The Judgment of the Court was delivered by

N.V Iyengar, J.:— This appeal is by the plaintiffs and is directed against the judgment and decree of the court below dismissing their suit herein for declaration of title and for recovery of possession.

2. The plaintiffs 1 to 3 and the defendants 2 to 5 are the members of the Kalipurayath thavazhi in Ponnani in Malabar. Of these, the 1st plaintiff and defendants 2 and 3 are brothers and the 5th defendant is their sister. They had another sister Lekshmi deceased, whose son is the 4th defendant. The plaintiffs 2 and 3 minors are the children of the 5th defendant. The plaint schedule items 1 and 2, 22 acres and 16 cents and 15 cents in extent respectively and consisting of Kole lands lying adjacent to each other in Talapilly Taluk in Cochin, appertained to the thavazhi. The 1st plaintiff Atchutha Menon became the karnavan of the thavazhi in December 1938 while still he was employed at Borneo, having gone there for the first time in or about 1930. The senior anandiravan in the thavazhi was Sivasankara Menon, the 2nd defendant who was employed in the Agricultural Department under the Madras Government. The next junior member was Karunakara Menon, the 3rd defendant who had settled down at the thavazhi house itself in Ponnani. To 3rd defendant therefore, the 1st plaintiff on becoming karnavan, gave power in writing to manage the thavazhi on his behalf. This power-of-attorney is not produced in the case. However from its description contained in Ext. 18 mortgage executed on its strength and accepted by both parties it would appear to have been executed on 22-3-1939 and also to have authorised the 3rd defendant among others to deal with the thavazhi properties “by way of sale and all other dispositions as mukthiyar agent of the 1st plaintiff”. On 17-6-1117 the defendants 2 to 5 executed and registered Ext. VIII sale deed in respect of the plaint schedule items 1 and 2 and for a price of Rs. 8,000 “for meeting the thavazhi needs” in favour of the 1st defendant Dr. Anna Cheriyan. The 1st plaintiff was made party to this sale by the 3rd defendant acting for the purpose under the power-of-attorney above referred to and the plaintiffs 2 and 3 minors were represented in it by their mother and guardian the 5th defendant. The consideration under the sale of Rs. 8,000/- was made up of (i) Rs. 5,250/- reserved with the vendee for discharge of Ext. 22 decree in O.S No. 19 of 1112 of the Trichur District Court and (ii) Rs. 2,750/- cash paid to the 3rd defendant before the Sub-Registrar. The decree provided for in the first recital was passed on 29-6-1113 corresponding to 11-2-1928 in favour of the Kshemavilasam Co., Ltd., of Trichur who were foremen under a chitty scheme against the thavazhi of the plaintiffs and defendants 2 to 5 as chitty subscribers for defaulted chitty subscriptions under prized ticket. At date of Ext. VIII the decree had been obtained assignment of by the 1st defendant's brother Varuthunni and steps were being taken by him for bringing the plaint schedule item 1 charged under the decree to sale in execution for realising the sum of about Rs. 6,300/- accrued under it.

3. The plaint averred that Ext. VIII sale was not binding upon the plaintiffs or their thavazhi for the various grounds detailed in clauses (a) to (i) in pargraph 6 and also in paragraph 7 thereof as to incompetency of the executants and want of consideration and necessity binding on the thavazhi. And as the 1st defendant had managed to get possession of the suit properties on foot of the said sale deed, the plaintiffs were entitled to recover back possession on the strength of the title of the thavazhi. The 1st plaintiff claimed to have obtained knowledge of the sale deed only on 30-12-1946 when he returned from Borneo. This suit was thereafter laid on 23-12-1122 for recovery by the 1st plaintiff as thavazhi karnavan of the plaint schedule properties with mesne profits at particular rate from date of plaint.

4. The 1st defendant resisted the suit by categorical denials of the plaint averments and also, set up a claim for improvements. Her brother Cheriyakku was later impleaded as additional 6th defendant as the person in possession on her behalf. He supported the 1st defendant. The rest of the defendants were ex-parte.

5. The court below in an elaborate judgment found against the plaintiffs on all the grounds for relief they had set forth in the plaint. It also found on the quantum of mense profits and improvements which the parties had respectively raised but in the light of its main finding that Ext. VIII was valid and binding on the plaintiffs and their thavazhi, it dismissed the suit. We are concerned in this appeal, with three only of the grounds on which the plaintiffs relied in their plaint, viz. (i) the non-junction in fact of the 1st plaintiff karnavan in Ext. VIII, which it was claimed was not made good to any extent, by the 3rd defendant acting under his Power, (ii) inadequacy of consideration for Ext. VIII and (iii) want of necessity binding on the thavazhi. And we may say at once that the second and third of these grounds raise no question of substance and can be easily disposed of but on the first which is more difficult the appellants are entitled to win.

