KOONICHI KUNHI Vs. KANNA KURUP

JUDGEMENT

(1.) This appeal is by defendants 1 and 2 in a suit to recover arrears of rent by sale of their tenancy rights.

(2.) The learned counsel for the appellants contended that Ext. P2, the mortgage in favour of Gopalan Nair, was itself invalid having been executed by Palayadan without any necessity binding on their tarwad and that the assignee of arrears of rent is not entitled to a charge on the holding and that in any view the tenancy rights of the 1st defendant as per Ext. II should be excluded from the suit charge.

(3.) As regards the validity of Ext. P2 is concerned, it is to be noted that the document was executed on 31-1-1916. Assuming, without deciding, that the rights under Ext. P10 enured to the tarwad of Palayadan, the conveyance in Ext. P2, having been executed in 1916 by the karnavan of the tarwad and not having been questioned till date of this suit of 1943 has become a valid transaction. The conditions of necessity binding on, and the consent of other members of the tarwad can be availed of only by the members of the tarwad to question the transaction by their karnavan. The want of necessity and consent will not make an alienation of tarwad property by the karnavan a nullity; it may at the worst be voidable, to be avoided by interested members within time allowed by law. There is no case that Ext. P2 had been set aside or avoided by the members of the defendants tarwad at any time hitherto. It follows therefore that the validity of Ext. P2 cannot be canvassed in this suit instituted in 1943 only.