JUDGMENT Madhavan Nair, J.
1. This appeal raises a question, of some nicety, viz., whether an alienation of tarwad property, not in conformity with the conditions laid in Section 21, of the Travancore Ezhava Act (III of 1100) is void or voidable.
2. The facts are as follows ; The suit property belonged to Valiyaveettil tarwad of plaintiff and defendants 2 to 25, governed by the Travancore Ezhava Act lit was mortgaged with possession to the predecessor of the 1st defendant on 26-10-1083, and subsequently sold to the 1st defendant on 4-12-1113 M.E. The latter alienation was by the then karanavan and some of the other members of the tarwad, but had not 'the written consent of all the major members of the tarwad' as required by Section 21 of the Travancore Ezhava Act. Treating it as void, the plaintiff, on behalf of the tarwad, has instituted this suit to set aside the sale and to redeem the mortgage abovesaid.
The 1st defendant contended inter alia that the suit, having been instituted more than 12 years after the execution of the impugned sale, was barred by limitation.
3. The Munsif heard the question of limitation as a preliminary issue, and held "...... a sale deed executed by the karnavan without the written consent of all the major members of the family is not void in law but is only voidable"
and that since the sale has not been avoided within 12 years of its execution the plaintiff's tarwad wag disentitled to any further claim on the suit property and therefore dismissed the suit.
On appeal by the plaintiff, the Additional pistrict Judge held "section 21 of the Travancore Ezhava Act is mandatory and not directory, and in order to alienate the property of the tarwad the written consent of all the major members of the tarwad is absolutely necessary. The sale deed executed without the sanction of some of the major members of the tarwad is void and not binding on the tarwad. Thus the finding of the lower court that the Sale deed is only a voidable document cannot be upheld. In this case the 1st defendant's father entered into possession as a mortgagee and after his death 1st defendant continued in possession as a mortgagee ..... The tarwad members can ignore the sale of equity of redemption and sue for redemption of the admitted mortgage and the suit cannot be held to be barred by limitation on the ground that it was filed 12 years after the execution of the invalid sale deed"
and remitted the suit for a fresh disposal after trial of the other issues in the case. The 1st defendant has preferred this Civil Miscellaneous Appeal, under Order 43 Rule 1 (u) of the Code of Civil Procedure, and it has been referred to this Full Bench as the decisions on the question ot law involved were "difficult to be reconciled".
4. Section 21 of the Travancore Ezhava Act reads thus:
"21. Except for consideration and tarwad necessity and with the written consent of all the major members of the tarwad, no kamayan or other managing member shall sell tarwad immovable property, or mortgage it with possession for a period of more than 12 years, or lease it for a period of more than 12 years."
It is pertinent to note that this Section corresponds to Section 25 of the Travancore Nayar Act 2 of 1100, Section 5 of the Travancore Malayala Brahmin Act 3 of, 1106, Section 33 of the Travancore Kshatriya Act 7 of 1108, Section 25 of the Travancore Krishnanvaka Marumakkathayee Act 7 of 1115, Section 54 of the Cochin Nayar Act 29 ot 1113, Sections 33 and 34 of the Cochin Marumakkathayam Act 33 of 1113, Sections 9 and 10 of the Cochin Nambudiri Act 17 of 1114, Section 5 of the Madras Nambudiri Act 2JI of 1933, Section 33 of the Madras Marumakkathayam Act 22 of 1933, and Section 29 of the Madras Aliyasanthana Act 9 of 1949.
AS per the abovesaid sections, a sale of immovable property belonging to a Marumakkathayam tarwad would be valid only if it is supported by (i) consideration, (ii) tarwad necessity and (iii) the written consent of all the major members of the tarwad. Admittedly the sale impugned in this case had not the written consent of all the then major members of the tarwad; and the question therefore is of the effect of the lack of one or more ot the abovesaid requirements on the conveyance. The Munsiff held the sale to be voidable, but the Additional District judge held it void.
5. Before proceeding to analyse the precedents I would advert to the import of the expressions Void' and 'voidable' in law. as observed by Stone J., in Visweswara Rao v. Surya Rao, AIR 1936 Mad 440 at p. 443 Terms such as voidable and void, valid or invalid, may each be a littie misleading. According to his Lordship, even the Privy Council had, on certain occasions, Overlooked the strict import of these words.
"The fact that the Privy Council have in certain cases, for example Sahu Ram Chandra v. Bhup Singh, ILR 39 All 437 : (AIR 1917 PC 61) and in Lachhman Prasad v. Sarnam Singh ILR 39 All 500 : (AIR 1917 PC 41), used the words which suggest that such a transaction is void does not assist us. Their Lordships were not deciding the question whether such a transaction is void ab initio and so incapable of ratification or merely voidable."
6. 'Void' in common parlance denotes an empty space, and in legal parlance a nullity. A void transaction cannot be of any effect in the eye of law. It is non-existent. It can therefore be disregarded by the whole world.
A 'voidable' transaction, on the other hand, is effective in law but is defective in certain respects and is therefore liable to avoidance by the persons who are affected by it. For example, a contract vitiated by fraud is not void, but is voidable at the option of the person defrauded.
7. "The option which characterises a voidable contract is an option either to say 'it shall not be enforceable at all or to leave it as a good contract enforceable by any party on the usual conditions. This is certainly so in any case under Section 19 (Contract Act); it is enforceable at the option of the one party only in the sense that that party may elect to treat it as not binding on any party." Muralidhar v. International Film Co. Ltd. AIR 1943 PC 34.
8. Salmond on Jurisprudence (11th Edition, 387-88) marks out the distinction thus :
"In respect of their legal efficacy agreements are of three kinds, being either valid, void of voidable. A valid agreement is one which is fully operative in accordance with the intent of the parties. A void agreement is one which entirely fails to receive legal recognition or sanction, the declared will of the parties being wholly destitute of legal efficacy. A Voidable agreement stands midway between the two cases. It is not a nullity, but its. operation is conditional and not absolute. By reason of some defect in its origin it is liable to be destroyed or cancelled at the option of one of the parties to it. On the exercise of this power the agreement not only ceases to have any efficacy, but is deemed to have been void ab initio. The avoidance of it relates, back to the making of it. The hypothetical or contingent efficacy which has hitherto been attributed to it wholly disappears.
as if it had never existed. In other words, a voidable agreement is one which is void or valid at the election of one of the parties to it......
Void or voidable agreements may be classed together as invalid."
9. The relation between Hie terms Void' and 'viodable' is succinctly expressed by Pollock and Mulla in their commentary on Indian Contract Act, 8th Edn., pages 383 and 135 thus:
"Whenever one party to a contract hag the option of annulling it, the contrast is voidable; and when he makes use of that option the agreement becomes void."
"The party entitled to set aside a voidable contract may affirm it if Re thinks fit. That is involved in the conception of a contract being voidable."
Needless to say, that if a contract or other transaction is void, it is nullify and there is nothing to be affirmed or validated. So much so, it is often said : a transaction that is void cannot be affirmed or ratified,
10. The expression is often used : 'void as against' a person or persons. In strict terminology, a thing cannot be void and valid at the same time. As Void' denotes a nullity, a thing which is void must be a nullity for all. It is totally non-existent. Therefore Void as against A' can mean only that A can treat it as void; or, in other words, A can avoid it. It is, strictly speaking, voidable at the option of A.
11. The expression 'void against the trustee in bankruptcy, was construed as. meaning voidable at the instance, of the trustee, and not as void so far 3s the trustee is concerned. In Re, Vansittart; Ex parte, Brown 1893-2 QB 377 it is observed :
"The trustee in bankruptcy now says that, inasmuch as Section 47 enacts that the settlement is void, and not voidable, it follows that it is void altogether for all purposes, and that therefore the respondents cannot set up a title under this void conveyance as against the trustee in bankruptcy. ..... I think that if the section is considered as whole, it will be seen that the legislature only intended to bind those who claim under the settlement; and that, notwithstanding the use of the word 'void', the intention was that the section should only operate on those claiming under a voluntary settlement as donees, and should not bind those who have purchased for valuable consideration and in good faith from such donees ..... On the whole therefore, I have persuaded myself, although the words of the section do present difficulties, that the claim by the trustee in this case does not prevail against the title acquired by the respondents from the donee under this settlement. The application of the trustee must be dismissed."
Even the hesitation seen in this passage vanished when two months later the same question came up again before the same learned Judge in In Re, Brail, 1893-2 QB 381. It was then held :
"On the whole. I have come to the conclusion that the, word Void' in Section 47 of the Bankruptcy Act, 1883, means Voidable', and that, consequently, any one who claims, under a settlement affected by this section, as a purchaser for valuable consideration without notice, has a good title as against the trustee in bankruptcy. It is quite plain that the word 'void' may mean 'voidable', and there are several reasons why it should receive that construction in this Act. The test, to my mind, is whether the object of public policy in view in this section, requires the strict construction." Since then the interpretation has even been that. the expression Void as against the trustee', meant only 'voidable at the instance of the trustee'. See Mariappa Pillai v. Raman Chettiyar, ILR 42 Mad 322 : (AIR 1919 Mad 161) and Rukhmanbai v. Govindram, AIR 1946 Nag 163.
Section 54 of the Provincial insolvency Act uses the expression 'void as against the receiver' and explains the same in the Sub-section (2) to connote that any bona fide transfer for value would not be affected. Here the legislature itself has indicated that the expression 'void as against the receiver' means Only 'voidable at the instance of the receiver'.
12. Section 64 of the Code of Civil procedure provides , "Where an attachment has been made, any private transfer or delivery of the property attached.....contrary to such attachment shall be void as against all claims enforceable under the attachment."
In Gangayya v. Venkataramayya, AIR 1923 Mad. 230 it is observed that this:
"... ....Section is really one intended to benefit the decree-holders so that they may not be impeded by any alienation pending attachment in-executing their decrees. That benefit being for the decree-holder, we are inclined to think that he could waive the Benefit; and as in the present case,. the decree-holders had entered into an actual contract with the purchaser they cannot be permitted to go back upon their contract and insist upon the application of Section 64 in their favour. To allow them to do so would be clearly to perpetrate a fraud. We see nothing in Section 64 that necessitates such a construction as that."
13. It is thus clear that the use of the expression 'void as against the tarwad' means only that the involved transaction is 'voidable by the tarwad', and not void as regards the tarwad. If a transaction by karnavan is not a nullity and is not challengeable by any other than the members of the tarwad, in strict legal terminology we must say "it is voidable at the instance of the tarwad' and not Void as against the tarwad'; but we find many learned Judges having used the latter expression; and it is that loose usage that gave rise to this reference,
14. The question before us is not a novel one. This reference came to be only because or an apparent conflict of views in the precedents on the question. as this case has arisen in relation to a Travancore statute I will first take up the decisions of the erstwhile Travancore High Court on the matter.
15. In Abdul Rahiman v. Velayudhan, 1 Trav LJ 222 a puisne mortgage by the karnavan of a tarwad was challenged as wanting in consideration by a defendant who had purchased the equity of redemption in court sale against the tarwad and entered possession of the property redeeming the prior usufructuary mortgaget It was held that the puisne mortgage, though in improper alienation of tarwad property, having been made by the de jure karnavan was 'not a void instrument and ought to have been set aside within 12 years.... Not having been so set aside, it has become valid and indeleasible."
