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TMI Blog1961 (12) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of all the major members of the tarwad' as required by Section 21 of the Travancore Ezhava Act. Treating it as void, the plaintiff, on behalf of the tarwad, has instituted this suit to set aside the sale and to redeem the mortgage abovesaid. The 1st defendant contended inter alia that the suit, having been instituted more than 12 years after the execution of the impugned sale, was barred by limitation. 3. The Munsif heard the question of limitation as a preliminary issue, and held "...... a sale deed executed by the karnavan without the written consent of all the major members of the family is not void in law but is only voidable" and that since the sale has not been avoided within 12 years of its execution the plaintiff's tarwad was dis-entitled to any further claim on the suit property and therefore dismissed the suit. On appeal by the plaintiff, the Additional pistrict Judge held "section 21 of the Travancore Ezhava Act is mandatory and not directory, and in order to alienate the property of the tarwad the written consent of all the major members of the tarwad is absolutely necessary. The sale deed executed without the sanction of some of the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id requirements on the conveyance. The Munsiff held the sale to be voidable, but the Additional District judge held it void. 5. Before proceeding to analyse the precedents I would advert to the import of the expressions Void' and 'voidable' in law. as observed by Stone J., in Visweswara Rao v. Surya Rao, AIR 1936 Mad 440 at p. 443 Terms such as voidable and void, valid or invalid, may each be a littie misleading. According to his Lordship, even the Privy Council had, on certain occasions, Overlooked the strict import of these words. "The fact that the Privy Council have in certain cases, for example Sahu Ram Chandra v. Bhup Singh ILR 39 All 437 :AIR 1917 PC 61 and in Lachhman Prasad v. Sarnam Singh ILR 39 All 500 : AIR 1917 PC 41), used the words which suggest that such a transaction is void does not assist us. Their Lordships were not deciding the question whether such a transaction is void ab initio and so incapable of ratification or merely voidable." 6. 'Void' in common parlance denotes an empty space, and in legal parlance a nullity. A void transaction cannot be of any effect in the eye of law. It is non-existent. It can therefore be disregard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide a voidable contract may affirm it if Re thinks fit. That is involved in the conception of a contract being voidable." Needless to say, that if a contract or other transaction is void, it is nullify and there is nothing to be affirmed or validated. So much so, it is often said : a transaction that is void cannot be affirmed or ratified, 10. The expression is often used : 'void as against' a person or persons. In strict terminology, a thing cannot be void and valid at the same time. As Void' denotes a nullity, a thing which is void must be a nullity for all. It is totally non-existent. Therefore Void as against A' can mean only that A can treat it as void; or, in other words, A can avoid it. It is, strictly speaking, voidable at the option of A. 11. The expression 'void against the trustee in bankruptcy, was construed as. meaning voidable at the instance, of the trustee, and not as void so far 3s the trustee is concerned. In Re, Vansittart; Ex parte, Brown 1893 2 QB 377 it is observed : "The trustee in bankruptcy now says that, inasmuch as Section 47 enacts that the settlement is void, and not voidable, it follows that it is void altogether for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides , "Where an attachment has been made, any private transfer or delivery of the property attached.....contrary to such attachment shall be void as against all claims enforceable under the attachment." In Gangayya v. Venkataramayya, AIR 1923 Mad. 230 it is observed that this: "... ....Section is really one intended to benefit the decree-holders so that they may not be impeded by any alienation pending attachment in-executing their decrees. That benefit being for the decree-holder, we are inclined to think that he could waive the Benefit; and as in the present case,. the decree-holders had entered into an actual contract with the purchaser they cannot be permitted to go back upon their contract and insist upon the application of Section 64 in their favour. To allow them to do so would be clearly to perpetrate a fraud. We see nothing in Section 64 that necessitates such a construction as that." 13. It is thus clear that the use of the expression 'void as against the tarwad' means only that the involved transaction is 'voidable by the tarwad', and not void as regards the tarwad. If a transaction by karnavan is not a nullity and is not ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alidity. as the execution.....was in contravention of a statutory provision....the sale was a nullity and did not pass any interest to the vendee." But on appeal it was held by the High Court: "No doubt under S. 21 of the Ezhava Act (Act 3 of 1100) as between the members of the tarwad a sale deed executed by a karnavan without the written consent of the other major members of the tarwad would not be valid. It cannot however be said that