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  • Venkataramana Rao, J.
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Smart Summary

Factual and Procedural Background

This second appeal arises from a suit for redemption of a kanom (mortgage-like instrument) executed around 18th August 1913 in favour of Alappukaye (Ex. A) over the property that is the subject-matter of this suit. Plaintiffs 1 and 2 are heads of two tavazhies (branches) of the same tarwad, and they claim a right of redemption under two karars executed by the then karnavan Kunhambn Kurup: Ex. C (5th August 1916) in favour of plaintiff 1's branch and Ex. B (7th November 1916) in favour of plaintiff 2's branch. Each karar assigned several items; each plaintiff obtained half a share in the land now sued for.

Defendants 1 and 2 resist the suit, relying on Ex. 3 dated 29th June 1926, which purports to be a renewal/kanom for Rs. 2091-6-10 comprising amounts due under Ex. A (Alappukaye's kanom) and another kanom Ex. 2 (executed in consequence of attachments arising from O.S. No. 416 of 1920 and an execution loan of Rs. 782). The lower Courts held for the defendants, finding Ex. 2 binding on the plaintiffs and that the karnavan's successor (defendant 8) could grant the renewal in favour of defendants 1 and 2; accordingly the suit for redemption was declared not sustainable. This second appeal challenges those conclusions.

Legal Issues Presented

  1. Whether Kunhambn Kurup, the karnavan who executed Exs. C and B, was within his powers in including the suit property (item 13) in those karars and in conferring on the plaintiffs the power to redeem the kanom of Alappukaye (Ex. A).
  2. Whether Ex. 3 (the purported renewal kanom dated 29th June 1926) is valid and binding on the plaintiffs if the plaintiffs hold valid redemption rights under Exs. C and B.
  3. Whether a succeeding karnavan (defendant 8) is bound by or may ignore an inclusion in a prior karar (i.e., whether a successor can treat such an inclusion as beyond the predecessor's powers).
  4. Whether the plaintiffs, having a right under Exs. C and B, are nevertheless obliged to redeem any kanom created subsequently (specifically Ex. 2) as a condition of redemption.

Arguments of the Parties

Plaintiffs' (as represented by Mr. Nambiyar)

  • The then karnavan Kunhambn Kurup was competent to assign the suit land in lieu of maintenance to the plaintiffs' tavazhies and to empower them to redeem the kanom for the purpose of enjoying the land for maintenance.
  • Exs. 2 and 3 are in derogation of the rights conferred on the plaintiffs by Exs. C and B and therefore are not binding on the plaintiffs.
  • Specifically, Ex. 3 (the renewal kanom) is not binding, and plaintiffs should be allowed to redeem the property on payment of the amount due under Exs. A and 2.

Defendants' (as represented by Mr. Sitarama Rao)

