1. I have had theadvantage of reading the judgments which are about to be delivered, and will confine myself to saying that on the facts of the present case I think that the Karnavan may be presumed to have ratified the kanom which he prematurely granted.
2. Inasmuch as the defendant never clearly raised the point on which he has succeeded till second appeal, we think that the parties must bear their own costs throughout.
Anantakrishna Aiyar, J.
3. The suit properties belong in Jenm to the Thazhakkat Mana of which the 6th defendant is the Karnavan. The then Karnavan of the Mana demised the suit properties on kanom to the 1st defendant's Karnavan (Raman) under Ex. II, dated 6th June, 1910 (it was renewal of a prior kanom). The same Karnavan executed in favour of the said Raman Ex. III on 20th April, 1919, by which Raman was authorised to hold the properties for a period of twelve years from 6th June, 1922, the date on which the period of twelve years under Ex. II would expire. The karnavan who executed Ex. III died in Vrichikam 1098 (November-December, 1922). The 6th defendant who then became the karnavan of the Mana granted the Melkanom deed, Ex. A, to the plaintiff on 28th May, 1923. The plaintiff instituted the original suit in 1925 for redemption of the demise of 1910 (Ex. II). Defendants 2 to 5 were tenants in possession under the 1st 'defendant, and neither they nortjhe 6th defendant--the karnavan of the Jenmi's Mana--contested the suit. The plea of the contesting defendant No. 1 was that the renewal evidenced by Ex. III was valid and binding on the 6th defendant and on the plaintiff. Both the Lower Courts held against that contention of the 1st defendant and granted a decree for redemption in favour of the plaintiff. The 1st defendant has preferred this second appeal.
4. This second appeal was referred to this Bench owing to the conflict of decisions in S.A. No. 774 of 1917 and Kunham-mad v. Kunhunni I.L.R. (1920) 43 Mad. 715 : 38 M.L.J. 461.
5. It may be mentioned at the outset that the demise under Ex. III is not of a right to hold the properties for a period of twelve years from its date. It is not a case where a kanomdar surrenders the unexpired portion of the term under the prior kanom under which he is holding and the Jenmi accepting the same grants a kanom to have operation for a period of twelve years from that date (date of renewal), in which case different considerations would apply. A perusal of Ex. III makes it clear that the grantee under it (Raman) did not give up any portion of the term under Ex. II, but the grantee is to have the full period of twelve years under Ex. II which would expire on 6th June, 1922, and also twelve years under Ex. III from 6th Tune, 1922 to 6th June, 1934.
6. The plaintiff's contention is that Ex. III which was executed three years and one and a half months before the expiry of the period of the prior kanom under Exhibit II is invalid, whereas the 1st defendant's plea before us is that as the Karnavan who granted Ex. III was alive on 6th June, 1922 (the date when the term under Ex. II expired) but died only about 5 months later, Ex. III is binding on the 6th defendant --the next Karnavan.
7. The learned Subordinate Judge disposed of the question as follows:
It is clear law that Ex. III which was a renewal granted more than three years before the expiry of the prior demise is invalid unless the 1st defendant is liable to prove that this renewal was absolutely necessary for the family purpose of the Thazhakkat Mana...The 1st defendant and his witnesses have not been able to make a convincing case that there was any necessity for the illom to grant this melkanom before time. I agree with the Lower Court that the necessity for the grant of this melkanom has not been proved, and that the renewal by Ex. III is therefore invalid.
8. It was argued before us that in S.A. No. 774 of 1917 a Bench of this Court consisting of Phillips and Krishnan, JJ., held as follows:
The grant of the melcharth four years too soon might well be ground for declaring it not to be binding on the grantor's successor, if the grantor died before the period of the prior kanom' had expired as held in Cheria Cherikandan v. Krishnan Nambiar : (1914)27MLJ690 ; but in this case the grantor died after the prior kanom had expired and was thus in a position to grant the melcharth, provided that the grant was not of such a nature as to improperly prejudice the successor. We cannot therefore hold that the plaint melcharth is invalid as improperly prejudicing the successor.
