# Commi•siontr of J ntom~·kix v. JlylOf't SU?Gr Co., Ltd

- **Citation:** [1963] 2 S.C.R. 986
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** A. K. Sarkar. K. Su"Bba Rao, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/commi-siontr-of-j-ntom-kix-v-jlylof-t-su-gr-co-ltd-2560
- **Pages:** 19

## Headnote

Mammal:l«Jtta~am Law-Karnaron-Power of delegaiicm
-Emnt-1/indudu right to manage property and du•ieB arising in connection with management o/ tarrrad-Marumakkattayam
Act. 1932 (Mad. 22 o/ 1933), •· 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 anandravan, as his
mukthia,. by
executing a power of attorney, for the reason that the senior
most anandrat'an was av.·ay in Madras.
Tl e said mukthiar in
conjunction with other adult members of the tarwad sold
several properties of the ta,.,etid for discharge of debts of the
r
•
ta,.,iad, under the said power of attorney,
including the
~
property in suit.
;
The karnamn along with two minor members of the
tancad brought a 1uit for setting aoide registered assignment
...
.,
J. S.C.R. I SUPREME COURT REPOR'rS, 987
deed executed by his said mul:thiar and all other adult mem·
hers of the tarwa4.
-
'The Trial Court held that the ·'sale in favour of !st
respondent was binding on the.,,,,.,,,,,,. _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
ta1lilad because the karnaron had not joined in . it. .The
power of attorney executed by the karnaron
in favour
of the mukthiar
cannot be .effective as deltgation
to
the · mukthiar
of the karnavan'a
power
with respect
io the tarwad property and, thtreforr, the transaction must
fail as an act of the tarwad.
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 petformance 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-eflbt the sale in asso;
ciation with other adult .members of the tarwad.
,
Held, that by a family Karar Karnavan'a power of
management_ can be restricted and also that a Karnavan'a
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 tarwa<i and that apart from . the right of
management· the Karnavan has no larger right or interest than
the other members.
That by :vir(ue of his status the KiJl'fl(JVan owes certain
f' 'duties to the incmbers of the tarwail and one of such duties
11 to manage the properties in the best interest of the members.
-;_
Those to wi:\om the duties .are owed may find that in _their
own _ interes_t the duties can be best .performed by an
At1aftdravan, iii particular circumstances. These would be good
-"'ai61is · to- justify the delegation of a Karnavan'• power of
management to an An<Jn4ravim by a family K{],f'ar. Thus
wherc_Ior some reasori t_he Karnavan, is-not able to discharge
his dtities in respect ot· the management of.the T<Jrwad pro·
pcrty, there must be someone who could look after it and who •
>c
would have the power to manage it. If the delegation of the
KaWi<wan'• power of management iS regarded as incompetent
the neccs!la,Y ~esult would be that the interests of the family
would suffer •. 'It is by no means a practical 'proj>o!iition to
expect the famlly members to approach the K<J\n<Jvan, when
he is at some far oft corner, for his consent in regard to each
and every traiiaaction, be it sale, mortgage or lease'~
C, Annacht1'ia m
..
~'~Iha M aio11
988
SUPREME OOURr REPORTs [1963]
An agreement (or Kamr) entered into by the JrMll<JNll
and the members of the family by which the power of mana!I"· ,
ment of the tcu'wad carrying with it the duty to decide during
the absence of the Ka1'11at1an whether a particular alienation
should be effected for meeting a family necenity is delegated
to a MulctMar so that he can exercise that power with the
concurrence of the adult members durin~ the absence of
the Karnavan as and when occ

## Text

1961
Commi•siontr of
J ntom~·kix
v.
JlylOf't SU?Gr Co.,
Ltd.
ll'ilaJ•lullah J.
J96t
Ma.13.
986
SUPREME OOURT REPOH.lS [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 loes to the ass~esee
Company was just as much a lose on the revenue
side as would have been, if it had paid for the
rP-ady crop which waa 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. ANNACHl<~RIAM AND A~'OTHER
v.
