Dr. C. Annacheriam And Another vs Achotha Menon And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 426 of 1960

Decision Date: 3 May 1962

Coram: J.R. Mudholkar, A.K. Sarkar, K. Subbarao

In the matter titled Dr. C. Annacheriam and another versus Achotha Menon and others, the Supreme Court of India delivered its judgment on 3 May 1962. The opinion was authored by Justice J. R. Mudholkar, who was joined on the bench by Justice A. K. Sarkar. The petitioners were Dr. C. Annacheriam and another individual, while the respondents were Achotha Menon and others. The case is reported in the 1963 volume of the All India Reporter at page 128 and also in the 1963 Supplement to the Supreme Court Reports (3) at page 986. The dispute arose under the provisions of the Marumakkattayam Act, 1932 (Madras Act 22 of 1933), specifically section 33, which deals with the power of delegation by a Karnavan in a tarwad.

The factual backdrop involved a Karnavan of a tarwad who had taken up employment in Bombay and consequently appointed a senior member of the tarwad, identified as the second‑most senior Anandravan, to act as his mukthiar by executing a power of attorney. The appointment was made because the most senior Anandravan was residing in Madras at the time. Acting as mukthiar, the appointed individual, together with other adult members of the tarwad, sold several tarwad properties in order to discharge the tarwad’s debts, including the specific property that later became the subject of the suit. The Karnavan, aided by two minor members of the tarwad, instituted a suit seeking to set aside the registered assignment deed executed by the mukthiar and the other adult members. The trial court held that the sale in favour of the first respondent bound the tarwad and dismissed the suit. On appeal, the High Court reversed the trial court’s decree, holding that although the sale was justified on grounds of necessity, it could not bind the tarwad because the Karnavan had not joined the transaction. The High Court further concluded that the power of attorney executed by the Karnavan in favour of the mukthiar could not effectively delegate the Karnavan’s authority over tarwad property, and therefore the transaction should fail as an act of the tarwad.

The respondents contended that while a Karnavan may, under a family Karar, delegate his right to manage the property to another, he cannot delegate the performance of duties that arise in connection with the management of the tarwad. Accordingly, they argued that the defendant acting as mukthiar of the Karnavan was not competent to effect the sale together with other adult members of the tarwad. The Supreme Court, after examining the nature of the family Karar, held that a Karnavan’s power of management may be limited by the Karar and may also be delegated, provided that the delegation does not encompass the entire suite of powers inherent in the Karnavan’s status. The Court emphasized that the properties belong to all members of the tarwad and that, apart from the right of management, the Karnavan possesses no greater interest than the other members. Moreover, by virtue of his status, the Karnavan owes specific duties to the members of the tarwad, one of which is the management of the properties. The Court concluded that such managerial powers can be lawfully delegated to an Anandravan under a family Karar when circumstances warrant, and that the delegation in the present case was therefore competent and did not invalidate the sale.

In the view of the Court, the members of a tarwad may find that their collective interests are best served when the duties owed to them are performed by an anandravan in appropriate circumstances. The Court explained that such a situation provides sound reasons for allowing a family karar to delegate the Karnavan’s management authority to an anandravan. Consequently, when the Karnavan is unable to fulfil his responsibilities concerning the management of the tarwad property, it becomes necessary for another person to look after the property and to possess the requisite power to manage it. The Court held that to treat the delegation of the Karnavan’s management power as incompetent would inevitably prejudice the family’s interests. Moreover, the Court observed that it is not a realistic proposition to require the family members to approach the Karnavan, especially when he is situated at a distant location, for his approval of every transaction, whether it be a sale, mortgage, lease, or any other disposition. Accordingly, the Court affirmed that an agreement or karar entered into between the Karnavan and the family members, by which the power of management of the tarwad—together with the duty to decide, during the Karnavan’s absence, whether a particular alienation should be effected to meet a family necessity—is lawfully delegated to a mukthiar, is a perfectly valid arrangement. The Court clarified that delegating a revocable management power does not amount to delegating the office of the Karnavan; the Karnavan remains the Karnavan, while his managerial powers may be exercised by the mukthiar during his absence, subject to the concurrence of the adult members whenever the situation calls for it.