9. On the other hand, we are referred to Moidin Kutti v. Kunhi Koyau : AIR1915Mad650 , where the learned Judges Ayling and Hannay, JJ., held that
This 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.
10. The finding as regards the melcharth in question in that case was this: that 'the karnavans and managers of Malabar tarwads have no power to grant melcharth in respect of tarwad properties except for pressing family necessities, and that there was no tarwad necessity for the execution of the melcharth - Ex. B - which was intended by the 3rd defendant's mother simply to accommodate her insolvent son' (page 692). The headnote of the report seems to be too wide when it states that 'in the absence of necessity, a melcharth given before the expiry of the prior lease will not bind the succeeding karnavan whether the grantor was or was not alive at the time the prior lease expired'.
11. In Kunhammad v. Kunhunni I.L.R. (1920) 43 Mad. 715 : 38 M.L.J. 461 Justice Sadasiva Aiyar observed that
A karnavan's ordinary legal right is that of management over the tarwad affairs and properties and, in my opinion, it is difficult to hold that four 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 Cheria Cherikandan v. Krishnan Nambiar1 was based. It is only where proper necessity or justification can be urged 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 necessity need not be shown where the karnavan continues in power at the expiry of the first lease seems not to have been argued before the lower appellate Court but was raised for the first time in the Second Appeal memorandum.
12. The learned Judge expressed dissent from the decision in S.A. No. 774 of 1917. In the same case, Justice Spencer remarked:
In the present case where no explanation has been offered for anticipating the time of renewal of the lease by four years, it is difficult to see how the 5th defendant's conduct can be justified'. See Kunhammad v. Kunhunni I.L.R. (1920) 43 Mad. 715 : 38 M.L.J. 461.
13. It may be remarked that in the case in Kunhammad v. Kunhunni I.L.R. (1920) 43 Mad. 715 : 38 M.L.J. 461 the property had been leased to the defendant in 1891, that the twelve years term would expire in 1903, that in 1899 the Karnavan granted a fresh lease in favour of the old tenant, that in 1903, there was a kanom granted by the same Karnavan in favour of the assignees of the old tenant and also a porankadom in 1905. The plaintiff succeeded the previous Karnavan in 1907, and the suit was filed in 1911 on the basis of the lease granted in 1891. It would seem that the Karnavan who granted the lease in 1899 himself did not stand by the same when the term of the prior lease expired in 1903, for we find that the same Karnavan granted a kanom in 1903 to the representatives-in-interest of the old tenants, who accepted the kanom.
14. However, there are the observations of the learned Judge, Sadasiva Aiyar, J., quoted above, in which the learned Judge dissented from the decision of the learned Judges in S.A. No. 774 of 1917. Sadasiva Aiyar, J., purported to follow the decision in Cheria Cherikandan v. Krishnan Nambiar : (1914)27MLJ690 , a 'decision of Sundara Aiyar and Sadasiva Aiyar, JJ., where it is observed:
Here, the karnavan, two years in advance of the expiration of the prior lease, executed a melcharth in plaintiff's favour. No justification has been pleaded for such an act. It is not alleged that there was any necessity for doing so, or that the tarwad derived any benefit from the transaction.
15. On a reference to the printed papers in that case, Cheria Cherikandan v. Krishnan Nambiar : (1914)27MLJ690 , it appears that the Karnavan who granted the melcharth died after the melcharth and before the expiry of the term of the prior demise. The observations made by the learned Judges should be taken in conjunction with that circumstance. It may also be stated that in S.A. No. 837 of 1914, Sir John Walls, C. J. and Ayling J., observed as follows:
We do not think that the learned Judges who decided Cheria Cherikandan v. Krishnan Nambiar : (1914)27MLJ690 intended to lay down that a subsequent karnavan could not accept and act on a melcharth granted by his predecessor before the end of the existing term. All that was laid down, as we understand, was that such an attempt to fetter the discretion of the subsequent karnavan was not binding on him. In the present case we think that the next karnavan affirmed the transaction by the acceptance of an enhanced rent after succeeding to the office.