In Velayudhan v. Krishnan, 1 Trav LJ 269 the suit was for redemption of a mortgage. The defendant having taken an assignment of a subsequent mortgage claimed payment of the amounts of both the mortgages. The reply was that the puisne mortgage lacked in consideration and necessity and therefore invalid. It was held that the validity of the puisne mortgage could not be impeached as "such an alienation, if it went unquestioned for 12 years, would ripen into an indefeasible title."
These early decisions obviously treated an alienation by a karnavan, Jacking in, consideration and tarwad necessity as voidable only but then there was no statutory provision of the nature of Section 21 of the Travancore Ezhava Act to be considered in those cases.
16. The question arose pointedly in regard to Section 21 of the Travancore Ezhava Act in Krishna Pillai v. Habeeb, 21 Trav LJ 1001 . The deed concerned was one of sale executed by a karnavan alone. The Munsiff held that the executant "was incompetent to execute the sale deed as there were several members in the executant's family whose written consent was necessary under Section 21 of the Ezhava Act (3 of 1100) for its validity. as the execution.....was in contravention of a statutory provision....the sale was a nullity and did not pass any interest to the vendee." But on appeal it was held by the High Court:
"No doubt under S- 21 of the Ezhava Act (Act 3 of 1100) as between the members of the tarwad a sale deed executed by a karnavan without the written consent of the other major members of the tarwad would not be valid. It cannot however be said that the sale deed would be invalid for all purposes. Supposing, for instance, that in spite of the absence of the .written consent of the adult junior members of the tarwad, junior members do not Question the deed, or choose to ratify it subsequently; it could not possibly be argued that the document is invalid Or void ab Snitio on account of the absence of the written consent of the other members of the tarwad. Section 21 of the Act does not say that a sale deed executed by a karnavan or other managing member without the written consent of all the major members shall fce void in law. All that the section can reasonably mean is that such sale deeds, mortgage deeds, or Jease deeds as are specified in the section cannot bc valid or operative as against the tarwad if the junior members choose to question their validity."
17. The identical question come up again in regard to a sale deed executed by the karnavan of a Nayar trawad in Krishna Panikkar v. Bhargavi Animal, 29 Trav LJ 1375 :
"The Munsiff held that Ext. M was invalid and conferred no rights at all on the plaintiffs as it was in contravention of Section 25 of the Nayar Act of 1100.....On appeal by plaintiffs the second Judge, Alleppey, also held likewise and dismissed the suit.
The only question that was urged in second appeal was that even though the written consent of all the adult members of the tarwad has not been proved tp support Ext. M, that document should not bo held to be absolutely void and ot no effect. Ext. M was executed by the karnavan. and some of the adult members of the tarwad. No doubt Section 25 of the Nayar Act requires the written consent of all the adult members. That provision in the statute is intended to protect the interests of the tarwad. The question is whether Ext, M is absolutely void or only voidable at the instance of the tarwad. As the karnavan has executed; the deed and as he represents the tarwad. so far as the outside world is concerned, it has to be taken that Ext. M was executed by competent parties. The question whether Ext. M is a document which in the circumstances in which it was executed would be operative as against the tarwad is different from the question of its validity in the absence of its being impeached by the members of the tarwad on the ground of its not satisfying the conditions imposed by the statute for the benefit of the tarwad. It appears to us that a stranger cannot invoke the provisions of Section 25 of the Act to defeat a purchaser whose right would be indefeasible in the absence of those, provisions. On a reasonable construction of Sec, 25, we hold that its provisions can only be taken advantage of by members of a tarwad whose property is the-subject matter of the sale. The decrees of the courts below are therefore unsustainable."
The gist of this ruling is obviously that the alienation was only voidable at the instance of the tarwad.
18. Thus, the view consistently taken by the Travancore High Court had been that an alienation, be it a sale, mortgage or lease, if made by the karnavan of the tarwad, will, not be void for want of any or all the requirements of Section 21 of the Ezhava Act, but will only be voidable at the instance of the tarwad. It is upto the other members of the tarwad either to affirm or to avoid It; none other will be heard to challenge the alienation.
19. Now, I will turn to the decisions of the Cochin High Court.
Section 28 of the Cochin Nayar Act, XIII of" 1095, provided:
"Except with the written consent of all the-major members of the tarwad, wherever Possible, no karnavan or fhe manager for the time being, shall sell tarwad property, movable or immovable or lease it for a period of more than 6 years or mortgage it with possession or pledge or hypothecate it or give discharges of mortgages with or without possession."
Referring to this section, it was held in Meera Rowthan v. Kamakshi Amman, 15 Cochin 143 :
"It is true that the said mortgage deed has been executed by the 2nd defendant alone and that there is nothing on record to show why he did not try to obtain the written consent of all the other major members of his family for its execution. But here also I do not think that it is open to a stranger like the 1st defendant to call in question the validity of the mortgage deed on the said ground. For in my view the validity of a mortgage deed executed by a karnavan can be questioned an tha ground above referred to only by a member of the family."
20. In Kamakshi Amma v. Paru Amma, 18 Cochin 131 dealing with a mortgage executed by the karnavan without the written consent of the plaintiffs who were members of his tarwad, Narayana Menon Ag. C.J., refused to commit himself unreservedly to the proposition that an alienation would be wholly void and invalid.
21. Sahasranama Ayyar J., with whom Antony J., agreed, in Narayana Mannadiar v. Raghava Mannadiyar, 22 Cochin 351 went to the extent of holding that the provision in Section 28 of the Cochin Nayar Act, 1095, was "only directory"; but it was soon dissented from by Vaidayanatha Iyer C.J. (with the concurrence of Antony J.) in Kunjan Kaimal v. Sankunny Menon, 22 Cochin 515. The dissent seemed to have hit Sahasranama Ayyar J., hard and made him swing to the opposite extreme in Parukutti Amma v. Narayani Amma, 25 Cochin 603 (FB). The learned Judge observed:
"On the date of Ext. VII there were in all three major members in the tarwad besides the 1st defendant viz., the 1st plaintiff and defendants 2 and 6. Admittedly, their written consent was not taken for Ext. VII.....The lower court thinks that the defect has been cured by their acceptance of Ext. VII in their written statement. According to the learned Judge, that is tantamount to a ratification on their part We are unable to appreciate the argument. Under the section, the written consent therein provided for is a condition precedent to the validity of the manager's act. A subsequent ratification is, therefore, insufficient. The latest decision of this court upon the point is to the effect that the provisions of Section 28 of the Nayar Act are mandatory and not merely directory. (Vide 22 Cochin 515) .....We are of opinion that Ext. VII which was executed by the 1st defendant, the manager, in violation of Section 28 of the Act is absolutely void and of no legal effect"
Quseph, J., concurred with him and said:
"There is no room for doubt that written consent contemplated in that section should be one previously obtained. I also do not think that a subsequent ratification can validate a transaction which was void at its inception.'' Narayana Iyer C.J., could not concur with the above view, and therefore observed:
"It was settled law before the Nayar Act that there can be no partition unless all the members of the tarwad consented to it. But it was held in Kalliani Ammal v. Narayana Menon 45 Ind Gas 758: (AIR 1918 Mad 286) that a partition may be ratified by persons who were not originally parties to it, Mr. Varugis J., in Cheenu Amma v. Ramankutty Menon, 16 Cochin 202 at P. 204, similarly observed that ratification by conduct by an absent member on his return was sufficient and that the defect that the document may have had originally for want of his signature was sufficiently cured by his subsequent acceptance of the document. Similarly, an alienation even of tarwad properties which requires the consent of all the members could be ratified, be it the act of the karnavan or even an anandaravan in management (see pages 36 to 38 of Sundara Ayyar's Malabar Law). Then the question is whether the written consent of the members should be procured, before the several acts referred to in Section 28 are carried out, and it not so procured, whether they could be ratified and the defect cured. The section does not lay down that the written consent should be previous. In enactments where permission of court is insisted on for the doing of an act, the permission must naturally precede the act itself. But it has been held that such permission, even if obtained atter the doing of the act, would validate it ...... The purpose of the enactment is not to throw obstacles in the management of tarwad affairs by karnavans but to place only some wholesome checks on their management. Where a section is capable of two interpretations, the Purpose of the enactment must be looked into (See Mubarak Husain v. Ahmad, ILR 46 All 489 : (AIR 1924 All 328) (FB). When two alternative constructions are both possible and one of them leads to a manifest absurdity or to a clear risk or injustice and the other leads to no such consequences, the second interpretation must be adopted especially so when it is one which is most in accordance with the intention of the legislature so far as it can be gathered from the provisions of the Act taken as a whole. (See Dost Mahomed v. Mohandas Lalchand, 91 Ind Cas 573: (AIR 1926 Sind 8) and Arunachalam Chetty v. Official Receiver, 99 Ind Cas 284 : ILR 50 Mad 239 : (AIR 1927 Mad 166)). A court is entitled in case of doubt to reject an alternative which must lead to undesirable, if not to anomalous results, as observed in Venkatanarasayya v. Official Receiver, Godavary, 53 Mad LJ 136 : (AIR 1927 Mad 826 (2)). It is always better to adopt a construction which seems to produce a beneficent result rather than a construction which produces an opposite result. We know the surrounding circumstances that led to the enactment. They may also be examined in accepting a proper interpretation (see Hatimbhai Hassanally v. Framroz Eduljee Dinshaw, ILR 51 Bom 516 : (AIR 1927 Bom 278) (FB)). Thus, on the whole, I am of opinion that the subsequent ratification by defendants 2 and 6 cannot be lightly brushed aside."
22. The question once again came up before Krishnaswami Iyengar C.J., sitting with Koshi J., in Pareeth v. Alavi, 37 Cochn 96.
Adverting to Section 29 of the Cochin Nayar Act, 13 of 1095, which provided "Every sale, mortgage, pledge or other alienation of tarwad property shall be void unless it is executed or made for tarwad necessity", it was held : , "Though the word used in the section is 'void' it is reasonably clear that the intention of the legislature was to declare the alienation void only as against the other members of the family as they alone were affected by it . It js quite obvious that the section was enacted to protect the rights of the tarwad against the improper and improvident acts of its karnavan, and so long as the other members of the tarwad do not choose to challenge an alienation made by him, there is no reason for regarding it as null and void ab initio, so as to put it in the power of a tenant or any other person who is a stranger 'to the tarwad, to ignore it and thereby evade his own obligations. The alienation must be held to have the character of a void transaction only so far as the members of the tarwad are concerned, and not as against the rest of the world. That the word 'void' appearing in a particular collocation may mean voidable is dear as for instance from Section 54 (1) of the Cochin Insolvency Act, VII of 1098, where the words used are Void as against the receiver'. We are of opinion that Sough the words Void as against the other members of the tarwad' do not Occur in Section 28 of the Act of 1095, the effect, taking into consideration of the objects of the Act appears to be the same".
Referring to Ss, 9 and 10 of the Cochin Nambudiri Act 17 of 1114, his Lordship continued ;
".......it is clear that the only consequence which the legislature intended to attach to the non-compliance of the condition imposed by the statute, namely the omission to obtain the written consent of the majority of the major members is to render the transaction not binding on the illom or the terwad as the case may be and not to make it void as against the whole world.....Such indeed is the law so far as a mitakshara joint family is concerned.....".