the sale deed would be invalid for all purposes. Supposing, for instance, that in spite of the absence of the .written consent of the adult junior members of the tarwad, junior members do not Question the deed, or choose to ratify it subsequently; it could not possibly be argued that the document is invalid Or void ab Snitio on account of the absence of the written consent of the other members of the tarwad. Section 21 of the Act does not say that a sale deed executed by a karnavan or other managing member without the written consent of all the major members shall fce void in law. All that the section can reasonably mean is that such sale deeds, mortgage deeds, or Jease deeds as are specified in the section cannot bc valid or operative a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ezhava Act, but will only be voidable at the instance of the tarwad. It is upto the other members of the tarwad either to affirm or to avoid It; none other will be heard to challenge the alienation. 19. Now, I will turn to the decisions of the Cochin High Court. Section 28 of the Cochin Nayar Act, XIII of" 1095, provided: "Except with the written consent of all the-major members of the tarwad, wherever Possible, no karnavan or fhe manager for the time being, shall sell tarwad property, movable or immovable or lease it for a period of more than 6 years or mortgage it with possession or pledge or hypothecate it or give discharges of mortgages with or without possession." Referring to this section, it was held in Meera Rowthan v. Kamakshi Amman, 15 Cochin 143 : "It is true that the said mortgage deed has been executed by the 2nd defendant alone and that there is nothing on record to show why he did not try to obtain the written consent of all the other major members of his family for its execution. But here also I do not think that it is open to a stranger like the 1st defendant to call in question the validity of the mortgage deed on the said ground. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "It was settled law before the Nayar Act that there can be no partition unless all the members of the tarwad consented to it. But it was held in Kalliani Ammal v. Narayana Menon 45 Ind Gas 758: (AIR 1918 Mad 286) that a partition may be ratified by persons who were not originally parties to it, Mr. Varugis J., in Cheenu Amma v. Ramankutty Menon, 16 Cochin 202 at P. 204, similarly observed that ratification by conduct by an absent member on his return was sufficient and that the defect that the document may have had originally for want of his signature was sufficiently cured by his subsequent acceptance of the document. Similarly, an alienation even of tarwad properties which requires the consent of all the members could be ratified, be it the act of the karnavan or even an anandaravan in management (see pages 36 to 38 of Sundara Ayyar's Malabar Law). Then the question is whether the written consent of the members should be procured, before the several acts referred to in Section 28 are carried out, and it not so procured, whether they could be ratified and the defect cured. The section does not lay down that the written consent should be previous. In enactments where p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as enacted to protect the rights of the tarwad against the improper and improvident acts of its karnavan, and so long as the other members of the tarwad do not choose to challenge an alienation made by him, there is no reason for regarding it as null and void ab initio, so as to put it in the power of a tenant or any other person who is a stranger 'to the tarwad, to ignore it and thereby evade his own obligations. The alienation must be held to have the character of a void transaction only so far as the members of the tarwad are concerned, and not as against the rest of the world. That the word 'void' appearing in a particular collocation may mean voidable is dear as for instance from Section 54(1) of the Cochin Insolvency Act, VII of 1098, where the words used are Void as against the receiver'. We are of opinion that Sough the words Void as against the other members of the tarwad' do not Occur in Section 28 of the Act of 1095, the effect, taking into consideration of the objects of the Act appears to be the same". Referring to Ss, 9 and 10 of the Cochin Nambudiri Act 17 of 1114, his Lordship continued ; ".......it is clear that the only consequence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch alienations. The first case arose with reference to an alienation made by the karnavan of a Nayar tarwad without obtaining the written consent of all the major members of the tarwad, as enjoined by Section 28 of the Nayar Act (Act XIII of 1095), and a Division Bench of this Court consisting of Varugis C. J., and Nambiyar J. held that it was not open to a stranger to the tarwad to call in question the validity of such an alienation- (See 15 Cochin 143). This decision was recently followed in 37 Cochin 96 where the question was whether an alienation made by the karnavan of a Namboodiri Illom in contravention of Section 9 of the Namboodiri Act (Act XVII of 1114) can be challenged by a stranger to the illom. The answer was again in the negative. We are not inclined to think that the appellant in this case is in any letter position than the defendants in those cases were. The appellant is fin absolute stranger to the Devaswom