JUDGMENT

Sadasiva Aiyar, J. — The 2nd defendant is the appellant. The seven plaintiffs are the junior members of a Malabar Brahmin Illom (Tarwad of Brahmins is usually called Illom) of which the 1st defendant is the Karnavan. The 1st defendant when he was a junior member in 1906 obtained a simple bond in his name. While still a junior member, he obtained a decree thereon in his own name on 9th July 1910. Three years afterwards (in 1913) he became the Karnavan of the tarwad on the death of the prior Karnavan. He treated the bond he obtained in 1906 and the decree thereon which he obtained in 1910 as the self-acquisition and transferred the decree to the 2nd defendant on 8th December i 915 for a consideration of Rs. 650. The 2nd defendant is a Pattar while the plaintiff and the 1st defendant are Embrandris. The 3rd defendant is the judgment-debtor under the decree.

The plaintiff stated in paragraph 11 of the plaint that “the 2nd defendant lives not far from the illom of the plaintiff and knew very well that the decree amount really belongs to the plaintiff's tarwad. With this knowledge he fraudulently colluded with the 1st defendant and accepted the assignment above-said subject to all risks.” The plaintiff therefore prayed for a declaration that the amount due under the decree in O. S. No. 254 of 1910 is really due to the tarwad of the plaintiff and the 1st defendant and they prayed for other appurtenant release.

The District Munsif found (a) that the amount of the bond of 1906 belonged to the tarwad and therefore the decree amount also belonged to the tarwad and not to the 1st defendant as the self-acquisition; (b) that as the tarwad had allowed the 1st defendant to appear as the ostensible private owner of the decree and of the debt due under the bond for nearly ten years before this suit was brought and as the 2nd defendant was a bona fide purchaser for value and a stranger to the tarwad, the tarwad is estopped from contending as against the 2nd defendant that the decree amount belonged to it and from contending that the 1st defendant had no right to transfer it to the 2nd defendant. He therefore dismissed the plaintiff's suit.

On appeal the Subordinate Judge concurred in the finding of the first Court that the money belonged to the plaintiff's illom but he held that though the 2nd defendant paid consideration for the assignment and the assignment to him was a real transaction he did dot make proper enquiry whether the money belonged to the Tarwad or to the 1st defendant in his personal capacity and therefore the Sub-Judge decreed the plaintiff's suit.

In Second Appeal the appellant's contentions are stated in grounds 3, 4, 5, 6, 11 and 15 of the memorandum. These contentions might be shortly statedithus:—(a) the Lower Appellate Court was wrong in its view that the presumption of law is that the properties standing in the name of a junior member of a tarwad belongs to the tarwad unless the contrary is shown; it therefore threw the burden of proof wrongly on the 1st and 2nd defendants and its finding that the bond and the decree belonged to the tarwad is therefore vitiated by this error of law; (b) The karnavan has under the Malabar Law full power of disposal over moveables and his having assigned a decree more than five years old for adequate consideration in order to realise the fruits of the decree was in the usual and proper course of management, and it was also within those powers of the karnavan which cannot be controlled by the junior members, and mere notice that junior members are charging the karnavan with acting against the interests of the tarwad cannot prevent title to moveables (or a decree debt) property sold by the karnavan and within his powers of disposal as karnavan, from vesting in the third person who purchases for consideration, without himself being guilty of any fraud against the tarwad.

So far as the first question as to whether the finding of the Lower Appellate Court that the decree amount belongs to the tarwad is concerned, I think it has to be admitted that the Lower Appellate Court was wrong in its view that there was a presumption in favour of the tarwad that the bond standing in the name of a junior member belongs to the tarwad. The matter has been fully considered in Dharnu Shetti v. Dejamma(2) and it has been held that there is no presumption either way. If there is no presumption either way, the plaintiffs coming into Court are to prove the facts which show that a bond in the name of the junior member is tarwad property. I am myself inclined to hold whatever may be the presumption as regards the bond in the name of a junior member of a Mitakshara family (see as to this Parbati Dasi v. Baikuntha Nath De(3) though even in Mitakshara cases the presumption in my opinion in modern days is a very feeble one) that as regards the Malabar tarwad, the presumption should be against the tarwad. The Subordinate Judge had relied only or mainly on the presumption which he erroneously thought should be raised in favour of the tarwad. I should be inclined to set aside that finding and call for a fresh finding. But on the records I see that both the Munsif and the Subordinate Judge have also gone into the evidence on both sides and have arrived at a concurrent finding that the money belonged to the tarwad and the Subordinate Judge has relied on the presumption only as a further support to his finding on the evidence. I therefore accept that finding.

Then we have got the next and more important contention on the appellant's side. The Lower Appellate Court seems to have thought that if the decree amount belonged to the tarwad, the plaintiffs were at once entitled to a decree declaring that the alienation by the karnavan to the 2nd defendant was invalid if the purchaser (2nd defendant) knew that it belonged to the tarwad, or even knew that it was claimed as belonging to the tarwad by 1st defendant's Anandravan. I think that such a view is wholly erroneous. As stated in Moore's Malabar Law, page 162 quoting Mr. Justice T. L. Strange, “the karnavan can alienate all moveable property, ancestral or self-acquired, at his discretion.” In fact in the olden days, even a debt contracted by the karnavan was presumed to have been for the use of the family and chargeable on the estate, until the contrary was shown and it was only in Kutti Mannadiyar v. Payanumuthan, that the contrary rule was laid down (in Travancore, if consideration is proved for a bond executed by the karnavan the rule still applies). So far as moveables and properties in the nature of moveables are concerned, I have never heard it disputed that the karnavan has absolute powers over them including the power of realisation of debts due to the family in any manner he likes and of selling moveables and converting them into money. It follows that a third person who makes purchases of such property for consideration is not bound to see to the application of the purchased money, or to make enquiries whether there was a necessity for the alienation. The rule applies with great force in this case whether the property transferred is a decree more than five years old, no portion of the amount due under which had been realised and where a karnavan sells it for consideration to a third person, the title completely vests in the latter.

