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PETITIONER: Dr. C. ANNACHERIAM AND ANOTHER

       Vs.

RESPONDENT: ACHOTHA MENON AND OTHERS

DATE OF JUDGMENT: 03/05/1962

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SARKAR, A.K. SUBBARAO, K.

CITATION:  1963 AIR  128            1963 SCR  (3) 986

ACT: Marumakkattayam  Law--Karnavan--Power of  delegation--Extent --If includes right to manage property and duties arising in connection  with management of tarwad--Marumakkattayam  Act, 1932 (Mad. 22 of 1933), s. 33.

HEADNOTE: A karnavan of a tarward who was leaving for Bornes where  he had  taken  up a job, appointed one M, who  was  the  second senior most anandravan, as his mukthiar by executing a power of attorney, for the reason that the senior most  anandravan was  away in Madras.  The said mukthiar in conjunction  with other  adult members of the tarwad. sold several  properties of the tarwad for discharge of debts of the tarwad under the said power of attorney, including the property in suit. The  karnavan  along with two minor members  of  the  tarwad brought a suit for setting aside registered assignment  987 deed executed by his said mukthiar and all other adult  mem- bers of the tarwad. The  Trial  Court  held  that the  sale  in  favour  of  1st respondent was binding on the tarwad and dismissed the suit. On appeal the High Court reversed the decree.  While it held the sale was justified on the ground of necessity it came to the  conclusion that the transaction was not binding on  the tarwad because the karnavan had not joined in it.  The power of  attorney  executed  by the karnavan  in  favour  of  the mukthiar  cannot be effective as delegation to the  mukthiar of the karnavan’s power with respect to the tarwad  property and,  therefore, the transaction must fail as an act of  the tarwad. It was contended that though the Karnavan can under a family Karar  delegate  ’his  I right to  manage  the  property  to another  he  cannot delegate the performance of  the  duties arising in; connection with the management of the tarwad and that’ therefore it was not competent for the defendant No. 3 acting  as mukthiar of the Karnavan, to effect the  sale  in association with other adult members of the tarwad. Held,that  by a family Karar Karnavan’s power of  management can  be  restricted  and also that  a  Karnavan’s  power  of management can be delegated, so long as what is delegated is

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not  totality of the powers enjoyed by a Karnavan by  virtue of his status.  The properties belong to all the members  of the  tarwad and that apart from the right of management  the Karnavan  has  no larger right or interest  than  the  other members. That  by  virtue of his status. the  Karnavan  owes  certain duties  to the members of the tarwad and one of such  duties is  to manage  the  properties In the best interest  of  the members.   Those to whom the duties, are owed may find  that in  their own interest the duties can be best performed’  by an  Anandravan in particular circumstances.  These would  be good reasons to justify the delegation of a Karnavan’s power of  management  to an Anandravan by a  family  Karar.   Thus where  for  some  reason  the  Karnavan;  ’is  not  able  to discharge  his  duties in respect of the management  of  the Tarwad property, there must be someone who could look  after it  and  who  would have the power to  manage  it.   If  the delegation of the Karnavan’s power of management is regarded as  incompetent  the  necessary result  Would  be  that  the interests  of the family would suffer. it is by no  means  a practical  proposition  to  expect  the  family  members  to approach  the Karnavan, when he is at some far  off  corner, for his consent in regard to each and every transaction,  be it sale, mortgage or lease, 988 An agreement (or Karar) entered into by the Karnavan and the members  of the family by which the power of  management  of the  tarwad carrying with it the duty to decide  during  the absence  of  the Karnavan whether  a  particular  alienation should  be  effected  for  meeting  a  family  necessity  is delegated  to a Mukthiar so that he can exercise that  power with the concurrence of the adult members during the absence of  the Karnavan as and when occasion arises is a  perfectly valid agreement. The  delegation  merely of a power of  management  which  is revocable  cannot be regarded as a delegation of the  office of the Karnavan.  The Karnavan continues to be Karnavan  but during  his absence from the spot his managerial powers  are exercisable by the Mukthar. The  delegation  being  through a  power  of  attorney,  the karnavan  can in a proper case put an end to it by  revoking the power of attorney.  Thus, despite the execution of  such a  power  of attorney he does not fade out  completely  and, therefore,  there  is  no  question  of  its  operating   as renunciation.  Held,  further, that the plaintiff No. 1 not  executed  the power  of attorney before leaving for Borneo and  thereafter several  properties were alienated by the mukhtiar  in  con- junction with the other anandravans and. none of the aliena- tions  except  the one in suit has been  challenged  in  all these years justifies the inference that these  dispositions were in pursuance of the power of attorney and also that the power of attorney was itself executed by the plaintiff No. 1 A in pursuance of a family karar. Cherukomen  v.  Ismala, (1871) 6 M. H. C.  R.  145,  Kenath, Puthen Vittil Tavazhi’v.  Narayanan, (1904) 1. L. R. 28 Mad. 182, Chappan Nayar v. Assen Kutti (1889) I.L.R. 12 Mad. 219, Krishnan  Kidavu  v. Raman, (1916) I.L.R. 39  Mad,  918,  K. Ramankutty  Menon v. Seevi Umma, A.I.R. (1929) Mad. 266  and P.  K. Govindan Nair v. P.  Narayanan Nair, (1912) 23 M.  L. J. 706, referred to.