16. It may be taken for granted that generally it is within the ordinary powers of the Karnavan of a Malabar tarwad to demise properties on kanom, and also to grant renewals of such properties to enure for a period of twelve years from the date of renewal. This right on the part of the Karnavan is attributed to the power of management of the tarwad properties which in law is vested in him. A term of twelve years has been held to be proper in such cases having regard to the conditions and custom of Malabar. Any demise by which a term for a longer period than twelve years is granted would prima facie not be considered as coming with the Karnavan's ordinary powers; nor would the raising of a ludicrously large amount--though nominally charged as ' kanom ' on the properties--be held to be binding on the tarwad, if the amount was raised in reality as a debt, so as merely to have cash at the disposal of the Karnavan, rather than as a kanom as ordinarily understood, since he could not bind the tarwad by raising new mortgage debts by simply calling them 'kanom', in the absence of other justifying circumstances. The right of a Karnavan to grant kanom demises would also be limited to particular kinds of tarwad properties which he has to manage, and would not ordinarily extend to his granting on kanom, for example, the tarwad house in which the members are living, and such a kanom demise would not be held binding on the tarwad simply because it is only a demise for a term of twelve years. Even with reference to properties under his management, there may be particular circumstances which may disentitle the Karnavan to grant kanom demises in respect of particular properties. Speaking. generally it may be said that the grant of tarwad properties on kanom is an ordinary incident appertaining to the right of management possessed by the Karnavan. A Karnavan, therefore, having the right to manage the tarwad affairs (and having the corresponding obligation to manage the tarwad properties) is entitled in his discretion to decide which properties to demise on kanom and which demises to renew--other terms and conditions relating to renewal fee, fixing of porappad, etc., not being objectionable. The Karnavan is prima facie the best person to decide when to grant a kanom and when to grant a renewal. To say that a Karnavan could settle the matter and execute the deeds only after the expiry of the term of the prior demise is to say that he should be deprived of reasonable forethought, circumspection and previous consideration of the question. It may not, in many cases, be possible to find a new tenant at the spur of the moment. One should not forget that in Malabar a kanomdar would be entitled to compensation for improvements effected by him, and he could not be redeemed or ejected before the amount of such compensation is paid to him. The tarwad may not have funds for the purpose, and the new kanomdar (melcharthdar), or lessee, should be one not only able to properly cultivate the land but also able to pay off the kanom and value of improvements due to the old kanomdar or lessee, as the case may be. If an owner is entitled to make proper arrangements reasonably in advance with reference to management of his property, prima facie, the Karnavan who represents the owner should have the same rights. To say that the Karnavan could grant a melcharth or renewal one week before the expiry of the prior demise but could never do the same one year before, is to lay down a rigid artificial rule on a matter the solution of which will largely depend upon circumstances. It would therefore seem that to make the validity of the renewal or melcharth depend solely on the point of time that intervened between the same and the expiry of the period of the prior demise is attacking the problem from a wrong end.
17. 'The Karnavan is not a mere trustee of the tarwad' Vasudevan v. Sankaran I.L.R. (1897) 20 Mad. 129 : 7 M.L.J. 102.
18. 'A Karnavan is not a trustee' Kenath Puthen Vittil Tavashi v. Narayanan I.L.R. (1904) 28 Mad. 182 : 14 M.L.J. 415.
19. 'The powers of the Karnavan are essentially powers of management' Raman Menon v. Raman Menon .
20. 'The members of a tarwad have the right to prevent the Karnavan from wasting or improperly alienating the tarwad property' Vasudevan v. Sankarani and Manavadan v. Sredevi I.L.R. (1926) 50 Mad. 431 : 52 M.L.J. 277.