It is pertinent to note in this connection that the word Void in Section 29 of the Cochin Nayar Act, 1095, which led to a controversy as to the legal effect of a transaction affected by if was taken away by the Legislature in re-enacting the provision in the Cochin Nayar Act, 1113, Section 54 of which is worded thus:
"No sale, mortgage, pledge or other alienation of tarwad property or debt shall bind the tarwad unless it is executed or made or contracted for tarwad necessity or it is executed or made or contracted by or with the written consent of all the major members of the tarwad.... "
23. Though the decision in 37 Cochin 96 was apparently againslt the decision of the majority in 25 Cochin 603 (FB), it came to be approved and followed by a later Full Bench of the Cochin High Court in Velayudhan Nair v. Balakrishna Menon, 37 Cochin 556. The properties involved in the last mentioned case belonged to a Devaswom in Malabar, which was under the control of the Madras Hindu Religious Endowments Board. The plaintiff having taken a puisne mortgage from the trustees of the Devaswom instituted the suit for redemption of a prior mortgage, and the contention came, in that the puisne mortgage was void because the trustees were not competent to grant the same without the sanction of the Board as required by Section 76 of the Madras Hindu Religious Endowments Act, 1926 (Act II of J927).
It was held by the Full Bench:
"The further question ......... is whether it is competent for him to question the validity of the action of the trustees in granting the melpanayam (puisne mortgage). The question has arisen for decision in this court with reference to alienations made in contravention of such statutory safeguards by persons occupying a similar position as the trustees of a Devaswom, and the view consistently held by this court is that strangers or third parties were not entitled to impugn the validity or the binding nature of such alienations. The first case arose with reference to an alienation made by the karnavan of a Nayar tarwad without obtaining the written consent of all the major members of the tarwad, as enjoined by Section 28 of the Nayar Act (Act XIII of 1095), and a Division Bench of this Court consisting of Varugis C. J., and Nambiyar J. held that it was not open to a stranger to the tarwad to call in question the validity of such an alienation- (See 15 Cochin 143). This decision was recently followed in 37 Cochin 96 where the question was whether an alienation made by the karnavan of a Namboodiri Illom in contravention of Section 9 of the Namboodiri Act (Act XVII of 1114) can be challenged by a stranger to the illom. The answer was again in the negative. We are not inclined to think that the appellant in this case is in any letter position than the defendants in those cases were. The appellant is fin absolute stranger to the Devaswom and in our view the validity of the suit document can be challenged only by the succeeding trustees or by anyone for and on behalf of the trust and not by a stranger...... We follow the two Cochin cases referred to and on the authority of those cases hold that it is incompetent for the appellant to call in question the validity of the melpanayam put in suit, on the grounds alleged by him".
The majority view in 25 Cochin 603 (FB) may therefore be deemed to have been over-ru'ed by the unanimous decision in 37 Cochin 556 (FB) read along with 37 Cochin 96.
24. The view of the Cochin High Court has thus to be taken as laid down finally in 37 Cochin 96, according to which an alienation of tarwad property made by a karnavan in excess of big powers or in non-conformity with the conditions laid down by the concerned statute of personal law, is not void but is only voidable at the instance of the tarwad.
25. The decisions of the Travancore-Co-chin High Court were all in tune with the dictum in 37 Cochin 96. In Mariam v. Sreedevi Antharjanam, AIR 1952 Trav-Co 368, adverting to Section 5 of the Travancore Malaya Brahmin Act 3 of 1106. it was held:
"The provision is clearly mandatory and would render any transaction in violation of it void and inoperative as against the members for whose benefit the provision was made and whose consent has not been obtained as provided therein. It may not be void in the sense that it is an absolute nullity as though no transaction took place so as to enable strangers to question and contend that persons claiming under a transaction otherwise than in conformity with that Section have obtained no rights at all."
26. To the same effect is the decision in Ammen Pillai v. Maluk Mohammed, AIR 1952, Trav-Co 549 and that was followed in Madhavan Damodaran v. Govindan Kunju 1955 Ker LT 896 which held:
"Section 21 of the Ezhava Act is intended to safeguard the interests of the tavwad and not for the benefit of third parties. Strangers cannot question the validity of a deed on the ground that it does not comply with the requirements of the said section."
27. Mangu v. Narayanan, AIR 1953 Trav-Co. 269 merely followed 37 Cohcin 96.
28. Then, there is Sivarama Konar v. Thiruvadinatha Pillai. AIR 1957 Trav-Co 189. There, the karnavan of a tarwad executed Ex-D, selling an item of his tarwad property to the plaintiff; and subsequently the same karnavan in conjunction with his senior anandiravan executed another deed Ext. K. selling the identical property to the third defendant. Following these- transactions, the plaintiff obtained 'consent deeds* from several members, but the third defendant managed to obtain consent deeds from all the members of the tarwad. Plaintiff sued to redeem a prior possessory mortgage impleading the subsequent Purchaser also as the 3rd defendant in the case. The defendants contended that the sale to the plaintiff was void for want of consent of all the members of the tarwad.
"It was held, after a review of precedents;
".........it is clear that the 3rd defendantcannot contend , that Ext. D is a void document on the ground that consent of other members has not been proved. Its validity can be questioned only by the other members of the family. Thus he cannot resist the plaintiff's claim on this ground. The mortgagee's position also is the same. Though he can ask the plaintiff in a redemption suit to prove how he traces his right to the mortgagor, still he cannot challenge the validity of an assignment purporting to transfer the mortgagor's right in favour of the plaintiff on the ground in question here..... So the fact that Ext. D and the subsequent consent deed relied upon by the 3rd defendant (Plaintiff) do not evidence the consent of all members of the Kottarathu; Matom, whereas Ext. K and the subsequent-consent deeds represent all the adult members, does not help the 3rd defendant .... his title to redemption cannot be challenged by the mortgagee or the 3rd defendant."
29. The Madras High Court also has been taking the same view.
In Thayyil Mammad v. Purayii Mammad, ILR 44 Mad 140: (AIR 1921 Mad 376) it was observed:
'The main argument of Mr. Ananthakrishna Ayyar is that the alienation by a karnavan of a Malabar tarwad or tavazhi without such necessity as is recognized by the law is ab initio void and the alienee is in the position ot a trespasser. The right of the remaining members of the tarwad to the property according to this contention is not in any way affected by the alienation and they can recover the property without seeking to set aside the alienation ...... It would be a very extreme proposition of law to lay down that an improper alienation by a limited owner or by a person in the position of a karnavan of a tarwad must be treated for all purposes as if it had never taken place .......There can be no doubt that only the remaining members of the tarwad whose property has been wrongfully alienated by the karnavan can question such an alienation ..... If the junior members did not choose to question the alienation made by the karnavan it is impossible to conceive on what principle their right would dfescend to a person like an attaladakkam. heir their of the last survivor of the tarwad)".
30. In Cherutti v. Saraswathi Animal, AIR 1945 Mad 457 Chandrasekhara Ayyar J., reiterated the proposition that a stranger to the tarwad like a mortgagee cannot question the binding character of another mortgage executed by the karnavan because such transaction, even if it be beyond his powers, would only be voidable at the instance of the remaining members of the tarwad.
31. In Chekku v. Puliasseri Parvathy AIR 1956 Mad 634 Govinda Menon, J., with the concurrence of Ramaswami J., held:
"The juristic person styled the tarwad ia within its rights in questioning the mortgage. That can be done by any member acting on v behalf of the tarwad, and since rights of the tarwad had devolved upon defendant 5 there is no doubt whatever that she can question the validity of the mortgage."
This observation that an assignee of the tarwad can impeach a prior alienation of tarwad property by the karnavan is against the dictum in ILR 44 Mad 140: (AIR 1921 Mad 376), cited in paragraph 29 supra, and does not appear to be supported by any precedent. The generally accepted and correct View is that expressed in ILR 44 Mad 140: (AIR 1921 Mad 376), according to which no stranger is entitled to question any alienation of tarwad property by the karnavan.
32. Now, I will take the rulings of the Kerala High Court on the question.
In Sankara Pillai v. Ittiara, 1958 Ker LT 220: (AIR 1958 Kerala 245) referring to Section 5 of the Travancore Malaya . Brahmin Act (3 of 1106) Raman Nayar J., with the concurrence of Sankaran J., observed:
"....it is settled law, that an alienation by a karnavan in excess of authority is not an entire nullity and that it is a transaction which the junior members of the family can, it their choice, either affirm or avoid.";
and on the facts of the case, held:
"Ext. A, the sale deed in favour "of the plaintiffs by all "the members of the Mana expressly states that the sale is subjeci to the mortgage in favour of the 1st defendant and is therefore an affirmance of that mortgage. It would have been a different matter if the sale deed had said that the Mana was not bound by the mortgage or if the mortgage had been altogether ignored."
33. The matter has also come up for consideration recently before niy learned brothers and myself sitting as Single Judges.
In Kunhavalla v. Ammad, 1961 Ker LT 586 Section 33 of the Madras Marumakkathayam Act came up for consideration before Velu Pillai J. The alienation concerned was an assignment of the reversion of a lease-hold to favour of the plaintiff which the lessee-defendant contended to be void for want of tavazhi necessity. That contention had been accepted by both the courts below. But the learned Judge reversed the same and held:
"I cannot lend support to the notion, that) once a document is declared, to ba not valid, it is necessarily void, and that too void against! the whole world. ..........As I understand, the word 'void' has to be understood as not binding on the tarwad and not, as is expressly stated, as against others. This principle must, in my, opinion, equally apply to Section 33 of the Madras Marumakkathayam Act as amended, as also to similar provisions in the analogous statutes adverted to above."
34. Raghavan J. in Omanakulty Pillai v. Krishnan Nair, 1961 Ker LT 626 considering the provisions of Section 25 of the Travancore Nayar Act, 3 of 1100 in a suit ior setting aside a sale executed by the sole major member of a tarwad on the ground that it was not supported by (consideration and tarwad necessity and for recovery of the property, has held:
"Under this section for an alienation by the karnavan or managing member of a tarwad to be valid three requirements are essential: (I) consideration (2) tarwad necessity and (3) the written consent of all the major members of the tarwad. The lack of any oneof these conditions will necessarily make the transaction void, ineffective and not binding on the tarwad.
Finding that the sale was not ior any legal necessity his Lordship set aside the same, and directed the plaintiff "to surrender the properties covered by Extst. IV, V, VI and XI which have been purchased with the consideration amount of the impugned sale.
(I may at once say that I feel considerable doubt about this direction to surrender the purchases to the disappointed vendee being contrary to the dictum of the Privy Council in AIR 1943 PC 34 at p. 40 "Sections 64 and 65 do not rerer by the words 'benefit' and 'advantage' to any question of 'profit' or 'clear profit', nor does it matter what the party receiving the money may have done with it.") Though in this decision a transaction not in conformity with Section 21 of the Ezhava AcB is apparently held to be Void, ineffective and not binding on the tarwad,' I venture to say, adopting the language of Stone J. that his Lordship was not deciding the question whether such a transaction is void or merely voidable but did say in conclusion that it was /'liable to be set aside as not supported by consideration and tarwad necessity". I presume, with due respect that the alienation was not held to be really void in the strict meaning of the term, but only "as liable to be set aside" which indicates that it was only voidable in strict legal language.