6. Taking up the second of the grounds therefore to begin with, we notice that the case as to inadequacy of the price of Rs. 8,000/- under Ext. VIII was rested by the plaintiffs on the allegation that the properties were really worth Rs. 40,000/- vide paragraph 6(b) of the plaint. The plaintiffs did not however examine the 3rd defendant mukthiyar or any other member of the thavazhi who had executed Ext. VIII, in this connection. They did not also take out any commission to assess the value of the plaint lands on the relevant date. They were, on the other hand content with filing certain sale deeds of lands more or less adjacent for purpose of comparison of value and also examining P.W 1, owner of a land of almost equal extent nearby, as to the annual profits he was getting from his lands. The 1st defendant, on the other side, furnished various other sale deeds in respect of comparable property. There was also in her support the evidence as D.W 1 of the additional 6th defendant. Dealing with this evidence the court below found that of the sale deeds filed on either side, Ext. 20 dated 26-4-1117 and Ext. G dated 23-4-1117 were alone most near the date 23-4-1117 of Ext. VIII but they dealt with small areas, viz. 3 acres 81 cents and 1 acre 60 cents respectively contrasting with 22 acres 31 cents covered by Ext. VIII and again disclosed very great disparity between themselves in value. Thus they worked out a rate of Rs. 360 and Rs. 967 per acre as compared to Rs. 358 under Ext. VIII so as to show that Ext. VIII price was inadequate with reference to Ext. G. but not so with reference to Ext. 20. There was no reliable evidence, however, in the opinion of the court below from which to say what exactly was the nature of the respective properties. The oral evidence was also very contradictory. For while P.W 1 swore to his getting from his property about 1300 paras of paddy in 1128 Edavam, the 6th defendant spoke to an estimate of only 600 paras as gatherable from the plaint lands at the time of Ext. VIII sale in 1117, because “a large portion thereof was unfit for cultivation”. The 6th defendant at the same time had affirmed that the price under Ext. VIII was fixed on the basis of yield. So the court below accepted such basis and calculating the maximum possible yield of 1300 paras of paddy at the rate of the prevailing price in 1117, viz. 8 annas per para the court arrived at a gross income from the lands of Rs. 650. Deducting therefrom the tax of Rs. 95 there followed only a net income of Rs. 565. On this basis according to the court below the amount of Rs. 8,000 fixed in the sale deed could not be said to be inadequate.

7. Learned Advocate General appearing for the appellants questioned the above finding of the court below mainly on the strength of Ext. 21 sale deed dated 20-4-1117 and produced by 1st and 6th defendants themselves. He said this sale deed was still nearer in date to Ext. VIII than Exts. G and 20 sale deeds referred to by the court below and showed a prevailing rate of about Rs. 488/- per acre, viz. far more than that adopted in Ext. VIII. It is no doubt true that the court below was not quite correct in its observation that Exts. G and 20 were nearest in date to Ext. VIII. But the criticisms which rightly it levelled against those documents are equally applicable to Ext. 21 and we have therefore only to discard Ext. 21 and accept the estimate made by the court below. There is again the outstanding circumstance that all the major members of the tarwad apart, of course, from the 1st plaintiff were parties to Ext. VIII and there was no conceivable reason why they should favour the 1st defendant at the expense of the thavazhi and go in for an undervalue. Indeed with the giving up before us, of the allegation in the plaint as to collusion between the parties to Ext. VIII, this question of low value can have no significance. We hold therefore with the court below that the question of the inadequacy of the sale price under Ext. VIII has no place in adjudging its validity in this case.