ACHLJTHA MENON AND OTHER)
(A. K. SARKAR. K. SU"BBA
RAO and
J. R. MUDHOLKAR, JJ.)
Mammal:l«Jtta~am Law-Karnaron-Power of delegaiicm
-Emnt-1/indudu right to manage property and du•ieB arising in connection with management o/ tarrrad-Marumakkattayam
Act. 1932 (Mad. 22 o/ 1933), •· 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 anandravan, as his
mukthia,. by
executing a power of attorney, for the reason that the senior
most anandrat'an was av.·ay in Madras.
Tl e said mukthiar in
conjunction with other adult members of the tarwad sold
several properties of the ta,.,etid for discharge of debts of the
r
•
ta,.,iad, under the said power of attorney,
including the
~
property in suit.
;
The karnamn along with two minor members of the
tancad brought a 1uit for setting aoide registered assignment
...
.,
J. S.C.R. I SUPREME COURT REPOR'rS, 987
deed executed by his said mul:thiar and all other adult mem·
hers of the tarwa4.
-
'The Trial Court held that the ·'sale in favour of !st
respondent was binding on the.,,,,.,,,,,,. _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
ta1lilad because the karnaron had not joined in . it. .The
power of attorney executed by the karnaron
in favour
of the mukthiar
cannot be .effective as deltgation
to
the · mukthiar
of the karnavan'a
power
with respect
io the tarwad property and, thtreforr, the transaction must
fail as an act of the tarwad.
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 petformance 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-eflbt the sale in asso;
ciation with other adult .members of the tarwad.
,
Held, that by a family Karar Karnavan'a power of
management_ can be restricted and also that a Karnavan'a
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 tarwa<i and that apart from . the right of
management· the Karnavan has no larger right or interest than
the other members.
That by :vir(ue of his status the KiJl'fl(JVan owes certain
f' 'duties to the incmbers of the tarwail and one of such duties
11 to manage the properties in the best interest of the members.
-;_
Those to wi:\om the duties .are owed may find that in _their
own _ interes_t the duties can be best .performed by an
At1aftdravan, iii particular circumstances. These would be good
-"'ai61is · to- justify the delegation of a Karnavan'• power of
management to an An<Jn4ravim by a family K{],f'ar. Thus
wherc_Ior some reasori t_he Karnavan, is-not able to discharge
his dtities in respect ot· the management of.the T<Jrwad pro·
pcrty, there must be someone who could look after it and who •
>c
would have the power to manage it. If the delegation of the
KaWi<wan'• power of management iS regarded as incompetent
the neccs!la,Y ~esult would be that the interests of the family
would suffer •. 'It is by no means a practical 'proj>o!iition to
expect the famlly members to approach the K<J\n<Jvan, when
he is at some far oft corner, for his consent in regard to each
and every traiiaaction, be it sale, mortgage or lease'~
C, Annacht1'ia m
..
~'~Iha M aio11
988
SUPREME OOURr REPORTs [1963]
An agreement (or Kamr) entered into by the JrMll<JNll
and the members of the family by which the power of mana!I"· ,
ment of the tcu'wad carrying with it the duty to decide during
the absence of the Ka1'11at1an whether a particular alienation
should be effected for meeting a family necenity is delegated
to a MulctMar so that he can exercise that power with the
concurrence of the adult members durin~ the absence of
the Karnavan as and when occasion arues u 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 Ka,.,.'>van. The Karna1J1Jn continues to be Korna ... n but
during his absence from the spot his managerial poweu are
'
exercisable by the Mukthar.
The delegation being through a power of attorney, the
karnav'Jn can in a proper case put an end to it by revoldnp the
power of attorney. Thus, despite the execulion of such a power
of attorney he does not fade out completely and, therefore,
there is no q estion of its operatia.g as renunciation.
HeU, further, ·that the plaintiff No 1 not executed the
power of auorney before leaving for Borneo and thereafter
several properties were alienated L>y the ,nuJ:hliar in COO·
junction with the other anandrawi,., and none or the alienations except the one in suit has been challenged in all these
yean ju1hfies the inference that these di>po1itions 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.
OM.ruko,,..n v. l•mtJla, ( 1871) 6 M. H. C. R. 145,
Kenalh PulM.n Vitti/ Tarxuhi v. Narayanara (190l) I. L. R.
