MATHEW Vs. AYYAPPANKUTTY

JUDGEMENT

(1.) THIS appeal raises a question of some nicety, viz., whether an alienation of tarwad property, not in conformity with the conditions laid in S. 21 of the Travancore Ezhava Act (III of 1100) is void or voidable.

(2.) THE facts are as follow:- THE suit property belonged to Valiyaveettil tarwad of plaintiff and defendants 2 to 25, governed by the Travancore Ezhava Act. It was mortgaged with possession to the predecessor of the 1st defendant on 26-10-1083, and subsequently sold to the 1st defendant on 4-12-1113 M.E. THE latter alienation was by the then karnavan and some of the other members of the tarwad, but had not 'the written consent of all the major members of the tarwad' as required by S. 21 of the Travancore Ezhava Act. Treating it as void, the plaintiff, on behalf of the tarwad, has instituted this suit to set aside the sale and to redeem the mortgage abovesaid. THE 1st defendant contended inter alia that the suit having been instituted more than 12 years after the execution of the impugned sale, was barred by limitation.

(3.) BEFORE proceeding to analyse the precedents, I would advert to the import of the expressions 'void' and 'voidable' in law. As observed by Stone, J. in Viswesara Rao v. Surya Rao (A.I.R. 1936 Madras 440, 443) 'Terms such as voidable and void, valid or invalid, may each be a little misleading'. According to his Lordship, even the Privy Council had, on certain occasions, overlooked the strict import of these words. "The fact that the Privy Council have in certain cases, for example 39 All. 437 and in 39 All. 500, used the words which suggest that such a transaction is void does not assist us. Their Lordships were not deciding the question whether such a transaction is void ab initio and so incapable of ratification or merely voidable."