Kunhanna Rai v. Manku Chetty

1. Exhibit IV is attacked first, on the ground that its term is 60 years: and it is urged that the lower Appellate Court did not consider this. The lower Appellate Court's judgment is full and we are not prepared to infer anything from its failure to refer to this point except that it may not have been relied on. It very probably would not be, since, in view of the circumstances of the family, a long term of mortgage may have been necessary to extricate it from its difficulty.

2. Objection is taken to some of the items of Exhibit IV.

3. But we need add to the lower Appellate Court's discussion only with reference to two of them. At first sight, the provision under Item No. 5 for what appears to be the separate liability of a member is of doubtful propriety. But the lower Appellate Court's reference to Exhibit I shows that it had in mind the arrangement made therein and repeated in Exhibit IV by which, in case an individual member of the family took a lease, as second defendant did, of part of the property from the mortgagee, the family property was to be its security. The arrangement was really one, not to provide security for the member's separate debts, but to facilitate the separate enjoyment, which the members entered on as convenient. The arrangement was not, therefore, in itself objectionable: and it is sufficient to support it that all the adult members were parties in it. Elayachanidathil Kombi Achen v. Lakshmi Amma(1) and Meloth Kennan Nair v. Kodath Kammaran Nair(2). The next objection to be referred to is the item of consideration covered by Exhibit XI. It is that Exhibit XI was not executed by the Ejman of the family but only by the member who was in fact performing the Ejman's duties and the other adult members, the Ejman being-aged over eighty and taking no part in the management. The case, therefore, does not resemble Narayanan Nair v. Narayanan Nambiar(3), where the de jure Karnavan was absent, but apparently was still in management. Here the de jure Ejman had so far as appears, practically abandoned her position and we do not consider it essential that she should have done so in any formal manner in order to justify the management by her juniors. The second appeal fails and is dismissed with costs.

4. Appeal dismissed.