and in our view the validity of the suit document can be challenged only by the succeeding trustees or by anyone for and on behalf of the trust and not by a stranger...... We follow the two Cochin cases referred to and on the authority of those cases hold that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior possessory mortgage impleading the subsequent Purchaser also as the 3rd defendant in the case. The defendants contended that the sale to the plaintiff was void for want of consent of all the members of the tarwad. "It was held, after a review of precedents; ".........it is clear that the 3rd defendantcannot contend , that Ext. D is a void document on the ground that consent of other members has not been proved. Its validity can be questioned only by the other members of the family. Thus he cannot resist the plaintiff's claim on this ground. The mortgagee's position also is the same. Though he can ask the plaintiff in a redemption suit to prove how he traces his right to the mortgagor, still he cannot challenge the validity of an assignment purporting to transfer the mortgagor's right in favour of the plaintiff on the ground in question here..... So the fact that Ext. D and the subsequent consent deed relied upon by the 3rd defendant (Plaintiff) do not evidence the consent of all members of the Kottarathu; Matom, whereas Ext. K and the subsequent-consent deeds represent all the adult members, does not help the 3rd defendant .... his title to redemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rally accepted and correct View is that expressed in (ILR 44 Mad 140:AIR 1921 Mad 376), according to which no stranger is entitled to question any alienation of tarwad property by the karnavan. 32. Now, I will take the rulings of the Kerala High Court on the question. In Sankara Pillai v. Ittiara referring to Section 5 of the Travancore Malaya . Brahmin Act (3 of 1106) Raman Nayar J., with the concurrence of Sankaran J., observed: "....it is settled law, that an alienation by a karnavan in excess of authority is not an entire nullity and that it is a transaction which the junior members of the family can, it their choice, either affirm or avoid."; and on the facts of the case, held: "Ext. A, the sale deed in favour "of the plaintiffs by all "the members of the Mana expressly states that the sale is subjeci to the mortgage in favour of the 1st defendant and is therefore an affirmance of that mortgage. It would have been a different matter if the sale deed had said that the Mana was not bound by the mortgage or if the mortgage had been altogether ignored." 33. The matter has also come up for consideration recently before niy learned brothers and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsaction not in conformity with Section 21 of the Ezhava AcB is apparently held to be Void, ineffective and not binding on the tarwad,' I venture to say, adopting the language of Stone J. that his Lordship was not deciding the question whether such a transaction is void or merely voidable but did say in conclusion that it was /'liable to be set aside as not supported by consideration and tarwad necessity". I presume, with due respect that the alienation was not held to be really void in the strict meaning of the term, but only "as liable to be set aside" which indicates that it was only voidable in strict legal language. 35. In Thuppan Namboory v. Kunhiruama, S. A. No. 53 of 1954-E, D/- 15-6-1961 (Kerala), I have observed: "Even if the creation of a fresh lease by the karnavan had not the concurrence of the other members, of the Illom, the tease cannot, in my view, be treated as a nullity in the eye of law. The provisions of Section 9 of the Nambudiri Act and the parallel provisions in other enactments concerning communities following the Marumakkathayam law, have been held time and again by the Travancore High Court, the Cochin. High Court as also by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a par in this respect with the power of the karnavan of a tarwad. With regard to an alienation of debutter property by the shebait in the absence of necessity, our Supreme Court) has held in Raja Rameshwar Rao v. Raja Govinda Rao, AIR 1961 SC 1442 at p, 1449. "It is true that the manager of a temple has generally speaking no authority except in certain circumstances to grant a permanent) lease of temple property; therefore a permanent leass granted by the Manager of a temple may be voidable but is not void ah initio and so unless it is avoided by the succeeding manager, it may not be rendered inoperative." The position of a karnavan in regard to an aJic-nation of tarwad property without legal necessity cannot be far different from that of a manager of Mithakshara Family or the shebait of a Hindu temple. 40. Counsel for the plaintiff contended that the provisoins of the Section are imperative and its imperativeness gains further force because of its prohibitory form making any conveyance in violation thereof forbidden by law and therefore illegal and void. 41. The fact that a statutory provision is mandatory in form need not necessarily indicate that any violation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission of the court. (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of his ward, or (b) lease any part of the property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor. 30. A disposat of immovable property by a guardian in contravention of either of the two last foregoing sections is voidable at the instance of any other person affected thereby." The first mentioned section commands that the guardian "shall not" mortgage or sell the ward's property; but the effect of a violation thereof is stated in the next section to be only to make the alienation voidable at the instance of the person affected. 