Dr. C. Annacheriam & ANR Vs.
Achotha Menon & Ors  INSC 189 (3 May 1962)
03/05/1962 MUDHOLKAR, J.R.
CITATION: 1963 AIR 128 1963 SCR (3) 986
Marumakkattayam Law--Karnavan--Power of
delegation--Extent --If includes right to manage property and duties arising in
connection with management of tarwad--Marumakkattayam Act, 1932 (Mad. 22 of
1933), s. 33.
A karnavan of a tarward who was leaving for
Bornes where he had taken up a job, appointed one M, who was the second senior
most anandravan, 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 tarwad 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 assignment 987 deed
executed by his said mukthiar and all other adult members of the tarwad.
The Trial Court held that the sale in favour
of 1st 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 karnavan
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 tarwad.
It was contended that though the Karnavan can
under a family Karar delegate 'his I right to manage the property to another he
cannot delegate the performance of the duties arising in; connection with the
management of the tarwad and that' therefore it was not competent for the
defendant No. 3 acting as mukthiar of the Karnavan, to effect 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 management 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 is 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 Anandravan 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 Karar. Thus where for some reason the Karnavan; 'is not
able to discharge his duties in respect of the management of the 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 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, 988 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.
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 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 question of its operating as
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 mukhtiar in conjunction with the other
anandravans 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. 1 A in pursuance of a family karar.
Cherukomen v. Ismala, (1871) 6 M. H. C. R.
145, Kenath, Puthen Vittil Tavazhi'v. Narayanan, (1904) 1. L. R. 28 Mad.
182, Chappan Nayar v. Assen Kutti (1889)
I.L.R. 12 Mad. 219, Krishnan Kidavu v. Raman, (1916) I.L.R. 39 Mad, 918, K. Ramankutty
Menon v. Seevi Umma, A.I.R. (1929) Mad. 266 and P. K. Govindan Nair v. P.
Narayanan Nair, (1912) 23 M. L. J. 706, referred to.
CIVIL 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. S. No. 297 of
989 M. K. Nambyar, S. N. Andley, Rameshwar
Nath, P.L. Vohra, for the appellants.
A. V. Viswanatha Sastri and Sardar Bahadur,
for respondents Nos. 1-3.
1962. May 3. The Judgment of the Court was
delivered by MUDHOLKAR, J.-This is an 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 suit instituted by
a Karnavan of a tarwad along with two minor member of the tarwad for setting
aside a registered assignment deed (hereafter referred to as sale deed)
executed by his Mukthiar Karanakara Menon. who is junior member of the tarwad
and by all the other adult member of the tarwad on 17.6.1117 (M.R.). 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 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.
The grounds on which the sale is challenged
by the plaintiffs are briefly theses :
(1) That the sale outright of the suit
proper. ties for Us. 8,000/was not justified for satisfying the decretal debt
of. Rs. 5,250/990 because the prevailing price of immovable property would be
Rs. 46,000@/or (2) That the sale was effected by a collusion between the first
defend and the third defendant Karunakara Memnon who was the Mukhtiar of the
(3) That upon a proper construction of the
power of attorney the Mukhtiar 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 alienting the tarwad
property such a delegation is beyond 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 not valid and cannot bind the tarwad.
(5) That the plaintiffs 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 in
effective 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 991 done so on the footing that it was an
intended conveyance of the rights of the taward and that if the deed is not
legally effective to pass the rights of the tar wad 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 representations 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 is with regard to them.
The first defendant who is a woman doctor
contended that the transaction was valid and operative and was not liable to be
get 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. 8,000/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.
8,000/after the purchase of the property for levelling the land and for
strengthening the bonds. According to her 992 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 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 content 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 plaintiffs 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 been made by the first
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 deed993 (2) The inadequacy of consideration for the
(3) Want of legal necessity for the
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 derogation 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
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
pares of paddy per annum till recovery of possession.
It is not contended before as on behalf of
the plaintiffsrespondents 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
Karnavan, to effect the sale in association with the other adult members of the
tarwad. On this part of the ease the contention of Mr. N. K. Nam biar for the
appellants who axe defendant No. 1 and 994 defendant No. 6, a person
cultivating the lands under the defendant No. 1, are these:
(1) Where all members of the tarwad join in
the execution of a sale deed the question of delegation by the Karnavan does
(2) Where a Karnavan challenges a sale on the
ground that his Mukhtiar had not obtained his consent for effecting it that
sale cannot be set aside unless the Karnavan proves the terms of the power of
attorney and also proves that he did not assent to the transaction.
(3) When a Karnavan impugns a sale because it
was effected by virtue of a 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 in this case and no
explanation is given for its nonproduction. 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 produced it nor made a statement on the
Relying upon certain passages in the late Mr.
