticular circumstances. These would be good reasons to justify the delegation of a Karnavan’s 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 manage-
()) (1880) ILL.R. 12 Mad. 219, (2) ©1912) 2° M.L J. 706.
—_ ans ae
2 1 et a ee
> ‘
28.C.R. SUPREME COURT REPORTS = 1003 ment of the tarwad property such asin 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 Karnavan’s 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 recognised concept underlying the Marumakkattayam law will be violated by holding that an agreement or karar entered into by the Karnavan andthe 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 necesswy is delegated to Mukthiar so that he can exercise that power with the concurr-
. ence of the adult members. duriag the absence of the Karnavan as and whea occasion arises isa perfectly valid agreement. OUnthe other. hand to.
hoid that this is permissible would be in consonance with the concept of joint ownership by all the members of thé Tarwad properties and with the settled legal position that the powers ofa 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
Annacheriam
Vv. Achutha Menon
Mudholkay J.
C. Annachertam ¥. Achutha Menon
—n
Mudholker J.
1004 SUPREME COURT REPORTS (1963)
of management which is revocable cannot be regarded as a delegation of the oflice of the Karnavan. The Karnavan continues to be Karnavan but during his absence from the spot his managerial powers are exercisable by ths 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 @ proper case putan 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 ita operating as renunciation,
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 gone 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 todoso. The fact that plaintiff No. I exeouted the power of attorney before leaving for Borneo and thereafter several properties were alienated by the Mukthiar in conjunctions 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 also that the power of attorney was itself executed by the plaintiff No. 1 in pursuance ofa family karar. Upon this view, therefore the appeal must succeed. The appellants’ costs shall throughout be borne by the plaintiffs- ndents. espe Appeal allowed.
ey.