It was however argued by Mr. Madhavan Nair for the respondent that as in transferring the decree to the 2nd defendant the 1st defendant (transferor) recited in the transfer deed that the decree amount belonged to himself as his self-acquisition and as that was found against, his transfer conveyed no title to the 2nd defendant. The argument is that the 2nd defendant purchased a decree supposed to belong to the 1st defendant as his self-acquisition and which therefore did not exist and not the dceree which really existed and which belonged to the tarwad. I think this ingenious contention cannot and ought not to be accepted. A purchaser of a property for consideration from a person having power to convey full title to the property is entitled to rely on all the powers vested in his vendor, which could enable that vendor to convey the complete title professed to be conveyed notwithstanding that the vendor mentions in the sale deed that he derives his right to convey title by reason of facts whose truth or strength can be successfully attacked. Sect. 7 of the Transfer of Property Act says: “Every person competent to contract and entitled to transferable property or authorised to dispose of transferable property, not his own, is competent to transfer such property either absolutely or conditionally, in the circumstances, to the extent, and in the manner allowed and prescribed by any law for the time being in force. Now, if the karnavan according to the Malabar Law is authorised to dispose of the tarwad decree debt absolutely and without condition, I do not see how false recitals as to under what particular state of facts he obtained his power to convey can affect the title of the transferee, provided the transferor has got the power to give an absolute title and professes to convey such absolute title. After Sect. 7, follows another important section viz., Sect. 8 in the Transfer of Property Act. The latter section says: Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.” This section shows that the test is what interest the transferor is capable of passing in the property and not under what title he professes to have derived the power which makes him capable of passing such interest in the property. This is not a case of a transfer by a person authorised only under circumstances in their nature variable to dispose of a property. Take the analogous case of an executor who has got full power of realising the testator's property. Because he sells a property of the testator professing to be both the legal and the equitable owner thereof and not merely as empowered in his executor's capacity to convey, it cannot be contended that the purchaser from him does not get a good and complete title. It is only in the case of immoveable property and in the case of a person having only restricted right to transfer such immoveable property that any considerations as to reasonable enquiries etc., on the part of the purchaser are at all relevant and material under the Transfer of Property Act, (See Sect. 38). In the case of moveable property, provided the vendor has got the power to give a good title and the vendee pays consideration, the vendor has absolute power to give such title to the purchaser. The fact that the vendor professes to exercise that right and power, reciting false state of facts cannot affect the vendee.

I might also state that the granting of a decalaratory decree is a matter of discretion with the Court. The plaintiffs have not even asked for an injunction in their plaint against the 2nd defendant's executing the decree of which he had obtained a transfer but asked only for a declaration of their own rights. Even on this ground, the lower Appellate Court ought not to have granted the declaratory decree, without directing the plaint to be amended by the addition of proper consequential reliefs irregularly omitted to be asked for.

In the result I would allow the appeal and restore the decree of the District Munsif. The plaintiffs will pay the costs of the 2nd defendant here and in the lower Appellate Court.

Spencer, J.—It is argued that there is no cause of action for this suit. The plaintiffs asked for a declaration that a decree-debt assigned by the 1st defendant, who was the karnavan of their illom, to 2nd defendant represented money due to the illom and for leave to execute it. It has been found by both the Courts below that the amount due under the decree belongs to the illom, and we must accept as correct this finding of fact. But the Courts overlooked the fact that the decree-debt is moveable property and that a Karnavan of a Malabar tarwad has full power to alienate all moveable property at his discretion. (See Moore's Malabar Law, 3rd Edition, page 162 and Varanakot Narayanan Namburi v. Varanakot Narayanan Namburi. It is suggested that he was under the necessity of raising money to meet the expenses of litigation, but whether this was so has not been clearly found. The assignment may be considered to have cast a cloud on the title of the illom on the finding that the amount belonged to it and assuming that the 1st defendant was not acting in their interests, and if so the plaintiffs might at the discretion of the Court be given a declaration of title, which is part of the relief prayed for, in their plaint. Though the 1st defendant cannot be made accountable in respect of the income of the tarwad, yet he is liable for fraud (See 2 Mad. at p. 331). The fraud is alleged in paragraph 11 of the plaint, but the facts alleged in that paragraph do not amount to fraud, if, as it appears, the 1st defendant was acting within his powers. There is no issue or finding on the question of fraud. It is therefore unnecessary to call for a finding from the Subordinate Judge on the question whether 1st defendant acted mala-fide, in assigning the decree to 2nd defendant, and unnecessary to give the plaintiffs a declaratory decree. I agree that the suit must fail and that the decree of the District Munsif should be restored with costs of 2nd plaintiff here and in the Lower Appellate Court.

K. V. S.Appeal allowed.