28 Mad. 182, Ohappan Nayar Y. A ... n Kuui '(1889) 1.L.R. 12
Mad. 219, Kmhnan Kidavu v. Raman, (1916) 1.L.R. 39
Mad, 918, K. R'>manCutly llenm v. Suoi Umfltll, A.I.R.
(1929) Mad. 266 and P. K. Govintlan Nair v. P. Naroyt,.Oll
Nair, (1912) 23 M. L. J. 706, <eferrcd to.
•
CIVIL APPKLLATE JUBISDIOTION: Civil Appeal
No. 426 of 1960.
Appeal from the judgment and decree
Ootober 14, 1958,
of the Kerala High
Ernakulam in A. S. No. 297 of I955·E.
dated
Court, •
•
! •
. ,
2 S.C.R.
SUPREME COURT REPORTS
9b9
<;,
M. K. ~·ambyar, S. N. Andley, Rameskwar
•, Nath, P. L. Vohra" for the appellants.
A, V. Visw"natha Bastri a.nd Sardar Bahadur,
for respondents Nos. 1-3. ·
1962. Ma.y 3. The Judgment of the Court
wa.s deli..-ered by
,
MUDHOLKAR, J.-This is a.n a.ppea.l from a.
decree of the High Court of Kera.la by a. ·certificate granted by it under Art. 133(1) of the Constitution.
The appeal arises out of a. suit instituted by
a. Karn.a.van of a. ta.rwa.d a.long with two minor
member of the tarwa.d for setting a.side a. registered
a.ssignment deed (hereafter referred to a.s so.le deed)
executed by hisMukthiar Karana.kara. Menon, who
is ·junior member of the ta.rwa.d and by all .the
.:
othera.dult member of the tarwa.d on 17.6.1117
(M.R. ). We ha.ve not been able to a.B<ierta.in the
correct date according to the Gregorian calender;
but it has been a.coepted before us that the document was executed in the month of February, 1942.
Nothing, however, turns on the precise da.te of the
execution of the document.. This document is in
fa.ct a sale deed and thereunder certain property
belonging to the ta.rwad wa.s sold to the firat defen-
• dant to tJ;Le ~ui t, "!ho is appellant No; 1 before us,
'
for a coD81dera.t1on of Rs. 8,000/.. Oui of the
a.mount of Rs. 8,000/., a. sum of !ts. 5,250/- was
required for discharging the debt due under a
mortgage decree against the tarwad.
The grounds on which the sale iti challenged
by, the pla.intiW& a.re briefly tbe&es :
.
( J) That the so.le outright of the suit properties for
l~. 8,000/· was not justified for
·
satisfying the deoreta.l debt of Rs. 5,260/.
'
IHI
c . .t ......... "am
v.
.teAulh•NMudholkar J,
i~6•
C .... ~ch.foAm
••
Ac•u.tM M t11on
Mudltolkor J,
1190
STJPRE!IJE COURT REPORTS [1963]
because th" prevailing price of immovable property would be Rs. 40,00< /· or
so .
( 2) That the sale was oft'('oted by a. collusion
between the first
defends nt and the
t.hird defendant Ka.runa.ka.ra. Menon who
was the Jfukhtiar of the plaintiff No. I.
(3) That upon
~. proper construction of the
power of attorney the Mukhtiar could
ex£< ute a. salo 1leed only if the Karna.van
in his discretion thought it to be necessary for meeting the
prcs~ing needs or
for the benefit of ~he tarwad to effect
it and that. as the Karna.van 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 vest.ed in 'he third defendant with the discretion and judgment
of tho Karna.van regarding the nec011Bity
a.ud expediency of a.Iienting the ta.rwa.d
property such a. delegation is beyond the
the powers of the Ka.ma.van a.nd would
be void and imoperative in law. An
aot purporting to be done under the
colour of such authority is not valid and
cannot bind the tarwad.
,
•
•
r '
(5) That th•i pla.intiffi 2 and 3 were not represents by 1 heir legal gua.rd;an, that is,
the Karnavan, and the purported representation by their mother the 5th defendant as their guardian is ineffective
because she could not in la.w aot a.a gua.r- I
dian in this transa.otion. The ea.le dee<! is,
•
therefore, null and void.
