TMI Blog1962 (5) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... ore us, for a consideration of ₹ 8,000/-. Out of the amount of ₹ 8,000/-, a sum of ₹ 5,250/- was required for discharging the debt due under a mortgage decree against the tarwad. 3. The grounds on which the sale is challenged by the plaintiffs are briefly theses : (1) That the sale outright of the suit properties for ₹ 8,000/- was not justified for satisfying the decretal debt of ₹ 5,250/- because the prevailing price of immovable property would be ₹ 40,000/- or so. (2) That the sale was effected by a collusion between the first defendant and the third defendant Karunakara Menon who was the Mukthiar of the plaintiff No. 1. (3) That upon a proper construction of the power of attorney the Mukthiar could execute a sale deed only if the Karnavan in his discretion thought it to be necessary for meeting the pressing needs or for the benefit of the tarwad to effect it and that as the Karnavan had not consented to the execution of the sale deed it is not binding upon the Tarwad. (4) That if the power of attorney is construed as having vested in the third defendant with the discretion and judgment of the Karnavan regarding the necessity and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rably that the plaintiffs and other members of the tarwad are attempting to defeat her just rights. 6. Then again, according to her, on proper construction of the power of attorney it would appear that the third defendant was authorised by the plaintiff No. 1 as Karnavan to act on his behalf in all matters relating to the tarwad. She also contended that it was wrong to construe the power of attorney as amounting to a delegation of the whole of the power of the Karnavan. She, however, admitted that at the time of the execution of the sale deed it was not possible to get the written concept of Karnavan, the plaintiff No. 1 Reference was made by her to several similar transactions entered into be the defendant No. 3 in which the other adult members of the family has joined and it was pointed out that none of them has been challenged by the plaintiffs, suggesting thereby that they accepted the validity of transactions of a similar kind. 7. The trial court held that the sale in favour of the first defendant was binding on the tarwad and dismissed the suit. It may be mentioned that in addition to the claim for possession of the property in the suit the plaintiffs had asked for mesn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) Where all members of the tarwad join in the execution of a sale deed the question of delegation by the Karnavan does not arise. (2) Where a Karnavan challenges a sale on the ground that his Mukthiar had not obtained his consent for effecting it that sale cannot be set aside unless the Karnavan proves the terms of the power of attorney and also proves that he did not assent to the transaction. (3) When a Karnavan impugns a sale because it was effected by virtue of a power of attorney which according to him amounts to a delegation of his powers as Karnavan the sale cannot be set aside unless the power of attorney is itself produced. 11. 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 non-production. It would appear from the averments made by the defendant in the written statement that she had taken out summonses both against the plaintiff No. 1 and defendant No. 3 to produce the power of attorney in court but they neither produced it not made a statement on the point. 12. Relying upon certain passages in the late Mr. Justice Sundara Aiyar's Treatise on Malabar and A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... labar. Where a Karnavan's rights are so restricted by common consent which necessarily includes his own consent - he cannot ordinarily dispute the binding effect of the karar upon him. 14. The occasion for the execution of the power of attorney by the first plaintiff was admittedly the fact that the Karnavan left his native place for Borneo where he had taken up an appointment. The senior Anandaravan in the Tarwad was defendant No. 2 but he was holding a post which the Madras Government which required his being away from the family house during the whole of his service. Karunakara Menon, the third defendant was next in seniority and as he was residing in the family house the first plaintiff Achuta Menon executed the power of attorney in his favour. We may incidentally mention that Leelavathi Amma the 5th defendant in suit is the wife of one Dr. P.B. Menon of Calicut and as she lives with him there she could not have been able to look after the family property. Nor again could the forth defendant Govinda Menon attend to the work because he was also employed elsewhere. The family was clearly in difficulties and, therefore, according to Mr. Nambiar, it was essential for Achuta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is nothing in principle in the position of the Karnavan opposed to renunciation by him of his office of Karnavan. They say that just as trustee may renounce his trusteeship with the sanction of the court or assent of the beneficiaries a Karnavan, who, though he holds a fiduciary position and yet is not a trustee, can also renounce. But since a Karnavan is not bound to render any account or to pay to the tarwad any surplus in his hands the reasons which exist in the case of a trustee to obtain the concurrence of the beneficiary before renouncing trust do not exist in the case of a Karnavan. Then they point out at p. 196, It is decidedly for the benefit of the tarwad that such power of renunciation should be recognised. An unwilling Karnavan usually makes a bad manager. In conclusion they held that it will be open to a Karnavan of a tarwad to renounce his Karnavanship including his right to manage tarwad affairs. This view has not since been departed from. 17. Though a Karnavan can thus renounce his office he cannot delegate or transfer that office. For, if he renounces his office the senior anandaravan has a right to succeed him as Karnavan and the rights of senior anandaravan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther's tarwad. Referring to this decision Seshagiri Ayyar J., observed in Krishnan Kidaya v. Raman I.L.R. (1916) Mad. 918. The karnavan has two capacities - a temporal and a spiritual one. In the former he is the manager of the family properties, maintains the union members, represents the tarwad in transactions with strangers, etc. In his latter capacity he presides at the ceremonies and performs all the religious duties which are incumbent on him. A stranger cannot supplant him in this latter office : but I fail to see why his duties as manager could not be delegated to a stranger. If a receiver as appointed pending a suit for the removal of a karnavan, this officer will have all the rights of a karnavan so far as management is concerned. An agent who acts with the consent of all the members in managing the temporal affairs of a tarwad cannot be in a worse posit on. 21. For these reasons he held that a family karar which gave the management to a person who had ceased to be a member of the tarwad was good and effective. This decision has been referred to by the learned Judges of the Kerala High Court in their Judgment under appeal but they have apparently regarded th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er cases. For the purposes of this case it is not necessary to say which of the two views is correct because here delegation is in favour of an anandravan, though not the senior most anandravan. 23. The decisions referred to above thus recognise that by a family karar a Karnavan's power of management can be restricted and also that a Karnavan's power of management can be delegated, so long as what is delegated is not the totality of the powers enjoyed by a Karnavan by virtue of his status. The question then is whether it follows from this that a Karnavan's duties 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. The concept is that the properties belong to all the members of the Tarwad and that apart from the right of management the Karnavan has no larger right or interest than the other members. This is clear from the decision of Seshagiri Ayyar, J., in Govindan Nair's case (1912)23MLJ706 and the decisions referred to therein. By virtue of his status the Karnavan owes certain duties to the members of the Tarwad and one of such duties is to manage the properties in the best inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt which is revocable cannot be regarded as a delegation of the office of the Karnavan. The Karnavan continues to be Karnavan but during his absence from the spot his managerial powers are exercisable by the Mukthiar. After he returns he can resume the management and carry on the affairs of the tarwad. Or again, the delegation being through a power of attorney he can in a proper case put an end to it by revoking the power of attorney. Thus, despite the execution of such a power of attorney he does not fad out completely and, therefore, there is no question of its operation as renunciation. 24. The power of attorney given by the plaintiff No. 1 to defendant No. 3 has quite clearly been suppressed by them and we are, therefore, entitled to infer from this fact that, if produced, it would have gone against the interests of the plaintiffs and other members of the tarwad. It would, therefore, be legitimate for us to assume that the power of attorney empowered the third defendant to sell family property with the consent of the other adult members of the family for family necessity if he formed the opinion that it was necessary to do so. The fact that plaintiff No. I executed the power ..... 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