The right of a junior member of an illom or tarwad to question unauthorised alienations of illom or tarwad property is an individual and personal right of his. The inaction of one junior member cannot prevent the action of another. The right of suit of each junior member is distinct and individual, though similar, and therefore common. The right to question an improper alienation by the karanavan of a tarwad is an individual right vesting in every anandaravan by reason of his position as such. The right of a junior member of an illom or tarwad to question unauthorised alienations of illom or tarwad property is an individual and personal right of his. The inaction of one junior member cannot destroy or affect the equal proprietary right of another.

Headnote:
LIMITATION ACT - S.7 - RIGHT OF JUNIOR MEMBER OF TARWAD TO QUESTION UNAUTHORISED ALIENATION OF TARWAD PROPERTY - WHETHER AN INDIVIDUAL AND PERSONAL RIGHT - WHETHER INACTION OF ONE JUNIOR MEMBER CAN PREVENT ACTION OF ANOTHER - WHETHER RIGHT OF SUIT OF EACH JUNIOR MEMBER IS DISTINCT AND INDIVIDUAL, THOUGH SIMILAR, AND THEREFORE COMMON - WHETHER THE RIGHT TO QUESTION AN IMPROPER ALIENATION BY THE KARANAVAN OF A TARWAD IS AN INDIVIDUAL RIGHT VESTING IN EVERY ANANDARAVAN BY REASON OF HIS POSITION AS SUCH - WHETHER THE RIGHT OF A JUNIOR MEMBER OF AN ILLOM OR TARWAD TO QUESTION UNAUTHORISED ALIENATIONS OF ILLOM OR TARWAD PROPERTY IS AN INDIVIDUAL AND PERSONAL RIGHT OF HIS - WHETHER THE INACTION OF ONE JUNIOR MEMBER CAN DESTROY OR AFFECT THE EQUAL PROPRIETARY RIGHT OF ANOTHER.
Fact of the Case:

Suit for partition of a Nambudiri Illom ignoring certain alienations executed by its karanavan, the 1st defendant, in favour of defendants 6 to 156. At the time of the suit, the illom consisted of six members, namely the 1st defendant, his wife the 2nd defendant, and their children, the 3rd defendant, the plaintiff & the defendants 4 and 5 in the order of seniority. In passing the preliminary decree for partition the court below has found the oral lease claimed by the 12th defendant not true, and many of the impugned alienations unsupported by illom necessity or benefit, and set them aside. Among the alienations so set aside were: Ext. B33 dated March 28,1950, in favour of the 13th defendant; Ext. B34 dated February 28,1950, Ext. B35 dated October 14,1946, and Ext. B36 dated July 3,1944, the interests where under have devolved on the 17th defendant; Ext. B39 dated November 13,1936, in favour of the 19th defendant; and Ext. B75 dated May 28, 1938, to the predecessor-in-interest of defendants 151 and 152. This appeal is by the disappointed alienees defendants Nos. 12,13,17,19,151, and 152.
Finding of the Court:

