1. The facts of this case are as follows : A previous karnavan of the plaintiff's tarwad granted a kanom of Rs. 12,000 and odd to one Thappan Nayar on the nth May 1896 and subsequently on the 30th of June 1902 executed a puramkadam deed for Rs. 1,350, under which the original term of 12 years granted in 1896 was extended for another 12 years from 1908. Thappan Nayar was, accordingly, entitled to hold the property until 1920. Subsequently, Thappan Nayar transferred Rs. 6,000 of the kanom to defendants 1 to 3, the 1st defendant being the wife of Raman Nayar and the daughter of Thappan Nayar. The remainder of the kanom passed to Raman Nayar, the husband of the 1st defendant. In 1914 the 10th defendant, who had then become the karnavan, executed two demises one in ravour of Raman Nayar and one in favour of defendants 1 to 3. These demises renewed the existing tenure for a period of 12 years from their date, namely, until 1926. The plaintiff, the the senior anandravan of the tarwad, has now brought suits to set aside these demises as not being binding on the tarwad. The case against Raman Nayar had already been disposed of and we are now only conceYned with the demise in favour of defendants 1 to 3. In the lower court the plaintiff's suit has been dismissed and he appeals.
2. It has been consistently held in this Court that a renewal of a kanom by a karnavan before the expiry of its period, when such renewal is to take effect from the date of expiry, is not valid, unless it is shown to be for necessity, and it is the appellant's contention that the plaint demise, is, in effect, a renewal of the puramkadam deed granted in 1914 for a period of. 6 years from 1920, and that, therefore, unless the necessity for the transaction is proved it is not valid and binding on the tarwad. The case is not, however, quite so clear as that, for in all cases of renewal a fee is payable by the tenant to the tarwad varying in amount according to circumstances. Ordinarily, therefore, the renewal fee is payable every 12 years and in this case the tarwad would not have been entitled to a renewal fee until 1920, whereas a fee of Rs. 500 for this document was received by the karnavan in 1914, although the prior demise for which also a fee had been paid did not expire until 1920. The practical effect of the demise, therefore, is that the tenant has the right to hold the property for an additional 6 years but has, in fact, paid a renewal fee for 12 years. The tarwad loses the right to redeem for a period of 6 years but gains what is, in effect, the renewal fee payable for 6 years.
3. The demise has been justified by the defendants on three grounds, (1) that it was executed for necessity, (2) that, as the puramkadam deed was an invalid deed and it wasa renewal before the date of the expiry of the kanom, the kanom was the only valid demise in existence in 1914 and (3) that the demise was executed in settlement of a bona fide dispute between the parties. I do not think it necessary to discuss the first two grounds in this judgment, for I am satisfied that on the third ground the defendants must succeed. Defendants 1 to 3 were holding the property under the puramkadam demise of 1902, but the succeeding karnavan, the present 10th defendant, sent a notice in 1914 demanding surrender on the payment of the kanom amount and value of improvements. A reply was sent by the 1st defendant's husband, a High Court Vakil of some standing, to the effect that the kanom of 1896 had been renewed by the puramkadam deed of 1902 and that the 10th defendant had no right to evict until the expiry of the term under the latter. In the first place, it is contended for the appellant that there was no real dispute between the parties and that, therefore, this demise cannot be treated as in the nature of a compromise and, consequently, that, if there was a dispute, the compromise not being entered into for the benefit of the tarwad, is invalid. A large number of cases have been cited as to the circumstances in which a compromise entered into by a qualified owner should be recognised as binding on the estate, but most of these refer to the case of compromises entered into by widows. A karnavan's position is, however, somewhat higher than that of a Hindu widow and, in fact, a karnavan of a Malabar tarwad has, in some respects greater powers than a manager of a joint Hindu family, as pointed out in Kunhamcd Hajee v. Kuttiath Hajee I.L.R. 3 M. 169. He has full powers of management of the family property and is even allowed to give kanoms of the tarwad property without necessity, although a kanom amounts to an alienation of immoveable property. This power is, therefore, one which is not possessed either by a widow or by a manager of a Hindu family except in cases of necessity. The chief reason for holding that necessity must be proved in order to validate a renewal executed before the expiry of the subsisting kanom is that it is impossible to predicate some years in advance what the state of affairs will be when the original kanom expires, and what incidents should be imposed in order to make the demise beneficial. In this case however, the plaint demise is to take effect at once and therefore the above consideration does not come into play. If therefore a karnavan can obtain the consent of a kaaomdar to premature renewal to take effect from that date, in my opinion it does not necessarily follow that it is an act of bad management, even if necessity be not proved, for