1-
•
(6)
That the defendants 2, 4 and 5 who had
joined in the sale deed had obviously
f'
t
2 s.c.R;
' SUPREME COURT REPORTS
991
J
<
done so on the footing that it was. an
intended conveyance of the rights 'of the
ta.ward and that if the d<ied is not legally effective to · pass the . rights of the .
tar wad ·as not being a . valid . act. of the
Kama van,
it .. cannot· be · re11arded a,s
having been intended to be executed by .· .
those . three· defendants .. Further, that
these defendants . did not. apply their
minds
to the propriety or ~epessity of
the transaction but were merely 'misled.
by the statements a11d representations
of the third defendant· as to the ne,ces- ·
sity for executing the deed ..
The transaction
was challenged· on three .
other minor gi:ounds .. in the plaint but it is n<)t
necessary to . refer to them because no arguments
were advanced before !ts with regard to thE1m·
,.
. The first defendant who is a ·. woman doctor
contended that the transaction ·was valid •and
operative and was not liable to be set aaide on any
of the g:rounds on which it . was challenged by the
plaintiffs. She contended that apart from the. .
decretal debt there were other outstanding deJ:>ta· ·
of the tarwad which had to be satisfied and'that
the properties in the suit were attached in execuc
~ tion of a decree obtained. a~ainst ··the ·tarwad in , ·
some other suit. The defendant believed, after '.
..
'
makin~ due enquiry and on the faith ·of the repre'. · ·
sentations made by the assignors, that the. whole of ...
the amount of Rs. 8,000/-.. was required for dis~
charging debts binding on the tar'!"ad; · ente,red · ·
into the transaction. bona· fi<l,e.
The price paid by,
her for the property was the .. prevailing mark(Jt
; price f?r similar lands in .. the locality, . :lru[ther,
" -1'.
accordmg to her, she had spen,t Rs .. 8,000/-~after
the purchase of the property Jot levelling the land
aJJd for strengtlleniDg the )londa, · Accordmg,to Jlei'
'..'··,·.'
1962
_....;_
C. Anhache1 iam
v.
Achullio Mmon
--
MuiJ!ro/kar .1.
J9SJ
C. Au•ciltiam
v.
AdufA:s Al,r.ott
992
SUPREME OOURT REPORTS [19113]
.it is because the vs.Jue of the land ha.e now gone
up considerably that the plaintiffs and other members of the tar wad are attempting to defeat her /
just right.a.
Then again,
according to her, on a. proper
construction of the power of attorney it wou Id
appear that the third defendant was authorised
by the plaintiff No. I as Karnava.n
to a.ot on
his
behalf in
all
matters · relating
to the
tarwa.d.
:::ihe
also
contended
tha.t
it
wa.s
wrong to construe the power of attorney as a.mount.ing to a. delegation of the whole of the power of
t
the Ka.ma.van.
She, howev~r, admitted that a.t the
time of the execution of the l!&le deed it waa not
poBRible to get the written coneent of Karna.van,
the plaintiff No. 1.
Reference waa made by her to
several similar transactions entered into by the
defendant No. 3 in which the other a.dult members
of the family .has joined and it was pointed out that
none of them has been challenged by the plaintiffs,
suggesting therehy that they accepted the validity
of transactions of a similar kind.
The trial court held that the sale in favour of
the first dcfonrlant was binding on thfl tarwad and
dismisRed the suit. It may be mentioned that in
addition to the claim for pol!llession of the property
in t.be suit t.be plaintiffs had asked formesne profits.
Naturally, that claim also was diRmissed by the trial r
court in view of its finding on the ma.in 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.
On appeal the High Court reversed the decree
of the first conrt.
Before the High Court the
validity of the alienation was challenged on three
grounds:
•
(I)
The non-joindn of the Karna van in the
execution of the •le deed;
I
.
·'
• ..
•
••
'
\'
I
2 s.c.R.
SUPREME COURT REPORTS
9~3
(2) The inadequacy of oonaideration for the
tranaaotion;
(3) Want of legal necessity for the transaction.