35. In Thuppan Namboory v. Kunhiruama, S. A. No. 53 of 1954-E, D/- 15-6-1961 (Kerala), I have observed:
"Even if the creation of a fresh lease by the karnavan had not the concurrence of the other members, of the Illom, the tease cannot, in my view, be treated as a nullity in the eye of law. The provisions of Section 9 of the Nambudiri Act and the parallel provisions in other enactments concerning communities following the Marumakkathayam law, have been held time and again by the Travancore High Court, the Cochin. High Court as also by the Madras High Court as not available to strangers to attack the validity of a demise or alienation by the karnavan as such. The provisions for the concurrence of the major members of the Illom for the creation of a valid demise by the karnavan have been held available only to the members of the Illom to set aside or avoid the transaction as not binding on the Illom. The implication therein is too clear that the transaction is not a nullity but only a voidable one to be avoided by the interested members within the time allowed by law-It the transaction is not a nullity in law, and no member of the Illom has avoided it in due time it cannot be ignored.
36. One thing seems to be very clear. II the alienation is void, it cannot bind any party thereto. The alienee must then be entitled, to treat it as void or to sue for its rescission. But, no decision has been cited before us in which an alienee in such a transaction was allowed to avoid the same. If a transaction is avoidable by one of the parties to it, but not by the other, it is only voidable in legal terminology. Excepting 25 Cochin 603 (FB) which I have held to have been overruled, even the decisions which used the expression Void' have put it as 'void against the tarwad,' which in effect means only Voidable at the instance of the tarwad' (See paras 10-13 supra).
37. The consensus of judicial opinion as seen from the above resume is that an alienation of tarwad immovable property by a karnavan, unsupported by consideration, tarwad necessity or written consent of all the major members of the tarwad, is not void but only voidable at the instance of the tarwad.
38. A comparison of the position in regard to Mitakshara joint family, which Krishnaswamy Iyengar, C.J., in 37 Cochin 96 characterised as a 'later face of one and the same institution' as the marumakkathyam tarwad, also leads to the same conclusion.
The Manager of a Joint Hindu Family can alienate family property for legal necessities only. But; an alienation not supported by any such necessity is held to be not void, but only voidable.
"An alienation by the manager of a joint family made without legal Necessity is not void, but voidable at the option of the other coparceners. They may affirm it or they may repudiate it" (Mulla's Hindu Law, 12th Edn., Page 364).
39. The power of alienation of a shebait is on a par in this respect with the power of the karnavan of a tarwad. With regard to an alienation of debutter property by the shebait in the absence of necessity, our Supreme Court) has held in Raja Rameshwar Rao v. Raja Govinda Rao, AIR 1961 SC 1442 at p, 1449.
"It is true that the manager of a temple has generally speaking no authority except in certain circumstances to grant a permanent) lease of temple property; therefore a permanent leass granted by the Manager of a temple may be voidable but is not void ah initio and so unless it is avoided by the succeeding manager, it may not be rendered inoperative."
The position of a karnavan in regard to an aJic-nation of tarwad property without legal necessity cannot be far different from that of a manager of Mithakshara Family or the shebait of a Hindu temple.
40. Counsel for the plaintiff contended that the provisoins of the Section are imperative and its imperativeness gains further force because of its prohibitory form making any conveyance in violation thereof forbidden by law and therefore illegal and void.
41. The fact that a statutory provision is mandatory in form need not necessarily indicate that any violation of it would imply a nullificatoin.
Section SO of the Code of Civil Procedure provides:
"No suit shall be instituted against the Government, or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next) after notice in writing has been delivered......'' This is imperative in its import and prohibitory in its expression. But the Privy Council held in Vellayan Chettiar v. Government of Madras, AIR 1947 PC 197 at p. 199.
"There is no inconsistency between the propositions that the provisions of the Section are mandatory and must be enforced by the Court and that they may be waived by the auhority for whose benefit they are provided ......There appears to their Lordships to be no reason why the notice required to be given under Section 80 should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required; if in the particular case he does not require that protection and says so, he can lawfully waive his right.'"
42. Rule 7 of Order 32, C. P. C. provides: "(1) NO next friend or guardian for the suit shall without the leave of the court, expressly recorded in the proceedings, enter Into an agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.
This rule also is imperative and prohibitory in Its diction; yet in Gangadhar v. Dattatraya, AIR 1953 Bom 424, .Gajendragadkar_ J,, with the concurrence of Vyas J., held:
".......an agreement which has been made without complying with the requirements of sub-rule I would be binding against all the parties except the minor. The minor is not bound by such an agreement and he can avoid it.......It seems to us clear that the effect of the provisions of Rule 7 is to make the impugned agreement voidable at the option of the 'minor. Such an agreement is not void altogether because if it is held to be void, it would be a nullity and it would not bind any parties to the agreement.'"
"29. Where a person other than the Collector, or a guardian appointed by will or other instrument has been appointed or declared by the court to be guardian of the property of a ward he shall not without the previous permission of the court.
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of his ward, or
(b) lease any part of the property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.
30. A disposat of immovable property by a guardian in contravention of either of the two last foregoing sections is voidable at the instance of any other person affected thereby." The first mentioned section commands that the guardian "shall not" mortgage or sell the ward's property; but the effect of a violation thereof is stated in the next section to be only to make the alienation voidable at the instance of the person affected.
44. It is thus clear that nothing turns on a rule being imperative in form. The question, whether a contravention thereof would lead to a total nullification of the transaction or only to an invalidation making it voidable at the option of the person prejudiced thereby, depends not on the form but on the purpose of the enactment. If the provision is designed to promote public interests, its contravention would entail a nullification; but if the object is to promote private interests of individuals or groups of individuals its contravention would only make the transaction voidable at the option of the person affected thereby. (See Ranee Surnomoyee v. Sutteeschander Roy, 10 Moo IA 123 at p. 145 (PC) ).
I will presently deal with the purpose of these sections and show that they involve no public policy, but are meanj only t0 conserve the interests of a tarwad in its private properties.
45. Counsel for the plaintiff-respondent laid' great stress upon the difference in the wording of Sections 21 22, 23 and 27 of the Travancore Ezhava Act.
Those Sections read as follows:
"21. Except for consideration and tarwad: necessity and with the written consent or all the major members of the tarwad, no karnavan or other managing member shall sell tarwad immovable property or mortgage it with possession for a period of raore than 12 years, or lease it for a period of more than 12 years.
22. No mortgage with possession of tarwad property or lease with premium of such property for a period of 12 years or less, shall be valid, unless it is executed for consideration and tarwad necessity, and with the consent of all the major members of the tarwad.
Such necessity and consent may be presumed to exist, if the transaction has the written consent of the senior inandiravan of the karnavan's tavazhi and of every tavazhi collateral to the same if any.
23. NO debt contracted by the karnavan or other managing member shall bind the tarwad, unless it be for tarwad necessity.
27. No decree shall bind the tarwad, unless it is obtained against the karnavan as such and the senior anandiravan of his tavazhi and of every tavazhi collateral to Jhe same, it any."
The argument was thus: In Section 21 there is an absolute prohibition that except in certain contingencies no karnavan shall sell or otherwise alienate tarwad immovable property. This incapacitates the karnavan to act in contravention thereof. Section 22 says only that no encumbrance on tarwad property shall be valid unless it be in conformity with the conditions laid therein. This did not affect the capacity of the karnavan to act. but merely invalidates the transaction. Sections 23 and 27 merely provide that no debt or decree shall bind the tarwad unless it be in conformity with the conditions laid in those sections. Here the offending transaction is not as such invalidated though it may not bind the tarwad1. Thus different effects are contemplated in these different sections by the legislature. It is at the maximum in Section .2,1 and at the minimum in Sections 23 and 27. Therefore a contravention of the provisions in Section 21 must have a deeper effect than mere invalidation which is the penalty under Section 22. In other words it must be held to nullify the transaction, to make it null and void, or void ab initio.
46. I do not feel persuaded by the above argument. Nor do I see any difference "in consequence? being contemplated in Sections. 21 to 23 of the Ezhava Act. Sections 21 and 22 deal with real property (jus in rem) while Section 23 deals with personal property (jus in personam). Naturally therefore a difference in wording is bound to be between Sections 21 and 22 on the one hand, and Section 23 On the other. as the karnavan is only a representative of the tarwad, which is the real proprietor of the property concerned, he cannot have an absolute power of disposal and can alienate the property only for purposes of the tarwad. It then follows that tarwad necessity and receipt of consideration to meet such necessity must invariably be present whenever the tarwad property is being dealt with, whether it be an alienation absolute or limited or the contracting of a debt which may ultimately affect the property. Sections 21 to 23 are meant only to ensure that the transactions concerning tarwad properties conform to these requirements. To effectuate this purpose legislature has Provided certain safeguards in these sections, namely the insistance of a real necessity, actual receipt of consideration and the affirmance of all the major members of the tarwad.
In my view, the difference in the provisions of the Sections 21, 22 and 23 of the Act lies only in the degree of proof of the observance of these safeguards in regard to particular transaction. as Section 21 deals with a permanent or long-term conveyance, it calls, for the greatest circumspection in their making. It therefore provides for the strictest proof of the safeguards and insists that one and all the major members of the tarwad should record their consent to the alienation in writing so that each. such member should have an occasion to think seriously before the alienation becomes valid. and unassailable. Until all the members without exception have expressed their consent, the alienation remains open to challenge^ so that even one adult member out of the many in the tarwad can invalidate an absolute or long-term disposal of tarwad property, as was actually done in Maheswaran Namboori v. Kochitti (1957) Ker LJ 238: (AIR 1957 Kerala 103). as it is a mere safeguard, it is immaterial whether the consent foe expressed before the transaction at after it.
Section 22 deals with encumbrances of a less lasting nature. Expediency suggests that the same amount of circumstances and deliberation may not be needed for this category and therefore the provision is that such transactions shall have the consent of all the major members of the tarwad. If is not insisted that such consent should be expressed in writing. The consent may be oral or written. It is further provided that necessity and consent will be presumed in these minor alienations if tho senior anandiravans of all the favazhis in the tarwad have expressed their consent thereto in writing.
Section 23 deafe with still less serious transactions in which property is not, touched; but a liability is incurred which may perchance affect tarwad property in future. In such cases, the tarwad is sure to get ample opportunity to resist deprivation of its property when the liability is sought to be enforced against it. Hence, the observance of the safeguards are not insisted in regard to the transactions as such. Therefore the section is enacted as 3 mere warning to the creditors that a debt will not be enforced against a tarwad unless it has been contracted for a tarwad necessity.
Section 27 stands on a different footing It is not a rule of dealing with my property, but a rule of procedure in litigations. It provides for an effective representation of the tarwad in suits against the same.
47. Reference may, in this connection, be made to certain rules of construction of statutes.
In Craies on Statute Law, 5th Edn., page 248, it is observed:
"(ix) Conditions dispensed with if merely for benefit of particular class. - If the object of a statute is not One of general policy, or if the thing which is being done will benefit only a particular person or class of persons, then the conditions prescribed by the statute are not considered as being indispensable. This rule is expressed by the maxim of law, quilibet potest renunciare juri pro se introducto.
So also, if a statute simply enables a particular class of person's (as the member ot a tarwad in the present case) to do or refrain from doing some particular thing under certain circumstances it is optional with those persons whether they avail themselves of the privilege afforded them by the statute, or whether they waive their right of doing so."
