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M.P.T. Cheria Kunhammad and anr. Vs. Kunhunni Alias Kizhakkayl Nair and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in57Ind.Cas.424
AppellantM.P.T. Cheria Kunhammad and anr.
RespondentKunhunni Alias Kizhakkayl Nair and ors.
Cases ReferredCheria Cherikandan v. Krishnan Nambiar
Excerpt:
malabar law - tarwad--karnavan, power of, to grant lease in anticipation of prior lease falling in--lease, whether binding on successor. - .....after three years from the beginning of the first lease and two years before, the expiry of that lease term to another tenant, such a second lease was not binding on the succeeding karnavan. in that case, no doubt the second lease was granted to a man other than the person who was holding under the first lease. mr. menon argued that we were probably lad to the conclusion on that case adverse to the second lease by a desire to put an end to the undesirable practice of karnavans granting kanoms and leases to third persons over the heads of the lessees and kanomdars in possession. but there is nothing in the judgment in cheria chirikandan v. krishnan nambiar 13 ind. cas. 391 to indicate that the fact that the second lease was given to a person other than the original lessee influenced our.....
Judgment:

Sadasiva Aiyar, J.

1. Defendants Nos. 3 and 4 are the appellants. The plaintiff is the Karnavan of an Edam and he sued to recover the Edam property which had been leased to the 1st defendant in 1899, to take effect on the expiry of a prior lease granted in 1891 and which would expire in the ordinary course in 1903. It was found by the lower Appellate Court that there was no necessity or justification for granting that lease in 1899, four years before the term of the prior lease expired. The question is whether, in law, the plaintiff, who has succeeded to the Karnavan Stanom in 1907, is entitled to treat the lease granted without justification or necessity by the prior Karnavan, 5th defendant, as not binding on the Tarwad. In Cheria Chirikandan v. Krishnan Nambiar 13 Ind. Cas. 391 Sundara Aiyar, J, and myself held that where a lease had been granted for five years and a Melcharth was granted after three years from the beginning of the first lease and two years before, the expiry of that lease term to another tenant, such a second lease was not binding on the succeeding Karnavan. In that case, no doubt the second lease was granted to a man other than the person who was holding under the first lease. Mr. Menon argued that we were probably lad to the conclusion on that case adverse to the second lease by a desire to put an end to the undesirable practice of Karnavans granting Kanoms and leases to third persons over the heads of the lessees and Kanomdars in possession. But there is nothing in the judgment in Cheria Chirikandan v. Krishnan Nambiar 13 Ind. Cas. 391 to indicate that the fact that the second lease was given to a person other than the original lessee influenced our opinion. I think that Sundara Aiyar, J, (who pronounced the judgment which I adopted) has given two reasons why such an exercise of power in anticipation by the Karnavan is not binding on the Tarwad, Ha first says: 'It is not alleged that there was any necessity for doing so or that the Tarwad derived any benefit from the transaction.' So if such an allegation is cot made and proved, it is implied in the above observation that that would be a sufficient ground for holding that the transaction would not be binding on the Tarwad. Then that ground is sought by us to be fortified by the further consideration that the Karnavan who gave the second lease may be succeeded by a different Karnavan even during the continuance of the term of the first lease and that 'it is impossible to countenance the proposition that the Karnavan for the time being can tie down the discretion of those that are to succeed him in the management of granting leases of family lands, when there is absolutely no reason for doing so and the lands are being held by tenants on leases which are still in force.' The judgment was pronounced on the 19th July 1912. Taking advantage of this second reason mentioned in the judgment about the danger to the rights of the succeeding Karnavans, an argument was elaborately advanced in the case reported in the next Refers to 27 M.L.J.--Ed page, i.e., Moidin Kutti v. Kunhi Koyan 27 Ind. Cas. 1007 , that if the Karnavan who anticipated the expiry of the first lease happened to be alive and still holding his position as Karnavan when the term expired, the Melkanom or Melcharth already granted need not be supported by necessity or justification to be binding on the Tarwad. Ayling and Hannay, JJ., in a short judgment decided on this contention as follows:-- 'It is found that there was no family necessity to justify the Melcharth, Exhibit B, and we must hold that the 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. The appeal is dismissed with costs.' Mr. Menon, however, relied upon a yet later decision of Phillips and Krishnan, JJ., in Second Appeal No. 774 of l917, dated 22nd November 1 18. In this case the decision in Cheria Chirikandan v. Krishnan Nambiar 13 Ind. Cas. 391 is referred to and it was interpreted as implying that if the grantor lived after the term of the prior Kanom expired and was thus in a position to then grant the Melcharth and provided that the grant was not of such a nature as to improperly prejudice the successor, it is valid. Somehow, reference is not made in Second Appeal No. 774 of 1917 to the decision of Ayling and Hannay, JJ, in Moidin Kutti v. Kunhi Koyan 27 Ind. Cas. 1007. 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 4 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 the decision in Cheria Chirikandan v. Krishnan Nambiar 13 Ind. Cas. 391 was based. It is only where proper necessity 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 Courts but was raised for the first time in the second appeal memorandum. As the lower Courts have found that there was no necessity or justification for the attempt to deal with the property before the expiry of the former term, I would uphold the lower Appellate Court's judgment, expressing my respectful dissent from the decision in Second, Appeal No. 774 of 1917, and I would dismiss the second appeal with costs, the contention relating to the two other documents, Exhibits I and IX, not being sustainable on the facts found.

Spencer, J.

3. As regards the judgment in Second Appeal No. 774 of 1917, which has been quoted to us in support of the premature grant of Melcharth, if the time for the renewal of the lease or Kanom is anticipated by a Karnavan in such a way as to have the effect of fettering his successor's management of the estate, though a renewed lease or Kanom may be bad on account of such anticipation of the Karnavan's powers, it does not to my mind, follow that in cases where there is no successor and the same Karnavan continues in office till after the expiry of the term, the instrument is necessarily a good one. Sundara Aiyar, J., in Cheria Cherikandan v. Krishnan Nambiar 13 Ind. Cas. 391 observed that there was no justification for the granting of a Melcharth two years in advance of the expiration of the prior lease. In that case it was not alleged that there was any necessity for it or that the Tarwad derived any benefit from the transaction. A fortiori in the present ease where no explanation has been offered for anticipating the time of the renewal of the lease by four years, it is difficult to see how the 5th defendant's conduct can be justified. I agree that the second appeal should be dismissed with costs.


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