JUDGMENT:

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 426 of 1960. Appeal from the judgment and decree dated October 14,  1958, of  the  Kerala High Court, Ernakulam in A. S.  No.  297  of 1955-E. 989 M.   K.  Nambyar, S. N. Andley, Rameshwar Nath, P.L.  Vohra, for the appellants. A.   V.   Viswanatha   Sastri  and   Sardar   Bahadur,   for respondents Nos. 1-3. 1962.  May 3. The Judgment of the Court was delivered by MUDHOLKAR,  J.-This is an appeal from a, decree of the  High Court  of Kerala by a certificate granted by it  under  Art. 133(1) of the Constitution. The appeal arises out of a suit instituted by a Karnavan  of a  tarwad  along  with two minor member of  the  tarwad  for setting  aside  a  registered  assignment  deed   (hereafter referred   to  as  sale  deed)  executed  by  his   Mukthiar Karanakara Menon. who is junior member of the tarwad and  by all  the  other  adult member of  the  tarwad  on  17.6.1117 (M.R.). We have not been able to ascertain the correct  date according  to  the  Gregorian  calender;  but  it  has  been accepted  before  us that the document was executed  in  the month  of  February, 1942.  Nothing, however. turns  on  the precise  date  of  the  execution  of  the  document.   This document  is  in  fact a sale deed  and  thereunder  certain property  belonging  to  the tarwad was sold  to  the  first defendant to the suit, who is appellant No. 1 before us, for a  consideration of Rs. 8,000/-.  Out of the amount  of  Rs. 8,000/-,  a sum of Rs. 5,250/- was required for  discharging the debt due under a mortgage decree against the tarwad. The  grounds  on  which  the  sale  is  challenged  by   the plaintiffs are briefly theses :               (1)   That  the  sale  outright  of  the  suit               proper. ties for Us. 8,000/- was not justified               for   satisfying  the  decretal  debt   of.Rs.               5,250/-               990               because  the  prevailing price  of   immovable               property would be Rs. 46,000@/- or               (2)  That the sale was effected by a collusion               between   the  first  defend  and  the   third               defendant Karunakara Memnon who               was the Mukhtiar of the plaintiff No.1.               (3)   That  upon a proper construction of  the               power of attorney the Mukhtiar could execute a               sale   deed  only  if  the  Karnavan  in   his               discretion  thought  it to  be  necessary  for               meeting the pressing needs or for the  benefit               of  the  tarwad to effect it and that  as  the               Karnavan had not consented to the execution of               the  sale  deed  it is not  binding  upon  the               Tarwad.               (4)   That  if the power of attorney is  cons-               trued as having vested in the third  defendant               with  the  discretion  and  Judgment  of   the               Karnavan   regarding’   the   necessity    and               expediency  of alienting the  tarwad  property               such a delegation is beyond the the powers  of               the   Karnavan   and   would   be   void   and               imoperative, in law.  An act purporting to  be               done under the colour of such authority is not               valid and cannot bind the tarwad.               (5)   That  the  plaintiffs 2 and 3  were  not               represents  by their legal guardian, that  is,               the Karnavan,and the purported  representation

