Dr. C. Annacheriam and Another v. Achutha Menon and Others

Judgment

Commi•siontr of J ntom~·kix JlylOf't SU?Gr Co., Ltd. ll'ilaJ•lullah J. J96t Ma.13. 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 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 · tojustify 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 • 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 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, • 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 .teAulh•N- Mudholkar J, i~6• C .... ~ch.foAm Ac•u.tM M t11on Mudltolkor J, 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. (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. (6) That the defendants 2, 4 and 5 who had joined in the sale deed had obviously t 2 s.c.R;

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' C. Anhache1 iam Achullio Mmon MuiJ!ro/kar .1. J9SJ C. Au•ciltiam AdufA:s Al,r.ott 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: The non-joindn of the Karna van in the execution of the •le deed; I I 2 s.c.R. (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 C. ~nnacklriam Adlul.\aM,,... MudAolkorJ. C • .J.nnache1iarn ..4chutlra M#non. . Mudholk.; J. defendant .No. 6, a person ;cultivating the lands· under the defendant No; 1, are these:

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 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 C. Annae/ieriam Achutho M~on Mudko/ktll' J. IHI o. •= t t.i.111 A<-M- .lfWWarJ. 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 execut- Ad 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• 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 plaintiff No. 1 to enable the third defendant to a.Ii- AcWAoM- enate 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 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 obtaining 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 A,lwdao M1rtan MudlNlh• J. 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 resumption 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. . 2 S.C,R. 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 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 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."

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 AclRdha Menofl Mudholkar J, 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. 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 thedocument 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. C.A ............ lom A.Aul/lo Menon Mud/toUar J. 1g62 C. AmracMiam Ac!ulha M,... MudkoUar J. 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- ( 1889) l.L.ll. 12 Mad.

219, (2) , 1912\ 21 M.L J. 706. I J l I ·I ,• 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 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.