  • Ex. 3 is a fresh kanom; because a fresh kanom was executed by the karnavan, plaintiffs cannot insist on redemption of the earlier kanom.
  • The inclusion of the suit property in the karars (Exs. C and B) was in excess of the powers of the then karnavan; the inclusion was unnecessary given the maintenance fixation and was intended only for future-born members of the tavazhi (which the karnavan cannot bind the future composition of), so the successor karnavan (defendant 8) is not bound by it and has a right to deal with the property.
  • The power of redemption conferred on the assignee was in the nature of a melcharth granted long before the period of redemption and thus invalid/illegal.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
32 MLJ 971 That it is open to a karnavan of a Malabar tarwad to make grants of land in lieu of maintenance to junior members, and such maintenance arrangements entered into by the karnavan are binding on the succeeding karnavan and cannot be set aside except for a good cause. The Court relied on this principle to support the proposition that Kunhambn Kurup could validly make maintenance allotments binding on successors, and thus the inclusion of the suit item could not be lightly set aside by the successor karnavan.
23 MLW 584 Similar proposition that maintenance arrangements by a karnavan may be binding; also discussed construction issues but contemplated allotments to the tavazhi as such. Used by the Court to show that allotment in favour of a tavazhi (including members born thereafter) is a recognised possibility and not necessarily beyond the karnavan's power; supports holding that inclusion of item 13 was within competence.
18 IC 234 Observation (Sundara Iyer J.) that where there was no contract between the karnavan and a representative, the karar may not be binding on the tavazhi as such until properly set aside. The Court cited this observation but distinguished the present facts, using the line of authorities to examine whether inclusion of item 13 represented an allotment to the tavazhi as such (and whether that would be permissible).
21 IC 755 Observation that a document may specify maintenance for specific named persons only and not mention those who may become members by birth, affecting whether obligation extends to after-born members. The Court cited the case as illustrating differing constructions; it used such authorities to consider whether Ex. C contemplated maintenance for existing members only or the tavazhi as such including future-born members.
49 MLJ 121 Phillips J.'s observation that, in a large Malabar tavazhi, it is unreasonable to conclude that after-born children were intended to be deprived of benefits unless so stated; documents can show an allotment to the tavazhi as such. The Court relied on this reasoning to support the inference that Ex. C was intended as one allotment for the tavazhi (including future members) and therefore the inclusion of item 13 was not necessarily beyond the karnavan's competence.
33 Mad 4366 at p. 438 As pointed out by Kumaraswami Sastri J.: the relevant question is whether the transaction, at the time it was entered into, was bona fide, proper and prudent. The Court invoked this standard to test Kunhambn Kurup's inclusion of item 13 and his conferring of redemption rights: the inclusion was held to be bona fide, proper and prudent in the surrounding circumstances.

Court's Reasoning and Analysis

The Court proceeded in stages, addressing the key legal and factual questions strictly by reference to the documents and earlier authorities cited in the opinion.

  1. The Court first accepted (for present purposes) that Ex. 2 is valid because no challenge to Ex. 2's validity had been taken in the memorandum of grounds of appeal. The judge therefore proceeded on the assumption that Ex. 2 was valid.
  2. The Court then addressed whether Ex. 3 (the 1926 renewal kanom) is binding on plaintiffs. The Court observed that if the plaintiffs' rights under Exs. C and B to redeem Alappukaye's kanom are valid, Ex. 3 cannot stand — a position which the defendants did not contest on the point that a valid redemption right would defeat Ex. 3.
  3. The principal factual-legal question was whether Kunhambn Kurup was within his rights to include the suit property (item 13) in Exs. C and B and to empower the assignees to redeem. The Court examined the text of Ex. C (and noted Ex. B was similar). The relevant recitals show that items 1–12 were to be held in possession immediately, and item 13 after expiry of the kanom period; the assignees were to pay one-half of the kanom amount after expiry and use half the waram for maintenance.
  4. Considering evidence on yields and numbers of members, the Court found that items 1–12 were adequate for maintenance for members existing at the time, but that Ex. C's language and the circumstances indicated the entire allotment was one allotment for the tavazhi as a whole (including members to be born), and item 13 was not shown to be intended specifically only for future-born members.
  5. The Court surveyed prior authorities and concluded there was no strong or specific authority that a karnavan could not make provision for a tavazhi as such (including future-born members). The Court relied on cited cases which contemplate the possibility of such a provision and emphasized the controlling test (per 33 Mad at p. 438) of whether the transaction was bona fide, proper and prudent at the time entered into.
  6. Applying that standard to Ex. C, the Court held that inclusion of item 13 was within the competence of the karnavan and that no valid ground had been shown to attack its inclusion. The Court also held that a succeeding karnavan may not, without upsetting the arrangement as a whole, withdraw a portion of land that had been allotted; the proper course if dissatisfied would be to revise the entire arrangement.
  7. The Court then addressed whether the karnavan could empower the plaintiffs to redeem the kanom long before the redemption period arrived. It distinguished an assignment in favour of a stranger (which might be open to objection) from a family arrangement where the property is allotted in lieu of maintenance: in the latter case there is nothing in law to preclude empowering the assignee to discharge the burden and enjoy the land. The Court observed that counsel for defendants frankly conceded no authority supported his contrary view.
  8. Consequently, the Court concluded that Ex. 3 cannot stand if plaintiffs legitimately hold the right to redeem Alappukaye's kanom under Exs. C and B. However, the plaintiffs are obliged also to redeem the kanom created by Ex. 2 (in favour of defendant 2). On this basis the Court set aside the decree of the learned District Judge and granted the plaintiffs leave to redeem the suit properties on payment of the amounts due under the kanom in favour of Alappukaye and under Ex. 2.
  9. Practical directions followed: each party to bear their own costs in the second appeal and in the Courts below; the amount agreed that the plaintiffs should pay for redeeming the land is stated in the judgment as "Rs. 2039-2014-10" and time for redemption is fixed at six months from the date of the judgment.