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             by  their  mother the 5th defendant  as  their               guardian  .is in effective because  she  could               not   in   law  act  as   guardian   in   this               transaction.   The  sale deed  is,  therefore,               null and void.               (6)   That,the  defendants 2, 4 and 5 who  had               joined in the sale deed had obviously                991               done so on the footing that it was an intended               conveyance  of  the rights of the  taward  and               that  if the deed is not legally effective  to               pass the rights of the tar wad as not being  a               valid  act  of  the  Karnavan,  it  cannot  be               regarded   as  having  been  intended  to   be               executed by those three defendants.   Further,               that  these  defendants did  not  apply  their               minds,  to the propriety or necessity  of  the               transaction  but  were merely  misled  by  the               statements  and representations of  the  third               defendant  as to the necessity  for  executing               the deed. The transaction was challenged on three other minor  grounds in  the  plaint  but it is not necessary to  refer  to  them because no arguments were advanced before is with regard  to them. The first defendant who is a woman doctor contended that the transaction was valid and operative and was not liable to be get  aside on any of the grounds on which it was  challenged by  the  plaintiffs.   She contended  that  apart  from  the decretal  debt  there were other outstanding  debts  of  the tarwad which had to be satisfied and that the properties  in the  suit were attached in execution ’of a  decree  obtained against  the  tarwad  in some  other  suit.   The  defendant believed,  after making due enquiry and on the faith of  the representations made by the assignors, that the whole of the amount  of  Rs. 8,000/- was required for  discharging  debts binding  on the tarwad, ’entered into the  transaction  bona fide.   The  price  paid by her for  the  property  was  the prevailing  market price for similar lands in the  locality. Further,  according to her, she had spent Rs. 8,000/-  after the purchase of the property for levelling the land and  for strengthening the   bonds.  According to her 992 it  is  because  the  value of the  land  has  now  gone  up considerably  that the plaintiffs and other members  of  the tarwad are attempting to defeat her just rights. Then  again, according to her, on a proper  construction  of the  power  of  attorney  it would  appear  that  the  third defendant was authorised by the plaintiff No. 1 as  Karnavan to act on his behalf in all matters relating to the  tarwad. She  also contended that it was wrong to construe the  power of attorney as amounting to a delegation of the whole of the power  of the Karnavan.  She, however, admitted that at  the time  of the execution of the sale deed it was not  possible to get the written content of Karnavan, the plaintiff-No. 1. Reference  was made by her to several  similar  transactions entered into by the defendant No. 3 in which the other adult members of the family has joined and it was pointed out that none  of  them  has  been  challenged  by  the   plaintiffs, suggesting  thereby  that  they  accepted  the  validity  of transactions of a similar kind. The  trial court held that the sale in favour of  the  first defendant was binding on the tarwad and dismissed the  suit. It  may  be  mentioned that in addition  to  the  claim  for possession  of the property in the suit, the plaintiffs  had