21. 'An alienation made by a Hindu widow under circumstances which would not bind the reversioner is not void; it is only voidable at the instance of the reversioner' (Raja Modhu Sudan Singh v. Rooke and Bijoy Gopal Mukerji v. Krishna Mahishi Debi .
22. An alienation made by a Karnavan in similar circumstances would also be only voidable and not void (Abdulla Koya v. Eacharan Nair (1917) 35 M.L.J. 405; Pilakkatan Cheltiotan v. Vashakarambath Moidin (1916) 34 I.C. 755.
23. The distinction is important, since a void transaction could not be ratified by the persons affected, whereas a voidable transaction could be so ratified by the persons prejudicially affected by the same.
24. Melcharth or renewal in advance and by way of anticipation would be open to objection by the other members of the tarwad if it is proved that having regard to circumstances the particular transactions were prejudicial to the interests of the tarwad and that the Karnavan was sacrificing or really prejudicing the interests of the tarwad in those cases by the sole desire to raise money for misappropriation or with ulterior motives. Just as the other terms of a demise (whether melcharth or renewal) could be proved to be seriously prejudicial to the interests of the tarwad having regard to the circumstances, the entering into such a transaction prematurely may also be complained of by the other members of the tarwad. As observed by Phillips and Devadoss, JJ.:
It is undoubtedly important to bear in mind the impossibility to predict 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 to the tarwad.
25. See Koppassa Menon v. Kalliani Animal : AIR1923Mad700 . Nor should the consideration be ignored that 'if a Karnavan grants a melcharth or renewal before the expiry of the term of the kanom, he is practically fettering the discretion of the person who may hold the office at the time of the expiry of the kauom.' Vata-vatta Nair v. Kenath Puthen Vittil Kuppassan Menon (1918) 36 M.L.J. 630. (Abdur Rahim and Seshagiri Aiyar, JJ.). But none of these considerations would, in my opinion, be conclusive by themselves to justify such melcharth and renewal documents being set aside, irrespective of all other considerations. An alienation by a Karnavan could be questioned by the other members of the tarwad where the same is not for necessary or justifiable purposes. A lease is an alienation; but, when granted in the ordinary course of management, it would be binding on the tarwad unless it be shown that in any particular case, having regard to its terms, etc., the same is not binding on the tarwad. A melcharth or renewal before the expiry of the term of the prior demise could of course be shown to be not binding upon the tarwad in particular cases. The terms thereof may be prejudicial to the interests of the tarwad, the Karnavan of the tarwad might have granted the demise at a time when his private personal interests were the only motive for granting the same, - the tarwad interests, pointing in the other direction, being sacrificed, - and the demisee also being a party to the same. But when no other objection is taken to such a demise except that it was granted some time prior to the expiry of the term of the prior demise, without showing anything else to the prejudice of the tarwad, I am unable to see how that one circumstance should be taken to be conclusive against the validity of the demise, when the Karnavan who granted the same was alive and in management when the term of the prior demise expired, and was quite satisfied with the same.
26. It may be stated for what it is worth that the porappad in the renewal - Ex. III - in question in the present case is five seers of paddy more than that stipulated in Ex. II; but that by the way is only a nominal addition to the porappad and is not very material otherwise, and should not be taken in any way to conclude the matter, since it is well known that such nominal additions to the porappad are made with a view to give the demise prima facie an apparent basis and justification to make it binding on the tarwad.
27. It could not be, and in fact was not, disputed that it would be a very proper thing for a Karnavan to make arrangements reasonably in advance with reference to the letting of property - say a week - before the actual expiry of the term of an outstanding lease; such arrangement, if otherwise proper, could not be characterised as improper simply because the Karnavan who made the same happened to be dead by the time the term of the prior lease expired. In such a case, it could not be held that the circumstance that the Karnavan did not survive the date of expiry of the prior lease would, ipso facto, invalidate the melcharth granted by him. The melcharth is binding on the Karnavan who granted the same unless it has been disaffirmed by him on behalf of the torward (assuming that he could do so; the circumstance that the Karnavan survived the date of the expiry of the prior lease without disaffirming the same is very important in the consideration of the question.