Holding and Implications

Core Holding: The decree of the learned District Judge is set aside; the plaintiffs are given leave to redeem the suit properties on payment of the amounts due under the kanom in favour of Alappukaye (Ex. A) and under Ex. 2. The Court found that the inclusion of the suit item (item 13) in Ex. C (and similarly Ex. B) was within the competence of the then karnavan and that empowering the assignees to redeem prior to the redemption period was not, on these facts, invalid.

Practical consequences imposed by the Court:

  • Plaintiffs may redeem but must pay the amounts due under Alappukaye's kanom (Ex. A) and also under Ex. 2 (the kanom in favour of defendant 2).
  • The amount agreed between the parties to be paid by the plaintiffs for redemption is recorded as "Rs. 2039-2014-10" (as stated in the opinion).
  • Time for redemption is six months from the date of the judgment.
  • Each party is directed to bear their own costs in the second appeal and in the Courts below.

Broader precedent: The opinion applies and relies on existing authorities about the competence of a karnavan to make maintenance allotments (including the possibility of allotments for a tavazhi as such) and on the test whether the transaction was bona fide, proper and prudent. The Court did not purport to lay down a novel legal doctrine; it decided the present dispute on application of these principles to the documents and circumstances before it.

Disposition

Decree set aside.

Show full summary ...

    Thekke Veettil Makkam Amma And Others v. Thekke Veetil Kunhi Kalappa Kurup And Others

    1. This second appeal arises out of a suit for redemption of a kanom executed in favour of the assignor of defendants 1 and 2 in or about 1913 by the then karnavan of a tarwad known as Thekkevetti tarwad. Plaintiffs 1 and 2 are the respective heads of their tavazhies which are branches of the same tarwad. Defendants 1 and 2 also belong to the same tarwad. The right of redemption is claimed by plaintiffs 1 and 2 under two karars executed by the karnavan of the tarwad, Ex. C dated 5th August 1916 in favour of plaintiff 1's branch and Ex. B dated 7th November 1916 in favour of plaintiff 2's branch. The said karars purport to be assignments of land in lieu of maintenance of the members forming the said tavazhies. There were several items of land assigned under the said karars and one of the said items assigned to each was half a share in the land which forms the subject-matter of this suit. On the dates of the said karars, the said land was subject to a kanom in favour of one Alup pukeye Ex. A dated 18th August 1913. The kanom was for a period of 12 years and the property was liable to be redeemed thereafter. The assignees under the said karar were given the power to enjoy the land after redemption of the same by paying the amount due to the kanomdar. The karnavan who executed the said karar was one Kunhambn Kurup. He is dead and defendant 8 was the karnavan on the date of the said suit. This action was resisted mainly by defendants 1 and 2. They base their claim under a document Ex. 3 dated 29th June 1926, which purports to be a kanom for a sum of Rupees 2091-6-10 in renewal of not only the kanom in favour of Aluppukaye whose assignees defendants 1 and 2 were but also of another kanom dated 3rd November 1924 executed in favour of defendant 2 by defendant 3. The said kanom happened to be executed under the following circumstances.