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asked  for  mesne profits.  Naturally, that claim  also  was dismissed  by the trial court in view of its finding on  the main issue. For the same reason it did not give any  finding on the question of improvements alleged to have been made by the first defendant. On  appeal the High Court reversed the decree of  the  first court.  Before the High Court the validity of the alienation was challenged on three grounds:               (1)   The  non-joinder of the Karnavan in  the               execution of the sale deed-                993               (2)   The inadequacy of consideration for  the               transaction;               (3)   Want   of  legal   necessity   for   the               transaction. While it held that the sale was justified on the grounds  of necessity and that the consideration was adequate, the High’ Court  came to the conclusion that the transaction  was  not binding on the tarwad because the Karnavan had not joined in it.   According  to  the High Court the  power  of  attorney executed by the first plaintiff on March 22, 1939 in  favour of the third defendant cannot be effective as derogation  to the  third  defendant  of the first  plaintiffs  power  with respect   to  the  tarwad  property  and,   therefore,   the transaction  must  fail  as an act  of  the  tarwad.   While reversing  the decree of the trial court and  decreeing  the suit  the  High Court ordered that the  plaintiff  would  be entitled to the possession of the property on depositing Rs. 8,000/-  which  was  the amount  of  consideration  paid  by defendant No. 1 and of which the tarwad had received benefit and,  in addition, depositing Rs. 2,530/- in respect of  the money  spent by defendant No. 1 for improving the  property. The  High Court, however, ordered that the plaintiffs  would be  entitled to mesne profits from the date of suit at  1200 pares of paddy per annum till recovery of possession. It  is not contended before as on behalf of the  plaintiffs- respondents  that  the  transaction  was  not  supported  by necessity  or  that the consideration  was  inadequate  and, therefore,  the only question which we have to  consider  in relation  to the validity of the transaction is  whether  it was  competent  for  the  defendant No.  3,  acting  as  the Mukhtiar of the Karnavan, to effect the sale in  association with the other adult members of the tarwad.  On this part of the  ease  the  contention of Mr. N. K. Nam  biar   for  the appellants who axe defendant No. 1 and 994 defendant  No. 6, a person cultivating the lands  under  the defendant No. 1, are these:               (1)   Where all members of the tarwad join  in               the  execution of a sale deed the question  of               delegation by the Karnavan does not arise.               (2)   Where  a Karnavan challenges a  sale  on               the ground that his Mukhtiar had not  obtained               his consent for effecting it that sale  cannot               be  set aside unless the Karnavan  proves  the               terms of the power of attorney and also proves               that he did not assent to the transaction.               (3)   When  a Karnavan impugns a sale  because               it  was  effected  by virtue  of  a  power  of               attorney  which according to him amounts to  a               delegation of his powers as Karnavan the  sale               cannot  be,  set  aside unless  the  power  of               attorney is itself produced. The last two grounds are based upon the fact that the  power

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of  attorney  has  not been produced in  this  case  and  no explanation is given for its nonproduction.  It would appear from  the  averments made by the defendant  in  the  written statement that she had taken out summonses both against  the plaintiff No. 1 and defendant No. 3 to produce the power  of attorney  in court but they neither produced it nor  made  a statement on the point. Relying  upon  certain  passages in  the  late  Mr.  Justice Sundara  Aiyar’s  ’,’Treatise on Malabar  and  Aliyasanthana Law"  (1922 ed.) Mt.  Nambiar contended that where  all  the members  of the tarwad join in transaction that  transaction is binding on the tarwad.  A Karnavan is of course  entitled to  alienate  the tarwad property for family  necessity  but where a transaction is entered into by all the member of the tarwad, the existence of such 995 necessity  need not be established.  This, according to  Mr. Nambiar,  is  the common law of Malabar.  The  family  being resident  in that part of Kerala which was formerly part  of the  Province  of Madras, is governed by the common  law  as modified by statute.  The main statute bearing on the  point is  the Madras Marumakkattayam Act, 1932 (Madras  Act.   No. XXII  of  1933).  This Act has been amended  by  some  later Madras  Acts and Central Acts but with those  amendments  we are  not concerned in this appeal.  Under the common law  of the  Karnavan  had complete power of alienating  the  tarwad property  for necessity and in this regard he was  the  sole judge  of  the necessity.  Section 33 of the  Act,  however, restricts   that  power  and  provides  that   for   certain transactions, including a sale for the tarwad’s necessity or benefit,  the written consent of the majority of  the  major members  of  the tarwad must be obtained  by  the  Karnavan. According to Mr. Nambiar this provision does not in any  way derogate  from  the right of all the members of  the  tarwad acting  together  to partition the tarwad  property  amongst themselves  or to alienate it any manner they choose.   Thus according to him, s.33 of the Act deals only partly with the subject of’ alienation of tarwad property and not the  whole of it. Under  the common law, according to him, property  belonging to  a  Tarwad  is the property of all the  male  and  female members  composing it and that the Karnavan has  no  greater personal  right  in  the property than  the  junior  members thereof  In  fact the family consists  of  individuals  with equal rights.  No doubt the Karnavan has the exclusive right to manage the tarwad property but his power is no more  than that  of a manager of a Mitakshara family.  Nor again.  does the  property  vest  in the manager alone  but  in  all  the members of the family 996 or  the  tarwad.  The right of the Karnavan  to  manage  the family property is also subject to regulation by the  common consent  of  all the members of the family and  that  family karars  restricting the rights of the Karnavan are a  common feature  in  Malabar.   Where a  Karnavan’s  rights  are  so restricted by common consent which necessarily includes  his own consent-he cannot ordinarily dispute the binding  effect of the karar upon him. The  occasion for the execution of the power of attorney  by the  first  plaintiff  was  admittedly  the  fact  that  the Karnavan left his native place for Borneo where he had taken up an appointment.  The senior anandaravan in the Tarwad was defendant  No. 2 but he was holding a post with  the  Madras Government  which  required his being away from  the  family house  during the whole of his service.   Karunakara  Menon,