8. We go now to the aspect of necessity covered by the third ground taken before us. The plaint allegations on this matter had proceeded on the assumption that the value of the properties was very considerable and that the discharge of the decree-debt in O.S No. 19 of 1112 mentioned in the first recital, did not therefore in any event justify the outright assignment of the suit properties. This argument lost much of its force in the light of the finding of the court below just confirmed by us that the sale price of Rs. 8,000 under Ext. VIII was quite adequate. It appeared also from the evidence that plaint item No. 1 was outstanding under attachment in execution of a small cause decree in S.C No. 159 of 1936 of the Ottapalam Sub-Court for about Rs. 400 from Edavom 1115 and the decree had been transferred to the Vadakkancherry Munsiff's Court towards further steps in execution by way of sale. The discharge of this decree was without doubt an urgent necessity and we see it was actually paid off on or about 22-6-1117 apparently by the 3rd defendant and from out of the Rs. 2,750 he received under second recital in Ext. VIII. There was no doubt no poof as to the exact purpose for which the balance of Rs. 2,350 in the 3rd defendant's hands was utilised. But there was evidence generally that the thavazhi of the plaintiffs and defendants 2 to 5 already embarrassed in its financial affairs at date of Ext. VIII continued to be so still later. It was possible therefore that the 3rd defendant used the amount left with him for getting necessary relief on that account. It may be recalled that Ext. VIII to which the major members of the thavazhi with the exception of the 1st plaintiff were parties, acknowledged the necessity from the point of view of the thavazhi to raise the consideration under it and indeed they got under it a reduction of about Rs. 1,300 in the liability under the decree in O.S No. 19 of 1112. The 6th defendant as D.W 1, also swore to the representation in that behalf made by the 3rd defendant during the stage of the negotiations and his bona fides satisfaction from his own enquiries that Ext. VIII was really called for. If so there can be no doubt that Ext. VIII is not wanting in necessity binding on the thavazhi.

9. Learned Advocate General says that the 6th defendants's enquiry as to the necessity of Ext. VIII would appear to have stopped with the 3rd defendant and if so, it would not suffice in law and he referred to Girdhari Lal v. Mohr Din, A.I.R 1935 Lah. 42. The learned Judges were there dealing with an alienation by the manager under Hindu Law of the joint family property and laid down that for the alienation to be binding on the family

“(the) alienee must prove that he had (a) acted honestly, and (b) made reasonable and bona fide inquiry as to the existence of the alleged necessity. If both of these conditions are fulfilled, the alienation will be binding on all the members of the family regardless of the fact that the alleged necessity has not really existed or that the money raised on the transaction has not been used by the manager on some other proper purpose. As to the nature and scope of the inquiry, it must be made from one who is in a position to know, from an independent source, and not from one who is interested in upholding the manager. Hence, if the alienee fails to prove proper inquiry on his part, the alienation cannot be upheld.”

10. We have only to say that there is no precise rule as to the qualifications of the informant in the enquiries concerned. In the words of their Lordships of the Privy Council the only rule is

“that the lender is bound to enquire into the necessities for the loan, and to satisfy himself, as well as he can, with reference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate.

But they think that if he does so enquire, and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge, and they do not think, that under such circumstances he is bound to see to the application of the money”. See Hanoomanpersaud v. Mt. Babooee, (1856) 6 M.I.A 393 at 423.

11. The rule as to bona fide enquiry enacted in section 38 of the Transfer of Property Act is practically to the same extent. On the facts and circumstances of this case we cannot say that on the tests above the 6th defendant's enquiries were to any extent wanting. We are in fact prepared to go further and say that the necessity alleged did exist.