44. It is thus clear that nothing turns on a rule being imperative in form. The question, whether a contravention thereof would lead to a total nullification of the transaction or only to an invalidation making it voidable at the option of the person prejudiced thereby, depends not on the form but on the purpose of the enactment. If the provision is designed to promote public interests, its contravention would entail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Here the offending transaction is not as such invalidated though it may not bind the tarwad1. Thus different effects are contemplated in these different sections by the legislature. It is at the maximum in Section .21 and at the minimum in Sections 23 and 27. Therefore a contravention of the provisions in Section 21 must have a deeper effect than mere invalidation which is the penalty under Section 22. In other words it must be held to nullify the transaction, to make it null and void, or void ab initio. 46. I do not feel persuaded by the above argument. Nor do I see any difference "in consequence? being contemplated in Sections. 21 to 23 of the Ezhava Act. Sections 21 and 22 deal with real property (jus in rem) while Section 23 deals with personal property (jus in personam). Naturally therefore a difference in wording is bound to be between Sections 21 and 22 on the one hand, and Section 23 On the other. as the karnavan is only a representative of the tarwad, which is the real proprietor of the property concerned, he cannot have an absolute power of disposal and can alienate the property only for purposes of the tarwad. It then follows that tarwad necessity and receipt of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sure to get ample opportunity to resist deprivation of its property when the liability is sought to be enforced against it. Hence, the observance of the safeguards are not insisted in regard to the transactions as such. Therefore the section is enacted as 3 mere warning to the creditors that a debt will not be enforced against a tarwad unless it has been contracted for a tarwad necessity. Section 27 stands on a different footing It is not a rule of dealing with my property, but a rule of procedure in litigations. It provides for an effective representation of the tarwad in suits against the same. 47. Reference may, in this connection, be made to certain rules of construction of statutes. In Craies on Statute Law, 5th Edn., page 248, it is observed: "(ix) Conditions dispensed with if merely for benefit of particular class. - If the object of a statute is not One of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered as being indispensable. This rule is expressed by the maxim of law, quilibet potest renunciare juri pro se introducto. So also, if a st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is left to the members of the concerned tarwad to affirm or avoid transactions offending Section 21 of the Travancore Ezhava Act has been held in 21 Trav LJ 1001. The decision in though concerns the corresponding provision of the Malayala Brahmin Act 3 of 1106, is also to the same effect (See paragraph 32 supra). Referring' to a 'wrongful alienation by the karnavan' Sundara Aiyar in his treatise on Malabar and Aliyasanthana Law, page 154, observes: "It is not a void act, in the sense that it is incapable of heing ratified by the family". 52. A contrary view was_ however, taken recently by M.S. Menon, J., a'nd Raghavan J. in Pailoth v. Arya Antharjanam 1961 Ker LJ 910. The ruling in 1958 Ker LT 220 by a Bench of this Court does not appear to have been cited before their Lordships in that case. 25 Cochin 603 (FB) was relied on to hold "that a document which was executed in violation of Section 28 was absolutely void and of no legal effect", 37 Cochin 96 for the position: "The alienation must be held to have the character, of a void transaction only so far as the members of the tarwad are concerned and not as against the rest of the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void and of no effect" must necessarily be competent also to treat it as valid and of full effect as well. It must then be within the option of the members of the tarWad to affirm it or avoid it. In other words_ a subsequent ratification, or more correctly, affirmation is possible at law. To the extent the abovesai(j decision declares the offending transaction to be impossible of subsequent ratification I am constrained with due respect to disagree with the same and follow : (A1958 Ker LT 220 to hold that the transaction is one "which the junior members of the tarwad can, at their choice, either affirm or avoid". 