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the  third  defendant was next in seniority and  as  be  was residing  in  the family house the  first  plaintiff  Achuta Menon executed the power of attorney in his favour.  We  may incidentally mention that Leelavathi Amma the 5th  defendant in  suit is the wife, of one Dr. P. B. Menon of Calicut  and as she lives with him there she could not have been able  to look after the family property.  Nor again could the  fourth defendant  Govinda Menon attend to the work because  he  was also   employed  elsewhere.   The  family  was  clearly   in difficulties  and, therefore, according to Mr.  Nambiar,  it was essential for Achuta Menon to delegate as much authority to the person living in the family house as was  permissible under law so as to enable him to manage the property in  the beat  interests of the Tarwad.  It was for this reason  that the  power of attorney was executed in favour of  Karunakara Menon, the third defendant. In  its judgment the High Court has not said that there  was no occasion for the execution of 997 power  of attorney.  But according to it even  by  executing such  power of attorney in favour of the third defendant  it was not legally competent for the plaintiff No. 1 to  enable the third defendant to alienate family property except  with his  consent.   The  power  of  attorney  not  having   been produced,  the  High Court considered the  matter  from  two angles,  full  delegation and partial delegation,  It  first considered  the matter on the assumption that the  power  of attorney  conferred full power upon the defendant No.  3  to act for the Karnavan, the plaintiff No. 1, and alienate  the property  without reference to him.  The High  Court,  after referring  to  certain decisions of the Madras  High  Court, came  to  the  conclusion that such an  empowerment  by  the Karnavan amounted to a delegation not only of his rights  as a  Karnavan  but also of his duties to the tarwad  and  was, consequently,  invalid in law.  The High Court  pointed  out that where the power of attorney confers such wide powers on the  Mukthiar, it is nothing but a delegation of  the  Karn- avans   power  and  this  is  not  permissible   under   the Marumakkattayam law which is the common law of Malabar.  If, on  the other hand, the delegation was not so extensive  and if  the  power of attorney provided that the  Mukthiar,  the third  defendant,  was empowered to execute a sale  deed  on behalf  of the tarwad as an agent of the Karnavan after  ob- taining the consent of the Karnavan-here admittedly no  such consent  was obtained-the transaction must be deemed  to  be beyond the competence of the Mukthiar. It  would be useful to consider the decisions in which  some aspects of the question have been dealt with.  In Cherukoman v.  Ismala (1) Holloway J., who is regarded as an  authority on   Marumakkattayam   law  expressed   the   opinion   that Karnavanship could, not be renounced.  But his view has  not been (1)  (1871) 6 M.H. C.R. 145. 998 accepted  in Kenath Puthen Vittil Tavashi  v.  Narayanan(1). In  the course of their judgment the Full Bench pointed  out that  there is nothing in principle in the position  of  the Karnavan  opposed to renunciation by him of this  office  of Karnavan.  They say that just as a trustee may renounce  his trusteeship with the ;sanction of the court or assent of the beneficiaries  a Karnavan, who, though he holds a  fiduciary position  and Yet is not a trustee, can also renounce.   But since  a Karnavan is not bound to render any account  or  to pay to the tarwad any surplus in his bands the reasons which exist in the case of a trustee to obtain the concurrence  of

