KIZHIAKALATHIL PUTHAN SEETTIL THAVAZHI KARNAVAN GOPALAN NAIR Vs. MANIKAT VARIATH UKKALI VARISSIAR S SON SANKUNNI VARIAR

JUDGEMENT

(1.) The legal representative of the 2nd plaintiff in the suit is the appellant in this Court. Under Ex. B, dated June 26, 1919, the 2nd plaintiff got a melcharth of the suit property from the first plaintiff the sthani. The previous demisee who was the 1 defendant, had a kanom which did not expire till 1922. The 1 plaintiff (the sthani) and the 2nd plaintiff waited till the expiry of the [previous demise, and then instituted a suit for redemption. The 1 defendant transferred his rights to the 2nd defendant, who is now the principal contesting defendant and he impugned the validity of the melcharth and in the alternative claimed reclamation expenses in case the melcharth be found good. During the pendency of the suit, the 1 plaintiff died and the 15 defendant came on the record as his legal representative. He did not prosecute the suit but contented himself with appearing as a defendant and disputed the validity of the melcharth Ex. B, and he further executed a renewal in favour of the 2nd defendant. During the pendency of the appeal the 15 defendant died and his legal representative came on the record as 20 respondent. He supported the appellant and impugned the kanom granted by the 15 defendant to the 2nd defendant. The Court of first instance held that the melcharth having been granted before the expiry of the existing demise was void and dismissed the suit and the lower Appellate Court took the same view. The 2nd plaintiff's legal representative has preferred the present appeal.

(2.) There had been conflicting decisions in this Court as to whether a melcharth granted before the expiry of an already subsisting demise was void in law. An unreported decision in S.A. No. 774 of 1917 was relied on by the 2nd plaintiff. In that case it was held that where the grantor lived after the expiry of the subsisting demise, the subsequent demise could not be impugned merely on the ground that it was made before the subsisting demise had expired. But in Kunhammad V/s. Kunhunni 57 Ind. Cas. 421 : 43 M. 715 : 11 L.W. 532 : 38 M.L.J. 461 : (1920) M.W.N. 335 a Bench of this Court took the opposite view and held that a melcharth granted before the expiry of an existing demise was not good in law except for absolute necessity. In the present case there is a finding that there was no necessity for the melcharth Ex. B, and that finding of fact is not contested. Another unreported decision in S.A. No. 1147 of 1917 approved of the decision in S.A. No. 774 of 1917. These were both cases of a sthani granting a melcharth before the expiry of the time. The matter has since been set at rest by the Full Bench decision in Trivikrama Konuraya V/s. Sankaranarayanan Vazhunnavar 140 Ind. Cas. 83 : 63M.L.J. 743 : 36 L.W. 543 : (1932) M.W.N. 1127; Ind. Rul. (1932) Mad. 821; A.I.R. (1932) Mad. 771 : 56 M. 92. (F.B.). From this decision it is clear that where a karnavan grants a melcharth, which is not otherwise improper, before the termination of an existing demise, that is not void per se, though it may be avoided by his successor if the latter is in office at the time of the expiry of the previous demise. It is not necessary for the purposes of the present case to go into the grounds on which the successor could avoid the melcharth because it is abundantly evident from that case that if the grantor is alive at the time when the previous demise expires, he and he only is the person who is entitled to avoid it, if it is in other respects a proper lease. The present case is much stronger than the Full Bench case, because there the karnavan who granted the second lease and who survived the expiry of the earlier lease for some months took no action one way or the other either to confirm or disown it. Anantakrishna Ayyar, J., who wrote the leading judgment, says at pages 751 and 752: As the transaction entered into by him is prima facie binding upon him, the argument that after the expiry of the term of the prior lease he (the executant) should indicate, by some formal act of his, that he proposes to stand by the same, is too technical even if there is any force in it. When the question of its binding nature is raised subsequent to the executant's death by the succeeding karnavan, the circumstance that the executant--karnavan--was alive when the term of the prior demise expired, and could have on that date executed a document in similar terms against which nothing could be urged, is a very material point for consideration in the absence of other circumstances. Ordinarily a document being binding on the executant thereof, no further act of his would be necessary to affirm it; it is only when he wishes to disaffirm it (in cases where he could do so) that he should indicate by an overt act, his disavowal,

(3.) Here the executant of Ex. B has joined the second plaintiff in filing the suit upon the melcharth. As Reilly, J. says: If the karnavan who granted the lease prematurely is still in office when the previous term expires, no one but he has the option to avoid his grant.