28. As the transaction entered into by him is prima facie binding upon him, the argument that after the expiry of the term of the prior lease, he (the executant) should indicate, by some formal act of his, that he proposes to stand by the same, is too technical, even if there is any force in it. When the question of its binding nature is raised subsequent to the executant's death by the succeeding Karnavan, the circumstance that the executant - karnavan - was alive when the term of the prior demise expired, and could have on that date executed a document in similar terms against which nothing could be urged, is a very material point for consideration in the absence of other circumstances. Ordinarily, a document being binding on tiie executant thereof, no further act of his would be necessary to affirm it; it is only when he wishes to disaffirm it (in cases where he could do so) that he should indicate by an overt act, his disavowal. Further, any slight act of his which is inconsistent with his disavowal of the document would be taken as affirmation of the document by him, even in cases where such subsequent affirmation is necessary.
29. A deed of further assurance could be directed to be executed in proper cases, when the same is deemed necessary and proper to complete and give full effect to the original agreement and intention of the parties to a transaction.
30. Even if the melcharth or renewal in such cases be treated only as an agreement to grant a proper demise or renewal, then, if the Karnavan who executed the same and entered into the said agreement be alive, at the date of the expiry of the term of the prior demise, the question whether a suit for specific performance of such an agreement would be successful in any particular case will have a relevancy in cases like the one before us. In cases where the specific performance of the agreement would be decreed by the Courts having regard to the terms and conditions of the melcharth or renewal, then, there is no sufficient reason, in my opinion, why the already existing instrument (melcharth or renewal) - duly executed and registered - should not be taken to be sufficient for the purpose intended. In the case before us, as already mentioned, the renewal in question is not alleged to be open to any other objection, and my remaris are intended to cover only such cases.
31. I do not, however, propose to base my judgment on the above line of reasoning in the present case, as here the Karnavan was alive at the time of expiry of the prior term and all persons interested were quite satisfied with the arrangement already made.
32. I am not suggesting that the executant - karnavan - could never himself disaffirm such a melcharth after the date of the expiry of the term of the prior lease - I assume that he could do so on proper grounds.
33. In the case before us, the finding of the lower appellate Court - in the passage extracted already - is that ' this renewal was not absolutely necessary for the purpose of the Mana, and the necessity for the grant of this Melkanom has not been proved and that the renewal of Ex. III is therefore invalid and is unsustainable'. The terms and conditions of the renewal Ex. III have not been called in question as in any way prejudicial to the Mana, nor has it been suggested on behalf of the Mana that the previous karnavan should have redeemed the kanoni and reduced the properties to actual possession for direct cultivation by the Mana. The finding is based on the sole circumstance that the renewal was granted before the 4 expiry of the term of the prior demise. No other circumstances have been proved, nor has any evidence been adduced that the tarwad in fact was prejudiced by this anticipatory renewal. Any such suggestion is prima facie rebutted by the circumstance that the same karnavan was alive for about five months after the expiry of the term of the prior lease.