54. Counsel for the plaintiff-respondent appears to have become desperate as he contended that the provisions of Section 21 of the Travancore Ezhava Act, 1100, limit the representative capacity of a karnavan in the matter of dealing with the properties of the tarwad and that he has no power to alienate them except on satisfaction of the conditions laid down by the section. I do not see any force in this contention. The karnavan is the accredited representative of the tarwad. To all except the members of the concerned tarwad he represents the tarwad and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) is an authority for this position. At page 877 of the report (ILR Mad): (at p. 301 of AIR), we find the observation: "We cannot uphold Mr. Rangachariar's contention that wherever a transaction is voidable it can be avoided only by getting a decree of Court: setting it aside. The party who is entitled to avoid may do so by an unequivocal act repudiating the transaction. ......If Rajagopalan after attaining majority should wish to repudiate the lease, there can be no doubt he can do so without a suit." 57. Again in Abdul Rahman v. Sukhdayal Singh, ILR 28 All 30, a minor who has sold the property which his guardian had leased out to the! defendant was held to have validly repudiated the transfer by his act. Richards J., observed that it is not necessary that a suit should be instituted to set aside the lease which was executed by the guardian of the minor. To the same effect are Jagdamba Prasad Lalla v. Anadi Nath Roy, AIR 1938 Pat 337 and Sivanmalai Goundan v. Arunachala Goundan, AIR 1938 Mad 822. 58. Trevellyan in his well-known book oa Minors, 5th Edn., at page 202 states; "A transaction which is voidable at the instance of the minor may be repudiated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file a suit to have it set aside. He can ignore it and recover possession of the property if the acts of the karna-van cannot be said to be within his powers". 61. It is therefore clear that a junior member can treat an invalid alienation of his tarwad property as void, ignore it and sue to recover the property, and that no suit for its rescission as such is needed. 62. The question then arises whether he can do that without any limit of time for its exercise. Here two principles come into play, viz., (1) a junior member is entitled to repudiate the transaction, and for the exercise of a legitimate act by a party law has not set any limit of time, (2) if a party wants the aid of the process of Court to work out his rights, he must necessarily come within the period prescribed by the law of limitation for actions. The answer to the question posed above must therefore be a reconciliation of the above two principles. (63) It is convenient here to classify cases of invalid alienations of tarwad properties under three heads, namely: (i) Where possession of the property concerned does not pass to the alienee but continue with the tarwad itself; (ii) Where possession has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n although a suit by him to have the instrument set aside or cancelled would then be time-barred under either Article 44 or Article 91 of the Indian Limitation Act ....... Section 3 of the Indian Limitation Act refers only to the remedy of the plaintiff and not to his rights, and even though the remedy may be barred, the right may exist, but it is clear that it does not refer at all to a defendant....... All that the Limitation Act does is to take away the remedy of a plaintiff to enforce his rights by an action, and it is open to a defendant to put forward any defence though such defence as a claim made by him may be barred on the date it is put forward. I am supported in this by the observations of their Lordships of the Privy Council in .Where the title of a person in possession is challenged, he may set forth any defence in favour of his right to the property and the statute will not run so as to prevent him from setting forth any such relief." To the same effect may be cited Sant Bux Singh Ali Raza Khan 68. We have seen that in case the possession of the property is with the tarwad in spite of the invalid alienations mere inaction on the part of the tarwad in having i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; a declaration to that effect before action brought is not necessary as a matter of law, though generally speaking the prudent course is to repudiate as soon as possible." 72. The next case is of an alienation coupled with transfer of possession. The tarwad having lost the property has to regain the same by a suit for its recovery. Every suit has its Own period of limitation prescribed by statute. No court will entertain a suit brought beyond the time allowed by the law of limitation. Section 23 of the Limitation Act goes further and says that the right to the property shall be extinguished at the expiry of the period prescribed for a suit for its recovery; and as a consequence courts have held that the title will then vest in the alienee in possession. It then follows, as a corollory, that if possession passed with the alienation, the tarwad has necessarily to institute a suit for recovery of the property within time allowed by law. 73. The Privy Council has held that in such cases the suit cannot be for possession merely. I The cause of action is not the transfer of possession; it is the alienation that passed the possession; and therefore the suit must be to set aside! ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescission in pais cannot entitle him to sue for any other relief on the basis that the contract has been set aside though, as a defendant, he may be allowed to defend his possession in a suit brought by the other party......." 