Justice Sundara Aiyar's ','Treatise on Malabar and Aliyasanthana Law"
(1922 ed.) Mt. Nambiar contended that where all the members of the tarwad join
in transaction that transaction is binding on the tarwad. A Karnavan is of
course entitled to alienate the tarwad property for family necessity but where
a transaction is entered into by all the member of the tarwad, the existence of
such 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 Act, 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.
According 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, s.33 of the Act deals only
partly with the subject of' alienation of tarwad property and not the whole of
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 996 or the tarwad. The right of the Karnavan
to manage the family property is also subject to regulation 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 defendant 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 be 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 because 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 so as to enable him to
manage the property in the beat interests of the Tarwad. It was for this reason
that the power of attorney was executed in favour of Karunakara Menon, the
In its judgment the High Court has not said
that there was no occasion for the execution of 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 alienate family property except with his consent. The power
of attorney not having been produced, 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 to a 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 is 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 Mukthiar, 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 Mukthiar.
It would be useful to consider the decisions
in which some aspects of the question have been dealt with. In Cherukoman v.
Ismala (1) 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 (1) (1871) 6 M.H. C.R. 145.
998 accepted in Kenath Puthen Vittil Tavashi
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 him of this 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 holds a
fiduciary position and Yet is not 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 bands the reasons which exist in the case of a trustee to obtain the
concurrence of the beneficiary before renouncing trust do not exist in the case
of a 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 they held
that it will be open to a Karnavan of a tarwad to renounce his Karnavanship
including his right to manage tarwad affairs.
This view has not since been departed from.
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 jeoparadised if it were open to a
Karnavan to transfer or delegate his office. If, therefore, a Karnavan
delegates all his 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 to transfer of
his office as a Karnavan. But. if it in 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 of attorney. (see Cherukorman (1)
(1904) 28 Mad. 182.
(2) (1871) 6 M.H.C.R. M.
999 The question then is to what extent can a
Karnavan delegate his right to manage the property to another. Referring to
this question Muttusami Ayyar J., observed in Chappan' Nayar v. Assen Kutti
"There can be no doubt and it is 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 for a 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 property." Then
referring to the document which fell to be construed in that case the learned Judge
",If it is an assignment of the right of
karnavanship, it, is void, though for a 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 delegate." In that' case the,
karnavan. of a Malahar tarwad having been sentenced to a term of imprisonment
delegated to his son all his powers as karnavan for being exercised during the
period he was serving his sentence. The High Court held that the delegation was
ultra vires and void. having (1) (1889) I.L.R. 12 Mad. 219.
1000 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, therefore, a stranger vis-a-vis his father's tarwad.
Referring to this decision Seshagiri Ayyar J., observed in Krishnan Kidaya v.
Raman (1) "The karnavan has two capacities a temporal and a spiritual one.
In the 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 stranger cannot supplant him in this
latter office: but I fail to see why his duties as manager could not be
delegated to a stranger. If a receiver is appointed pending a suit for the
removal of a 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 a tarwad 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 obiter. On the other hand they
have placed reliance on the decision in K. Ramankutty Mennon V. geevi Umma (2).
In that case the Karnavan of a tarwad executed a document in the first part of
which he renounced his powers of management of the tarwad (1) (1916) I.L.R. 39
Mad. 918,920. (2) A.I.R. (1929) Mad.
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 as the
representatives of himself, the Karnovan.
The High Court held that the document must be
held to operate as either renouncing the Karnavan's powers or as delegating
them. If it 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 I powers. In support of its conclusion the High
Court relied upon the decision in Chappan Nayar v. Assen Kutty (1) and
distinguished the decision of the Full Bench in Kenath Puthen Vittil Tavashi v.
Narayanan (2). No doubt, as a deed of renunciation the 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 (3).
It is 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 before us.
The view taken by Seshagiri Ayyar J., in
Krishnan Kidava is case (4) 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 a delegation of the power of (1)
(1889) I.L.R. 12 Mad. 219, (2) (1904) I.L.R. 28 Mad.
(3) (1912) 23 M.L. J.706. (4) (1916) I.L.R.
1002 management in favour of even a stranger
would be valid.
This view is not in consonance with that
taken in Chappan Nayar's case (1) 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 twoviews is
correct because here delegation is in favour of an anandravan, though not the
senior most anandravan.
The decision 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 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 Karnavan's duties srising
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 Seshagiri Ayyar, J., in Govindan
Nair's case (2) 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 in their own interest the duties can.
be best, performed by an anandravan in pratioulax 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.
(1) (1889) I.L.R. 12 Mad. 219. (2) ( 1912) 23
1003 ment 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 mast 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 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 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 Taxwad 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 1004 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.
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 to do so. The fact that plaintiff No. 1 executed 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 hi 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 of a family
karar. Upon this view, therefore the appeal must succeed. The appellants' costs
shall throughout be borne by the plaintiffs respondents.