Narayanan Nair vs Narayanan Nambudiri and Others

Subramania Iyer, J.—Defts. 1 & 2 in O. S. No. 186 of 1121 on the file of the Trichur Dist. Munsiff''s Ct. are the applts. The suit was for recovery of possession of the properties shown in the schedule to the plaint on foot of title, the pltfs. who are Namboothir is, having obtained the properties, among others, under the partition in their illom in the year 1120. The suit was filed in the year 1121. The learned Munsiff dismissed the suit. That decision was reversed by the Addl. Dist. J. of Trichur in A. S. No 297 Of 1122.

Defts 1 & 2 depend upon EX II dated 18-10- 1118 which is pattomchit executed by them in favour of one Subramanian Nambudiri of the pltf''s. illom & claim that they are lessees entitled to permanency under the Cochin Verumpattomdars'' Act. VIII [8] of 1118. The learned Dist, J. repelled the contention on the ground that under the provisions of the Cochin Nambudiri Act, which is applicable to the pltfs. & Subramanian Nambudiri, as amended by Act XVI [16] of 1118, it was beyond the competence of Subramanian Nambudiri to grant the lease evidenced by Ext. II because that Act prohibits Karnavan from granting leases of immovable-properties except in conjunction with, or with, the consent of the other major members of the family. It is not contended that this lease arrangement has had the concurrence or the consent of the other major members of the family as required by that statute

Mr. Krishna Iyer, the learned counsel for the applts contends before us that the position taken up by the learned Judge is not sustainable for various reasons, firstly that the lease in this case was not by a Karnavan, but by a manager appointed by a Ct. secondly that the Amending Act, XVI [16] of 1118, which was passed on 6-11-1118 would not affect the vested rights already held by his clients under Ext. II from 18-10-1118 even though 8. 1 of the Amending Act provides that it would be deemed to have come into force on 22-7-1118 A third position taken up by Mr. Krishna Iyer is that Section 4(d), Verumpattomdars'' Act provides for permanency "notwithstanding any law to the contrary" & this provision would. exclude the operation even of the Amending Act XVI [16] of 1118.

So far as the first point is concerned, a perusal of Ext II would show that Subramanian Nambudiri who was a party thereto became the manager under the decree in O. S. 70 of 1113. We ate told by the advocates for both parties that that suit was one for the removal of the karnavan of the family from management & that Subramanian Nambudiri became manager of the family on account of that decree. Mr. Krishna Iyer''s argument is that what is hit by the Amending Act, XVI [16] of 1118 is only leases by karnavans & not leases by managers. A karnavan is defined in the Nambudiri Act as meaning the oldest male member. The argument is, when that karnavan is removed, there is no more a karnavan in the family & therefore, the prohibition will not apply to lease granted by a succeeding manager. It is not necessary for us to dilate very much on this, but we have to mention that karnavanship comes to a parson by his birth. That consists of two capacities, a spiritual & a temporal one. In so far as the former capacity is con-corned it comes to him by birth & nothing but death can deprive him of it except perhaps the cessation of his membership in the community to which he belongs. When a karnavan is removed from management, he may continue to be a karnavan being the eldest male member of his family & may continue. to hold the social or religious privileges, but so far as the management is concerned, be is no longer the manager. His successor in management will, therefore, be only a manager & not a karnavan. When a Ct. removes a karnavan from management of a tarwad, it is not necessary nor is it competent for a Ct. to appoint anybody in his stead. The next in order comes in as manager in his own right. If he is unfit for managership there be a prayer for a declaration in that behalf which is granted, the next image below him becomes manager. The manager under the decree in O. S. 70 of 1113 can only therefore mean that on the removal of the karnavan & perhaps on account of the declaration of unfitness for management of the senior most ananthiravan, Subramanian Nambudiri became the manager of the family in the place of the disposed karnavan. It is impossible for as to accept the contention that the prohibition against the karnavan would not apply to the manager who thus comes into management on account if a decree of a Ct.

The second point urged by Mr. Krishna Iyer is that vested rights could not be divested. The Amending Act itself affords a sufficient answer to this, because the Act provides that the amending Act would be deemed to have come into force on 12-7-1118, that is to say, the transaction evidenced by Ex. II was brought into existence at a time when that Amending Act must be deemed to have come into force. There is therefore no need to consider the question as to whether a subsequent enactment will operate to divest vested rights.

The third point is based on Section 4(d) , Verumpattomdars'' Act. The law referred to in this sub section can only be the law relating to the cases that means the permanency or otherwise of cases & not to the validity of contracts of leases. Mr. Krishna Iyer also contended that the transaction evidenced by the Ex. II is not void but only voidable & the pltfs. in order to get rid of the transaction, must file a suit to have the transaction that aside. When a transaction is said to be voidable that the instance of certain members of a family, it a not necessary for those members to bring a suit o set aside that transaction, It is enough for them to elect not to be bound by it. If they so elect, the transaction would not bind them. In the plaint. the pltf, in para6, have sufficiently indicated in clear terms their election not to be bound by the transaction. It is not necessary for them to file at separate suit praying for setting aside the transaction.

In the view that we take of this matter, the contract evidenced by EX. II is not binding upon the Illom of the pltfs. & therefore upon the pltfs. It follows that Defts. 1 & 2 who claim thereunder are not entitled to be in possession as lessees because there is no valid lease granted in their favour. The result is that this second appeal has to be dismissed with Costs. In this view it is unnecessary to consider the various other questions dealt with by the Cts. below.