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the beneficiary before renouncing trust do not exist in  the case  of a Karnavan.  Then they point out at p. 196, "it  is decidedly  for the benefit of the tarwad that such power  of renunciation  should be recognised.  An  unwilling  Karnavan usually makes a bad ’Manager." In conclusion they held  that it  will be open to a Karnavan of a tarwad to  renounce  his Karnavanship  including his right to manage tarwad  affairs. This view has not since been departed from. Though  a  Karnavan can thus renounce his office  he  cannot delegate or transfer that office.  For, if he renounces  his office the senior anandaravan has a right to succeed him  as Karnavan  and  the  rights of senior  anandaravan  would  be jeoparadised  if it were open to a Karnavan to  transfer  or delegate  his office.  If, therefore, a  Karnavan  delegates all his rights and obligations either to another members  of the  tarwad or to a stranger without reserving any power  of revocation the Court will not give effect to such delegation as  that  would,  amount  to transfer of  his  office  as  a Karnavan.  But. if it in possible to say that the delegation is not absolute in its character and is subject to. resumpt- ion  by the Karnavan the courts would treat it merely  as  a power of attorney. (see Cherukorman (1) (1904)     28 Mad. 182. (2) (1871) 6 M.H.C.R. M.  999 The question then is to what extent can a Karnavan  delegate his  right to manage the property to another.  Referring  to this question Muttusami Ayyar J., observed in Chappan’ Nayar v. Assen Kutti               "There  can be no doubt and it is  not  denied               for  the  respondent,  that  karnavanship   as               recognised in Malabar is a birthright inherent               in one’s status as the senior male member of a               tarwad.  It is therefore a personal right  and               as  such it cannot be assigned to  a  stranger               either  permanently or for a time.  If it  can               be   delegated  at  all,  it  is  capable   of               delegation only to a member of the tarwad, the               principle  being  that the  de  facto  manager               thereby   assists  the  karnavan  during   his               pleasure,. and is entitled to do so by  reason               of  his  connection with the  tarwad  and  his               interest in its property."               Then  referring to the document which fell  to               be  construed in that case the  learned  Judge               observed:               ",If  it  is  an assignment of  the  right  of               karnavanship,  it, is void, though for a  term               only, on the ground. that, the delegate is not               a member of the tarwad; if on,the other,  hand               it is a, power of attorney limited to  manage-               ment of specific property; as an agent subject               to the general control of the karnavan, it may               be valid on the ground, that the  karnavanship               is not the interest assigned or delegate." In that’ case the, karnavan. of a Malahar tarwad having been sentenced to a term of imprisonment delegated to his son all his powers as karnavan for being exercised during the period he  was serving his sentence.  The High Court held that  the delegation was ultra vires and void. having (1)  (1889) I.L.R. 12 Mad. 219. 1000 been  made  in  favour  of  a  stranger.   For,  though  the delegation was in favour of the son he was in fact member of his mothers tarwad and was, therefore, a stranger  vis-a-vis