The Court further explained that because the delegation is effected through a power of attorney, the Karnavan retains the ability to terminate the delegation by revoking the power of attorney, and therefore the delegation does not constitute a renunciation of his office. The Court noted that, despite the execution of such a power of attorney, the Karnavan does not cease to exist as the Karnavan. In the facts before the Court, the plaintiff identified as No 1 did not execute a power of attorney before departing for Borneo, and subsequently a number of properties were alienated by the mukthiar in cooperation with other anandravan members. The Court observed that none of those alienations, except the one that is the subject of the present suit, have been challenged over the intervening years. This long‑unquestioned conduct led the Court to infer that those dispositions were made pursuant to the power of attorney and that the power of attorney itself had been executed by plaintiff No 1 in accordance with a family karar. The Court relied upon the authorities cited in Cherukomen v. Ismala (1871) 6 M. H. C. R. 145, Kenath, Puthen Vittil Tavazhi v. Narayanan (1904) 1 L. R. 28 Mad. 182, Chappan Nayar v. Assen Kutti (1889) I.L.R. 12 Mad. 219, Krishnan Kidavu v. Raman (1916) I.L.R. 39 Mad. 918, K. Ramankutty Menon v. Seevi Umma, A.I.R. (1929) Mad. 266 and P. K. Govindan Nair v. P. Narayanan Nair (1912) 23 M. L. J. 706, which support the principle that a properly executed power of attorney, even when delegated, does not amount to a relinquishment of the Karnavan’s status.

In this case the Court recorded that the matter before it was Civil Appeal No 426 of 1960, an appeal from a judgment and decree dated 14 October 1958 of the Kerala High Court, Ernakulam, rendered in A S No 297 of 1955. The appellants were represented by counsel identified as E M K Nambyar, S N Andley, Rameshwar Nath and P L Vohra, while the respondents numbered 1 through 3 were represented by counsel named A V Viswanatha Sastri and Sardar Bahadur. The judgment was delivered on 3 May 1962 by Justice Mudholkar.

The Court explained that the appeal arose from a decree of the Kerala High Court that had been certified under Article 133(1) of the Constitution. The dispute originated in a suit filed by a Karnavan of a tarwad together with two minor members of the same tarwad. The plaintiffs sought to set aside a registered assignment deed, referred to in the judgment as a sale deed, which had been executed by the Mukhtiar Karunakara Menon, a junior member of the tarwad, along with all other adult members of the tarwad. The deed was purportedly executed on 17 June 1117 (M.R.). The Court noted that the exact Gregorian date could not be ascertained, but the parties accepted that the document had been executed in February 1942. The Court further observed that the precise date was not material to the issues before it.

The Court described the deed as a sale deed whereby certain property belonging to the tarwad was sold to the first defendant, who was appellant No 1, for a total consideration of eight thousand rupees. From this amount, five thousand two hundred and fifty rupees were required to discharge a debt due under a mortgage decree against the tarwad. The plaintiffs challenged the sale on several grounds. First, they contended that the outright sale of the suit property for eight thousand rupees could not be justified as a means of satisfying the decretal debt of five thousand two hundred and fifty rupees because the prevailing market price of comparable immovable property was forty‑six thousand rupees.

Second, the plaintiffs alleged that the sale had been effected through collusion between the first defendant and the third defendant, Karunakara Menon, who was the Mukhtiar of plaintiff No 1. Third, they argued that, upon proper construction of the power of attorney, the Mukhtiar could execute a sale deed only if the Karnavan, in his discretion, deemed it necessary for meeting pressing needs or for the benefit of the tarwad, and that the Karnavan had not consented to the execution of the sale deed, rendering it non‑binding on the tarwad.

Fourth, the plaintiffs asserted that if the power of attorney was construed as having vested discretionary authority in the third defendant, such delegation would exceed the powers of the Karnavan and would be void and inoperative under law; any act purportedly done under such colour of authority could not bind the tarwad. Fifth, the plaintiffs claimed that plaintiffs 2 and 3 were not represented by their legal guardian, which further undermined the validity of the transaction.

