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Judgment
Venkataramana Rao, J.—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 tar wad 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 Aluppukeye 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 Kunhambu 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 Section The said kanom
happened to be executed under the following circumstances.
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 attached. To satisfy the attachment, the karnavan
obtained leave of the Court to mortgage the said property; in pursuance of the sanction 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 laud 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.
But the question remains whether fix. 3 is valid and binding on the plaintiffs. If the plaintiff''s right under Exs. C and B to redeem the kanom of
Aluppukaye 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 plainstiffs 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 ant 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 meloharth 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 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: Kamaswami Pattar v. Gopalan (1917) 4 AIR Mad 78 and Payath Ramdupurayil Sara Umma and Others Vs.
Kidangu Kettiya Ramdupurayil Kunhammad and Others,
It is not suggested in this case that the maintenance arrangement entered into by Kunhambu was not bona fide or proper ad 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 you from our common Thekke Veetil Tarwad, to avoid such
litigation and for the welfare of the tarwad, and for the protection of the tavazhi, lands and parambas mentioned as items 1 to 12 in the schedule
hereunder 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
nettled that, after the expiry of the Kanom demise, you shall pay Rs. 564-4-9, one-half of the aforesaid kanom amount and utilize one-half of the
said waram, viz. 350 edangalies, of paddy in meeting the maintenance expenses of the members of your tavazhi.
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. There, fore 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 snob, 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 Kelu Achan v. Lakshmi Nethyar Ammal (1913) 18 I.C. 234.
dealing with a karar in that case, Sundara Iyer J. observes at page 235:
There was no contract between the karnavan and plaintiff 1''smother 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.
In Pattu Neithier Amma v. Thazatha Dharaman Achan (1913) 21 I.C. 785 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. No obligation is implied on plaintiffs 1 to 6 to maintain them out for their allowance.
In Kunhahomad v. Sara Umma (1925) 12 AIR Mad 1158 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 its
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 expected 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 recitals 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.
On appeal from his judgment their Lordships, Waller and Madavan Nair JJ., in Payath Ramdupurayil Sara Umma and Others Vs. Kidangu
Kettiya Ramdupurayil Kunhammad and Others, 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 it 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 of a 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 tavazhi may consist, and the allotment may be more
than necessary or not be adequate for the maintenance of the member for all time to come. If the law is that these main, tanance arrangements are
capable of revision by the karnavan and it is also open to the tavazhi to seek an enhancement according to changed circumstances, I do not see
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.
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. 5 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, lit cannot be assailed by the succeeding 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.
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 melcharth; 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 can not 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 direct 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. 2039-14-10.
Time for redemption is six months from this date.