While it held that the sale was justified on the
groun~ of neoeSBity and that the consideration was
adequate, the High Court oame to the oonolusion
that the tra.nsa.ction was not binding on the tarwad
beoause the Karnavan had not joined in it. According to the ffigh Court the power of attorney executed by the first plaintiff on ¥arch 22, 1939 in favour
~ of.the third defendant oannot be effective as delegation to the third defendant of the first plaintiff's
power with respect to the ta.rwad property and,
therefore, the transaction must fail as an a.ct 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
...r ' the amount of consideration paid by defendantNo. I
and of which the ta.rwa.d 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 IDgh Court, however, ordered that
the plaintiffs would be entitled to mesne profits from
the date of suit at 1200 paraa of paddy per annum
till recovery of posseSBion.
It is not oontended before as on behalf of the
'
plaintifrJ1-respondents that the transaction was not
suppor~ by necessity or that the eonsiderat~on
was inadequate and, therefore, the only q aest10n
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
Karna:van, to effect the sale in &BBooiation with the
-{ • other adult m 'mbers of the ta.rwad. On th is part
ofUae-UaeOC>Dtention of Mr. N. K. Nambiar
f~J' ·t.lui appollaJatt wbo are defe11dant No. l ua
1962
C. ~nnacklriam
v.
Adlul.\aM,,...
MudAolkorJ.
1981
C • .J.nnache1iarn
...
..4chutlra M#non.
·--
. Mudholk.; J.
·, ___ ;-_··-;--;:,/~~. -,.. .
' '
''. '-""'.: .. :
: - _, __
'
/
994 .. : SUPREME COURT REPORTS [I9G3J .
defendant .No. 6, a person ;cultivating the lands·
under the defendant No; 1, are these:
(I)
•,
/
Where all members of the tarwad join
in the execution of a sale deed the question ·of delegation by the Karna.van does
not arise.·
'
(2) ·:where a Karna van 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
Karna.van 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 Karna van
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 produc-•
ed it nor made. a statement on the point.
Relying upon . certain· passages in. the fate
. Mr. Justice Sundara Aiyar's. "Treatise on Malabar
and Aliyasanthana Law" (1922 ed.) Mr. Nambiar
contended that where all· the members . of the
tarwad join in transaction that transaction is· bind-
. ing on the tarwad. A Karna.van is of course entitl-
€d to alienate the tarwnd property for . 'family
. necessity but where a transactipn is entere~. into. by
~11 the μiepbers of the tatwad the existence of s11ch
.
-
.
'
.
'
'
.
. .
{
-?:-
>.
2 S.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 bee.ring 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 ·lie 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 an 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 ~rtly 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 persoll!ll right in
the property than the junior members thereof. In
fact the family consists of individuals with equal
rights. No doubt the Karnava.11, 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 Vt.st in the
manager alone' ~μ,t in all 1.ht1 members of the familT
1962
C. Annae/ieriam
v.
Achutho M~on
Mudko/ktll' J.
IHI
o. •=
t
t.i.111
v.
A<-M-
.lfWWarJ.
996
SUPREME OOURT REPORTS (1963]
or the tarwad.
The right of the Ka.rna.va.n to
ma.na.ge the family property is a.lso subject to regula.- ,,
tion by the common consent of a.II the members of
the family and tha.t family karars restricting the
rights of the Ka.ma.van a.re a. comlJIOD feature in
Mala.bar. Where a. Karna.van's rights a.re so restricted by common consent which nece888.rily includes
his own consent-'--he cannot ordinarily dispute the
binding effect of the karar upon liim.
The occasion for the <execution of the power of
attorney by the first plaintiff was admittedly the ,
fact that' the Ka.rnavan left his native place for
Borneo where' he had taken up a.n appointment.