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his  father’s tarwad.  Referring to this decision  Seshagiri Ayyar J., observed in Krishnan Kidaya v. Raman (1)               "The  karnavan has two capacities  a  temporal               and a spiritual one.  In the former he is  the               manager  of the family  properties,  maintains               the  union members, represents the  tarwad  in               transactions  with  strangers,  etc:  In   his               latter capacity he presides at the  ceremonies               and  performs all the religious  duties  which               are  incumbent  on  him.   A  stranger  cannot               supplant him in this latter office: but I fail               to see why his duties as manager could not  be               delegated  to  a stranger.  If a  receiver  is               appointed pending a suit for the removal of  a               karnavan,  this  officer  will  have  all  the               rights  of a karnavan so far as management  is               concerned.  An agent who acts with the consent               of  all the members in managing  the  temporal               affairs of a tarwad cannot be in a worse posit               on." For these reasons he held that a family karar which gave the management to a person who had ceased to be a member of  the tarwad  was  good  and effective.  This  decision  has  been referred  to by the learned Judges of the Kerala High  Court in  their  Judgment under appeal but  they  have  apparently regarded  the observation of Seshagiri Ayyar as obiter.   On the other hand they have placed reliance on the decision  in K.  Ramankutty Mennon V. geevi Umma (2).  In that  case  the Karnavan  of a tarwad executed a document in the first  part of which he renounced his powers of management of the tarwad (1)  (1916) I.L.R. 39 Mad. 918,920.  (2) A.I.R. (1929)  Mad. 286.  1001 and  in the second part delegated them to two of the  junior anandravans  for  a  consideration of  Rs.  500  and  future maintenance.  The document recited that the said anandravans were to act as the representatives of himself, the Karnovan. The  High  Court  held that the document  must  be  held  to operate  as  either renouncing the Karnavan’s powers  or  as delegating  them.   If  it was the  former  it  was  invalid because   it   did  not  amount  to  an  out-and   out   and unconditional    renunciation,   recognising   the    senior anandravan’s rights of succession.  If it was the latter  it was invalid because a karnavan has no right to delegate  his I  powers.   In  support of its conclusion  the  High  Court relied upon the decision in Chappan Nayar v. Assen Kutty (1) and  distinguished the decision of the Full Bench in  Kenath Puthen Vittil Tavashi v. Narayanan (2).  No doubt, as a deed of  renunciation  the  document  was  invalid.   Under   the document  the joint managers would not become Karnavans  but only  be the Mukthiars of the Karnavan having the  right  to manage  the Tarwad property.  That the Karnavan’s  power  of management  can  be restricted by a family karar  cannot  be disputed. (see P. K. Govindan Nair v. P. Narayanan Nair (3). It  is  however,  not  clear from  the  report  whether  the delegation  by the Karnavan was by virtue of a family  karar to  which all members of the Tarwad were parties.  The  case is, therefore, distinguishable from the one before us. The view taken by Seshagiri Ayyar J., in Krishnan Kidava  is case   (4)  is  that  the  power  of  management  could   be transferred  by  the Karnavan with the consent  of  all  the member of the Tarwad to another person so long of course  as the transfer or delegation of power is revocable.  According to the learned Judge a delegation of the power of (1)  (1889) I.L.R. 12 Mad. 219,  (2) (1904) I.L.R.  28  Mad.