    2. Some of the members of the tarwad obtained a decree in O.S No. 416 of 1920 on the file of the Additional District Munsif's Court of Tellicherry for arrears of maintenance and in execution of that decree the suit property was attaohed. To satisfy the attachment, the karnavan obtained leave of the Court to mortgage the said property; in pursuance of the sanetion obtained from the Court, the karnavan borrowed a sum of Rs. 782 and executed Ex. 2. So, the amount for which Ex. 3 was executed was made up of the amounts due under Ex. A and Ex. 2. Therefore the contention of defendants 1 and 2 is that as there has been a fresh kanom executed by the karnavan it is no longer open to the plaintiffs to insist upon redemption of the kanom which is no longer in existence. Another contention was also advanced, viz. that the inclusion of the suit property in the two karars executed in favour of the plaintiff was in excess of the powers of the then karnavan, and defendant 8, his successor, was not bound by such an inclusion, and that he had therefore every right to deal with it. Both the lower Courts gave effect to this contention and also held that Ex. 2 was binding on the plaintiffs, and defendant 8 was competent to grant renewal in favour of defendants 1 and 2 and the suit for redemption is therefore not sustainable. Mr. Nambiyar's main contention is that it is perfectly competent to Kumbambu Kurup, the then karnavan, who executed the karars in favour of the plaintiffs to make an assignment of the suit land in their favour and to enable them to redeem the land for the purpose of enjoying the land for their maintenance, that Exs. 2 and 3 being in derogation of the rights conferred on them is not binding on the plaintiffs, and in any event, Ex. 3 is not binding on the plaintiffs and that the plaintiffs must be allowed to redeem the property on payment of the amount due under Exs. A and 2. This last contention should in my opinion prevail. No valid ground of attack was made against Ex. 2 and in the memo of grounds of appeal no objection regarding its invalidity was raised. It is not therefore open to Mr. Nambiyar to assail it before me. I therefore proceed on the assumption that Ex. 2 is valid.

    3. But the question remains whether Ex. 3 is valid and binding on the plaintiffs. If the plaintiff's right under Exs. C and B to redeem the kanom of Alappukaye is valid, it follows that Ex. 3 cannot stand, and this position is not challenged by Mr. Sitarama Rao on behalf of defendants 1 and 2. The question therefore is was Kunhambu Kurup who executed the said karars within his right in including; the suit property in the said karars and was he competent to confer on the plaintiffs the power to redeem the kanom of Alappukeyi? The argument of Mr. Sitarama Rao on behalf of defendants 1 and 2-may be stated thus: the assignment of lands was in favour of specific members of the tarwad, that the inclusion of the suit item was not necessary having regard to the amount that was fixed for maintenance for each member, that the suit item was only included and intended to be for the purpose of maintenance for future members? of the tavazhi, that it was not competent to a karnavan of a tarwad to make a grant for future born members of the tavazhi, that the grant of the suit item was an independent and separable transaction and it is open to the succeeding karnavan to ignore it, and further the power of redemption conferred on the assignee was in the nature of a melcharth long before the period of redemption arrived and invalid and illegal. It is well settled, and it is not disputed, that it is open to a karnavan of the Malabar tarwad to make grants of I land in lieu of maintenance to the junior members of the tarwad and that any such maintenance arrangement entered into by the karnavan in favour of a junior member or a group of members constituting a tavazhi is binding on the succeeding karnavan and cannot be set aside except for a good cause. It is open to him, having regard to the circumstances then existing to substitute some other suitable arrangement. But until that is done, he cannot interfere with it: 32 MLJ 971 and 23 MLW 584.2

    4. It is not suggested in this case that the maintenance arrangement entered into by Kunhambu was not bona fide or proper at the date of the said karars. What is suggested is that the inclusion of the suit item-was unnecessary having regard to the then: existing circumstances as being a provision for allotment for future born members. To test the soundness of the argument, it; is necessary to examine the document to find out what the substance of the trans, action is. The relevant portion of Ex. C runs thus: (It may be noted that the contents of Ex. B are similar)

    As you are now prepared to institute suit against me for the maintenance due to yon from our common Thekke Veetil Tarwad, to avoid such litigation and for the welfare of the tarwad, and for the protection of the tavazhi, landa and parambas mentioned as items 1 to 12 in the schedule herennder and one half of land Item 13, which have the claim value of Rs. 1000 have, on account of the liability of the tarwad, been hereby given possession of to you, out of the tarwad properties for your maintenance and that of the descendants that may be born to the female members, hereafter in order that you shall hold in possession Items 1 to 12 from this day and item 13 after the expiry of the kanom period…. It has been settled that, after the expiry of the kanom demise, you shall pay Rs. 664-1-9, one-half of the aforesaid kanom amount and utilize one-half of the said waram, viz. 360 edangalies, of paddy in meeting the maintenance expenses of the members of your tavazhi.