The Court observed that the purported representation by the mother of the plaintiffs, who was the fifth defendant, as their guardian was ineffective because, under the law, she could not act as guardian in this transaction; consequently, the sale deed was declared null and void. The Court further held that defendants two, four and five, who had joined the sale deed, had done so on the assumption that it was an intended conveyance of the rights of the taward. Since the deed was not legally effective to transfer the rights of the taward because it was not a valid act of the Karnavan, the Court could not regard the deed as having been intended to be executed by those three defendants. Moreover, the Court found that those defendants had not examined the propriety or necessity of the transaction; rather, they were misled by the statements and representations of the third defendant regarding the alleged necessity of executing the deed. The Court noted that the plaint challenged the transaction on three additional minor grounds, but it deemed it unnecessary to refer to them because no arguments concerning those grounds had been advanced before the Court.

The first defendant, who was a woman doctor, contended that the transaction was valid, operative and could not be set aside on any of the grounds raised by the plaintiffs. She argued that, apart from the decretal debt, there were other outstanding debts of the taward that required satisfaction and that the properties in dispute had been attached in execution of a decree obtained against the taward in another suit. She maintained that, after making due inquiries and relying on the representations made by the assignors, she believed that the entire amount of Rs 8,000 was needed to discharge the debts binding on the taward, and that she had entered into the transaction in good faith. She stated that the price she paid for the property was the prevailing market price for similar lands in the locality and that she had subsequently spent Rs 8,000 on levelling the land and strengthening the embankments. According to her, the current increase in the value of the land was the reason the plaintiffs and other members of the taward were attempting to defeat her rightful ownership. She further asserted that a proper construction of the power of attorney showed that the third defendant was authorized by plaintiff No 1, as Karnavan, to act on his behalf in all matters relating to the taward, and that it was incorrect to construe the power of attorney as a delegation of the entire power of the Karnavan. She admitted, however, that at the time of executing the sale deed it was not possible to obtain the written consent of the Karnavan, plaintiff No 1. Finally, she referred to several similar transactions entered into by the third defendant in which other adult family members had joined, noting that none of those transactions had been challenged by the plaintiffs, which suggested acceptance of the validity of such transactions.

It was observed that the defendant No 3 had entered into several transactions together with other adult members of the family and that none of those transactions had been contested by the plaintiffs, which suggested that the plaintiffs had accepted the validity of similar dealings. The trial court therefore concluded that the sale made in favour of the first defendant bound the tarwad and consequently dismissed the suit. In the original suit the plaintiffs had also sought an order for mesne profits in addition to possession, but the trial court dismissed that claim as well because its decision on the main issue rendered any further finding unnecessary. For the same reason the trial court did not address the allegation that the first defendant had made improvements to the property. On appeal, the High Court set aside the trial court’s decree and restored the suit. Before the High Court the plaintiffs‑respondents challenged the validity of the alienation on three grounds: (i) the failure to join the Karnavan in the execution of the sale deed; (ii) the claim that the consideration for the transaction was inadequate; and (iii) the assertion that the transaction lacked legal necessity. The High Court held that the sale was justified on the ground of necessity and that the consideration was adequate, but it nonetheless concluded that the transaction could not bind the tarwad because the Karnavan had not been a party to it. The Court further held that the power of attorney dated 22 March 1939, executed by the first plaintiff in favour of the third defendant, could not be treated as a valid delegation of the first plaintiff’s authority with respect to the tarwad property; consequently, the transaction was deemed to have failed as an act of the tarwad. In reversing the trial court’s decree and granting the suit, the High Court ordered that the plaintiffs would obtain possession of the property upon depositing Rs 8,000, which represented the consideration paid by defendant No 1 and the benefit received by the tarwad, together with an additional deposit of Rs 2,530 for the amount spent by defendant No 1 on improvements. The Court also directed that the plaintiffs be entitled to mesne profits from the date the suit was filed, assessed at 1,200 pares of paddy per annum until possession was recovered. The plaintiffs‑respondents did not contest the necessity of the transaction nor the adequacy of the consideration; therefore, the remaining issue for consideration was whether defendant No 3, acting as the Mukhtiar of the Karnavan, possessed the competence to effect the sale in conjunction with the other adult members of the tarwad. On this point, counsel for the appellants, who were defendant No 1 and defendant No 6, a cultivator of the lands under defendant No 1, advanced the following arguments: (1) that when all members of the tarwad join in executing a sale deed, the question of delegation by the Karnavan does not arise.

