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Sankaranunni and Ors. Vs. Appavu Pillay and Ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.571
AppellantSankaranunni and Ors.;Sivaramunni
RespondentAppavu Pillay and Ors.;Ponnan Pillay's Son Appavu Pillay and Ors.
Cases ReferredEkkanatha Eacharunni Valia Kaimal v. Manakkat Vasunni Valia Kaimal
Excerpt:
malabar law and usage - kanom demise--kanom granted by members of tarwad to tavazhi--execution of counterpart by only some members of tavazhi--allotment of maintenance--family karar--liability to redemption after the usual kanom period--granting of melcharth to third parties, effect of--forfeiture clause--construction of document. - .....valia kamraal and the other members of the tarwad, belonging to both the branches, agreed that the defendants' branch should have a certain allotment for maintenance, and in order to provide this allotment, a demise was given, and the karnavan agreed further to pay out of tarward funds 1,000 paras of paddy a year and, to deliver some palunyra leaves, and that a family karar of such a nature could not be pat an end to without the assent of all the members of the family, and, undoubtedly, not without the assent of one whole branch of the tarwad. it was also contended that, even if there was no family karar in the strict sense of that expression, there was at least a contract between the karnavan and the members of the defendants' branch whereby the karnavan agreed to make the allotment for.....
Judgment:

1. This is an unfortunate litigation by the members of a Marumakatayam family in Palghat. The suit is to redeem a kanom of the year 1879. It will be necessary to refer to the terms of the kanom demise in some detail presently. The 1st plaintiff is the Karnavan of a tarwad of some importance known as Ekanath tarwad. Defendants Nos. 1 to 33 are also members of the same tarwad, but they have for many years been living separately in a separate house called Manakath. The defence to the suit is mainly that the plaintiffs are not entitled to redeem the kanom and that the Melcharth in favour of the 2nd plaintiff granted by the 1st plaintiff, the Karnavan, is not binding on defendants Nos. 1 to 33. It is contended that the document. Exhibit A, which evidences the kanom was in reality a family Karar, whereby the Karnavan of the time, Sankunni Valia Kamraal and the other members of the tarwad, belonging to both the branches, agreed that the defendants' branch should have a certain allotment for maintenance, and in order to provide this allotment, a demise was given, and the Karnavan agreed further to pay out of tarward funds 1,000 paras of paddy a year and, to deliver some palunyra leaves, and that a family Karar of such a nature could not be pat an end to without the assent of all the members of the family, and, undoubtedly, not without the assent of one whole branch of the tarwad. It was also contended that, even if there was no family Karar in the strict sense of that expression, there was at least a contract between the Karnavan and the members of the defendants' branch whereby the Karnavan agreed to make the allotment for maintenance referred to above, but, having regard to the circumstances under which the demise was executed, it must be construed as a permanent arrangement, which a subsequent Karnavan could not put an end to at all, that, at any rate, he could not terminate it without adequate justifying circumstances, and that no such circumstances have been found to exist in this case. These two contentions are very different in character and must be dealt with separately.

