SREEDEVI AMMA Vs. PARAMESWARA PANICKER

JUDGEMENT

(1.) THIS is an appeal by the 4th defendant against the decree passed against the tarwad properties scheduled to the plaint on the basis of a hypothecation bond Ext. A, dated 7121123 executed by her mother as her guardian, along with her brother, the second defendant, in the case, and her father the first defendant, in favour of the first respondent Bank. The suit was resisted by the appellant on the ground that Ext. A is not supported by consideration or tarwad necessity. The court below negatived this contention and decreed the suit and hence this appeal

(2.) THE relevant portion of Ext. A reads as follows:

(3.) THE question for consideration is whether liabilities arising out of a venture such as the one for which Ext. A has been executed can be said to be one falling within the ordinary management of a Marumakkathayam tarwad. It seems to me well-established that in order that a tarwad may be bound by the acts of the karnavan, at times with the junction of the other adult members, the acts must be in the discharge of the duties of management of the tarwad. If a business is started which is risky and of a speculative nature, the tarwad and the tarwad properties cannot be made liable for loss or debts arising out of such business. It was so ruled in a Full Bench decision of the Travancore High Court in Sivaminatha Sastrigal v. Sankaran Nainaru (XII T. L. T. 606 XXVIII T. L. J. 27) and this has been followed in another Full Bench decision in Nedungadi Bank v. Govindan Potti (XXXI TLJ. 358 ). THE relevant passage has been quoted by the learned judge in his judgment under appeal and it reads: "it is foreign to the recognised principles of marumakkathayam Law that the properties of the tarwad should not be charged with liability for anything other than what is directly understood in law as tarwad necessity, that is to say, purposes within the scope of the ordinary management of the tarwad, and transactions which are attendant with grave risks or of a speculative nature cannot be classified as acts of management to the manifest advantage of the tarwad. " THEre can possibly be no doubt that the conducting of an agency for a textile industry is not one of the purposes within the scope of the ordinary management of the tarwad. I am equally certain that such a business is attended with grave risks. THE court below has said that the principle stated in the above decision "cannot be invoked here". No reasons have been assigned for saying so. I see no reason why the principle should not be applied to the facts of this case. In fact, this case has to be decided on the principle stated and followed successively by two Full Benches. To the same effect is the ruling in Thankappan v. Narayanan (1952 KLT. 561 ).