    5. It will thus be seen that this arrangement was entered into to avoid litigation and intended for the protection of the tarwad. The property that was assigned was 13 items of land including the suit item. It was elicited in the evidence that 12 items were capable of yielding Rs. 57 and it worked out at Rs. 4-12-0 per head for the 12 members in whose favour Ex. C was assigned and that items 1 to 12 were therefore sufficient for the maintenance allotment of the said branch. It may be Been that so far as the second branch is concerned, it consisted of 19 members. As I understand the document, the provision for maintenance was intended to be made for the tavazhi as a whole, members then existing and members to be born and that item 13 was not intended specifically for future born members. The entire allotment must be taken as one allotment for all the members of the tavazhi. Therefore the argument that item 13 was intended only for the future born members is not borne out by the document itself. It is contended that it is not open to a karnavan to provide for the tavazhi as such, because the tavazhi is capable of being increased by birth of future members and they will not be bound by any allotment as not being parties to the document, and further it may be fettering the exercise of the discretion of a succeeding karnavan by any such allotment, because it will not be possible to know the increase in the members of the tavazhi. There does not seem to be any specific authority in favour of this view which Mr. Sitarama Rao contends for, but at any rate, there are indications in some of the decided cases that it may be competent to make such a provision. In 18 IC 234,3 dealing with a karar in that case, Sundara Iyer J. observes at page 235:

    There was no contract between the karnavan and plaintiff 1's mother as representing her branch of the tarwad. It cannot therefore be said that the karar was binding on the tavazhi of the plaintiffs as such until properly sat aside.

    6. In 21 IC 755,4 dealing also with a karar in that case, their Lordships observe thus at page 756:

    There is no provision in the body of the document showing any fixed amount in kind or money as payable to the tavazhi. It will be seen that what is paid is in terms stated to be for the maintenance of five persons only, that is plaintiffs 1 to 5; nothing is said about those who may become members of the tarwad by birth who are clearly entitled to maintenance. To obligation is implied on plaintiffs 1 to 6 to maintain them out for their allowance.

    7. In 49 MLJ 121,5 Phillips J. made the following observation at page 122:

    Both the lower Courts have found that the karar was merely an allotment for the maintenance of the members of the tavazhi who were alive at us date. This would be a rather curious position in a Malabar tavazhi of this size, because a large number of the members are adult women and it may be ordinarily expacted that children would be born shortly after the date of the karar, and it is unreasonable to conclude that after-born children are Intended to be deprived of the benefits of this karar unless it is so stated. It must be remembered that at the time when this karar was entered into, there had been disputes and litigation in the tarwad and the allotments for the maintenance were made in settlement of those disputes, and therefore it is unlikely that Intention of those parties was that this settlement should be subject to modification immediately other members were born. Here, we have recitala in the document which show clearly that the allotment was made to the tavazhi as such which would include not only the members then alive but also members born thereafter.