It is pointed out in the same treatise at page 559 that in Toronto Corporation v. Russel, 1908 AC 493 in regard to the provisions of the Ontario Assessments Acts entitling the owner of lands to notice in writing of intention to sell the land for arrears of taxes, it was held that the owner could waive and had in fact waived strict compliance with those provisions.
Omnes licentiam habent his, quae pro se indulta sunt, renuniciare. Everyone has liberty to renounce those things which are granted for his own benefit.
48. Maxwell on Interpretation of Statutes, 10th Edn. page 388 observes:
"Another maxim which sanctions the non-observance of a statutory provision, is that, quilibet licet renuntiare juri pro se introducto. Everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy."
49. The decision of the Privy Council in AIR 1947 PC 197 is also to the effect that, if the section is not guided by public policy but is meant to conserve private interests^ it is upto the person concerned to waive the benefit thereof and affirm the transaction.
50. I would therefore repel the contention that because the provision in Section 21 is imperative all transactions offending it should be declared absolutely null and void. That section is meant only to conserve the interests of a tarwad in its private properties. It does not involve any public policy. as the object of the section is only to save a tarwad Irom improvident alienations of its properties, it is upto the members of the tarwad to take advantage or to waive the benefits thereof. Alienatio licet prohibeatur, consensu tamen omnium in quorum favorem prohibita est potest fieri. Although alienation be prohibited yet by the consent of all those in whose favour it is prohibited ft may take place; for it is in the power of every man to renounce a law made in his own favour.
51. That it is left to the members ot the concerned tarwad to affirm or avoid transactions offending Section 21 of the Travancore Ezhava Act has been held in 21 Trav LJ 1001. The decision in 1958 Ker LT 220: (AIR 1958 Kerala 245), though concerns the corresponding provision of the Malayala Brahmin Act 3 of 1106, is also to the same effect (See paragraph 32 supra).
Referring' to a 'wrongful alienation by the karnavan' Sundara Aiyar in his treatise on Malabar and Aliyasanthana Law, page 154, observes:
"It is not a void act, in the sense that it is incapable of heing ratified by the family".
52. A contrary view was_ however, taken recently by M.S. Menon, J., a'nd Raghavan J. in Pailoth v. Arya Antharjanam 1961 Ker LJ 910. The ruling in 1958 Ker LT 220: (AIR 1958 Kerala 245) by a Bench of this Court does not appear to have been cited before their Lordships in that case. 25 Cochin 603 (FB) was relied on to hold "that a document which was executed in violation of Section 28 was absolutely void and of no legal effect", 37 Cochin 96 for the position: "The alienation must be held to have the character, of a void transaction only so far as the members of the tarwad are concerned and not as against the rest of the world'' and AIR 1952 Trav-Co 368 and AIR 1953 Trav Co 269 to the effect:
"It may not be void in the sense that it is an absolute nullity as though no transaction took place so as to enable strangers to question and contend that persons claiming a transaction otherwise than in conformity with that section have obtained no rights at all"
and the decision concluded:
"In the light of what is stated above we must hold that the transaction is invalid for lack of compliance with Section 9 of the Cochin Nambudiri Act, 17 of 1114 that the members of the Illom are entitled to treat it as absolutely void and of no effect and that as a result no subsequent ratification is possible."
53. I have already pointed Out (see paragraph 23, Supra) that the majority view in 25 Cochin 603 (FB) must be deemed to have been over-ruled by 37 Cochin 556 (FB) read along with 37 Cochin 96. If that be so, that decision cannot be taken as authority for holding that on alienation not in conformity with Section 28 of thg Cochin Nayar Act, 1095 (which corresponds bo Section 21 of the Travancore Ezhava Act, 1100) is impossible of validation by subsequent ratification by the members of the tarwad. The other, precedents in 37 Cochin 96 AIR 1952 Trav-Co. 368 and AJR 1953 Trav-Co 269 have only held it voidable at the instance of the tarwad, and no further.
Even in 1961 Ker LT 910 their Lordships have held:
"That a stranger is not entitled to raise the contention was laid down as early as 15 Cochin 143...In 37 Cochin 96 Krishnaswami Iyengar C.J., poined out that this observation has not been questioned either in 22 Cochin 351 or 22 Cochin 515 and said that though the words Void against the other members of the tarwad" do not occur in Section 28 of the Act of 1095, the effect, taking into consideration the objects of the Act appears to be the same."
in my humble view, the propositions that the transaction is only 'void against the other members of the tarwad' and that 'strangers are not entitled to raise contention' about the validity of the transaction are indicative of the transaction, toeing held valid and effective until challenged by the members of the tarwad. Earlier in the judgment, the learned Judges have held "that the transaction is invalid..-., that the members ot the lUom are entitled to treat it as absolutely void and of no effect....." Members who "are entitled to treat it as void an.d of no effect" must necessarily be competent also to treat it as valid and of full effect as well. It must then be within the option of the members of the tarWad to affirm it or avoid it. In other words_ a subsequent ratification, or more correctly, affirmation is possible at law. To the extent the abovesai(j decision declares the offending transaction to be impossible of subsequent ratification I am constrained with due respect to disagree with the same and follow 1958 Ker LT 220: (AIR 1958 Kerala 245) to hold that the transaction is one "which the junior members of the tarwad can, at their choice, either affirm or avoid".
54. Counsel for the plaintiff-respondent appears to have become desperate as he contended that the provisions of Section 21 of the Travancore Ezhava Act, 1100, limit the representative capacity of a karnavan in the matter of dealing with the properties of the tarwad and that he has no power to alienate them except on satisfaction of the conditions laid down by the section.
I do not see any force in this contention. The karnavan is the accredited representative of the tarwad. To all except the members of the concerned tarwad he represents the tarwad and the tarwad is represented only by him. That was the law before the Act, and that is still the law.
"It need hardly be observed that none butt the karnavan can deal with, tarwad property, or act on behalf of the tarwad, however proper suchdealing or act may itself be", (Sundara Aiyar "Malabar and Aliyasanthana Law, page 158).
To the same effect are the three Bench rulings of this Court namely:
(i) Konnan v. Sankaran Nair, 1957 Ker LJ 562--
'It is impossible to have a sale of tarwad property in any circumstance without the karnavan joining it......'
(ii) Achutha Menon v. Anna Cheriyan 1959 Ker LT 30--
'A sale to which the karnavan, who is sui juris, is not a party cannot be sought to be upheld.' and
(iii) Modhavi v. Kesava Panicker, 1950 Ker LJ 633--
'No doubt a power in junior members to sell tarwad properties is not recognised-' as the representative of the tarwad, his acts have ordinarily to be identified as the acts of the tarwad itself and that is the very reason why strangers are not allowed to impeach his alienations. Sections 21 and 22 do not belittle the karnavan's importance in tbis respect. They have only imposed certain restrictions on the exercisa of his powers'. The alienations mentioned in Sections 21 and 22 are the alienations, of the karnavan or other managing member to whom he has delegated his functions as provided in the Act. He who does anything by another does it by himself in the eye of law; and when a managing member acts under the delegated authority from the karnavan it is the act of the karnavan himself. I would therefore hold that the Section 21 of the! Travancore Ezhava Act does not affect the capacity of the karnavan to represent the tarwad, but only lays down the circumstances or conditions under which his alienations may be rescinded by the other members of the tarwad.
55. There remains the question whether a member of the tarwad, who wants to avoid an alienation by the karnavan not in conformity with Section 21 of the Ezhava Act, has to institute a suit for its rescission or can disaffirm it in defence to a suit for its enforcement.
56. It is not always necessary that a party entitled, to avoid a transaction not bindng on him should sue for its rescission. He can himself avoid) if by an unequivocal act repudiating it.
Muthukumara Chetly v. Anthony Udayar, ILK 88 Mad 867: (AIR 1915 Mad 296) is an authority for this position. At page 877 of the report (ILR Mad): (at p. 301 of AIR), we find the observation:
"We cannot uphold Mr. Rangachariar's contention that wherever a transaction is voidable it can be avoided only by getting a decree of Court: setting it aside. The party who is entitled to avoid may do so by an unequivocal act repudiating the transaction. ......If Rajagopalan after attaining majority should wish to repudiate the lease, there can be no doubt he can do so without a suit."
57. Again in Abdul Rahman v. Sukhdayal Singh, ILR 28 All 30, a minor who has sold the property which his guardian had leased out to the! defendant was held to have validly repudiated the transfer by his act. Richards J., observed that it is not necessary that a suit should be instituted to set aside the lease which was executed by the guardian of the minor.
To the same effect are Jagdamba Prasad Lalla v. Anadi Nath Roy, AIR 1938 Pat 337 and Sivanmalai Goundan v. Arunachala Goundan, AIR 1938 Mad 822.
58. Trevellyan in his well-known book oa Minors, 5th Edn., at page 202 states;
"A transaction which is voidable at the instance of the minor may be repudiated by any act or omission of the late minor, by which he-intends to communicate the repudiation, or which has the effect of repudiating it, for instance, a transfer of land; by him avoids a transfer of the same land made by his guardian before he attained the age of majority. It is not necessary that he should bring a suit; but a suit to set aside the acts of his guardian during his minority amounts of course to an express repudiation."
It is observed in Mulla's Hindu Law? 12th Edn., page 276:
"An alienation made by a Hindu widow..... without legal necessity and without the consent of the next reversioners is.....voidable at their option. They may affirm it. or treat it as a nullity without the intervention of a court, and they show their election to do the latter by commencing an action to recover possession of the property."
59. The Judicial Committee of the Privy Council clarified the above position in Bijoy Gopal Mukerji v. Krishna Mahishi Debi, 34 Ind App 87 at pp. 91-92 (PC) :
".......she (a Hindu widow) may alienate it subject to certain conditions being complied with. Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. He may think fit to affirm it or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shows his election to do the latter by commencing an action to recover possession of the property. There is, in fact nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir.' It is true that the appellants prayed by their plaint a declaration that the Ijara was inoperative as against them, as leading up to their prayer for delivery to them of khas possession. But it was not necessary for them to do so and they might have merely claimed possession, leaving it to the defendants to plead and (if they could) prove the circumstances which they relied On for showing that the ijara or any derivative dealings with the property were not in fact voidable, but were binding on the reversionary heirs."
60. The same proposition was reiterated in Chekku v. Puliyasseri Parvathi, AIR 1956 Mad 634:
".....as has been held in a number of decisions of this court there is no necessity for a junior member of a tarwad in impugning a tranaction by the kamavan to file a suit to have it set aside. He can ignore it and recover possession of the property if the acts of the karna-van cannot be said to be within his powers".
61. It is therefore clear that a junior member can treat an invalid alienation of his tarwad property as void, ignore it and sue to recover the property, and that no suit for its rescission as such is needed.
62. The question then arises whether he can do that without any limit of time for its exercise. Here two principles come into play, viz., (1) a junior member is entitled to repudiate the transaction, and for the exercise of a legitimate act by a party law has not set any limit of time, (2) if a party wants the aid of the process of Court to work out his rights, he must necessarily come within the period prescribed by the law of limitation for actions.
The answer to the question posed above must therefore be a reconciliation of the above two principles.
(63) It is convenient here to classify cases of invalid alienations of tarwad properties under three heads, namely:
(i) Where possession of the property concerned does not pass to the alienee but continue with the tarwad itself;
(ii) Where possession has passed with the alienation; and
(iii) Where possession was with the alienee at the time of the alienation and continued with him after the alienation (e.g. sale of the equity of redemption to a possessory mortgagee).
