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Mundakath Mathu Vs. Chalora Illath Sankaran Nambudripad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1932Mad303; 136Ind.Cas.350
AppellantMundakath Mathu
RespondentChalora Illath Sankaran Nambudripad and ors.
Cases ReferredRama Vadhiyar v. Krishna Nayar
Excerpt:
- - 700. there is a concurrent finding that that amount was borrowed to meet the expenses of the marriage of one devaki, a female member of the illom and that the sum was in fact utilized in connexion with the marriage expenses as well as the jewels and the dowry which of necessity had to be given. 37: no man can at once treat the contract as avoided by him so as to resume the property which he parted with under it and at the same time keep the money or other advantages which he has obtained under it':see pollock and mulla's contract act commentaries under section 64. 3. this rule is applied as a rule of equity and good conscience......on 5th july 1923. vishnu, the plaintiff, impeached in that suit a certain alienation made by the karnavan sankaran in favour of defendants 9 and 10. defendant 9 is the appellant before us. the alienation took the form of a kanom dated 7th december 1922. the district munsif dismissed the suit holding that the transaction was binding on the tarwad. his judgment was delivered on 17th december 1924. from that, an appeal was taken to the district judge who set aside the munsif's judgment on 16th march 1926. this second appeal was presented on 6th september 1926. (here his lordship here considered the question as to the factum of compromise and proceeded as follows:). we must therefore negative the contention that there was a compromise and allow the second appeal to proceed.2. coming then.....
Judgment:

Venkatasubba Rao, J.

1. The first question we have to decide is, whether this second appeal has been compromised as alleged by Vishnu Nambudri respondent 1. The suit relates to a Nambudri illom. Its karnavan was one Sankaran Nambudri, respondent 2. Vishnu, above named, is the cousin of that Sankaran. Vishnu filed the suit out of which this second appeal arises, namely, O.S. No. 344 of 1923 on the file of the District Munsif's Court, Quilandy. That suit was filed on 5th July 1923. Vishnu, the plaintiff, impeached in that suit a certain alienation made by the karnavan Sankaran in favour of defendants 9 and 10. Defendant 9 is the appellant before us. The alienation took the form of a kanom dated 7th December 1922. The District Munsif dismissed the suit holding that the transaction was binding on the tarwad. His judgment was delivered on 17th December 1924. From that, an appeal was taken to the District Judge who set aside the Munsif's judgment on 16th March 1926. This second appeal was presented on 6th September 1926. (Here his Lordship here considered the question as to the factum of compromise and proceeded as follows:). We must therefore negative the contention that there was a compromise and allow the second appeal to proceed.

2. Coming then to the merits, the question that has to be decided is whether the alienation in favour of defendants 9 and 10 is binding on the tarwad or not. The kanom in their favour was executed on 7th December 1922, the consideration being Rs. 700. There is a concurrent finding that that amount was borrowed to meet the expenses of the marriage of one Devaki, a female member of the illom and that the sum was in fact utilized in connexion with the marriage expenses as well as the jewels and the dowry which of necessity had to be given. It is also found that the marriage of Devaki could not have been postponed and that there was thus justifiable necessity for the loan. But the District Judge who set aside the alienation relied upon a karar in this illom which had been executed in the year 1905. To that karar all the then members of the illom were parties including Sankaran, the present karnavan; he was at that time a junior member of the illom. That karar contains a clause, that no debts shall be incurred except with the consent of all the adult members for the time being and that if any charges are created without the concurrence of all such members, they shall not be valid. It is on this clause of the karar that the plaintiff relies. He did not join in executing the kanom in question though all the other adult members for the time being were parties to it. There was ill feeling between him and the karnvan and he chose to live separately. There is a finding that the kanomdars took the kanom with notice of this restriction. The learned District Judge, following Rama Vadhiyar v. Krishna Nayar : AIR1926Mad398 has held that in such circumstances the kanom is not binding on the illom. The appellant's counsel says that he is prepared to argue that although Sankaran as a junior member was a party to the karar he ceased on his becoming a karnavan, to be bound by its provisions. It is unnecessary to deal with this argument for granting that the transaction as a kanom is not binding on the illom the question is whether the alienees are not Under Section 64, Contract Act, entitled to be restored to the sum they paid, for the appellant's learned Counsel does not insist that the transaction should be upheld as a kanom but says that his client is content to have the relief Under Section 64. In this case the money raised was utilized for the benefit of the illom; in other words, every member of that illom including the plaintiff had the benefit of that money. Granting that the karnavan acted in excess of his powers in borrowing the sum of which on the findings, every member had the benefit can the transaction be set aside unconditionally? The principle on which Sections 64 and 65 rest is not confined to cases expressly included in either of them and is thus stated in Clough v. L. and N.W.R. [1871] 7 Ex. 26 at p. 37:

No man can at once treat the contract as avoided by him so as to resume the property which he parted with under it and at the same time keep the money or other advantages which he has obtained under it': see Pollock and Mulla's Contract Act Commentaries Under Section 64.

3. This rule is applied as a rule of equity and good conscience. Even in Rama Vadhiyar v. Krishna Nayar : AIR1926Mad398 on which the District Judge relies there is a dictum recognizing this principle.

4. It is common ground that the property did not pass into the possession of defendants 9 and 10 in pursuance of the kanom. The result is that the kanom is set aside, on the condition that the illom or its karnavan for the time being shall pay defendants 9 and 10 in six months from this date Rs. 683 with interest thereon at 6 per cent per annum from 7th December 1924. If the payment is not so made the suit shall stand dismissed and there will be a declaration that the kanom is binding on the whole illom.

5. As regards the costs we make the following order. The appellant shall have her costs in the first Court and in the lower appellate Court but in this Court each side shall bear its own costs.

Appeal No. 145 of 1928.

6. The judgment which we have just delivered in S.A. No. 1927 of 1926 disposes of this appeal also. In accordance with that judgment the defence of the lower Court so far as it relates to the alienation the subject of charge Q is set aside. The court fee paid on the memorandum of appeal shall be refunded to the appellant, otherwise we make no order as to costs.


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