The senior a.nanda.rava.n in the Tarwad was defendant No. 2 but he wa.s holding a p'lst with the
Madras Government which required his being a.way
from the family house during the whole of his
service. Karunskara Menon, the third defendant
was next in seniority and as he was residiug in the
family house the first plaintiff Achut& Menon executAd the power of attorney in his favour. We ma.y
incidentally meution that Leela.vathi Amma the 5th
defendant in suit is the wife of one Dr. P. B. Menon
of Calicut a.nd as she lives with him there she could
not have been a.hie to look after the family property. Nor again could the fourth defendant
Govinda. Menon attend to the work ba.oa.use he wa.s •
a.lso employed elsewhere. The family wa.s olea.rly
in
difficulties
a.nd,
therefore,
according
to
Mr. Nambiar, it wa.s essential for Aohuta Menon to
delegate as, muoh authority to the P<'rson living in
the family house as was permi88ible under law so a.s
to enable him to manage the property in the best
interests of the Tarwad. It was for this reason tha.t
the power of attorney was executed in favour of •
Ka.runakara Menon, the third defendant.
In its jud@ment I.he High Court baa not uid
that. \here 1'811 'DO Ollll91Jiop for ~e e~tion of•
•
).
2 S.C.R.
SUPREME COURT REPORTS
997
~,
power of attorney. But aooording to it even by
I96B
__,
·"
executing such power of attorney in favour .of the
C.Aao<Arilm
third defendant it was not legally competent for the
v.
plaintiff No. 1 to enable the third defendant to a.IiAcWAoMenate family property except with bis consent.
MJMl,_.T.
The power of attorney not having hem firoduced,
the High Court considt>red the matter rom two
angles, full delegation and partial delegation, It
t·.
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
1
plaintiff No. 1, and alienate the property without
ref.,rence 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 Kt•rnavan amounted to a delegation not only
of his rights as a Karnavan but also of his daties
to the tarwad and was, consequently, invalig in
•
law. The High Court pointed out that ·where the
~
power of attorney confers such wide powers on the
Muktkiar, it is nothing but a delegation .of the Karna.vans 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 M'!lkf,kiar, the third defendant,
was empowered to eirecute a sale deed on behalf of
t
the tarwad as an agent of the Kama.van after ob-
"
taining the consent of the Kama.van-here· admittedly no such consent was obtained-the tr&nsaotion mlillt be deemed to be beyond the competence
of the Jf uktliiar.
, It would be useful to consider the decisions in
which some aspects of the ques,tion have been dealt
.,.
• with. In Ohe1'1fleomo,n v. 18mo1a (1}
Holloway J.,
{
who is regarded as an authority -on Marn,makkattayam law· expreslled the opinion . that Karna.vanship
could not. be .renounf111d.. But his view bu Qot beeJi.
~I> ~1811) s ,.eca J4
c. Annaehniam
v.
A,lwdao M1rtan
MudlNlh• J.
998
SUPREME COURT REPO~TS (1963)
accepted in Kenath Puthen ViUil Tavashi v. Narayanan('). In the course of their judgment the Full Bench
pointed out that there is nothing in principle in the ,..
position of the Karna.van opposed to renunciation by
hi•n of his office of Karna.van.
They say that just
a.a a. trustee may renounce his trusteeship with the
sanction of the court or assent of the beneficiaries
a. Karna.van, who, though he h •.ilds a. fiduciary posit.ion and yet is not a trustee, can also renounce.
But since a Ka.rnavan is not bound to render any
account or to pay to the tarwad any surplus in his
hands the reasons which exiBt in tho case of a true·
teo to obtain the concurrence of the ben.,ficia.ry before renouncing trust do not exist in tho case of a
Karna.van: Then they point out at p. 196, ''It ie
decidedly for the benefit of the tarwad that such
power of renunciation should be recognie~d. An
unwilling Karna.van usually ma.keR a. bad manager."
In conclusion they held that it will be open to a
Karna.van of a. tarwad to renounce hiB Karna.vanship including his right to ma.na.ge tarwa.d a.ffa.irs.
This view has not since been departed from
Though a. Karna~a.n can thus renounce his
office ho oannot delegate or transfer that offko.
For, if ho renounces his office the senior anandaravan ha.ea right to succeed him as Karna.van and
the rights of senior anandaravan would be joopara.dised if it were open to a. Karna.van to transfer
•
or delegate his office. If,
therefore, a. Karna.van
delegates all his rights and obligations either to
another members of th.i tarwa.d or to a stranger
without reserving any power of revocation the Court
will not give effect to such delegation a.s that would
amount to transfer of his office as a Ke.rnavan.