In regard to a sale deed, the Court explained that the question of delegation by the Karnavan does not arise when the deed is executed by the members of the tarwad themselves. The Court further held that where a Karnavan challenges a sale on the ground that his Mukhtiar failed to obtain his consent, such a sale may be set aside only if the Karnavan is able to prove the terms of the power of attorney and also demonstrate that he did not assent to the transaction. Likewise, when a Karnavan contests a sale because it was effected under a power of attorney which, in his view, amounts to a delegation of his authority as Karnavan, the sale cannot be set aside unless the power of attorney itself is produced. The Court noted that the last two grounds rely upon the absence of the power of attorney in the present case and that no explanation was offered for its non‑production. According to the averments made by the defendant in the written statement, she had issued summonses against plaintiff No. 1 and defendant No. 3 directing them to produce the power of attorney in court, but neither party produced the document nor made any statement on that issue. Counsel for the appellants, relying upon passages in the late Justice Sundara Aiyar’s “Treatise on Malabar and Aliyasanthana Law” (1922 edition), argued, through the authority of Mr. N. K. Nambiar, that when all members of the tarwad join in a transaction, that transaction is binding upon the entire tarwad.

Mr. Nambiar further contended that a Karnavan is, of course, entitled to alienate tarwad property for family necessity, but where a transaction is entered into by all members of the tarwad, the existence of such necessity need not be established. He described this principle as the common law of Malabar. Because the family resides in the part of Kerala that was formerly part of the Province of Madras, they are governed by the common law as modified by statute. The principal statute applicable to this point is the Madras Marumakkattayam Act, 1932 (Madras Act No. XXII of 1933). Although the Act has been amended by later Madras and Central enactments, those amendments were not relevant to the present appeal. Under the common law, the Karnavan possessed complete power to alienate tarwad property for necessity and was the sole judge of what constituted necessity. Section 33 of the Act, however, limits that power by requiring that for certain transactions—including a sale for the tarwad’s necessity or benefit—the written consent of the majority of the major members of the tarwad must be obtained by the Karnavan. According to Mr. Nambiar, this provision does not diminish the right of all members of the tarwad, acting together, to partition the tarwad property among themselves or to alienate it in any manner they choose. He therefore characterized Section 33 as dealing only with a portion of the subject of alienation of tarwad property and not the entirety of it. Under the common law, as he explained, property belonging to a tarwad is the property of all the male and female members constituting it, and the Karnavan does not enjoy a greater personal right than the junior members.

The judgment explained that the tarwad property belonged jointly to both male and female members of the family, and that the Karnavan possessed no greater personal entitlement than any junior member. In effect, every family member held equal rights in the property. While the Karnavan retained the exclusive authority to manage the tarwad assets, his managerial power was likened to that of a manager in a Mitakshara family and did not confer ownership of the property to him alone. Ownership vested collectively in all members of the tarwad, and the Karnavan’s right to administer the family property was subject to regulation by the unanimous consent of the family members. The judgment noted that in Malabar it was common for family karars to impose limits on the Karnavan’s powers. When such restrictions were imposed through the common consent of the family, which necessarily included the Karnavan’s own assent, the Karnavan could not ordinarily challenge the binding effect of the karar upon himself.

The Court described the factual background that led the first plaintiff to execute a power of attorney. The Karnavan had left his native place for Borneo after taking up an appointment there, creating a practical need for representation. The senior anandaravan of the tarwad, identified as defendant No 2, was employed by the Madras Government and was required to remain away from the family house throughout his service. The third defendant, Karunakara Menon, was next in seniority and was residing in the family house; consequently, the first plaintiff, Achuta Menon, granted him the power of attorney. The judgment also observed that the fifth defendant, Leelavathi Amma, was the wife of Dr P B Menon of Calicut and lived with him, rendering her unable to supervise the family property. Similarly, the fourth defendant, Govinda Menon, could not attend to the family affairs because he was employed elsewhere. The Court noted that the family was evidently facing difficulties, and, according to counsel Mr Nambiar, it was essential for Achuta Menon to delegate as much authority as the law permitted to the person residing in the family house so that the property could be managed in the beat interests of the tarwad. For this reason, the power of attorney was executed in favour of Karunakara Menon, the third defendant. The High Court, in its judgment, did not deny the existence of a legitimate occasion for executing the power of attorney. However, the High Court held that even if such a power of attorney was executed in favour of the third defendant, the first plaintiff was not legally competent to empower the third defendant to alienate family property without obtaining the Karnavan’s consent. Because the power of attorney was not produced, the High Court examined the issue from two perspectives—full delegation and partial delegation. It first analysed the situation on the assumption that the power of attorney conferred full authority on the third defendant to act on behalf of the Karnavan, the first plaintiff, and to alienate the property without the Karnavan’s consent.

