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(Mavili) Erochan Menoki Vs. Punnasseri Elevana Tarwad Karnavan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1930Mad820
Appellant(Mavili) Erochan Menoki
RespondentPunnasseri Elevana Tarwad Karnavan and ors.
Cases ReferredKrishna Menon v. Krishna Nair
Excerpt:
- .....with you in the said matter for some reason or other that you can raise such debts independently and by yourself.4. para 7 says:as long as the power of attorney remains in force i shall not enter in the tarwad affairs without participating with you.5. so it is clear that while loans should ordinarily be raised by defendant 4 with defendant 1 the former can in urgent circumstances raise them by himself but the latter has no such power.6. the finding of the court that defendant 1 had no power to raise the suit loan is obviously in accordance with the karar. as regards the question of necessity, that also is a finding of fact. the plaintiff admitted that defendant simply told him that there was necessity and that he made no independent enquiries. he now says that the amount was to.....
Judgment:

Walsh, J.

1. Defendant 1 who is the karnavan of the tarwad executed a pronote to the plaintiff who brought a suit on it. The Sub-Judge found that defendant 1 was not the manager of the tarwad which was being managed by defendant 4 under karar from defendant 1. He found that the plaintiff was aware of the fact. He also found that the loan was not for family necessity and therefore gave plaintiff a personal decree against defendant but no decree against the tarwad property. A revision is filed against this order.

2. It is sought to get over the findings of fact with regard to management by arguing that the appointment of defendant as agent under the karar did not preclude the karnavan from acting himself and that the provisions of the karar must be strictly construed. That a power of attorney or karar must be strictly construed is not denied. Krishna Menon v. Krishnan Nair A.I.R. 1921 Mad. 520 is quoted for the position that a karar executed by the karnavan in favour of an anandaravan under which the latter was to carry on the management under virtue of a muktearnama does not deprive the karnavan of his right to grant a melcharth. The remark on p. 123 P. of R. Sundara Aiyar's Malabar and Aliyasantana Law that the appointment of a junior member as a muktear or agent cannot preclude the karnavan from acting himself, is also relied on. That remark must be read however in the light of Krishna Menon v. Krishna Nair which is quoted immediately afterwards. It does not mean that a karnavan cannot surrender his management: vide the opening remarks of Ch. 8, p. 117 of the same book. Now turning to the muktearnama in this case it is clear that in the matter of raising loans the karnavan has divested himself by it of his power to act alone and without defendant 4.

3. In para 5 it is stated:

If any new debt is to be contracted either in any of the matters that may arise accidentally or extraordinarily or in the case where expenses have to be met beforehand such debts ought to be contracted by both of us jointly and it is only when I shall be unable to participate with you in the said matter for some reason or other that you can raise such debts independently and by yourself.

4. Para 7 says:

As long as the power of attorney remains in force I shall not enter in the tarwad affairs without participating with you.

5. So it is clear that while loans should ordinarily be raised by defendant 4 with defendant 1 the former can in urgent circumstances raise them by himself but the latter has no such power.

6. The finding of the Court that defendant 1 had no power to raise the suit loan is obviously in accordance with the karar. As regards the question of necessity, that also is a finding of fact. The plaintiff admitted that defendant simply told him that there was necessity and that he made no independent enquiries. He now says that the amount was to pay kist but he seems to have put forward a different version before that; it was to repair a temple and his own witness, plaintiff's witness 4, stated that defendant 1 spent it for that purpose. The mere fact of payment of kist does not itself constitute a necessity to borrow. In the face of both the findings of fact there is no scope for a revision petition. The petition is dismissed with costs.


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