77. It is therefore clear that, if possession accompanied the alienation and continued unchallenged with the alienee for a period of 12 years, he gets an indefeasible right to the property. 78. I now turn to the third case formulated above, that is of alienation of an incorporeal right in one already in possession of the property, A typical instance is the present case of a sale of the equity of redemption to the mortgagee in possession. 79. It is well settled that a mortgagee cannot by a mere assertion of his own, or by a unilateral act on his part, convert his possession as mortgagee into that of an absolute owner. But, if the mortgagor agreed with the mortgagee to end the mortgage and constituted the latter the owner of the property, though the document in which that agreement; was expressed be invalid in law the possession thereafter of the quondam mortgagee would be that of an owner and if 12 years of quiet possession have been completed therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o find that there was such an acquiescence on the part of the mortgagors as amounted to a release of the equity of redemption. In other words, where both the mortgagor and the mortgagee agree by a transaction, to which they are parties that the character of possession as mortgagee should change into that of possession as absolute owner in spite of the invalidity of the transaction to convey title at once, the possession so given can operate on the expiry of the statutory period to create title by adverse possession. .......It is the consensual act of the parties, and not merely the unilateral assertion of the mortgagee alone which has the effect of wiping out the equity of redemption," 82. Again in Sukhdeo Singh' v. Lekha Singh, AIR 1957 Pat 502 the Bench summarised the position of law thus: "A mortgagee cannot, by a mere assertion of his own or by a unilateral act on his own part, convert his possession as mortgagee into that of an absolute owner. The bilateral acts of the parties though Invalid, and. therefore, inoperative, to convey title on the dates of those transactions, would operate to give adverse possession, which if continued for the statutory period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a defence to a suit for redemption if the parties are otherwise entitled to redeem." In AIR 1960 SC 85 the usufructuary mortgage was by two brothers of their common property and the subsequent sale of the equity of redemption was by one of them only. The heirs of the other brother having sued for redemption of the mortgage, the mortgagee set up title by long adverse possession. Our Supreme Court observed: "It should be remembered that the mortgagees came into possession of the property pursuant to the usufructuary mortgage. Therefore their possession had a lawful origin. A mere assertion of an adverse title on the part of the appellants (mortgagees) cannot affect the subsisting equity of redemption of the mortgagors or operate to shorten the period of limitation prescribed for a suit for redemption." It may be noted that, in these two cases, the cosharer who sought to redeem his share, had not agreed with the mortgagee to transfer his share of the equity of redemption nor was there a proceeding to that effect binding on him. According to precedents, what changes the character of possession of the mortgagee is the act or express consent of the mortgagor and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enation, either directly or collaterally." but did not see the applicability of this principle to the case before him. 87. The matter pointedly arose in Ramanatha Pillai v. Sivathanu Pillai Krishnaswami Aiyar C.J., (with the concurrence of Abraham, J.) look the same view as is expressed in paragraphs 81 and 82 supra, and held as follows : "There is no doubt that in the absence of anything to the contrary a mortgagee by himself ........cannot convert during the period of his mortgage the character of his possession from that of a mortgagee. But at the same time it must be conceded that if the owner of the equity of redemption purports by a later transaction to confer the equity of redemption On the mortgagee the mortgagee's possession as such ceases by the assent of both parties to the transaction and the possession of the mortgagee thereafter becomes the possession of an owner in such right as is deemed to he vested in him. If the later transaction be a valid transaction, the adverseness and the lawfulness of that possession become coalescent. If the transaction of the transfer of the equity of redemption happens to be invalid for any reason then whatever might be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale-consideration with the purchaser to be paid to the mortgagee in discharge of the mortgage, the purchaser is only constituted the agent of the seller to redeem the property with the seller's money. If then the purchaser redeems the property with such amount and enters possession thereof it is as if the seller himself redeemed the mortgage and sold the property with possession to the purchaser. The case then comee within category (2) discussed in paragraphs 73-77 supra. In the eye of law, the case cannot be different if the mortgagor, instead of selling the property to a third person and depositing with him sufficient amount to discharge the mortgage, sold the equity of redemption to the mortgagee himself. The same principle must apply to both the cases and the same legal consequences must follow. 