12. We can now deal with the first question as to the legal effect of the non-participation in fact by the 1st plaintiff in Ext. VIII sale deed. According to the plaintiffs, the junction of the karnavan 1st plaintiff was essential for the validity of Ext. VIII transfer but he was not consulted nor was his consent obtained in regard thereto. And this defect was in no way remedied by the 3rd defendant professing, on the strength of his power, dated 22-3-1939 from the 1st plaintiff, to execute Ext. VIII on behalf of the later. The plaintiffs claimed that, on proper construction, that power only empowered the 3rd defendant to execute particular deed found by the 1st plaintiff in the exercise of his discretion, to be necessary and expedient and not any deed which the 3rd defendant might for himself fix upon. If indeed the power-of-attorney was capable of different construction it amounted to a delegation of powers which was ultra vires of the karanavan and the 3rd defendant's acts purporting to be done under colour of such authority was not a valid act of the karanavan and could not affect the property or bind the thavazhi. Vide paragraphs 6(c) and (d) of the plaint. The answer to this, of the 1st defendant is found in paragraph 7 of her written statement. She there said that the power-of-attorney did enable the 3rd defendant to act on behalf of the 1st plaintiff in all matters relating to the thavazhi of the plaintiffs and he had also acted accordingly on several occasions. She made assertion at the same time that the Power did not amount to a delegation by the karanavan of his powers. She pleaded that the written consent of the 1st plaintiff could not be had at the time of Ext. VIII assignment but she claimed that the assignment could not be worse than if the 1st plaintiff was not a party at all to it. The court below found as a fact that from 1939 till 1946 all the members excepting of course the 1st plaintiff, executed several documents in respect of thavazhi properties in which 3rd defendant figured as the mukthiyar agent of the 1st plaintiff on the strength of his power and also in his invidual capacity. E.g Ext. XIV kanom assignment (1114), Ext. XV kanom assignment (1117), Ext. XI security bond (1117), Ext. XVIII mortgage deed (1121), Ext. XVI assignment deed (1118) and Ext. XIII mortgage deed (1121), Ext. XVI assignment deed (1118), and Ext. XIII mortgage deed (1119). This circumstance, in the opinion of the court indicated that under the power-of-attorney and by the consent of the members of the thavazhi the 3rd defendant had, so far as the management of the thavazhi was concerned, all the powers which the 1st plaintiff had as karanavan. There was also nothing against such delegation of powers in the Madras Marumakkathayam Act, 22 of 1933 which apparently in the opinion of the court below was the law according to which the matter stood to be tested. The court below therefore held that the mere fact that the 1st plaintiff was not consulted and had not personally joined in the execution of Ext. VIII sale did not in the circumstances invalidate it. It was willing to go further and hold that even if it be taken that the 1st plaintiff was not a party at all to Ext. VIII the pressing necessity of the situation entitled the other members of the thavazhi to effect the alienation by themselves.

13. Learned Advocate General did not question the application by the court below of the Madras Marumakkathayam Act to the case but he said that it had misunderstood the position under that Act both with regard to the effect of the delegation by the karanavan of his powers and also the validity of any sale concerning tarwad properties to which the karanavan was not a party. According to him the absence of specific provision in the Act against such delegation or such sale did not mean that the delegation or sale concerned stood to any extent authorised. On the other hand the prohibition concerning both was a fundamental of the Marumakkathayam system of law and though not the subject of specific enactment in the Madras Marumakkathayam Act, it was still preserved by the saving clause in section 50(b) of the Act as follows:

“50. Nothing contained in this Act shall—

(a) ......

(b) be deemed to affect any rule of Marumakkathayam law, custom or usage, except to the extent expressly laid down in this Act.”

14. Now apart from the concession of learned Advocate General as above, it may be a difficult question as to whether the Marumakkathayam Law as under-stood and applied in Malabar rather than in Cochin should govern the validity of Ext. VIII sale. The former is no doubt the personal law of the executants of Ext. VIII (lex domicilli) but the latter is the law at the place of the situation of the immovable property dealt with under Ext. VIII (lex situs) and the general rule is well-established that

“All questions concerning the property in immovables, including the forms of conveying them, are decided by the lex situs”. Westlake.

15. And similarly Story, section 431 says:

“if a person is incapable, from.. .. .. .. .. .. ..circumstances, of transferring his immovable property by the law of the situs, his transfer will be held invalid, although by the law of his domicile no such personal incapacity exists. On the other hand if he has capacity to transfer by the law of the situs, he may make a valid title, notwithstanding an incapacity may attach to him by the law of his domicile.”

16. See also Halsbury Laws of England, 3rd Edn. Vol. 7, p. 38 para 75. An exception however to the general rule is admitted when the law as administered by the courts in the place of the situation of the land, requires that the personal law of the parties should alone be regarded. And such exception is possibly provided by the non-extension of the Cochin Nayar Act, 29 of 1113, under section 1 thereof to Nairs outside Cochin, in respect of properties within it, as contrasted with the specific provision in section 2(b) of the Madras Marumakkathayam Act, 22 of 1933 as follows:

“2. It shall apply—

(a) ......

(b) to all Hindus outside the said Presidency governed by the said law, in respect of properties within it.”

17. The Marumakkathayam Law as understood and applied in Malabar as modified by the Madras Marumakkathayam Act may therefore be the proper law to be applied to this case and we will therefore along with the court below adopt such basis.

18. On the first aspect of delegation by karnavan of his powers, judicial opinion has not been uniform. In the early case of Cherukomen v. Ismala, (1871) 6 M.H.C.R 145, a karar executed by a karnavan in favour of an anandravan provided among others as follows:

“2. You are required to manage all affairs relating to the said tarwad in the same manner as you did before, and further you are hereby authorised and appointed to exercise all managements solely.”