In its analysis, the High Court examined several decisions of the Madras High Court and concluded that giving the Karnavan such authority through a power of attorney amounted to delegating not only his proprietary rights but also his obligations toward the tarwad. The Court held that this delegation was illegal because the power of attorney, when it granted the Mukthiar – the third defendant – extensive authority, effectively transferred the Karnavan’s power, a result that the Marumakkattayam law, which governs the custom of Malabar, does not permit. The Court explained that if the delegation is limited and the power of attorney expressly states that the Mukthiar may act only as an agent of the Karnavan to execute a sale deed for the tarwad after obtaining the Karnavan’s consent, then, absent such consent, the transaction falls outside the Mukthiar’s competence. The Court found that no consent from the Karnavan had been obtained, and therefore the alleged sale could not be validated. The Court then turned to persuasive authority on the subject, noting that the case of Cherukoman v. Ismala, reported in 1871 at 6 M.H.C.R. 145, contained observations by Holloway J., a recognized expert in Marumakkattayam law, who asserted that Karnavanship could not be renounced. However, the Court pointed out that this view was not accepted in the later decision of Kenath Puthen Vittil Tavashi v. Narayanan, where the Full Bench expressly rejected the notion that a Karnavan is barred from relinquishing his office.

The Full Bench in that later case observed that there is no principled obstacle to a Karnavan renouncing his position, drawing a parallel with a trustee who may resign his trusteeship with appropriate court sanction or beneficiary assent. The Court noted that although a Karnavan holds a fiduciary role, he is not a trustee and therefore is not required to render accounts or surrender any surplus to the tarwad; consequently, the need for beneficiary concurrence that exists in trust law does not apply. The judgment emphasized, citing page 196, that recognizing a Karnavan’s right to renounce is beneficial to the tarwad because an unwilling Karnavan typically performs poorly as a manager. In its conclusion, the Court affirmed that a Karnavan may renounce his rights and duties to manage the tarwad’s affairs, and that this principle has continued to be upheld. Nevertheless, the Court stressed that while renunciation is permissible, a Karnavan cannot delegate or transfer his office. If he were to resign, the senior anandaravan would be entitled to succeed him, and allowing a Karnavan to transfer or delegate his office would jeopardize that right. Accordingly, any delegation that conveys all of the Karnavan’s rights and obligations to another member of the tarwad or to an outsider, without reserving the power to recall the delegation, would not be recognized by the courts.

When a Karnavan attempts to revoke a delegation, the Court indicated that it will not give effect to a delegation that effectively transfers the Karnavan’s office, because such a transfer would be tantamount to surrendering the very position of Karnavan. However, if it can be shown that the delegation is not absolute but is conditioned upon possible resumption by the Karnavan, the Court would treat the arrangement merely as a power of attorney. The Court referred to the authority in Cherukorman (1) (1904) 28 Mad. 182 and (2) (1871) 6 M.H.C.R. M. for this principle.

The Court then examined the question of how far a Karnavan may delegate his right to manage the family property. Referring to this issue, Muttusami Ayyar J. observed in Chappan’ Nayar v. Assen Kutti that Karnavanship in Malabar is a birthright that stems from the status of the senior male member of a tarwad. Consequently, it is a personal right that cannot be assigned to a stranger either permanently or for a limited time. If delegation is permissible at all, it is only to a member of the same tarwad, because the de facto manager assists the Karnavan by virtue of his connection with the tarwad and his interest in its property. The learned Judge further explained that an assignment of the right of Karnavanship is void, even if limited to a term, on the ground that the delegate is not a member of the tarwad. By contrast, a power of attorney limited to the management of specific property, where the agent remains subject to the general control of the Karnavan, may be valid because the Karnavan’s interest is not being assigned.