34. It is on the observations made by the learned Judges in Cheria Cherikandan v. Krishnan Nambiar : (1914)27MLJ690 that reliance was placed in the subsequent case reported in Kunhammad v. Kunhunni I.L.R. (1920) 43 Mad. 715 : 38 M.L.J. 461. A reference to the printed papers in the case reported in Cheria Cherikandan v. Krishnan Nambiar : (1914)27MLJ690 has disclosed the fact that the karnavan who executed the document in question had died prior to the expiry of the term of the prior demise. Therefore the decision in Cheria Cherikandan v. Krishnan Nambiar : (1914)27MLJ690 does not really apply to the case before us. The headnote of the case reported in Moidin Kutti v. Kunhi Koyan : AIR1915Mad650 goes, in my opinion, farther than the actual decision, having regard to the findings arrived at by the Lower Court in that case and the observations in tie judgment of the High Court. In Kunhammad v. Kunhunni I.L.R. (1920) 43 Mad. 715 : 38 M.L.J. 461 the karnavan who granted the premature renewal of the lease, himself granted a kanom to the same lessees in the very year in which the term of the prior demise expired and the lessee accepted the same, - all this would prima facie be inconsistent with the renewed lease being taken to be valid and in force though on the merits the kanom was found by the Court to be not binding on the tarwad. There are no doubt the observations of the learned Judge, Sadasiva Aiyar, J., in the case reported in Kunhammad v. Kun-hunni I.L.R. (1920) 43 Mad. 715 : 38 M.L.J. 461 which support the respondent's contention. On the other hand, we have got the decision of Phillips and Krishnan, JJ., in S.A. No. 774 of 1917 which supports the appellant's contention.
35. As already mentioned, such melcharths and renewals are not void but only voidable at the instance of the tarwad. See Abdulla Koya v. Eacharan Nair (1917) 35 M.L.J. 405 at 406 and Piiakkatan Chettiotan v. Vazhakarambath Moidin (1916) 34 I.C. 755. In Abdulla Koya v. Eacharan Nair (1917) 35 M.L.J. 405 Oldfield and Phillips, JJ., made the following observations with reference to the' cases in Cheria Cherikandan v. Krishnan Nambiar : (1914)27MLJ690 , Raman Nambiar v. Raman Nambiar : AIR1915Mad307(2) and Moidin Kutty v. Kunhi Koyan : AIR1915Mad650 :
These cases are however only authority for holding that a melcharth granted by a karnavan before the expiry of the previous term will not bind his successor and not that such melcharths are necessarily invalid ab initio.
36. It was stated that it has been ascertained by a reference to the printed papers that the karnavans who granted the melcharth or renewal were not alive when the term of the prior demises expired in the case reported in Raman Nambiar v. Raman Nambiar : AIR1915Mad307(2) . That was evidently so also in S.A. No. 877 of 1911, where Sundara Aiyar and Sadasiva Aiyar, JJ., followed their decision in Cheria Cherikandan v. Krishnan Nambiar : (1914)27MLJ690 .
37. I should note that Justice Ayling was a party to the decision in S.A. No. 837 of 1914, where the Court (Sir John Wallis, C.J., and Ayling, J.) observed that
all that was laid down in Cheria Cherikandan v. Krishnan Nambiar : (1914)27MLJ690 , as we understand, was that such an attempt to fetter the discretion of the subsequent karnavan was not binding on him.
38. This was the view taken of the decisions in Cheria Cherikandan v. Krishnan Naimbiar : (1914)27MLJ690 and Moidin Kutti v. Kunhi Koyan : AIR1915Mad650 by Oldfield and Phillips, JT., in Abdulla Koya v. Eacharan Nair (1917) 35 M.L.J. 405 the learned Judges observed that 'these cases are however only authority for holding that a melcharth granted by a karnavan before the expiry of the previous term Will not bind his successor.'
39. The lower appellate Court in the present case has, in my opinion, misdirected itself on the law governing the consideration of the question involved in the case.
40. For the reasons already mentioned,. I am of opinion that the finding of the learned Subordinate Judge in the present case cannot be accepted.
41. It may be remarked that having regard to the provisions of the Malabar Tenancy Act (XIV of 1930) the main incident attached to a melcharth that the melcharthdar could obtain possession from the prior demisee has been taken away by the Legislature, which has also granted fixity of tenure and right of renewal to tenants in possession, under circumstances detailed in the Act. Though a melcharth would still give a melcharthdar some other rights vested in the jenmi, the unrestricted right to obtain possession from the old tenant has been taken away from the melcharthdar since the tenant has been given right to obtain renewal, etc., by the provisions of the Act. The question that has been discussed in this case is therefore not of very much practical importance in cases governed by the Malabar Tenancy Act.
