KUNHAVULLA Vs. AMMAD

JUDGEMENT

(1.) The suit which has given rise to this second appeal, was instituted by the two appellants, for the realisation of rent due for the year 1129, M E. under a registered marupat Ext. A1, executed by the first respondent - first defendant, in favour of the fifth defendant in the case. The suit property belonged to the thavazhi of the fifth defendant and her children, defendants 6 to 9. By Ext. A2 dated January 19, 1953, the fifth defendant, acting also as the guardian of defendants 6 to 9, assigned the reversion of the leasehold in favour of the appellants. The first respondent had transferred his rights under the lease, in favour of defendants 2 to 4, who are respondents 2 to 4 in this Second Appeal. On the contention of the first respondent, the Trial Court exonerated him from liability; it also dismissed the suit against respondents 2 to 4, accepting the contention, that Ext. A2, being unsupported by thavazhy necessity was void under S.33 of the Madras Marumakkathayam Act. The appellate Court confirmed this. In this Second Appeal, the point was taken, that even if Ext. A2 is unsupported by necessity, it cannot be held to be void and that the respondents who are strangers to the thavazhi are not entitled to impeach Ext. A2 on this ground. It may be mentioned now that defendants 5 and 6 to 9 have supported Ext. A2 and the appellants claim in full.

(2.) S. 33 of the Madras Marumakkathayam Act, as amended by the Malabar Tenancy [Amendment] Act, 1951, reads:

(3.) The learned counsel for the respondents invited my attention to the different phraseology in S.33 of the Marumakkathayam Act, as it was before and as it is after, the amendment of 1951. Before the amendment, the words were, more or less, as in S.25 of the Nayar Act of 1100, being except for consideration and tarwad necessity ...... no karanavan shall sell ............. Notwithstanding this difference, I hold that the principle quoted has application and as stated, decided cases on the various enactments, have also taken the same view.