89.. Here, the mortgagor is the tarwad whose visible representative is the karnavan. The karnavan has sold the equity of redemption to the mortgagee, 1st defendant, though ultimately it turns out that the sale was Invalid. as soon as the mortgagee got a transfer of the equity of redemption from the karnavan of the tarwad his possession as mortgagee ceased and possession as ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is too well-settled to require restatement that no stranger could be permitted to impeach an alienation on the ground that the tarwad had acted in disregard of statutory provisions designed to safeguard its interests. Even according to counsel for the respondent, a nullity against some persons only and not as against others, is an impossibility and a contradiction in terms. The passage in the judgment in 37 Cochin 96 extracted in the judgment of my learned brother Madhavan Nair, J. in which the learned Chief Justice drew on the analogy of the expression "void as against the receiver' in Section 54(1) of the Cochin Insolvency Act, which has been cbnstrued to mean "voidable at the instance of the receiver, leaves no room for doubt that he employed the term "void" only as meaning voidable at the instance of the tarwad. The course of judicial decisions has been surveyed by my learned brother and I feel that the preponderance of judicial opinion is in favour of the view, that an alienation in disregard of these statutory requirements is only voidable at the option of the members of the tarwad and is not void. 93. I also feel, that much does not turn upon the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions, namely "void" that is "absolutely void' or "void against the whole world,' and voidable. According to them there cannot be a third kind of transactions, namely "void as regards some persons." This controversy as to whether there can only be two kinds of transactions, namely 'Void against the whole world" and "voidable" or whether there can be three kinds of them, namely "void against the whole world", "void against some persons'" and "voidable" has been commented upon by Markby in his Elements of Law, 6th Edn. at p. 143 thus: "274. English writers on law generally assume that all the cases in which the legal result of an act is affected by these special circumstances may be covered by saying that the act is Void' or 'voidable'. But these are words of very uncertain meaning. The word Void' means, I think, devoid of the legal result contemplated. The word Voidable' means that the result may be made Void' by some one. But by Whom and by what process? Continental lawyers make a triple division. First they set apart those cases in which the contemplat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o mortgage with possession of tarwad property, or lease with premium of such property for a period of with 12 years or less, shall be valid, unless it is executed for consideration and tarwad necessity, and with the consent of all the major members of the tarwad. Such necessity and consent may be presumed to exist, if the transaction has the written consent of the senior Anandaravan of the Karanavan's Thavazhee, and of every thavazhee collateral to the same, if any. without any premium therefor, in respect of tarwad property, or incurs a debt, alleging the existence of tarwad necessity, such necessity snail, as between the mortgagee, lessee, or creditor on the one part and members of the tarwad who have not assented to the mortgage, lease, or debt on the other part, be presumed to have existed, if the mortgagee, lessee, or creditor, after using reasonable care to ascertain the existence of such necessity, has acted in good faith." Section 21 deals with either sale of tarwad Immovable property or mortgage with possession of the same for more than 12 years or lease for more than 12 years. Section 22 has nothing tc do with sale. It deals with mortgage with possession for 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consent in this case need not be in writing either. Section 23 is still less stringent and in this case to make a debf. contracted by the karnavan or the managing member binding on the tarwad the only essential condition is that if should have been contracted for tarwad necessity. The consent of the major members is not required at all in this case. Then comes Section 24, which deals with the presumption regarding tarwad necessity and it is noteworthy that this does not apply to cases covered by Section 21. 100. From the aforesaid consideration of the language of these sections I am inclined to come to the conclusion that in the case of a transaction contemplated by Section 21 the statute imposes an absolute prohibition on the karna-vans's powers, unless the conditions mentioned therein are satisfied. If those conditions are not complied with the transaction is a nullity as far as the tarwad is concerned and the other major members, whose consent should have been taken prior to the transaction, cannot later on ratify or validate the transaction so as to make it valid ab initio. On the other hand, a transaction covered by Section 22, according to me, is not an absolute nullit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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