Narayanan Namboodiri vs Chinna @ Kallani Amma and Others

M. M. Pareed Pillay, J.—Plaintiff is the appellant. The suit filed by him to set aside Ext. A-4 sale deed was dismissed by the trial Court and it was confirmed by the District Judge. As per Ext. A-1 partition deed of 1121 M. E. Kuttanchery Illom properties were partitioned into two thavazhies. One thavazhy was that of Manu Moosad and the second thavazby was that of Uma Antharjanam and her son Aryan Moosad. As Manu Moosad and Aryan Moosad married outside their caste their children were not entitled to inheritance of Illom properties. 6th defendant Aryan Namboodiri was adopted to the Illom. 6th defendant married 7th defendant. Plaintiff and defendants 8 to 13 are their children.

In 1123 M E. Uma Antharjanam and Aryan Moosad gave management to defendants 6 and 7 over certain items of properties. As per the recitals in Ext. A-2 the property vested with defendants 6, 7 and children after the death of Uma Antharjanam and Aryan Moosad. Ext. A-2 contains a stipulation barring alienation by Uma Antharjanam and Aryan Moosad. Uma Antharjanam died on 14-7-1957. Aryan Moosad died on 28-5-1970.

After death of Uma Antharjanam, Aryan Moosad executed a management deed in 1958 concerning some of the properties mentioned in Ext. A-2. This is evidenced by Ext. A-3 dated 4-11.1958. Later Aryan Moosad executed Ext. B-t settlement deed conferring absolute rights to Aryan Namboodiri, his wife and children. On the same date of Ext. B-1 Aryan Namboodiri, his wife and children (defendants 8 to 13 and plaintiff) executed a sale deed Ext. A-4 conferring rights over 121/2 acres of land to Aryan Moosad. Challenge is against Ext. A-4.

Contention of the plaintiff is that Ext. A-2 can only be construed as a willand not a settlement. Defendants'' contention is that Ext. A-2 is really a settlement deed and not a will. The Courts below held that Ext. A-2 can only be construed as a settlement deed. The Courts also held that even if Ext. A-2 is not construed as a settlement deed but as a will, position is no better to the plaintiff in view of the fact that Ext. B-1 was executed by Aryan Moosad conferring absolute rights to Aryan Namboodiri, his wife and children and so they were competent to execute Ext. A-4.

Learned counsel for the plaintiff pointed out that Ext. A-4 cannot have any legal validity as there was no Illom necessity at the time of its execution. It is also contended by him that Ext. A-4 cannot be sustained as permission from the Court as enjoined u/s 8 of the Hindu Minority and Guardianship Act was not obtained. Counsel submitted that though there is no pleading in the written statement on the latter ground, being a question of law it can be raised in the Second Appeal.

Learned counsel for the plaintiff argued that no previous permission of the District Court was obtained by the guardian of the minors at the time of execution of Ext. A-4 and on that sole score Ext. A-4 is voidable at the instance of the minors. Counsel further submitted that the Hindu Minority and Guardianship Act, 1956 being Central Act and as it is intended as the law relating to minority and guardianship among Hindus throughout India it has overriding effect over the provisions under the Kerala Nambudiri Act. Counsel submitted that Section 5 of the Kerala Nambudiri Act, 1958 is repugnant to the specific provision u/s 8 of the Hindu Minority and Guardianship Act and the State Act being repugnant to the Central Act the latter has to prevail. Learned counsel for the defendants pointed out that such a contention was not urged in the plaint or in the appeal memorandum before the lower appellate Court and in the Second Appeal and the belated contention outside the pleading has to be outright rejected Causal further pointed out that the above contention is untenable in view of Article 254 (2) of the Constitution of India.

Section 8 (2) of the Hindu Minority and Guardianship Act specifically provides that the natural guardian shall not, without the previous permission of the court, mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. Section 8 (3) makes it abundantly clear that any disposal of immovable property by a natural guardian in contravention of sub-section (1) or sub-section (2) of Section 8 is voidable at the instance of the minor or any person claiming under him. Section 8 (4) states that no court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor. On the other hand, Section 5(1) of the Kerala Nambudiri Act provides that no sale or mortgage of any immovable property of an illom and no lease of any such property shall be valid unless it is executed by the karnavan for consideration for illom necessity or benefit and with the written consent of the majority of the major members of the illom. Ext. A-4 was executed by the karnavan of the Illom and at the time of its execution majority of the major members had consented to it, they being executants of the document.

The question to be considered is whether the relevant provisions under the Hindu Minority and Guardianship Act have overriding effect on the provisions in Kerala Nambudiri Act. Article 254(2) of the Constitution of India reads :

Where a law made by the Legislature of State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State.

Kerala Nambudiri Act has received the assent of the President of India on 8th May. 1958 This Act has been enacted to provide for the family management and partition of Illom properties among Nambudiris. The preamble to the Act shows that on account of the expediency to provide for the family management and partition of illom properties among Namboodiris in the State of Kerala the Act was enacted. President has assented to the State Act. The result of obtaining the assent of the President to the Kerala Nambudiri Act which contains Sec ion 5 which is inconsistent with Sections 8(2) and (3) of the Hindu Minority and Guardianship Act, a Union law relating to a concurrent subject is that the State Act would prevail in that State and it has overriding effect on the provisions of the Central Act. Of course, this state of affairs will exist only until Parliament enacts a law adding to amending, varying or repealing that State Act. Contention of the plaintiffs counsel that in view of Section 8(2) and (3) of the Hindu Minority and Guardianship Act Section 5 of the Kerala Narabudiri Act cannot have any application is devoid of merit. As the parties are governed by Kerala Nambudiri Act, Section 5 applies. As Ext. A-4 was executed by the karnavan of the illom with the consent of the majority of the major members of the illom the first condition u/s 5 has been satisfied. Both the Courts below on a consideration of the evidence held that there is sufficient evidence to show that the illom was in financial difficulties and Ext. A-4 cannot be challenged for want of illom necessity. It is in evidence that many properties were sold away and almost of all the items were in the possession of the tenants. P. W. 1 admitted that even the tharwad house was sold away on account of financial difficulties faced by the illom. He further admitted that vessels belonging to the illom were also sold. P. W. 1 has also admitted that before the Tahsildar a petition was filed under the Kerala Debt Relief Act. The learned District Judge on a consideration of the evidence held that the illom was in financial difficulties and he agreed with the finding of the trial Court that execution of Ext. A-4 was for illom necessity. This is essentially a finding of fact and this Court cannot re-appreciate the evidence and come to a different finding. Plaintiff could not point out any circumstance to hold that the finding of the lower Courts is vitiated by non-consideration of relevant evidence. Nor could he establish that the suit was dismissed on an essentially erroneous approach to the matter by the Courts below.

There is no merit in the Second Appeal. Second Appeal is dismissed with no order as to costs.