(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.
(3.) The Munsiff heard the question of limitation as a preliminary issue, and held "............ a sale dead executed by the karnavan without the written consent of all the major members of the family is not void in law but is only voidable" and that since the sale has not been avoided within 12 years of its execution the plaintiff's tarwad was disentitled to any further claim on the suit property and, therefore, dismissed the suit.
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