The Court illustrated this principle with the case of a Karnavan of a Malabar tarwad who, after being sentenced to imprisonment, delegated all his powers as Karnavan to his son for the duration of his incarceration. The High Court held that the delegation was ultra vires and void, citing (1) (1889) I.L.R. 12 Mad. 219, because the delegation was made in favour of a stranger. Although the delegate was the son, he belonged to his mother’s tarwad and therefore was a stranger with respect to his father’s tarwad. The Court then referred to the observation of Seshagiri Ayyar J. in Krishnan Kidaya v. Raman (1), where the judge explained that the Karnavan possesses two capacities: a temporal capacity in which he manages family properties, maintains the union members, and represents the tarwad in dealings with strangers; and a spiritual capacity in which he presides over ceremonies and performs religious duties. While a stranger cannot replace the Karnavan in his spiritual role, the judge expressed doubt that the Karnavan’s managerial duties could not be delegated to a stranger, noting that a receiver appointed pending a suit would have all the rights of a Karnavan in respect of management.

When a Karnavan is removed, the appointed officer assumes every managerial right that the Karnavan previously possessed. An agent who, with the unanimous consent of all members, manages the temporal affairs of a Tarwad cannot be placed in a less advantageous position. Consequently, the judge held that a family Karar that entrusted management to an individual who was no longer a member of the Tarwad was valid and operative. The Kerala High Court judges cited this decision in the appealed judgment, yet they apparently treated Justice Seshagiri Ayyar’s observation as obiter dictum. Conversely, they relied upon the decision in K Ramankutty Mennon v. Geevi Umma (2). In that case, the Karnavan of a Tarwad executed a document; the first part of the document contained his renunciation of his management powers of the Tarwad (1) (1916) I.L.R. 39 Mad. 918, 920. (2) A.I.R. (1929) Mad. 286. The second part of the document delegated those powers to two junior Anandravans in exchange for Rs 500 and a promise of future maintenance. The document stated that the named Anandravans were to act as the representatives of the Karnavan himself. The High Court held that the document must be interpreted either as a renunciation of the Karnavan’s powers or as a delegation of those powers. If it was a renunciation, the Court found it invalid because it did not constitute an absolute and unconditional renunciation, thereby failing to recognize the senior Anandravans’ right of succession. If it was a delegation, the Court declared it invalid because a Karnavan does not possess the authority to delegate his own powers. To support this conclusion, the High Court relied on the decision in Chappan Nayar v. Assen Kutty (1) and distinguished the Full Bench decision in Kenath Puthen Vittil Tavashi v. Narayanan (2). Undoubtedly, as a deed of renunciation, the document was invalid. Under the document, the joint managers would not become Karnavans; instead, they would be the Mukthiars of the Karnavan, possessing only the right to manage the Tarwad property. It cannot be disputed that a Karnavan’s management power may be restricted by a family Karar (see P. K. Govindan Nair v. P. Narayanan Nair (3)). However, the report does not clearly indicate whether the Karnavan’s delegation was made by virtue of a family Karar to which all members of the Tarwad were parties. Consequently, that case is distinguishable from the present case. Justice Seshagiri Ayyar, in Krishnan Kidava (4), held that the Karnavan may transfer the power of management to another person with the consent of all members of the Tarwad, provided that such transfer or delegation remains revocable. According to the learned Judge, a delegation of the power of management in favour of—(1) (1889) I.L.R. 12 Mad. 219, (2) (1904) I.L.R. 28 Mad. 182, (3) (1912) 23 M.L.J. 706, (4) (1916) I.L.R. 39 Mad. 216, 920.