19. Clause 7 said:

“7. As I have handed over to my anandravan, Achuthan, the lands before allotted to my maintenance, not only there is no tarwad property either in my possession or under my control, but that I will not interfere with any property or with the affairs of the tarwad, and if I interfere it shall not be valid.”

20. Holloway, Ag. C.J and Innes, J. construed the instrument as a power-of-attorney and held that the clause 7 as to revocation could not be given effect to But Innes, J. took occasion to deal with the general question of transfer of delegation of the powers of a karnavan. Said the learned Judge:

“If on the other hand the intention of the karnavan, as expressed by the document, were to transfer his right absolutely, it would be, I apprehend, an invalid instrument. A man cannot assign obligations (i.e cannot substitute some one else as the performer of his duties) without the consent or authority of those to whom the duties are owing; and whereas, in the present case, rights are co-existent with and inseparable from obligations, so that the assignment of the one cannot be effected without the assignment of the other, there can be no valid transfer of rights without the consent and authority of those interested in the performance of the obligations.”

21. Apparently the learned Judge was not against an assignment by the karnavan of his powers and duties to another member of the tarwad with the consent of all the rest of the tarwad. If so there could logically be no objection to such an assignment in favour of a stranger.

22. But this extension was negatived in the next case. Chappan Nayar v. Assert Kutti, I.L.R 12 Mad. 219 decided by Collins, C.J and Muthuswami Iyer, J. There the karnavan was sentenced to rigorous imprisonment for a criminal offence, his son functioning in his place as delegate. The learned Judges said:

“It (the karnavanship) is therefore a personal right and as such it cannot be assigned to a stranger either permanently or for a time. If it can be delegated at all it is capable of delegation only to a member of the tarwad, the principle being that the de facto manager, assists the karnavan during his pleasure and he is entitled to do so by reason of his connection with the tarwad and his interest in the property”.

23. The question next came up before Seshagiri Iyer, J. and Napier, J. in Anandravan v. Raman, I.L.R 38 Mad. 918 : A.I.R 1917 Mad. 95 and Seshagiri Iyer, J. expressed his opinion that there can be no real objection in the delegation even to a stranger of the duties of a manager of the tarwad and he made the distinction between the temporal and spiritual offices of the karnavan.

“In the former, he is the manager of the family properties, maintains the junior members, represents the tarwad in transactions with strangers, etc. In his latter capacity he presides at the ceremonies and performs all the religious duties which are incumbent on him. A stranger cannot supplant him in this latter office; but I fail to see why his duties as manager could not be delegated to a stranger. If a Receiver is appointed pending a suit for the removal of a karnavan this officer will have all the rights of a karnavan so far as management is concerned. An agent who acts with the consent of all the members in managing the temporal affairs of a tarwad cannot be in a worse position”.

24. But the learned Judge expressly disclaimed that he was resting his decisions of the case on this distinction.

25. We have finally the ruling in Ramankutty v. Beevi Umma, A.I.R 1929 Mad. 266 (Philips and Odgers, JJ.) where the question turned on the validity of a document executed by a karnavan relinquishing his karnavasthanam but without recognising the senior anandravan's succeeding to it, on the other hand delegating the karnavan's powers to two junior members. The learned Judges held the document to be invalid as a relinquishment because it was not unconditional. As a delegation of powers also they held it to be invalid. The learned Judges referred to Chappan Nayar v. Assen Kutti, I.L.R 12 Mad. 219 cited above and said:

“In that case the delegate was a stranger to the tarwad but that can make no difference in principle, for the karnavan has no right to say who shall conduct the tarwad affairs in his place as that right is vested in the senior anandravan.”

26. The question is discussed in Sundara Aiyar's Malabar and Aliyasanthana Law, 1922 Edn. p. 119 as follows:—

“Renunciation must be distinguished from delegation or transfer of the office of karnava. This is beyond the power of the karnavan. He may no doubt appoint an agent who will be responsible to him, but he cannot make an out and out transfer of his duties as manager. The rights and powers are personal to himself and if he does not care to exercise them, the next anandravan is entitled to succeed to his place. By their very nature his rights and duties are incapable of transfer. Though the position of a karnavan is similar to that of a trustee and like a trustee he cannot delegate any of his functions which involve the exercise of discretion, he may delegate functions of a ministerial nature. He may like a trustee also appoint an agent to work under him and subject to his control. But if he purports to make a complete delegation of his rights and duties, it would be void”.

