VATAVATTA NAIR Vs. KENATH PUTHEN VITTIL KUPPASSAN MENON

JUDGEMENT

(1.) The plaintiff in the suit from which this appeal has been preferred is the senior anandravan of the tarwad of which the 2nd defendant is the karnavan. The 1st defendant holds a kanom, Ex. II in the case, executed on the 24th August 1914. The object of the suit is to have that kanom set aside on the ground that it was an imprudent transaction and was injurious to the interests of the tarwad. The 1st defendant who is the karnavan of a rich tarwad has had dealings with the 2nd defendant s tarwad for a long time prior to the suit. He holds kanoms and melcharaths on large properties belonging to the 2nd defendant s tarwad including the property in dispute.

(2.) In order to understand the questions arising in the case it is necessary only to go back to Ex. XX which is a melcharath in favour of the 1st defendant in respect of the property comprised in Ex. II executed in May 1916. The melcharath therefore, which is a sort of second charge, would expire in 1908. In 1902 the 2nd defendant s predecessor executed in favour of the 1st defendant s predecessor a puramkadom--that is a second charge--on receiving a fee of about Rs. 1,350. That document contains a stipulation for renewal of the melcharath Ex. XX. Then, disputes arose between the parties not merely with respect to this property but also with respect to properties belonging to the 2nd defendant s tarwad in possession of the 1st defendant. A notice was given by the 2nd defendant in 1914 to the 1st defendant asking the latter to surrender the property comprised in Ex. XX. There had been two suits instituted with respect to other properties of the 2nd defendant s tarwad in possession of the lst defendant. All these disputes, it appears, were arranged to be settled by the mediation of certain pleaders practising at the Palghat Bar, and in the result, Ex. II and Ex. III were executed. It appears that altogether Rs. 3 000 was paid by the 1st defendant to the 2nd defendant out of which Rs. 1,000 was the fee for renewal. The case of the plaintiff is that Ex. II is a renewal of Ex. XXI which was to expire only some time in 1920.

(3.) It was strongly contended by Mr. Ananthakrishna Aiyar for the appellant that we must ignore Ex. XXI altogether as that was disputed by the parties and as Ex. II was executed under an arrangement arrived at by way of compromise. But the whole case tried before the Court was that Ex. II was executed before the expiry of the term mentioned in Ex. XXI and therefore it was invalid unless the 1st defendant was able to show that the transaction was for the benefit of the family or was entered into for a necessary purpose. The document, Exhibit II, itself states that, "Though a period of 5 years and 8 months has yet to expire of the former puramkadom demise for 12 years (meaning thereby Ex. XXI), yet we have to-day given you this demise for 12 years as we are pressed for payment of the amount on the pronote with interest thereon executed to M.K. Krishna Menon." The written statement of the 1st defendant, paragraph 9, also proceeds on the same basis and the evidence of the 1st defendant himself is to that effect. And the question raised by the first issue, the issue bearing on the point, "whether the demise Ex. II was valid and binding on the tarwad in view of the fact that the 1st defendant has surrendered his prior demise before he took this demise." By the prior demise here is meant the puramkadom Ex. XXI. I think it would be altering the entire case if we were now to accede to Mr. Ananthakrishna Aiyar s contention that Ex. XXI must be ignored altogether and that we must hold that since the term in Ex. XX expired in 1908 Ex. II should not be treated as a transaction entered into before the expiry of an existing demise.