I propose to deal with each of these cases separately.
Before I do so, I would recall a caution enunciated by Lord Halsbury in Quinn v. Leathern, 1901 AC 495 at p. 506 and reiterated by the Privy Council in Punjab Co-operative Bank Ltd., Amritsar v. Commr. of Income-tax Lahore, AIR 1940 PC 230, for observance in the appreciation of precedents, especially on a question of some nicety that "every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions, which may be found there are not intended to be expositions of the whole law, but governed or qualified by the particular facts of the case in which such expressions are to be found."
64. Where an alienation is not followed by possession, the tarwad has nothing to worry about the property. It continues with the tarwad itself. If ever the alienee seeks to proceed against the property, the tarwad is sure to have an opportunity to resist its deprivation and urge in court that the transaction sought to be enforced is not binding on it. In other words, it is open to the tarwad to urge the invalidity of the transaction in defence to a suit fr its enforcement fay the alienee. as limitation applies only to institution of suits such a plea in defence will not be barred by any lapse of time.
65. Rustomji on Limitation, 6th Edn. page 416, observes:
''A defendant is not precluded from urging by way of defence that the instrument or transaction sued upon ought not to be enforced, although a suit by him to cancel it or set it aside would! then be time-barred."
66. In Sri Kishan Lal v. Mt. Kashmiro, AIR 1916 PC 172, the Privy Council observed:
"It has been contended that limitation is a bar to Mt. Kashmiro's defence. The Indian Limitation Act would not apply to her defence".
67. In Gopal Bhaurao v. Jagannath AIR 1935 Bom 326 it is observed;
".....the Courts in, India have consistently held that a defendant is not precluded from urging by way of defence that the instrument on which an action is brought ought not to be enforced on equitable grounds such as undue influence, fraud or misrepresentation although a suit by him to have the instrument set aside or cancelled would then be time-barred under either Article 44 or Article 91 of the Indian Limitation Act ....... Section 3 of the Indian Limitation Act refers only to the remedy of the plaintiff and not to his rights, and even though the remedy may be barred, the right may exist, but it is clear that it does not refer at all to a defendant.......
All that the Limitation Act does is to take away the remedy of a plaintiff to enforce his rights by an action, and it is open to a defendant to put forward any defence though such defence as a claim made by him may be barred on the date it is put forward. I am supported in this by the observations of their Lordships of the Privy Council in 20 Cal WN 957: (AIR 1916 PC 172). (AIR 1916 PC 172 cited supra).......
... .Where the title of a person in possession is challenged, he may set forth any defence in favour of his right to the property and the statute will not run so as to prevent him from setting forth any such relief."
To the same effect may be cited Sant Bux Singh v. Ali Raza Khan, AIR 1946 Oudh 129.
68. We have seen that in case the possession of the property is with the tarwad in spite of the invalid alienations mere inaction on the part of the tarwad in having it repudiated will not affect the right of the tarwad to the property.
Decisions have gone further and held that, even if a suif, to set aside an invalid alienation had been dismissed as barred by limitation but: actual possession of the property remained with the tarwad, it could still resist an enforcement of the alienation by a defence that the transaction on which the alienee sues was invalid and not binding on it.
69. In Ram Sarup v. Ram Chandar, AIR 1949 EP 29 the Bench held:
".....The fact that the defendant's suit for cancellation of the sale was held to be barred by time cannot debar, him, from raising the plea that the sale was voidable at his instance for the simple reason that being in possession it was not necessary for him to bring the suit,"
70. In Chinnaswami Reddi v. Krishnaswami Reddi, ILR 42 Mad 26: (AIR 1919 Mad 650) the vendee from the guardian under a voidable sale, having obtained possession of a portion of the lands, sued to recover the remainder, after a suif by the minor to set aside the sale had been dismissed as barred by limitation under Article 44 of the Limitation Act. It was held:
"The defendants are, in a suit for possession, entitled to plead the invalidity of the sale by their guardian. The fact that they cannot sue to recover an item of property wrongfully alienated by their guardian cannot affect their right to remain in possession of the properties not delivered" to the possession of the purchaser. There is no authority for the proposition that on the expiry of the period specified in Article 44 of the Limitation Act the purchaser from the guardian is of right entitled to possession of the properties in the possession of the ward."
71. From the illustrative cases cited above, it is evident that if the alienation did not pass the possession of the property, which continued to be with the tarwad itself ther^ is no need to institute a suit to set aside the alienation. The tarwad can resist any attempt of the alienee to get the property and urge the invalidity of the alienation in defence to his action. A prior repudiation is not necessary to entitle it to urge such a defence. The following observations of Pollock and Mulla in their commentary on the Indian Contract Act, 8th Edn. page 385 seem apposite in ! this connection:
'The will to rescind may also be declared by way of defence to an action brought on the contract; a declaration to that effect before action brought is not necessary as a matter of law, though generally speaking the prudent course is to repudiate as soon as possible."
72. The next case is of an alienation coupled with transfer of possession. The tarwad having lost the property has to regain the same by a suit for its recovery. Every suit has its Own period of limitation prescribed by statute. No court will entertain a suit brought beyond the time allowed by the law of limitation. Section 23 of the Limitation Act goes further and says that the right to the property shall be extinguished at the expiry of the period prescribed for a suit for its recovery; and as a consequence courts have held that the title will then vest in the alienee in possession. It then follows, as a corollory, that if possession passed with the alienation, the tarwad has necessarily to institute a suit for recovery of the property within time allowed by law.
73. The Privy Council has held that in such cases the suit cannot be for possession merely. I The cause of action is not the transfer of possession; it is the alienation that passed the possession; and therefore the suit must be to set aside! the alienation itself with a prayer for possession as a consequential or accessory relief.
74. In Janki Kunwar v. Ajit Singh, 14 Ind App 148 (PC) where the suit was to recover land conveyed by the plaintiff under fraud and undue influence by the vendee, the Privy Council observed:
"The Judicial Commissioner ..... says that the suit is essentially a suit for possession of im-moveable property and as such falls within 12 years' limitation. It was not a suit for possession of immoveable property in the sense to which this limitation of 12 years is applicable. The immoveable property could not have been recovered until the deed of sale has been set aside, and it was necessary to bring a suit to set aside the deed."
75. In Kandasami v. Irusappa ILR 41 Mad 102: (AIR 1918 Mad 724) a purchaser from the guardian of a minor was put in possession oB the property. The minor did not sue to set aside the sale within three years of his attaining majority. It was held that the minor's right in the property was lost to him by the combined effect of Article 44 and Section 28 of the Limitation Act. Palaniappa Goundan v. Nallappa Goun-dan, AIR 1951 Mad 817 and AIR 1953 Bom 424 also expressed the same view.
76. The position In this regard has been well explained by Sadasiva Ayyar, J., in Rajah on Ramnad v. Arunachellan Chettiar ILR 38 Mad 321: (AIR 1916 Mad 350) in the following words: "Section 28 of the Limitation Act.... shows that it is only where a person is under a necessity to institute a suit for possession of the property to which he lays a claim (and where the time for instituting such suit has lapsed,) that his title toi the property is extinguished. But if he is himself in possession and it is only his right to sue as plaintiff to set aside or declare invalid the deed or title set up by another man that is barred, he could defend bis possession by pleading, as a defendant, the voidability of the deed or title set up by the plaintiff who seeks possession....A defendant who has properly repudiated a contract or a deed, might well be allowed to sit tight over his possession and defend his right to such possession by sitting up, by way of plea such proper repudiation by him, though lie might be barred if he seeks positive relief as plaintiff on the basis of such repudiation ...... If he allows the time (prescribed by the Indian Law of Limitation) to sue for rescission to pass, his rescission in pais cannot entitle him to sue for any other relief on the basis that the contract has been set aside though, as a defendant, he may be allowed to defend his possession in a suit brought by the other party......."
77. It is therefore clear that, if possession accompanied the alienation and continued unchallenged with the alienee for a period of 12 years, he gets an indefeasible right to the property.
78. I now turn to the third case formulated above, that is of alienation of an incorporeal right in one already in possession of the property, A typical instance is the present case of a sale of the equity of redemption to the mortgagee in possession.
79. It is well settled that a mortgagee cannot by a mere assertion of his own, or by a unilateral act on his part, convert his possession as mortgagee into that of an absolute owner. But, if the mortgagor agreed with the mortgagee to end the mortgage and constituted the latter the owner of the property, though the document in which that agreement; was expressed be invalid in law the possession thereafter of the quondam mortgagee would be that of an owner and if 12 years of quiet possession have been completed thereafter the quondam mortgagee's title to the property would become absolute.
80. Kustomji on Limitation, 6th Edn. p. 931 summarises the position thus;
"The P.C. no doubt say thas mere acquiescence by the mortgagor would not be enough to convert the possession of the mortgagee as mortgagee into possession as owner. The case, however, is different where a change in the character of the mortgagee's possession is brought about by an agreement between the parties or wth their express consent, as distinguished from a mere acquiescence. Whereas neither assertion by itself nor assertion with mere acquiescence is sufficient to alter the nature of the mortgagee's possession, an agreement between the parties is sufficient. In other words where both parties (mortgagor and mortgagee) agree in effect to treat the mortgage as terminated and that the mortgagee's possession thereafter should be qua owner, the agreement may, for want of registration or otherwise, be ineffectual to create title or to operate as to the transaction itself which it purports to carry out, hut it would nonetheless be sufficient to change the character of the mortgagee's possession from that of the mortgagee to that of owner."
81. In Markanda Mahapatra v. Kameshwar Rao, AIR 1949 Pat 197 where the equity of redemption was sold to the usufructuary mortgagee by the mortgagors but the sale was invalid the property being of service tenure, B.P. Sinha, J., (as he then was) held:
"It is true that the transactions of sale, as already indicated, were invalid. But even an invalid transaction supported by possession for the statutory period confers the right purported to be created by the invalid transaction.....
It is well-recognised principle that a mortgagee cannot, by a mere assertion of his own or by a unilateral act on his own part, convert his possession as mortgagee into that of an absolute owner. But where, as in the present case, the bilateral acts of the parties, referred to above, though invalid, and, therefore inoperative to convey title on the dates of those transactions, would operate to give adverse possession which, if continued for the statutory period, would ripen into a good title. A Division Bench of the Court in the case of Baldeo Singh v. Muhammad Akhtar, AIR 1939 Pat 488 has recognised the principle that in proper cases it is open to the Courts to find that there was such an acquiescence on the part of the mortgagors as amounted to a release of the equity of redemption. In other words, where both the mortgagor and the mortgagee agree by a transaction, to which they are parties that the character of possession as mortgagee should change into that of possession as absolute owner in spite of the invalidity of the transaction to convey title at once, the possession so given can operate on the expiry of the statutory period to create title by adverse possession.
.......It is the consensual act of the parties, and not merely the unilateral assertion of the mortgagee alone which has the effect of wiping out the equity of redemption,"
82. Again in Sukhdeo Singh' v. Lekha Singh, AIR 1957 Pat 502 the Bench summarised the position of law thus:
"A mortgagee cannot, by a mere assertion of his own or by a unilateral act on his own part, convert his possession as mortgagee into that of an absolute owner.