27. It may be that in sister jurisdictions, the principle with which we are here concerned, has been the subject of specific enactment, though not in uniform terms, e.g section 29 of the Marumakkathayam Act, 33 of 1123 (Cochin).

“29. No karnavan shall delegate his powers to any one other than a member of the tarwad and that only under a registered instrument.”

28. Similarly the Nayar Act, 29 of 1113 (Cochin) in section 49 says:

“49. No karnavan shall delegate his powers to any one.”

29. And section 30 of the Nayar Act II of 1100 (Travancore) says:

“30. A karnavan may delegate his powers only under a registered instrument.”

30. But the absence of a provision in the Madras Marumakkathayam Act, 22 of 1933 does not for the reasons given by the learned Advocate General, betoken any significance. In our judgment the passage from Sundara Aiyar's treatise above extracted correctly represents the law in Malabar as to delegation by a karnavan of his powers.

31. It follows that the power-of-attorney dated 22-3-1939 executed by the 1st plaintiff to the 3rd defendant cannot be effective as a delegation to the 3rd defendant of the 1st plaintiff's powers as karnavan, vis a vis, his thavazhi and Ext. VIII must in consequence fail as an act or transaction of the thavazhi. Mr. K.P Abraham appearing for the 1st defendant did not seriously question the above conclusion. But he said that the 1st plaintiff must be held estopped from questioning that he was properly made a party in Ext. VIII by the 3rd defendant under and by virtue of the power-of-attorney herein. If so, learned counsel says, section 33 of the Madras Marumakkathayam Act dealing among others with the conditions under which sales of tarwad properties could be executed must be deemed to have been satisfied and no further question as to validity of Ext. VIII survives and he relied on sections 188 and 237 of the Indian Contract Act.

32. Now section 188 of the Indian Contract Act deals with the extent of an agent's authority while section 237 of that Act deals with ostensible authority. But the preliminary requisite for these sections to operate is that there must be an agent lawfully constituted but that, as we found, has not been done in this case, at any rate so far as the 1st plaintiff in his capacity as karnavan of the thavazhi was concerned. And even assuming that the 3rd defendant was, under the power, constituted an agent of the 1st plaintiff in his individual capacity, such authority is totally irrelevant for purpose of section 33 of the Madras Marumakkathayam Act for that section deals only with sales by karnavan of a thavazhi. The argument of learned counsel has therefore no substance.

33. This leads us to the second aspect as to whether the junior members of a tarwad can, under a state of emergency, sell tarwad property. Now under the Marumakkathayam system of law the property of the tarwad vests in the karnavan who is defined as the senior-most male member of the tarwad and in the absence of a male member the senior-most female member, not of course as an absolute owner but as agent or representative of the tarwad. He may sometimes be subject to limitations as imposed by agreement in family council, but that apart, his right of management is his birth-right and cannot be affected by the acts of the junior members. As Mayne in his work on Hindu Law expressed it

“the members of the family may be said to have rights out of the property rather than rights in the property. The head of the family is entitled to its entire possession and is absolute in its management.”

34. Sundara Aiyar's Malabar and Aliyasanthana Law at page 158 dealing with the karnavan and junior members says:

“All the anandravans, even if unanimous have no power to require the karnavan to act in a particular way, and they cannot seek to do so by means of a suit for injunction. It need hardly be observed that none but the karnavan can deal with the tarwad property, or act on behalf of the tarwad, however proper such dealing or act may itself be. Thus all the anandravans of a tarwad cannot contract a debt even in a most urgent case so as to bind the tarwad property. To allow them to do so would be practically to ignore the existence of the karnavan.”

35. The learned author cites in support Narayanan Nair v. Narayanan Nambiar, (1916) 32 M.L.J 489 i.e A.I.R 1918 Mad. 1142. The case turned on the validity of a sale of thavazhi property by seven only out of the ten members comprising it. And though the manager de facto of the thavazhi was party to the sale, the karnavan had not joined in it. It was held that the sale by some only of the members of a tarwad cannot bind the other members of the tarwad as a whole, unless it was made for consideration and was beneficial to the family as a whole and unless the karnavan as representing the family joined it. Referring to the junction of the manager but not of the karnavan Sadasiva Iyer, J. observed:

“Further the plaintiff was and is the karnavan of his tarwad and I cannot accept the lower court's view that because defendant 4 was the senior lady and the real manager and because the plaintiff was absent from the place, the sale by her of the joint property of the plaintiff's tarwad is binding on the tarwad.”