The Court observed that even a delegation to a stranger could be valid, but it noted that this position did not agree with the view expressed in Chappan Nayar’s case (1), a view the learned Judge had chosen not to follow. The Court also pointed out that this position differed from the approach taken in several other reported cases. For the matters before it, the Court held that it was unnecessary to decide which of the two competing views was correct, because the delegation in the present case was made in favour of an anandravan, although not the senior-most anandravan. The decision previously cited therefore recognised two principles: first, that by means of a family karar the Karnavan’s power of management may be restricted; and second, that the Karnavan’s power of management may be delegated, provided that the delegation does not comprise the entire bundle of powers that the Karnavan enjoys by virtue of his status. The Court then asked whether, on the basis of these principles, the duties that arise for a Karnavan in connection with the management of the Tarwad can also be delegated to another person.

To answer that question, the Court reminded that an additional concept of Malabar law must be kept in mind. That concept is that the property of the Tarwad belongs to all members of the Tarwad and that, apart from the right of management, the Karnavan possesses no greater right or interest than the other members. This principle was made clear in the decision of Seshagiri Ayyar, J., in Govindan Nair’s case (2) and in the authorities referred to therein. By virtue of his status, the Karnavan owes certain duties to the members of the Tarwad, one of which is to manage the property in the best interests of those members. The members to whom the duties are owed may find that, in their own interest, those duties are best performed by an anandravan under appropriate circumstances. These considerations provide good reasons to justify delegating the Karnavan’s management power to an anandravan through a family karar and to uphold such a karar. Accordingly, where the Karnavan is unable to discharge his duties because he has left the country for an indefinite period or has taken up a job abroad that keeps him away for many years, there must be someone who can look after the family property and who has the authority to manage it. If the delegation of the Karnavan’s management power were held to be incompetent, the family’s interests would suffer. It is not practical to require the family members to obtain the Karnavan’s consent for every transaction—whether a sale, mortgage, or lease—when he is far away, nor is it reasonable to expect the Karnavan to travel back to his native place each time an alienation or encumbrance of the Tarwad property is needed for a family necessity (1) (1889) I.L.R. 12 Mad. 219. (2) (1912) 23 M.L.J. 706.

In this case the Court observed that there was no principle in Marumakkattayam law that would be breached by accepting an agreement or Karar made between the Karnavan and the family members, whereby the authority to manage the tarwad and the duty to decide, during the Karnavan’s absence, whether a specific alienation should be carried out for a family necessity, was delegated to the Mukthiar. The Court clarified that the Mukthiar could exercise this delegated authority only with the concurrence of the adult family members and only when the situation required it, and that such an arrangement represented a perfectly valid agreement.

The Court further explained that recognizing the permissibility of this delegation was consistent with the concept of joint ownership of the tarwad property by all family members, and also aligned with the established legal position that the powers of a Karnavan could be limited by the consent of all parties, a consent that necessarily included the Karnavan himself. Accordingly, the execution of a power of attorney of this nature functioned as a restriction placed by the family Karar on the Karnavan’s powers, rather than an elimination of his office.

The Court emphasized that delegating only a revocable management power did not amount to transferring the office of the Karnavan. The Karnavan remained the Karnavan, but his managerial powers could be exercised by the Mukthiar while he was away. Upon his return, the Karnavan could resume his managerial duties and could also, if appropriate, terminate the delegation by revoking the power of attorney. Thus, even after granting such a power of attorney, the Karnavan did not cease to exist, and there was no question that the delegation represented a renunciation of his authority.

The Court noted that the power of attorney executed by plaintiff No 1 in favour of defendant No 3 had been concealed by the defendants, and inferred that, had it been produced, it would have been detrimental to the interests of the plaintiffs and the other members of the tarwad. Consequently, the Court was entitled to assume that the power of attorney authorised the third defendant to dispose of family property, with the agreement of the other adult members, whenever he deemed it necessary for family needs.

Finally, the Court observed that plaintiff No 1 had executed the power of attorney before departing for Borneo, after which several properties were alienated by the Mukthiar in collaboration with other family members, and none of those alienations, except the one presently before the Court, had ever been challenged by plaintiff No 1. This long‑standing lack of challenge supported the inference that those disposals were carried out under the authority of the power of attorney, which itself had been executed by plaintiff No 1 according to a family karar. On this basis, the Court concluded that the appeal succeeded, ordered the respondents‑plaintiffs to bear the costs throughout, and allowed the appeal.