CHERUTTI ALIAS RAMAN NAIR Vs. SSARASWATHI AMMAL

JUDGEMENT

(1.) The first defendant is the appellant and the only question is-whether a puramkadam advance of Rs. 400 made by him on 9 February, 1923, to Damodaran Nambudiri said to be the then kamavan of the fifth defendant's tarwad is binding against the plaintiff. The. plaintiff is the melcharthdar claiming under Ex. P-2, dated 25 October, 1938. She filed the suit to redeem the original kanom evidenced by Ex. P-1 dated 12 May, 1920, which was for a sum of Rs. 100-and a purapad of 62 paras of paddy. In answer, the first defendant set up that he was entitled to be paid the puramkadam advance also, which he gave to Damodaran Nambudiri under Ex. D-1. Both the Courts have held that the puramkadam advance is not binding against the plaintiff, as it was made contrary to the terms of a karar, Ex. D-4, entered into between the members of the fifth defendant's tarwad on nth November, 1919, under which it was agreed that no debts could be borrowed for the tarwad except by the consent of all the adult members of the tarwad. The lower Courts have found that the first defendant had notice of this karar. In fact, the kanom deed, Ex. P-1, refers to this karar, Ex. D-4. The conclusion was therefore reached that the puramkadam advance was not binding on the fifth defendant's tarwad and on the plaintiff who claimed as melcharthdar.

(2.) Mr. Viswanatha Aiyar, the learned Advocate for the appellant urged that a stranger to the family like the plaintiff melcharthdar cannot question the bindingcharacter of the puramkadam arrangement evidenced by Ex. D-1 entered into by the karnavan of the tarwad and that the right to challenge such a transaction was personal only to the other members of the illom and cannot be conveyed to third parties. In this connection he cited the decisions in Govind Gurunath V/s. Deekappa Mallappa A.I.R 1938 Bom. 388, Ram Kumar V/s. Mohanlal A.I.R. 1940 Pat. 270, Imperial Bank of India, Jullunder V/s. Mst. Maya Devi (1934) I.L.R. 16 Lah. 714 and Thayyil Mammad V/s. Purayil Mammad . The position he took up was that the transaction which was voidable and not void could be avoided, if at all, only by the junior members of the tarwad or by the succeeding karnavan, and so long as this was not done, it was not open to a melcharthdar like the plaintiff to question it. The cases cited support this position undoubtedly. Unfortunately for the appellant, in the case before us, the tarwad karnavan, the fifth defendant has challenged the puramkadam arrangement as one not binding on the tarwad. He has stated in his written statement that the original intention was that he should join the plaintiff in the institution of the suit, but that he could not meet the plaintiff, the suit was filed by her alone and that he was prepared to join her in the suit and he even wanted to be transposed as plaintiff. In the Patna case cited above, this point about the members of the family challenging or not challenging the alienation is specially referred to as a point of distinction. It is not necessary that the member who impugns the alienation should file a suit for the purpose. He can set up the non-binding character of the transaction in defence and this is what has happened in the present case. No question of limitation can arise, as this is not a suit to set aside any alienation made by a karnavan. It is a suit for redemption of a kanom where the kanomdar states that the amount due to him is not what the plaintiff says is due but much more, because of the later puramkadam arrangement. It is open to the fifth defendant and the plaintiff to plead in defence to this claim urged by the first defendant for more money that the arrangement is not binding.

(3.) Further, having regard to the terms of the karar, Ex. D-4, it is open to doubt whether the puramkadam transaction is only voidable or is totally invalid. It is not a case where the karnavan exceeds his authority and enters into an arrangement on behalf of the tarwad without necessity. It is a case where he has no authority at all, having been dethroned from the karnavasthanam owing to reasons with which we are not concerned and having relinquished the place in favour of another, namely, the fifth defendant; and the agreement is that no debts shall be borrowed so as to bind the tarwad unless all the adult members agree and join in the execution of the necessary documents or deeds. If a person has notice of this karar and enter into an arrangement with one only of the members of the tarwad--in this case it was Dimodaran Nambudiri who g?ve up the karnavanship altogether--he cannot be heard to say that it was a transaction which was valid until set aside. He entered into the arrangement with a person, who, he knew, had no authority whatever to take a puramkadam loan.