36. In the next case Vasava Menon v. Kelu Acha, A.I.R 1926 Mad. 1087 the question was how far the representative character of the karnavan was affected by his karar in favour of an anandravan for management of the tarwad properties. Devadoss, J. in holding that the power of the karnavan as such was not taken away said:

“The karnavan of a Malabar tarwad stands in an exceptional position. He is the only person entitled to represent the family and demise the property belonging to the family and give a discharge in respect of outstandings due to the family. No doubt his powers could be curtailed by an arrangement entered into among the members of the family. But such arrangement affects the members of the family only and not strangers unless strangers are also parties thereto”.

37. It is no doubt true that Chapter V of the Madras Marumakkathayam Act dealing with “Tarwad and its management” does not in terms provide that for an alienation of tarwad property to be effective, the karnavan must in any event join in it. But the wording of section 33 would seem to make it clear that alienations not covered by it, would not be taken to be approved. We may here refer to Ammu Amma v. Mani, 1954-2 M.L.J 660 at 664 where Balakrishna Iyer, J. observed:

“section 33 of the Madras Marumakkathayam Act gives only the karnavan power to alienate the property of the tarwad and to no one else. Till a severance in status actually takes 1 place a thavazhi can have no karnavan who can exercise the power conferred by section 33 of the Act.”

38. The Madras High Court would thus seem to be uniformly against any innovation on the principle that the karnavan is the only proper person to deal with tarwad property and no junior member has that right.

39. It is interesting to notice the development in this aspect, in the sister jurisdiction in Travancore. There also the power and authority of the karnavan was kept inviolate until in Narayanan Bhagavathi v. Kali Velayudhan, 24 Travancore Law Reports 195, Sadasiva Iyer, C.J and Hunt, J. Govinda Pillai, J. dissenting thought that innovation was called for. In that case a stranger obtained a decree against the karnavan and also the junior members of the tarwad and in execution attached and sold some of the tarwad properties. The junior members thereupon borrowed money from another hypothecating to him tarwad property as security, and had the court sale cancelled by the deposit of the decree amount. The hypothecatee sued for money under the bond. The question was then raised that the hypothecation of tarwad property by a junior member was invalid. The majority Judges held that

“a junior member of an undivided tarwad can alienate by hypothecation or mortgage tarwad property so as to bind the whole tarwad in cases of emergent necessity and in order to protect tarwad properties from destruction, forfeiture of sale, where the karnavan is absent or unable or is acting fraudulently or with gross negligence when there seems to be no other means to meet the emergency”.

40. But the extension of the principle to cases of sale by junior members was frowned upon when it came up in the later case in Kesavan Govindan v. Geevarghese, 4 T.L.J 380. The learned Judges said at page 382:

“We are not prepared to take this view and we are of opinion that it would be dangerous and inexpedient to extend it any further. It has not even been shown, that it had been found impossible to raise a mortgage or hypothecation on the plaint and other tarwad properties, in order to meet the obvious necessity. To extend the ruling in Narayanan Bhagavathi v. Kauli Velayudhan, 24 T.L.R 195 would probably be to sap the Marumakkathayam system altogether and to destroy the authority of the karnavan or manager. If the junior members were armed on the slightest pretext with authority to sell tarwad property it would lead to an impasse, in justification of the sale so executed by him or them.”

41. The same question but under Cochin Nayar Act, 29 of 1113 recently came up before this Court in Konnan v. Sankaran Kair, 1957 K.L.T 567. Sections 53 and 54 of that Act provide for the alienations covered by section 33 of the Madras Marumakkathayam Act practically on the same lines except that the written consent required there, is to be of ‘all the major members of the tarwad wherever possible’. In disallowing the contentions raised under section 53 in support of an alienation by way of sale by junior members alone in a situation of emergency but supported by necessity the court made the following observations:

“It is doubtful whether section 53 of the Nayar Act can apply to this case where the karnavan is not a party at all to the sale transaction. The section contemplates his junction in any event and provides for the restrictions of his power if at all by insisting on the written consent of all major members wherever possible.”

42. The court then quoted Kesavan Govindan v. Chandi Geeverghese, 4 T.L.J 380 just cited and held that the sale could not be supported on the ground of emergent necessity as well.