the karnavan has full powers of management, and is in a position to decide whether the transaction is a prudent one or not. A somewhat different view has been taken in Vatavatta Nair v. Kenath Puthen Vittil Kuppassan Menon 36 M.L.J. 630 , but in the present case I think the validity of the demise can be supported on other grounds, without deciding this question here. I think that, even if we cake it that the karnavan's powers in this instance are no higher than those of a Hindu widow, the transaction can be justified on the ground that it was entered into bona fide for the benefit of the tarwad vide Ramasumran Prasad v. Shyam Kumari (1922) 49 I.A. 344 : 44 M.L.J. 751. The puramkadam demise of 1902 was outstanding and, as it had been granted before the expiry of the prior demise, it would be invalid, unless it were granted for necessity. It was, of course, alleged that it was granted for necessity, but that was a fact which the defendants would have to prove. On the other hand, if they did prove it, the defendants would be entitled to hold without payment of any further renewal fee till 1920. By compromising the claim, therefore, the 10th defendant allowed the defendants to remain in possession for a further period of 12 years on payment of a renewal fee which would not become due until 6 years later. There is evidence that there were other disputes also. The 1st defendant's husband who, as I said before, is a High Court Vakil of some standing, says, 'The 2nd defendant repudiated the demise under Ex. XXI and threatened to recover the property on the strength of Ex. XX. Therefore, I consented to give up the unexpired period secured by Ex. XXI and to accept a fresh demise from him.' 'I was induced by my friends Mr. P. Kannan Nayar and Mr. M. Narayana Menon to give up my term and take a renewal.' These two friends are a High Court Vakil and a First Grade Pleader, respectively, the former being the Vakil for Raman Nayar, the 1st defendant's husband, and the latter the 10th defendant's Vakil. They were both examined and they both said that there was a dispute about this demise and also disputes with regard to other property and that, in settlement of those disputes, the plaint demise, as well as the' demise in favour of Raman Nayar, was executed.
4. The next question is whether that compromise was entered into for the benefit of the estate, the allegation being that the karnavan entered into the compromise in order to secure the renewal fee for his own purposes, and that, as there was no present necessity for the money, it was an improvident act in that it alienated the property for an additional 6 years. No doubt, it is technically an alienation, but, if the circumstances of the case are thoroughly examined, it is only an alienation in the technical sense. The property was outstanding on mortgage for nearly Rs. 14,000, which apparently the karnavan was not in a position to pay, and the only effect of the renewal was to put it out of the power of the tarward to redeem the property for a further period of 6 years and it was very unlikely that they would be in a position to redeem at an earlier date, nor is it apparent that earlier redemption would be beneficial to the tar-wad. No additional money was borrowed and, consequently, no fresh burden imposed on the tarwad, but, on the contrary. A sum of money was received for the benefit of the tarwad. Taking this circumstance into consideration and the fact that litigation was avoided by the compromise, it appears to me that the transaction was certainly entered into bona fide and for the benefit of the estate. I am not prepared to accept the contention that it is necessary for a contracting party to prove that the estate did in fact, actually benefit and, therefore the suggestion that the money paid to the karnavan was appropriated by him for his own purposes and that the estate did not benefit at all need not be taken into consideration. If the contracting party is satisfied that the compromise is a bona fide one and that, in the ordinary course, a benefit will accrue to the estate, it is not necessary fox him to prove that it actually did so as against the allegation that the benefit which should have accrued was fraudulently misappropriated by the karnavan. A contracting party cannot presume that there will be a fraudulent misappropriation and, unless he is a party to that fraud and acts in collusion with the karnavan, he is entitled to protection. Whether, therefore, the 10th defendant did or did not spend the money received by him for the benefit of his tarwad is in this case immaterial, as it is not alleged that there was any collusion between defendants 1 to 3 and the 10th defendant in this respect. The money was paid to the karnavan for the benefit of the tarwad, and consequently the transaction was one beneficial to the tarwad, although subsequently that benefit was misappropriated by the karnavan.
5. On these grounds I think that the Subordinate Judge's decision is correct and dismiss this appeal with costs.
6. I agree.
7. As regards the memo, of objections we do not think that a successful party should be made to bear the losers' costs, save in exceptional case, such as when his false contentions have been the cause of unduly swelling his opponents' costs. That is not the case here. We accordingly direct in modification of the Subordinate Judge's order that each party do bear his own costs in the lower Court and also of the memo, of objections.