    8. On appeal from his judgment their Lordships, Waller and Madavan Nair JJ., in 23 MLW 584 took a different view as regards the construction of the document but did not dissent from the view expressed by Phillips J. that allotment can be made in favour of the tavazhi as such, that is for existing members and also for members to be born. No doubt they are all cases in which in was found on a construction of the document that the allotment was made in favour of specific existing members; but at any rate, those cases seem to contemplate the possibility of such an allotment being made and that it will not be in excess of the powers on karnavan as such. Nothing has been shown to me why a tavazhi should not be treated as an entity and provision be made as such for it. The only objection indicated is that it is not possible to predicate the number of members a tavazbi may consist, and the allotment may be more than necessary or not be adequate for the maintenance of the members for all time to come. If the law is that these maintenance arrangements are capable of revicion by the karnavan and it is also open to the tavazbi to seek an enhancement according to changed ciroumslianoes, I do not Bee any force in the said objection. The arrangement will be treated as binding until a case is made out for revision or alteration. However it is unnecessary to rest any decision on this ground, as even treating the assignment as one intended to be in favour of only the existing members, the inclusion of items 13 cannot be considered to be an act done by the karnavan in excess of his powers. What was contemplated by the parties was that the assignees should have the income from all these 13 items and for the first 8 years they should be content with the income from 12 items and thereafter after redeeming the said kanom they should enjoy also the income from item 13.

    9. It is not suggested that the addition of the income derivable from item 13 would in any way make the rate of maintenance excessive; on the other hand, it appears from the evidence of the present karnavan that the proper maintenance for each member would be Rs. 6 or 6 per month. No doubt plaintiff 1 in his deposition stated that at the time the arrangement was entered into, Rs. 4-12-0 was taken as the basis of calculation. It may be so, but there is nothing improper for a karnavan to safeguard the possible decrease in the rate intended to be provided for having regard to the bad seasons by including also item 13. It would seem to me proper and prudent on the part of a karnavan to make such a provision and if in the exercise of his discretion a karnavan does so, it cannot be assailed by the succeeding karnavan that it may not have been necessary at that time. The question in all these cases is as pointed out by Kumaraswami Sastri J. in 33 Mad 4366 at p. 438, was the transaction at the time it was entered into bona fide proper and prudent? Therefore having regard to all the surrounding circumstances on the date of the karars, the inclusion of item 13 was certainly within the competence of the karnavan and no valid reason has been assigned against its inclusion. Again, it is not open to a succeeding karnavan with, out upsetting the arrangement as a whole to withdraw a portion of the land allotted. It may be open to him to revise the entire arrangement and substitute some other arrangement but he has not chosen to do so. However, as I have said, there is nothing unreasonable in also allotting item 13 for maintenance. Therefore the view of the lower Court in this behalf is unsound and cannot stand.

    10. It remains to notice the other argument of Mr. Sitarama Rao whether it was competent to the karnavan to empower the plaintiffs to redeem the kanom long before the period arrived. If the assignment had been in favour of a stranger by way of a melcharth, possibly it may be open to objection that a karnavan, by assigning away the right to redeem long before the period of redemption, would not be acting prudently in the interest of tarwad and would be unnecessarily fettering the exercise of the discretion of the succeeding karnavan who at the time of the expiry of the period, should take the circumstances then existing as to the desirability of granting a meloharth; but, if by means of a family arrangement, the said property is allotted to a member in lieu of maintenance subject to the burden thereon, there is nothing in law to preclude him from empowering that particular member to discharge that burden and enjoy the land. Mr. Sitarama Rao frankly confesses that there is no authority in support of the view that it would be in excess of the powers of the karnavan to do so. There, fore if the allotment of item 13 cannot be interfered with and the plaintiffs have got a valid right to redeem the kanom of Aluppukeyi, Ex. 3 cannot stand; but it is open to the plaintiffs to redeem only the Aluppukeyi's kanom; they are also bound to redeem the kanom in favour of defendant 2 created by Ex. 2. I therefore set aside the decree of the learned District Judge and give leave to the plaintiffs to redeem the suit properties on payment of the amount due under the kanom in favour of Aluppukeyi and also under Ex. 2. In the circumstances, I direst each party to bear his own costs in this second appeal and in the Courts below. The amount which has been agreed that the plaintiff should pay for redeeming the land is Rs. 2039-2014-10. Time for redemption is six months from this date.

    C.R.K/B.D

    11. Decree set aside.

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    Comments

    Thekke Veettil Makkam Amma And Others v. Thekke Veetil Kunhi Kalappa Kurup And Others
    (Mar 18, 1937)