43. Mr. Abraham referred to Echu Menon v. Raman Menon, 25 Cochin L.R 52 as the court below had done, for the distinction pointed out at page 64 by Sahasranama Iyer, J. between ‘alienations effected by the tarwad as such’ and ‘by the karnavan alone’. The court was there concerned with the validity of a mortgage executed in circumstances of emergent necessity by all the members of the thavazhi other than the 1st defendant. The 1st defendant had proved himself to be one not possible of being consulted and not inclined to give consent. In his leading judgment upholding the mortgage, Narayana Iyer, C.J had considered the scope of section 28 of the Nair Act, 13 of 1095 (the predecessor of section 53 of the Nair Act, 29 of 1113 we referred to earlier) as follows:

“Except with the written consent of all the major members of the tarwad, wherever possible, no karnavan or the manager for the time being shall sell……….or lease……….or mortgage……..or pledge……..or hypothecate……….”

44. in its application to the facts and found that the words “wherever possible” in the section enabled the karnavan to dispense with the consent of inaccessible or refractory members provided there was adequate necessity. Sahasranama Iyer, J. in agreeing with the Chief Justice dealt with what he considered to be another aspect of section 28. That is to say there was according to the learned Judge, only two ways in which a tarwad acts by way of doing a juridical act and they were (1) through the karnavan as representing the tarwad, and (2) the members constituting the tarwad acting in a body in which case, normally all should join. The learned Judge then suggested that the only way in which the transaction in question could be upheld must be by treating it “as an alienation effected, by the tarwad as such and not by the karnavan alone.” The learned Judge said:

“Having regard to the language and spirit of the section, I do not think it would be competent to the karnavan or manager to act himself, ignoring the dissentient members. For, that would be in clear violation of the section. Nor, on the other hand, do I think it would be possible to doubt the valid and binding character upon the tarwad, of a mortgage executed by its members in the circumstances stated. Now, viewed as a transaction effected by the karnavan, it must be bad, because, it does not comply with the requirements of section 28, which has been held by this court to be mandatory in its character.”

45. But this distinction has no relevancy in the case of an alienation to which the karnavan is not party. For the assumption is that he is a party. And the alienation with which the learned Judges were then concerned was only a mortgage and a debt bond executed by junior members had in that jurisdiction been already upheld on the principle that

“Though the fundamental principle of the Marumakkathayam law is that none but the karnavan can deal with the tarwad property or act on behalf of the tarwad it is settled law that junior members have a right to protect tarwad interests and to conserve the tarwad properties and that they can represent the tarwad in an emergency.” See Ramandi Pandaram v. Kesavan Nair, 6 Cochin L.R 121 at 123.

46. It may be that alienations of the type, e.g mortgage or debt bond and governed by the Malabar Marumakkathayam Law may, when they arise, have to be adjudged on like liberal principle. And as Sundara Aiyer observed at p. 158 and 159 of Malabar and Aliyasanthana Law:

“The Courts are however progressing towards the view that not only in cases of improper alienation but in all cases where the karnavan fails in his duty and either actively promotes or passively submits to an infringement of the family right, the other members have a right to intervene to redress the injury to the family interests. Where an occasion arises for the exercise of this right by the junior members a right to pledge the credit of the family for the purpose also would be implied.”

47. But it is clear that a sale to which the karnavan, who is sui juris, is not a party, cannot be sought to be upheld on the basis of this doctrine. It follows therefore Ext. VIII to which the 1st plaintiff karnavan is not a party is not binding on his thavazhi and he is entitled, as such karnavan to recover it from 1 and 6 defendants. Learned Advocate General concedes that if the property is allowed to be recovered as above, the 1st defendant is entitled to be paid back the consideration under Ext. VIII in full, viz. Rs. 8,000 as well as the value of the improvements found by the court below to be effected on the properties, viz. Rs. 1,840 besides Rs. 690 towards the outlay made by the 1st defendant under Ext. D, that is to say in all a sum of Rs. 10,530. He claims however that the 1st defendant should on the other side, pay to the plaintiffs mesne profits at the rate of 1200 paras per year as found by the court below from date of plaint, the profits for the past having been given up by the plaintiffs. Vide para 7 of the plaint. We think this statement is correct.

48. We therefore allow the appeal and in reversal of the decree of the court below, grant recovery to the 1st plaintiff of the plaint schedule properties from defendants 1 and 6 with mesne profits from date of plaint at the rate of 1200 paras of paddy per year and on payment to the 1st defendant of a sum of Rs. 10,530. The value of the paddy will be estimated at the nirak rate prevailing in each year. In the circumstances of this case the parties will suffer their respective costs throughout.