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182. (3)  (1912) 23 M.L. J.706.       (4) (1916) I.L.R.  39  Mad. 216.920. 1002 management  in  favour of even a stranger  would  be  valid. This  view is not in consonance with that taken  in  Chappan Nayar’s  case (1) which the learned Judge has not chosen  to follow.   It is also opposed to that taken in certain  other cases., For the purposes of this case it is not necessary to say  which  of  the  two-  views  is  correct  because  here delegation  is  in favour of an anandravan, though  not  the senior most anandravan. The  decision referred to above thus recognise that  by  .,a family  karar  a  Karnavan’s power  of  management  can  be. restricted  and also that a Karnavan’s power  of  management can  be delegated, so long as what is delegated is  not  the totality  of the powers. enjoyed by a Karnavan by virtue  of his  status’  The question then is whether it  follows  from this that a Karnavan’s duties srising in connection with the management of the Tarwad can be delegated.  One more concept of the Malabar law has to be borne in mind.  The concept  is that the properties belong to all the members of the  Tarwad and that apart from the right of management the Karnavan has no larger right or interest than the other members.  This is clear from the decision of Seshagiri Ayyar, J., in  Govindan Nair’s  case (2) and the decisions referred to therein.   By virtue of his status the Karnavan owes certain duties to the members  of the Tarwad and one of such duties is  to  manage the properties .in the best interest of the members.   Those to  whom  the  duties are owed may find that  in  their  own interest the duties can. be best, performed by an anandravan in pratioulax circumstances.  These would be good reasons to justify  the delegation of a Karnavan’s power of  management to an anandravan by a family karar and to uphold such karar. Thus  where  for some reason the karnavan is  not  able  to, discharge his duties in ,respect of manage. (1) (1889) I.L.R. 12 Mad. 219.  (2) ( 1912) 23 M.L.J. 706.  1003 ment  of the tarwad property such as in the case before  us, that  is,  where the Karnavan has left the  country  for  an indefinite period or taken up a job in another country which would keep him away for years from his mother country  there mast be someone who could look after the family property and who would have the power to manage it.  If delegation of the Karnavan’s  power of management is regarded  as  incompetent the  necessary  result would be that the  interests  of  the family  would suffer.  It is by no means a practical  propo- sition  to  expect  the  family  members  to  approach   the Karnavan, when he is at some far off corner, for his consent in  regard  to  each  and every  transaction,  be  it  sale, mortgage  or lease.  Again it may be too expensive  for  the Karnavan  to  come  all the way back  to  his  native  place whenever  an occasion arises for alienating  or  encumbering the  Tarwad  property for family necessity.   No  recognised concept  underlying  ,  the.  Marumakkattayam  law  will  be violated by holding that an agreement or Karar entered  into by  the Karnavan and the members of the family by which  the power of management of the tarwad carrying with it the  duty to  decide  during  the absence of the  Karnavan  whether  a particular  alienation  should  be effected  for  meeting  a family  necessity  is delegated to Mukthiar so that  he  can exercise  that  power  with the  concurrence  of  the  adult members  during  the  absence of the Karnavan  as  and  when occasion arises is a perfectly valid agreement. on the other hand to hold that this is permissible would be in consonance

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with the concept of joint ownership" by all ,the members  of the  Taxwad properties and with the settled  legal  position that. the powers of a Karnavan could be restricted by,’  the consent  of all, Which, of course, includes the  consent  of the  Karnavan himself The ’execution of a power of  attorney of this kind would, in effect, be a restriction placed by  a family  karar on the power of the Karnavan.  The  delegation merely of a power 1004 of  management  which is revocable cannot be regarded  as  a delegation  of  the office of the  karnavan.   The  Karnavan continues  to  be Karnavan but during his absence  from  the spot his managerial powers are exercisable by the  Mukthiar. After  he returns he can resume the management and carry  on the  affairs of the tarwad.  Or again, the delegation  being through  a power of attorney he can in a proper case put  an end to it by revoking the power of attorney.  Thus,  despite the  execution of such a power of attorney he does not  fade out  completely and, therefore, there is no question of  its operating as renunciation. The  power  of  attorney given by the plaintiff  No.  ’1  to defendant  No. 3 has quite clearly been suppressed  by  them and  we  are, therefore, entitled to infer  from  this  fact that, if produced, it would have gone against the  interests of  the  plaintiffs  and other members of  the  tarwad.   It would,  therefore, be legitimate for us to assume  that  the power  of  attorney empowered the third  defendant  to  sell family property with the consent of the other adult  members of the family for family necessity if he formed the  opinion that it was necessary to do so.  The fact that plaintiff No. 1  executed the power of-attorney before leaving for  Borneo and  thereafter  several properties were  alienated  by  the Mukthiar in conjunctions with the other anandravans and none of  the  alienations  except  the  one  in  suit  has   been challenged  by  the  plaintiff  No. 1  hi  all  these  years justifies  the  inference that these  dispositions  were  in pursuance of the power of attorney and  also that the  power of  attorney was itself executed by the plaintiff  No.1   in pursuance of a family karar.  Upon this view, therefore  the appeal must succeed.  The appellants’ costs shall throughout be borne by the plaintiffs  respondents. Appeal allowed. 1