Rut if it is possible to say that the delegation i1 not
a.bsohit.e in its character and ie subject to resumpt-
•
ion by the Karnava.n the oourts would treat it merely as a power of attorney.
(1100 Cherukoman v.
lsmala l').
(l) (lllCK) LWl. 28 Miid. llZ.
(71 \1871) 6 M.H.C.R. 145.
.J
~
. 2 S.C,R.
SUPREME COURT REPORTS
999
\
The question.then is to what extent oan a
Karnavan delegate his right to manage the property
"'· to another. Referring to thid questir n 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 inher-
"·
ent 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 p·ermanently 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 1 connection with the tarwad and his interest in its
.,
property."
.>..(
,I
), .
Then referring to the document which fell to
be construed in that case the learned Judge observed:
"If it is an assignment of the right of
karna vanshi p, 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 tnterest 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
1
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
(I) (1889) l.L.R. 12 Mad. 219.
I96a
C. Mnaclteriam
v.
AclRdha Menofl
Mudholkar J,
1111
Jl~J.
1000 SUPREME OOURT REPORTS [1963]
been made in favour of a stranger. For, thongh
the delegation waa in favour of the son hti was in ,
fact member of his mothers tarwad and was, therefore, a
stranger vis-a-via his
father's tarwad.
Referring to this decision Seshagiri Ayyar J., obeer·
ved in K riahnan K idaya v. Raman (1)
"The kamavan has two oapacitiee-a
temporal and a spiritual one. In the former
he is
the manager of tbfl
family properties,
maintains
the
union
members,
represent11 the tarwad in treDS&ctions with
strangers, etc. In hie latter o&paoity he '
presides at the ceremonies and performs all
the. re ligioue duties wbiob are incum.bent on
him. A stranger oannot supplant him in
this latter office: but I fail to see why his
duties as pianager oould 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
>-
10 far as
management is conoerned.
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 karor
whioh gave the management to a person who had
oeaaed to be a member of the tarwad was good and •
elfeotive. Thie decision has been referred to by
,
the learned Judges of the Kera.la High Conrt in their
Judgment under appeal but they have apparently
regarded the observation of Seehagiri Ayyar as
obiUr. On the other hand they have placed reliance
on the decision in K. Ramanlcutty Mennon v. Seevi
Umma (1).
In that case the Karnava.n of a tarwad
exeoutedadocument in the first partcf whioli he •
renounced bis powers of management of the tarwad
~
'I) (1916) J.L.R. 39 Mad. 918, 920.
(2) A.I.R. (1929) Mad. 286.
-
-
2 S.C.R.
SUPREME OOURT RlllPORTS 1001
and in the second part delegated them to two of the
,•, junior anandravans for a consideration of Rs. 500
itnd future maintenance. The document recited that
the said anandravans were to act as the representativee of himself, the Karna.van. The High Court held
that the- document must · be held to -operate
as "lither 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 unc.onditional 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 Ku.tty ('}and
distinguished the decision of the Full Bench in
Kenath Puthen Vittil Tavashi v. Narayanan('}. No
doub~. as a deed of renunciation ihe document
was invalid. Under the document the joint mana•
" ")
gers would not. become Karn11,vans but only be the
Mukthiars of the Karnavan having,the right to
manage the Tarwad property. That the Karna.van's
power of management can be restricted by a fam-
' ily 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 Karna.van was by virtue of a family karar to
· ~ whioh all members of the Tarwad were. parties.
The case is, therefore, . distinguishable ftoi:q the
one before us.
"""'"""
The view taken by Seshagiri Ayyar J., in
Krishnan Kidava's ooae (') is that the power uf
management could be transferred by the Karna.van
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
Cl) (1889) I.Ll.R. 12 Mad. 219.
(2) (l!KKJ l.L.R. 28 MU. 182.
(S) (i912) 23 M.L.1. 706.
(4) (1916) LL.R. 39 MU. 216, 920.
1961
C.A ............ lom
v.
A.Aul/lo Menon
Mud/toUar J.