The bilateral acts of the parties though Invalid, and. therefore, inoperative, to convey title on the dates of those transactions, would operate to give adverse possession, which if continued for the statutory period, would ripen into a good title- Where, therefore, both the mortgagor and the mortgagee agree by a transaction to which, they are parties that the character of possession as mortgagee should change into that of posses, sion as absolute owner, in spite of the invalidity of the transaction to convey title at once the possession so given can operate on the expiry ot the statutory period to create title by adverse possession.
Where, therefore, both the mortgagor anrt the mortgagee agree by a consensual act that tne possession hitherto held as mortgagee should now henceforth be held as vendee, such a transaction is tantamount to delivery of property by the vendor to the vendee."
83. The same view was taken by the Madras High Court in Kandaswami Mudaliar v. Ponnuswami Mudaliar, AIR 1929 Mad 16 by the Allahabad High Court in Sohan Lal v. Mohan Lal, AIR 1928 All 726 (FB) and by the Bombay High Court in Ahmed Bhouddin v. Babu Devji, AIR 1930 Bom 135.
84. Mention may also be made to Kailash, Singh v. Balbhaddar Singh, 112 Ind Cas 151' (Oudh) where a Hindu father mortgaged family property with possession and subsequently sold the equity of redemption to the mortgagee^ and the sons ignoring the sale, sued for redemption of the mortgage more than 16 years after the date of the sale, the Chief Court of Oudh held the suit not maintainable because the mortgagee "must be considered to have taken possession as a proprietor from the date of sale'' which the sons were bound to have set aside within 121 years of its execution.
85. Khiarajmal v. Daim, 32 Ind App 23 (PC) and Lilachand Tuljaram v. Mallappa Tukaram, AIR 1960 SC 85 cited at the Bar are not of much assistance in this connection.
In 32 Ind App 23 (PC) where the plaintiff, who was a cosharer in the equity of redemption, was not a party to the court sale at which the mortgagee purchased the equity of redemption, their Lordships of the Privy Council held that his' share of the equity or redemption remained intact, and that neither the court sale nor the expiry of more than 153 years thereafter could affect the same and observed that, as between the mortgagor and mortgagee, "Neither exclusive possession by the mortgagee for any length of time short of the statutory period of 60 years nor acquiescence by the mortgagor not amounting to a release of the equity of redemption will be a bar or a defence to a suit for redemption if the parties are otherwise entitled to redeem."
In AIR 1960 SC 85 the usufructuary mortgage was by two brothers of their common property and the subsequent sale of the equity of redemption was by one of them only. The heirs of the other brother having sued for redemption of the mortgage, the mortgagee set up title by long adverse possession. Our Supreme Court observed:
"It should be remembered that the mortgagees came into possession of the property pursuant to the usufructuary mortgage. Therefore their possession had a lawful origin. A mere assertion of an adverse title on the part of the appellants (mortgagees) cannot affect the subsisting equity of redemption of the mortgagors or operate to shorten the period of limitation prescribed for a suit for redemption."
It may be noted that, in these two cases, the cosharer who sought to redeem his share, had not agreed with the mortgagee to transfer his share of the equity of redemption nor was there a proceeding to that effect binding on him. According to precedents, what changes the character of possession of the mortgagee is the act or express consent of the mortgagor and not the act, declaration or intent of the mortgagee. If there be neither consent of, nor a decree binuing on the mortgagor, no change in the character of possession of the mortgagee can possibly arise. The dicta in these two cases do not go beyond' the above proposition and do not touch the case of an invalid transfer of the equity of redemption by the mortgagor himself.
86. Counsel for the plaintiff relied On Kantan Velayudhan v. Channi Raman Kutti, 4 Trav LJ 323 Eravi Narayanan v. Eravi Raman, 6 Trav LJ 81 "and Mohamedkunju Lebba v. Kunjupennu, 10 Trav LJ 432 (FB) all of which concerned with suits for redemption of mortgages, in which the mortgagees set up subsequent mortgages and claimed consolidated payment of the amounts of both the mortgages. The mortgagees were held bound to prove the validity of their claims and the plaintiffs being then in the position or defendants as regards such claims, were held entitled to urge the invalidity of the subsequent mortgages without fear of limitation by lapse of time. In the 10 Trav LJ 432 (FB) ease, Raman Thampi J. (with the concurrence of the other Judges) held:
"Where the members of a tarwad........sue to recover possession of tarwad property held by a stranger under an admittedly valid mortgage, and such mortgagee opposes the plaintiff's claim on the strength of subsequent charges or encumbrances created in his favour more than 12 years before the date of the suit, the defendant-mortgagee is bound to establish the validity of such charges or encumbrances, notwithstanding Article 104 of the Limitation Regulation,"
and that so long as the subsequent encumbrance was not shown to be supported by consideration and tarwad necessity the plaintiff was not bound to pay the amount thereof.
These cases treated the claims made therein as mere demands for money charged on the property. The aspect of a change in the character of possession of the mortgagee was not considered in those cases. In 10 Trav LJ 432 at p. 442 (FB) Raman Thampi J., went to the extent of observing that "a tarwad is under no obligation to rush into court & seek relief in respect of any & every conceivable attack directed against its proprietary rights although no doubt, where an alienation is coupled with or followed by transfer of possession the alienee becomes entitled, by lapse of time, to plead his adverse possession as a sufficient answer to junior members who may impeach the alienation, either directly or collaterally."
but did not see the applicability of this principle to the case before him.
87. The matter pointedly arose in Ramanatha Pillai v. Sivathanu Pillai, 1944-34 Trav LJ 569. Krishnaswami Aiyar C.J., (with the concurrence of Abraham, J.) look the same view as is expressed in paragraphs 81 and 82 supra, and held as follows :
"There is no doubt that in the absence of anything to the contrary a mortgagee by himself ........cannot convert during the period of his mortgage the character of his possession from that of a mortgagee. But at the same time it must be conceded that if the owner of the equity of redemption purports by a later transaction to confer the equity of redemption On the mortgagee the mortgagee's possession as such ceases by the assent of both parties to the transaction and the possession of the mortgagee thereafter becomes the possession of an owner in such right as is deemed to he vested in him. If the later transaction be a valid transaction, the adverse-ness and the lawfulness of that possession become coalescent. If the transaction of the transfer ot the equity of redemption happens to be invalid for any reason then whatever miglif. be the reasons for such invalidity, the possession of the transferee still is changed and the title to the property becomes divorced from the possession thereof which thence continues to be an adverse possession of the transferee against the title of the transferor.
If. is necessary to point out that the application of this simple principle to the case of a karnavan of a tarwad or the manager of a joint Hindu family is not involved in any diliculty, for the karnavan is 'he visible representative of the tarwad in his dealings with the outside world. His possession of the tarwad properties is the possession of the members of the tarwad. His right to the tarwad properties is equally the right of all the members of the tarwad. When the title to the properties is sought to be transferred to a stranger for purposes neither beneficial nor necessary in the interests of the tarwad, such transfer of title is ineffective and the title of the tarwad continues to subsist in the property transferred in spite of the acts of the karnavan. But not so possession which is a matter of lact. Where the actual possession is passed to a transferee the transferee holds such possession in such common intention and for such right as the parties to the transfer, viz-, the karnavan and the transferee intended the possession to be for and hence a karnavan though he is incompetent to generate a valid title in a transferee for purposes which are neither beneficial to nor necessary for the tarwad is yet incompetent in the ease of such transfers to prevent the possession of the transferee from becoming adverse to the karnavan and the members of his tarwad. This being the true position on principle, I am not persuaded that the case where a karnavan makes a gift or the equity of redemption, thereby authorising the owner of the equity of redemption to redeem a mortgage valid or invalid and to enjoy the property under the transfer as a full Owner, stands outside the operation of the principles stated above"
and concluded, "Where possession had passed with the deeds of transfer or had followed the said deeds, the continuance of such possession, which must be deemed adverse to the tarwad, for a period of over 12 years would extinguish the right of the tarwad."
88. The position may be viewed in another aspect also, When a person sells property to another depositing a part of the sale-consideration with the purchaser to be paid to the mortgagee in discharge of the mortgage, the purchaser is only constituted the agent of the seller to redeem the property with the seller's money. If then tne purchaser redeems the property with such amount and enters possession thereof it is as if the seller himself redeemed the mortgage and sold the property with possession to the purchaser. The case then comee within category (2) discussed in paragraphs 73-77 supra.
In the eye of law. the case cannot be different if the mortgagor, instead of selling the property to a third person and depositing witn him sufficient amount to discharge the mortgage, sold the equity of redemption to the mortgagee himself. The same principle must apply to both the cases and the same legal consequences must follow.
89.. Here, the mortgagor is the tarwad whose visible representative is the karnavan. The karnavan has sold the equity of redemption to the mortgagee, 1st defendant, though ultimately it turns out that the sale was Invalid. as soon as the mortgagee got a transfer of the equity of redemption from the karnavan of the tarwad his possession as mortgagee ceased and possession as owner commenced. Such possession having been left unchallenged. for over 12 years, he has obtained an indefeasible title to the property by force of Section 28 of the Limitation Act.
90. It then follows that the present suit has to fail on the ground that the plaintiff has no subsisting title to redeem. I therefore allow the Civil Miscellaneous Appeal and set aside the order of remand made by the court below which will restore the appeal to its file and dispose of the same in accordance witn law.
Velu Pillai, J.
91. I agree and have little to add. 1961/ Ker LT 586, cited by Madhavan Nair, J., and decided by me_ was a case where the alienation was impugned by a stranger to the tarwad as lacking in tarwad necessity and offending Section 33 of the Madras Marumakkathayam Act as amended. I had no doubt then, that the alienation was not absolutely void, or as was putt void against the whole world, in the sense of being a nullity so as to enable the stranger to impeach it. There was no need then to consider the true meaning and connotation of expressions, such as Void as against the tarwad,' 'void so far as the members ot the tarwad are concerned', used by learned Judges in decided cases, particularly, by Krishnaswamy Iyengar, C. J. in 37 Cochin 96. Relying on these, and on the provisions in some of the analogous statutes, as for instance, Section 21 of the Travancore Ezhava Act, 1100, which appear to be mandatory in form and terminology, I ventured to suggest, that an argument is perhaps open, that an alienation in contravention of such provisions as distinguished from others which appear to be less mandatory might be regarded as void by the members of the tarwad, though by no one else. Besides, there were provisions, such as Section 29 ot the Cochin Nair Act 13 of 1095, that "every sale.....shall be void.......", in which the word Void' was expressly used. However, on the above argument, I expressed no opinion.
92. Before us while the learned Advocate-General contended", that the impugned alienation, which did not conform to the requirements of Section 21 of the Travancore Kzhava Act, could only be regarded as voidable at the option of the members of the tarwad Sri C.K. Sivasankara Panicker, for the respondent argued, that it; is an absolute nullity, and is void against the whole world. The latter argument is opposed to the proposition which is too well-settled to require restatement that no stranger could be permitted to impeach an alienation on the ground that the tarwad had acted in disregard of statutory provisions designed to safeguard its interests. Even according to counsel for the respondent, a nullity against some persons only and not as against others, is an impossibility and a contradiction in terms. The passage in the judgment in 37 Cochin 96 extracted in the judgment of my learned brother Madhavan Nair, J. in which the learned Chief Justice drew on the analogy of the expression "void as against the receiver' in Section 54(1) of the Cochin Insolvency Act, which has been cbnstrued to mean "voidable at the instance of the receiver, leaves no room for doubt that he employed the term "void" only as meaning voidable at the instance of the tarwad. The course of judicial decisions has been surveyed by my learned brother and I feel that the preponderance of judicial opinion is in favour of the view, that an alienation in disregard of these statutory requirements is only voidable at the option of the members of the tarwad and is not void.