42. The result therefore is that the second appeal is allowed and the suit dismissed, but without costs in the circumstances.
43. I agree that this appeal must be allowed.
44. This case relates to a renewed kanom of 1919 and a melkanom of 1923 granted by successive karnavans of a Nambudri illom in the south part of South Kanara. It is not disputed that the law to be applied, so far as it varies from the general law of the Presidency, is the law which was applicable in such matters to karnavans of illoms and tarwads in Malabar before the Malabar Tenancy Act, 1930, came into force and which, so far as illoms are concerned, is still applicable in SouthjKanara. For the purpose of this case it will be convenient to speak of that law as Malabar Law, putting the effect of the Malabar Tenancy Act upon it out of consideration.
45. In June, 1910, Nilakandhan Tirumumpu, karnavan of an illom, by Ex. II, renewed in favour of Defendant 1 an expired kanom on conditions which it has not been suggested were in any way improper or beyond his powers. The term of that kanom would expire in June, 1922, but in April, 1919, he granted by Ex. III another renewal on the same conditions except a very slight increase of rent. Nilakandhan Tirumumpu lived and continued to be karnavan of his illom until November or December, 1922; that is for 5 or 6 months after the expiry of the term of Ex. II, the kanom deed of 1910. In May, 1923, his successor as karnavan, Narayana Tirumumpu, Defendant 6, granted to the Plaintiff by Ex. A a melkanom, on which the Plaintiff has sued for redemption and recovery from Defendant 1. The question now for decision is whether Ex. III prevails over Ex. A. Both the Subordinate Judge and the District Munsif have found Ex. III ' invalid ' because, though its term and conditions are otherwise proper and such as a karnavan might fix within the scope of his powers, it was granted by Nilakandhan Tirumumpu long before the term of Ex. II had expired, both treating as of no relevancy or effect the facts that he lived and remained karnavan for several months after the term of Ex. II, and during those months might have granted to Defendant 1 a valid renewal on the same conditions as in Ex. III and that renewal no one could have disputed. The question raised is whether a kanom for a proper term and on proper conditions granted long before the expiry of a current term by a karnavan who remains in office after expiry of that term is of no effect. A similar question may be asked in respect of a lease, and the answer to the two questions will depend on the same considerations, and those considerations will apply whether the kanom or lease is granted to a new tenant, who is to be put in possession by the karnavan after the expiry of the current term, or as a renewal to the sitting tenant or by a melcharth directing a new tenant to recover from him.
46. As has been pointed out, there has been some conflict and confusion in the decisions, reported and unreported, on this question. If I may say so with great respect, the confusion appears to me to have been due to an occasional tendency to forget that, although the law of Malabar and South Kanara varies from the law in force in the rest of this Presidency in many important respects, outside the field of those variations the general principles of law applicable elsewhere apply also in Malabar and South Kanara. If we remember that, I think the answer to the question before us will be simple and obvious.
47. A jenmi, who is the absolute owner of land and in law has no one but himself to consider in dealing with it, can validly grant a lease of it or a kanom over it for any term and on any conditions he likes and can do so at any period before the expiry of a current term. But the karnavan of a jenmi illom or tarwad has limited powers, When land of his illom or tarwad is vacant or the term of a lease or kanom has expired, he can within the scope of his ordinary powers grant a lease or kanom for not more than the customary term and on conditions which are reasonable in the interests of his illom or tarwad; and such a lease or kanom no member of his illom or tarwad can dispute. But, if in such circumstances without tarwad necessity or benefit he grants a lease or kanom in excess of those powers, his act will not bind the members of his illom or tarwad against their will: they can avoid it. That however does not mean that 'it is void from its inception. Like an alienation made by the manager of an ordinary Hindu joint-family or by a Hindu father or by a guardian or by a limited owner hi excess of his powers it is voidable at the option of the persons whose rights are infringed. But, as in those cases, if the members whose rights have been infringed by the karnavan exceeding his powers do not wish to exercise their option to avoid his act, then what he has done as karnavan in their names and as their representative stands good.