2. With regard to the 1st contention that there was a family Karar; unless the document itself can be taken by its terms to have that effect, there is absolutely no evidence that the members of the plaintiff's branch other than the executant, Sankunni Valia Kammal, assented to it. Mr. Ramachandra Aiyar argued that there is a reference in Exhibit A to the consent of all the members of the tarwad. But we are of opinion that the members referred to were only those of the defendants' Tavazhi. The word used in the original document, which has not been quite accurately translated, is * * * * * and the context appears to us clearly to show that the Kudumbam or family referred to is that of the defendants living in the Manakath branch of the family. Is there anything else in Exhibit A to show that it was a family Karar or executed in pursuance of such a Karar P Exhibit A is the Kychit or counterpart of the demise given by two individuals of the defendants' branch, Chinthamarunni and Gapalunni. It states that, in consideration of the Kanom demise given to them, they would, besides fulfilling the obligations as to payment of Government revenue and otherwise, pay a Michavaram of 3,800 paras of paddy. This amount was to be paid to the members of the tavazhi to which they belonged for their maintenance. It also states that they were to receive from the demisor, the Karnavan of the tarwad, an addition of 1,000 paras of paddy and 2,000 palunyra leaves for the maintenance of their branch. Then follows a clause of some importance: 'As we have entrusted with us the scheduled properties, we shall immediately surrender the properties with arrears of maintenance if any of the members of the family were to report to you personally that a default is made regarding maintenance expenses to any of them.' This clause makes it difficult to uphold the construction, which the learned Vakil for the appellants asks us to put upon it, that the whole tavazhi was itself taken to be the demisee and that Chinthamarunni and Gapalunni executed the kychit on behalf of the tavazhi. The clause of forfeiture is, according to, its terms, to come into operation if an obligation undertaken by the executant of the kychit to be rendered to the members of the tavazhi was not fulfilled. It appears to be difficult to give effect to it if the obligation was to be rendered by all the members of the tavazhi, unless, we construe the document as imposing on the tavazhi the duty of guaranteeing the due fulfilment by the two executants of their obligation towards itself. It is, however, unnecessary, in the view we take of the case, to decide definitely whether the tavazhi could be treated as the demisee. It is clear that, after the executants of the kychit, the tavazhi was treated by the next Karnavan as entitled to hold under the terms of Exhibit A. It would apparently make no difference whether the tavazhi were the driginal demisees or became subsequently entitled to hold as admitted by the subsequent Karnavan of the tarwad. The substantial question for decision is whether there is anything in Exhibit A which would give a right to the defendants to hold the Kanom for ever or unless circumstances of strong justification are proved to put an end to it. We are unable to say that there is any provision in the instrument which we can construe as giving defendants a right to hold for more than the usual term of the Kanom demise. The only clause which could be held to support the construction that there was no obligation to surrender at the expiration of the usual period is the clause, already set out, of forfeiture if the executants of the kychit fail to perform the obligation of paying maintenance to the members of the tavazhi. If, as the appellant's Vakil asks us to do, we construe the obligation to provide maintenance as resting on the tavazhi itself, then the clause of forfeiture practically comes, to nothing; if we omit that clause from, consideration, there is nothing else in the document which would support the argument that there was a right to hold for more than 12 years. Mr. Ramachandra Aiyar is, no doubt, right in contending that we are entitled and bound to take the circumstances under which the document was executed into consideration and, among them, the circumstance that one important object, we may even say the main object, of the demise was to provide maintenance for the members of the defendant's branch. But, remembering this, we still cannot construe what purports only to be a Kanom demise as giving a right to hold for more than the customary period in the absence of something in the language to support such a construction. It may be that the parties, though fully hoping that the Kanom would not be redeemed, were content with the execution of a demise, which, in law, would operate only for 12 years. At any rate, it is our duty not to treat the object of the parties except in so far as it is carried out in the words of the document. In addition to a demise of the land, it seems to be fairly clear that there was, at the time, an agreement between the Karnavan and the members of the defendant's branch that the latter should have for maintenance 4,800 paras of paddy in all, out of which 3,800 paras was to come out of the income of the demised property. It is almost clear that there mast have been such an agreement, although Exhibit A. does not itself embody it in terms but only purports to give effect to it. Any such contract would, in no way, be affected by oar decision of this case. It is argued that in subsequent litigation between the parties, the demise was treated by both parties as a permanent allotment for maintenance. This is no doubt true to a certain extent, bat there is nothing in the litigation to show that the demise was treated as a permanent one. The subsequent suit was instituted by the mem-bers of the defendants' branch for the recovery of the additional 1,000 paras of paddy, and it was held that the Karnavan was bound to make the payment until the agreement was set aside or repudiated with justification. But this would in no way affect the right of the parties with regard to the Kanom demise itself or the period during which the demisees were entitled to hold the land demised. In the latest of these cases which came up to this Court, Ekkanatha Eacharunni Valia Kaimal v. Manakkat Vasunni Valia Kaimal 5 Ind. Cas. 774; Krishnaswamy Iyer, J. observed, with reference to the agreement to pay 1,000 paras of paddy in addition to the 3,800 paras, which was the Michavaram fixed on the land: 'if it was a bona fide and proper and prudent arrangement to make at the time it was entered into, it seems to me that the ground, on which that arrangement is now attacked, is not available to the present representative of the tarwad.' We wish in no way to cast any doubt upon this observation though it is not necessary for us to decide on what grounds the arrangement could be put an end to by a succeeding Karnavan. But, as already pointed out, this observation has no reference to the period daring which the demisees under Exhibit A, are entitled to hold the land. It is contended that the melcharth has, at any rate, this mischievous effect, that, while the defendants are at present entitled to receive 3,800 paras of paddy out of lands in their own possession, they would be left to sue the Karnavan for their maintenance if the Melkanomdar does not choose to pay into their hands the michavaram which he is directed to pay to them. The history of the family shows that the grievance may be a substantial one but we cannot hold that the melcharth is invalid on this ground, if, as we are of opinion, the demise itself did not entitle the demisees to a longer term than 12 years. If the Karnavan could eject them, the grievance is not increased by the land being demised to a third party. We are not, however, sure that there is roam for apprehension that the Courts will not be able to protect the defendants, if they are driven to constant litigation by the Karnavan for their maintenance or, if there is good reason to suppose that they would have to resort to litigation repeatedly for the purpose. There is no reason why the Courts should not be competent to remove this inconvenience by directing the allotment of specific property for the maintenance of the defendants' branch.

3. Lastly, it has been argued that, having regard to the observation of the first Court that the 1st plaintiff is an old man possessed of no capacity and probably unfit to be Karnavan, guided, if not controlled, by a relation of his, a melcharth, which has the effect of depriving the defendants of lands out of which they get the major portion of their maintenance, should not be upheld. It was not, however, pleaded that the Karnavan did not understand the terms of the melcharth which he executed in and plaintiff's favour. We can hardly lay down that, in order to sustain the mtlcharth, he should further be able to perceive that he was inflicting a serious hardship on the defendants. No issue was raised on the question whether he had the legal capacity to execute the document, and more we cannot require merely on the ground that the document was an instrument of melcharth. The members of the tarwad, excepting those of the defendants' branch, do not seem to have objected to it. The lower Courts have found that, so far as the terms are concerned, they are more advantageous to the family than those of the demise sought to be redeemed. We must, therefore, disallow this contention also. The result is that this second appeal as well as No. 517 of 1910 must be dismissed with costs of 1st and 144th respondents in Second Appeal No. 516 of 1910 and of 1st and 3rd respondents in Second Appeal No. 517 of 1910. The other respondents will bear their own costs.

4. Time for redemption is extended till the expiration of three months from this date.


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