N.P.T. Cheria Kunhammad v. Kunhunni

Sadasiva Aiyar. J. — Defendants 3 and 4 are the appellants. The plaintiff is the Karnavan of an edam and he sued to recover the Edam which had been based to the 1st defendant n 1899 to take effect on the expiry of a prior lease granted in 1891 and which would expire in the ordinary course in 1903. It was found by the Lower Appellate Court that there was no necessity or justification for grantnig that lease in 1899, four years before the term of the prior lease expired. The question is whether in law the plaintiff who has succeeded to the Karnava Stanom in 1907 is entitled to treat the lease granted without justification or necessity by the prior Karnavan, 5th defendant, as not binding on the tarwad. In Cheria Cherikandan v. Krishnan Nambiar(1) Sundara Aiyar, J., and myself held that where a lease had been granted for 5 years and melcharth was granted after 3 years from the beginning of the first lease and two years before the expiry of that lease term to another tenant, such a second lease was not binding on the succeeding karnavan. In that case, no doubt the second lease was granted to a man other than the person who was holding under the 1st lease. Mr. Menon argued that we were probably led to the conclusion on that case adverse to the second lease by a desire to put an end co the undesirable practice of karnavans granting kanoms and leases to third persons over the heads of the lessees and kanomdars in possession. But there is nothing in the judgment in Cheria Cherikandan v. Krishnan Nambiar to indicate that the fact that the second lease was given to a person other than the original lease influenced our opinion. I think that Sundara Iyer, J. (who pronounced the judgment which I adopted) has given two reasons why such an exercise of power in anticipation by the karnavan is not binding on the tarwad. He first says “it is not alleged that there was any necessity for doing so or that the tarwad derived any benefit from the transaction.” So if such an allegation is not made and proved it is implied in the above observation that that would be a sufficient ground for holding that the transaction would not be binding on the tarwad. Then that ground is sought by us to be fortified by the further consideration that the Karnavan who gave the second lease may be succeeded by a different Karnavan even during the continuance of the term of the 1st lease and that “it is impossible to countenance the proposition that the Karnavan for the time being can tie down the discretion of those that are to succeed him in the management by granting leases of family lands, when there is absolutely no reason for doing so, and the lands are being held by tenants on leases which are stil in force.” The judgment was pronounced on the 19the July, 1912. Taking advantage of this second reason mentioned in the judgment about the danger to the rights of the succeeding kamavans, an argument was elaborately advanced in the case reported in the next page (i.e,) Moidin Kutti v. Kunhi Koyan, that if the karnavan who anticipated the expiry of the 1st lease happened to be alive and still holding his position as karnavan when the term expired, the melkanom or melcharth already granted need not be supported by necessity or justification to be binding on the tarwad. Ayling and Hannay, JJ. in a short judgment decided on this contention as follows” It is found that there was no family necessity to justify the malcharth Ex, B; and we must hold that the transaction is not binding on the successor of the karnavan who executed it whether the latter did or did not survive the expiry of the prior kanom. The appeal is dismissed with costs. Mr. Menon, however, relied upon a yet later decision of Phillips and Krishan, JJ. in S.A 774 of 1917 dated 22nd November 1918. In this case the decision in Cheria Chirikandan v. Krishnan Nambiar is referred to and it was intrepreted as implying that if the grantor lived after the term of the prior kanom expired and was thus in a position to then grant the melcharth (and provided that the grant was not of such a nature as to improperly prejudice the successor) it is valid. Somehow reference is not made in S.A 774 of 1917 to the decision of Ayling and Hannay in Moidinkutti v. Kunhikoyan A karnavan's ordinarily legal right is that of management over the tarwad affairs and properties in my opinion it is difficult to hold that 4 years before a lease expired, it is the proper thing or an ordinary incident of management to grant a second lease to begin on the expiry of the former lease. That was the principle on which the decision in Cheria Chirikandan v. Krishnan Nambiar, was leased. It is only where proper necessity or justification can be argued to invoke what can be called the extraordinary powers of dealing with the property (which is being held by tenants under a lease which has not expired) that such an action can be held valid against the tarwad. It is also significant that this contention that this necessity need not be shown where the Karnavan continues in power at the expiry of the 1st lease seems not to have been argued before the lower appelate Court but was raised for the 1st time in the Second Appeal Memorandum.

As the lower courts have found that there was no necessity or justification for the attempt to deal with the property before the expiry of the former term, I would upheld the lower Appellate Courts judgment, expressing my respectful dissent from the decision in S. A. No. 774 of 1917 and I would dismiss the Second Appeal with costs, the contention relating to the 2 other documents Exs I and IX not being sustainable on the facts found.

Spencer, J.—As regards the judgment in S. A. No. 774 of 1917 which has been quoted to us in support of the premature grant of a melcharth, if the time for the renewal of the lease of kanom is anticipated by a karnavan in such a way as to have the effect of fettering his successor's management of the estate though a renewed lease or kanom may be bad on account of such anticipation of the karnavan's powers, it does not to my mind follow that in cases where there is no successor and the same karnavan continues in office till after the expiry of the term the instrument is necessarily a good one. Sundara Iyer]., in Cheria Chirikandan v. Krishnan Nambiar observed that there was no justification for the granting of a melcharth 2 years in advance of the expiration of the prior lease. In that case it was not alleged that there was any necessity for it or that the tarwad derived any benefit from the transaction. A fortiori in the present case where no explanation has been offered for anticipating the time of the renewal of the lease by four years, it is difficult to see how the 5th defendant's conduct can be justified. I agree that the Second Appeal should be dismissed with costs.

K. V. S.Appeal dismissed.