48. Now let us suppose that the lease or kanom granted is for not more than the customary term and its conditions are proper in the interests of the illom or tarwad but it is granted before the expiry of a current term. Sometimes it is suggested that to grant a lease or kanom a day or a week or a month before-the expiry of a current term is beyond the karnavan's powers. That, as my brother Anantakrishna Aiyar has indicated, is absurd. A prudent karnavan, who wishes to do his duty in protecting' the interests of his illotrwor tarwad, like any other businesslike landlord must look reasonably far ahead in such matters, and it may often be proper for him to grant a renewal or a melcharth or a lease or kanom to a new tenant a reasonable time before the expiry of a current term. If he waited until that term had actually expired, opportunity might have slipped by to the serious detriment of his illom or tarwad. To lay down that in such a matter a karnavan would exceed his powers, if he did what reasonable and prudent landlords do every day and what a manager of a joint-family or a trustee or a guardian would be rightly blamed for failing to do, would be wholly unreasonable. If it is urged that the words of some decisions go so far as that, we may be sure that the learned Judges did not intend their words to be interpreted literally in that way. If it is within the powers of a karnavan to grant a lease or kanom for a proper term and on proper conditions after the expiry of a previous term, it must also be within his power to grant a similar lease or kanom a reasonable time before the expiry of a current term; and the length of the time which is reasonable will vary with the circumstances of the case.
49. But is it within his power to grant such a lease or kanom unreasonably long before the expiry of a current term, earlier than a reasonable man who has others to consider besides himself would tie his hands? It has been decided in Cheria Cherikandan v. Krishnan Nambiar : (1914)27MLJ690 and other cases that in the absence of necessity or benefit that is beyond, his powers. The reason given in Cheria Cherikandan v. Krishnan Nambiar : (1914)27MLJ690 is that he cannot be allowed in that way to fetter the discretion of the karnavan who may be in office when the current term expires. But that is only one aspect of the matter. A karnavan cannot, any more than another man, see far into the future and so cannot tell long beforehand what will be the proper conditions in the interests of his illom or tarwad for a lease or kanom to take effect on the expiry of a current term. But if a karnavan goes beyond his powers and without necessity or benefit grants a new lease or kanom, by renewal, melcharth or otherwise, long before the expiry of a current term, as in other cases in which professing to act on behalf of his illom or tarwad he makes a grant in excess of his powers, his act is not void but voidable. At whose option is it voidable? We have supposed that the lease or kanom, though granted prematurely and so beyond the powers of the; grantor, is for a proper term and on conditions which, as events turn out, are proper at the expiry of the current term. Obviously the junior members of the illom or tarwad cannot avoid such a lease or kanom, as it is within the powers of their karnavan at the time it takes effect. It is the karnavan alone who has the option of avoiding it. If the karnavan who granted the lease or kanom prematurely is dead or no longer in office when the previous term expires, then it is his successor in office at that time who has the option of avoiding it. But, if the karnavan who granted the lease or kanom prematurely is still in office when the previous term expires, no one but he has the option to avoid his grant. If he chooses himself to disavow it, he will lay himself open to a suit by his lessee or kanomdar, with what possible result it is unnecessary now to consider. But, if he does not disavow it, his voidable grant, which no one else can avoid, stands good.
50. If we apply this simple and obvious result to the present case, it is clear that Defendant 1 must succeed. Nilakandhan Tirumumpu as karnavan granted to him a premature and voidable renewal in 1919. When the previous term expired and the voidable renewal was to take effect in 1922, as it is not Suggested that its conditions were at that date in any way improper or unsuitable, Nilakandhan Tirumumpu, who was still in office as karnavan, was the only person who could avoid it. He did not do so; and therefore it stands good, and the Plaintiff's suit must fail.
51. I agree that in the circumstances each party should bear his own costs throughout.