93. I also feel, that much does not turn upon the difference in the phraseology in Section tions 21, 22, 23 and 27 of the Travancore Ezhava Act, which is also noticeable in corresponding provisions in other statutes. I agree with Madhavan Nair, J. that in these statutory provisions, no question of public policy is Involved. So, judged by the ordinary canons of interpretation, notwithstanding the mandatory form in which some of these provisions are couched, I am of the opinion, that they may be waived by those for whose benefit they are intended and that nullification is not a necessary consequence of non-compliance. Both on authority and principle, I find great difficulty la subscribing to the view that an alienation of the kind impeached can 'never be accepted or ratified, by the non-alienating members of the tarwad so as to validate it.
94. I have perused the fairly long judgment of Madhavan Nair, J., wherein lie has reviewed practically all the decisions touching the question from several of which he has copiously extracted also. I have also perused the short concurrent judgment of Venu Pillai, J. With due respect to my learned brother 1 regret I do not agree with their view and. I shall briefly indicate my view on the question involved in she case.
95. The facts of the case are faily un-disputed and they have been stated in the judgment of Madhavan Nair J. Therefore, I do not propose to recapitulate them. I propose to consider the question mainly on the wording or the relevant sections of the Travancore Ezhava Act without entering into a discussion of the various decisions based on other statutes.
96. The controversy in the lower courts as well as in this court centred round the nature of the transaction of sale sought to be avoided, viz. whether it was void or voidable. The trial court took the view that the transaction was only voidable; buj: the lower appellate court held that it was void and inoperative as against the members of the tarwad. Before this Court the contention of the learned Advocate General on behalf of the appellant is that the sale was only voidable at the instance of the junior, members of the tarwad and since the suit was not brought within l2 years or that voidable transaction, it was barred by limitation. Regarding the void or voidable nature of the transaction the judgments of my learned brethren proceed on the basis that there can only be two kinds of invalid transactions, namely "void" that is "absolutely void' or "void against the whole world,' and voidable. According to them there cannot be a third kind of transactions, namely "void as regards some persons."
This controversy as to whether there can only be two kinds of transactions, namely 'Void against the whole world" and "voidable" or whether there can be three kinds of them, namely "void against the whole world", "void against some persons'" and "voidable" has been commented upon by Markby in his Elements of Law, 6th Edn. at p. 143 thus:
"274. English writers on law generally assume that all the cases in which the legal result of an act is affected by these special circumstances may be covered by saying that the act is Void' or 'voidable'. But these are words oE very uncertain meaning. The word Void' means, I think, devoid of the legal result contemplated. The word Voidable' means that the result may be made Void' by some one. But by Whom and by what process? Continental lawyers make a triple division. First they set apart those cases in which the contemplated legal result foils altogether -- as for example a will of lands made by an infant. Such acts they call 'absolutely void.' In the next class they place cases in which, as regards some persons, the act fails altogether to produce its contemplated legal result, but as regards others, the result -"s produced... as for example in the case of a bishop's lease exceeding the period prescribed by the law, which is good as against the bishop but not as against his successor. These acts they call 'relatively void.' Then the third class comprises those acts which produce their legal result; but this result can be set aside by the action of some person concerned -- as for example a contract! induced by fraud. These acts are called 'voidable.' I think there is some advantage in this triple classification, but It does not carry us far towards attaching a precise meaning of the jerms employed; and in the hot contests that have taken place whether an act is void, or absolutely void, or voidable, it seems to me that the disputants have frequently used the words in different senses."
As the learned author points out, in this controversy the disputants themselves have frequently used the words in different senses, which is apparent even in some of the decisions quoted by my learned brother Madhavan Nair, J. According to me one has to gather the intention of the legislature from the relevant provisions of the , statute rather than to attempt to strait-jacket its intention in one of the two heads in the two-fold division namely "absolutely void" and "voidable." If the legislature indicates a three-fold division, I fail to see why it should not be accepted and I think there is some advantage as well in this triple division.
97. I shall now consider the wording of the relevant provisions of the statute. They are Sections 21 to 24 of the Travancore Ezhava Act and they run:
Sale or mortgage with possession, or less for more then 12 years
21.Except for consideration and tarwad necessity and with the written consent of all the major members of the tarwad, no katnavan or other managing member shall sell tarwad immovable property, or mortgage it with possession for a period of more than twelve years, or lease it for a period of more than twelve years.
Mortgage with possession or lease premium, for 12 years or less.
22. No mortgage with possession of tarwad property, or lease with premium of such property for a period of with 12 years or less, shall be valid, unless it is executed for consideration and tarwad necessity, and with the consent of all the major members of the tarwad.
Such necessity and consent may be presumed to exist, if the transaction has the written consent of the senior Anandaravan of the Karanavan's Thavazhee, and of every thavazhee collateral to the same, if any.
Debt to be binding 23. No debt contracted by should be for the karnavan or other tarwad necessity. managing member shall bind the tarwad, unless it be for tarwad necessity. Presumption as 24. Where a karnavan creates to tarwad necessity, a mortgage without any term or a lease for a period of twelve years or less
without any premium therefor, in respect of tarwad property, or incurs a debt, alleging the existence of tarwad necessity, such necessity snail, as between the mortgagee, lessee, or creditor on the one part and members of the tarwad who have not assented to the mortgage, lease, or debt on the other part, be presumed to have existed, if the mortgagee, lessee, or creditor, after using reasonable care to ascertain the existence of such necessity, has acted in good faith."
Section 21 deals with either sale of tarwad immovable property or mortgage with possession of the same for more than 12 years or lease for more than 12 years. Section 22 has nothing tc do with sale. It deals with mortgage with possession for 12 years or less and also with. lease with premium of tarwad property for a period of 12 years or less. Section 23 does not deal with immovable property at all; it deals with debt contracted by the karnavan. or managing member. Section 24 enacts a presumption regarding the existence of tarwad necessity in the case of a mortgage without any (term, a lease without premium for 12 years or a debt contracted by the karnavan, if the mortgagee. lessee or creditor acted in gooa faith after reasonable enquiry.
98. A scrutiny of these sections reveals that the legislature intended that different consequences should flow regarding the three different kinds of transactions covered by Sections 21 to 23. Section 21 dealing with an outright alienation like sale and alienations like mortgage with possession and lease both for terms longer than 12 years lays a complete embargo, as it were on the power of the karnavan or managing member to enter into such transactions. The section lays down that no karnavan or other managing member shall sell tarwad immovable property or mortgage it with possession for more than 12 years or lease it for a period of more than 12 years except for consideration and tarwad necessity and with the written consent of all the major members of the tarwad. This clearly shows that the three requirements of consideration, tarwad necessity and the written consent of all the major members of the tarwad are conditions precedent which have to be complied with betore the karnavan could enter into such transactions as contemplated by the section. If these conditions are not complied with, the karnavan's or managing member's act is ineffective or nonexistent so as to bind the tarwad.
99. Section 22 enacts that no mortgage with possession of tarwad property tor 12 years or less or lease with premium of such property for 12 years or less shall be valid, unless it is executed for consideration, tarwad necessity and with the consent of all the major members of the tarwad- In this case the difference in the language of the section, according to me, points in the direction of a less stringent prohibition against the act of the karnavan. The expression used in the section is that such a transaction shall not be "valid." The second paragraph of this section enacts a presumption regarding the necessity and the consent and it may also be noted that the consent in this case need not be in writing either. Section 23 is still less stringent and in this case to make a debf. contracted by the karnavan or the managing member binding on the tarwad the only essential condition is that if should have been contracted for tarwad necessity. The consent of the major members is not required at all in this case. Then comes Section 24, which deals with the presumption regarding tarwad necessity and it is noteworthy that this does not apply to cases covered by Section 21.
100. From the aforesaid consideration of the language of these sections I am inclined to come to the conclusion that in the case of a transaction contemplated by Section 21 the statute imposes an absolute prohibition on the karna-vans's powers, unless the conditions mentioned therein are satisfied. If those conditions are not complied with the transaction is a nullity as far as the tarwad is concerned and the other major members, whose consent should have been taken prior to the transaction, cannot later on ratify or validate the transaction so as to make it valid ab initio.
On the other hand, a transaction covered by Section 22, according to me, is not an absolute nullity as far as the tarwad is concerned and it will bind the tarwad if it is not avoided by the other members of the tarwad, for the reasons mentioned in the section like lack of consideration tarwad necessity or absence or consent of the major members. The case covered by Section 23 is treated more in the nature of an ordinary act of management by the karnavan or managing member and it will also bind the tarwad if it be for tarwad necessity. Section 24 enacts a presumption regarding tarwad necessity in the case of a mortgage without any term, a lease without any premium for 12 years or' less and a debt contracted by the karnavan, if the mortgagee, lessee or creditor, after using reasonable care to ascertain the necessity, acted in good faith. These provisions, according to me, indicate unmistakably, that the legislature deliberately intended that different consequences should flow in the three different cases enumerated in Sections 21 to 23 and therefore I would, with due respect, disagree with my learned brethern in their view that the difference in language of these three sections is inconsequential.
101. The view I am taking has already been taken by a Division Bench of this Court in 1961 Ker Lj 910, to which I was also a party. That case arose under the Cochin Nambudiri Act (XVII of 1114). Therein also we took a similar view on the wording of the relevant sections of the Act. I would only extract paragraph 14 of that decision which, according to me, lays doww the correct position, Paragraph 14 reads:
"We see nothing wrong in a Legislature providing that certain conditions precedent should be satisfied before a transaction can he considered as valid, and stipulating at the same time that the plea of invalidity on the basis of a non-satisfaction of the conditions precedent shall be confined to those for whose benefit those conditions were engrafted. And that is exactly what seems to have been done.
102. The next question is whether the impugned sale, which was nullity as far as the tarwad was concerned, could have changed the character of the possession of the mortgagee into that of an owner, so as to make it adverse against the tarwad. The obvious answer is that it could not have any such result, for it was a nullity and was non-existent so lar as the tarwad was concerned and therefore It could not have put an end to the mortgage and constituted the mortgagee the owner of the property so as to prescribe against the tarwad. The possession of the mortgagee was unatfected ana the period of limitation prescribed for redemption of the mortgage could not be shortened by such a sale and hence the possession of the. mortgagee even after the sale could not be adverse to the tarwad.
103. In view of the foregoing discussion hold that the sale impugned in the suit was a nullity as far as the tarwad was concerned and the suit to redeem the mortgage, ignoring the sale, brought within the time allowed by the law of limitation for such redemption, was competent and not barred- The result is the decision of the lower appellate court is upheld and the Civil Miscellaneous Appeal is dismissed.
104. In view of the majority opinion, the Civil Miscellaneous Appeal is allowed, and setting aside the order of remand the cours below is directed to restore the appeal to its file and dispose of the same in accordance with law.
105. The costs of this C.M.A. will follow the result of the decision in the court below.