1g62
C. AmracMiam
v.
Ac!ulha M,...
MudkoUar J.
1002
SUPREME OOURT REPORTS
0
fl963]
mana!!ement in favour of even a stranger would
be valid.
This view is not in oonsonanoe wit.h that
taken in Ohappan Nayar's case (') which the learned Judge has not chosen to follow. It is also
opposed to that taken in certain other oases. ]for
the purposes of this case it is not nece88&ry to
say which of the two views is correct because h9re
delegation is in favour of an anandravan, though
not tho seniormost anandravan.
The decisions referred to above thus recognise
that by a family k;Jrar a. Karnava11's power of
management can be restricted and also that a
Karna van'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 law has to be borne in mind. 'l'he con·
cept is that the properties belong to all the members of the Tarwad and that apart from the right
of management the Ka.rnavan has no larger right
or interest· than the other member~. This is clear
from the decision of Sesha.giri Ayyar, J., in
Gooindan Nair's GaBe (') ~nd the decisions referred
to therein. By virtue of his status the Karna.van
owes certain duties to the mambere of the Tarwad
and one of such duties is to manage the properties
in the best interest of the members. Those to
whom the dutieK a.re owed may find that in their
own interest the duties can be beat performed by
an anandrava.n in pratioular ciroumstanoes. The110
would be good reasons to justify the delegation
of a Karna.van's power of management to an a.nan·
dravan by a family ka.rar and to uphold such hlrar.
Thus where for some reason the Karna.van is not
able to discharge his duties in respect of manage-
(1}
( 1889) l.L.ll. 12 Mad. 219,
(2) , 1912\ 21 M.L J. 706.
A
•
.•·
""
I
J
l
I
·I ,•
-
2 S.C.R.
SUPREME COURT REPORTS
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 p· eriod 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 a.a incompetent the necessary
-"'
result would be that the interests of the family
would suffer. It is by no means a practical propo·
sition to expect the family members to approach
t
the Karnavan, whim he is at some far .off corner,
for his consent in reg\U'd to each and every transaction, be it sale, mortgage or lease. Again it ml).y
be too expensive for the Karna.van to coine all the
way back to his native place whenever an ocm1sion
arises for alienating or encumbering the 'Tarwad
property for family necessity. No recognised con-
,;;. cept underlying the Marumakkatt.ayam law will
'< j
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 tarw"'cl carrying with it the duty to decide
during the absence of the Karna van . whether a
particular alienation should be effected for meeting
a family necessity is deltJgated to Jtukthiar so
that he. can exercise that power with the concurr-
·~ ence of the adult members during the absence of
:
the Karnavan as and whea occasion arises is a
:)
perfectly valid agreement.
Un the oth11r hand to ·
hold that this is permissible would be in consonance with the concept of joint ownership by an
the m,embers of the Tarwad properties and with
the settled legal position that the powers , of a
Karnavan could be r!lstrioted by, the consent of
...:. all, which, of course, inclucjes 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
196!
AnnacMriam
••
IJ.chutha M,,..n
Muaholkar J.
C. A""'!<h11iam
v.
Ac.btlo M 1no11
1004 SUPREME OOURT REPORTS [1963]
of management which is revocable oannot be regarded as a. delei.:ation of the oftlce of the Karna van.
The Karna.van continues to be Karnavan but
during his absence from the spot his managerial I·
powers are exeroisable by th'l Mukthiar. After he
returns he oan resume the manBJ!ement 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 suoh a power of attorney he does not fade
out completely and, therefore, there is no question
of its operating as renunoiation.
The power of attorney given by the plaintiff
No.
I to defendant No.
3 has quite clearly been
suppreBBed by them bnd 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 BBBUme 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. I
exeouted the power of attorney before leaving for
Borneo and thereafter several properties were
alienated by the Mukthiar in oonjunctions with
the other anandravans and none of the alienations
except the one in suit hBB been challenged by the
plaintiff No. 1 in all these years justifies the inference that the11e dispositions were in pursuance of
the power of attorney and also that the power of
attorney was itself executed by the plaintiff No.
.,..
'
y
''· I ..
I 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.
· '!"
Appeal allowed.