KOHNAN GOPALAN Vs. PADMINI

JUDGEMENT

(1.) Defendant No. 23 and the legal representatives of defendant No. 24 in a suit for partition are the appellants. According to the plaintiffs, plaint B schedule item No. 1 belonged to the thavazhy of the plaintiff and defendants 1 to 24 and was hence available for partition among the members of the thavazhy. We are only concerned with that item in this Second Appeal. According to defendants 23 and 24, though originally the said item belonged on tenancy to the thavazhy, the landlord had obtained a decree for arrears of rent in O. S.575 of 1948 on the file of the Munsiff's Court, Tellicherry, in execution of which he was trying to sell the right, title and interest of the thavazhy over that item of property. At that stage, 'to save the property, the karanavan by himself granted a registered lease of the said item to one of his sisters, Chappila, the mother of defendants 23 and 24. That document of lease was marked as Ext. B-19 dated 29th January 1951. According to defendants 23 and 24, Chappila was in possession of the property pursuant to that lease and on her death, the right under the lease had devolved on defendants 23 and 24. Defendants 23 and 24, members of the thavazhy, therefore pleaded that they were entitled to fixity of tenure in respect of plaint B schedule item No. 1 on the strength of the lease Ext. B-19. The plaintiffs challenged the claim on the ground that the said lease was not valid or binding on the thavazhy and consequently did not confer any right on Chappila or on defendants 23 and 24 as her heirs. The essential question that fell for decision in the suit therefore was, whether Ext. B-19 was valid or binding on the thavazhy or whether the plaintiffs could ignore the same and claim partition of the properties included therein on the basis that the property continued to be held on tenancy, by the thavazhy.

(2.) The Madras Marumakkathayam Act, Act 22 of 1930, came into force in terms of S.5 of the Madras General Clauses Act having been first published in the Fort St. George Gazette, on 1st August 1933. S.33 of that Act dealt with the alienation of immovable property by a Karanavan of a tarwad. Under the section as it stood, sub-s.(1) which related to sales, mortgages with possession and leases of immovable property for a period exceeding 12 years, could be granted only for tarwad necessity or benefit and with the written consent of the majority of the major members of the tarwad. Under sub-s.(2) of S.33 of the Act, mortgages with possession or leases with premium returnable wholly or in part or for a period not exceeding 12 years, could be created by the Karanavan, provided there was consideration and tarwad necessity or benefit. Sub-s.(3) provided that the Karanavan would continue to have powers to grant any lease without premium returnable wholly or in part or the renewal of an existing kanam for a period not exceeding 12 years, in the usual course of business. This section was amended by the Malabar Tenancy Amendment Act of 1951. The substituted S.33 of the Madras Marumakkathayam Act after its amendment in 1951 read as follows:

(3.) In the present care, the lease Ext. B-19 was executed on 29th January 1951. It was executed only by the Karanavan The written consent of the majority of the members of the tavazhy was not obtained. It was for a period of 12 years. Since it did not exceed the period of 12 years, under S.33(2) of the Madras Marumakkathayam Act, 1932 as unamended, the written consent of the majority of the major members of the tavazhy or tarwad was not required. It had only to be, shown that it was for consideration and for tarwad necessity or benefit But in view of sub-s.(2) of S.33 of the Act as amended in the year 1951, the consent of major members of 'the tavazhy or tarwad was required, in view of the fact that the tenant thereunder, would have been entitled to fixity of tenure under the Malabar Tenancy Act. Going by the deeming provision under sub-s.(3) of S.33 of the Act, any such lease executed after 27th July 1950 was hit by the amended S.33(2) of the Act, even though the amending Act as such came into force on 23rd October 1951, about 9 months after the execution of Ext. B-19.