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Mavili Erechan Menoki Vs. Komapan Nair and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in125Ind.Cas.65
AppellantMavili Erechan Menoki
RespondentKomapan Nair and ors.
Cases ReferredKrishna Menon v. Krishnan Nair
Excerpt:
malabar law - karar by karanavan appointing junior member as agent--power of karanavan to incur debts--payment of kist--necessity. - .....other that you can raise such debts independently and by yourself.'5. para. 7 says 'as long as the power-of-attorney remains in force i shall not enter in the taward affairs without participating with you.' so it is clear that while loans should ordinarily be raised by 4th defendant with the 1st defendant the former can in urgent circumstances raise them by himself but the latter had no such power.6. the finding of the court, therefore, that the first defendant 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 1st 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.....
Judgment:

Pakenham Walsh, J.

1. The first defendant who is the karnavan of the tarward executed a pro-note to the plaintiff who brought a suit on it. The Sub-Judge found that the first defendant was not the manager of the tarward which was being managed by the 4th defendant under kararirom 1st defendant. He also 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 the first defendant. A revision against tarwad 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 4th defendant as agent under the karar did not preclude the karanavan from acting himself and that the provisions of thekarar must be strictly construed.

3. That a powor-of-attorney or karar must be strictly construed is not denied. Krishna Menon v. Krishnan Nair 62 Ind. Cas. 598 : 40 M.L.J. 388 : 31 L.W. 384 : 29 M.L.T. 340, is quoted for the position that a karar executed by the karanavan in favour of an anandaravan under which the latter was to carry on the management by virtue of a muktearnamah does deprive the karanavan of his right to grant a melcharth The remark on page 123 of P.E. Sundara Iyer's Malabar and Aliyasantana Law that the appointment of a junior member as a muktear or agent cannot preclude the karanavan from acting himself is also relied on. That remark must he read, however, in the light of Krishna Menon v. Krishnan Nair 62 Ind. Cas. 598 : 40 M.L.J. 388 : 31 L.W. 384 : 29 M.L.T. 340, which is quoted immediately afterwards. It does not mean that, a karanavan cannot surrender his management (vide the opening remarks of Chap. VIII page 177 of the same book.) Now turning to the muktearnama in this case; it is clear that in the matter of raising loans the karanavan has divested himself by it of his power to act alone and without the 4th defendant.

4. 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.'

5. Para. 7 says 'as long as the power-of-attorney remains in force I shall not enter in the taward affairs without participating with you.' So it is clear that while loans should ordinarily be raised by 4th defendant with the 1st defendant the former can in urgent circumstances raise them by himself but the latter had no such power.

6. The finding of the Court, therefore, that the first defendant 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 1st 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 4th witness, stated that 1st defendant spent it for that purpose., The mere fact of payment of kist does not itself constitute a necessity to borrow.

7. 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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