The right of a junior member of an illom or tarwad to question unauthorised alienations of illom or tarwad property is an individual and personal right of his. The inaction of one junior member cannot prevent the action of another. The right of suit of each junior member is distinct and individual, though similar, and therefore common. The right to question an improper alienation by the karanavan of a tarwad is an individual right vesting in every anandaravan by reason of his position as such. The right of a junior member of an illom or tarwad to question unauthorised alienations of illom or tarwad property is an individual and personal right of his. The inaction of one junior member cannot destroy or affect the equal proprietary right of another.
Issues: Whether the right of a junior member of a tarwad to question unauthorised alienations of tarwad property is an individual and personal right of his? Whether the inaction of one junior member can prevent the action of another? Whether the right of suit of each junior member is distinct and individual, though similar, and therefore common? Whether the right to question an improper alienation by the karanavan of a tarwad is an individual right vesting in every anandaravan by reason of his position as such? Whether the right of a junior member of an illom or tarwad to question unauthorised alienations of illom or tarwad property is an individual and personal right of his? Whether the inaction of one junior member can destroy or affect the equal proprietary right of another?
Ratio Decidendi: The right of a junior member of an illom or tarwad to question unauthorised alienations of illom or tarwad property is an individual and personal right of his. The inaction of one junior member cannot prevent the action of another. The right of suit of each junior member is distinct and individual, though similar, and therefore common. The right to question an improper alienation by the karanavan of a tarwad is an individual right vesting in every anandaravan by reason of his position as such. The right of a junior member of an illom or tarwad to question unauthorised alienations of illom or tarwad property is an individual and personal right of his. The inaction of one junior member cannot destroy or affect the equal proprietary right of another.
Final Decision: Appeal allowed to the extent of reversing the decree in regard to the cancellation of Ext. B75; enhancing the amount decreed repayable to the 19th defendant charged on items 7 to 12 of plaint BI schedule to Rs. 843-6 nP. instead of Rs. 543-6 nP; and discharging the award of interest thereon in the preliminary decree and directing it to be reconsidered along with the plaintiff's claim to mesne profits. In other respects, the appeal fails and is dismissed.

Judgement Key Points

Key Points: - The right of a junior member to question unauthorised alienations is an individual and personal right of each member. (!) - The inaction of one junior member cannot prevent or destroy another's right to sue. (!) - The right to question improper alienations by the karanavan vesting in every anandaravan by virtue of his position as such is individually held, not a common joint action. (!) - The court discusses balancing whether a discharge for limitation purposes can be given by the managing member or karanavan without other members’ concurrence, with Privy Council guidance supporting a representative discharge concept for Tarwad/Marumakkathayam. (!) (!) (!) - In the Marumakkathayam tarwad context, only the managing member (karanavan or manager) may give a discharge within S.7; a non-manager junior member cannot. (!) (!) - Ext. B39 (1936 sale) is within time for the plaintiff’s suit, as it concerns an individual right to challenge, not barred by limitation due to inaction of a non-dispositive member. (!) (!) - The tarwad is a legal entity with rights and liabilities; each member has an equal proprietary interest, and actions to protect the tarwad’s properties may be brought by any competent member or representative. (!) (!) - The appeal’s outcome includes upholding the time there’s a discharge issue and modifying certain monetary relief, while discharging interest award pending final decree. (!) (!) (!)

What is the rights of junior members of a tarwad/illom to question unauthorised alienations of tarwad/illom property?

What is the effect of the inaction of one junior member on another’s right to challenge such alienations?

What is the proper interpretation of S.7 of the Indian Limitation Act (and analogous provisions) regarding discharge and limitation for tarwad/junior-member actions?

Judgment :-

1. This appeal has arisen in a suit for partition of a Nambudiri Illom ignoring certain alienations executed by its karanavan, the 1st defendant, in favour of defendants 6 to 156. At the time of the suit, the illom consisted of six members, namely the 1st defendant, his wife the 2nd defendant, and their children, the 3rd defendant, the plaintiff & the defendants 4 and 5 in the order of seniority. In passing the preliminary decree for partition the court below has found the oral lease claimed by the 12th defendant not true, and many of the impugned alienations unsupported by illom necessity or benefit, and set them aside. Among the alienations so set aside were:

Ext. B33 dated March 28,1950, in favour of the 13th defendant;

Ext. B34 dated February 28,1950, Ext. B35 dated October 14,1946, and Ext. B36 dated July 3,1944, the interests where under have devolved on the 17th defendant;

Ext. B39 dated November 13,1936, in favour of the 19th defendant; and

Ext. B75 dated May 28, 1938, to the predecessor-in-interest of defendants 151 and 152. This appeal is by the disappointed alienees defendants Nos. 12,13,17,19,151, and 152.

2. S.5 of the Madras Nambudiri Act 21 of 1933, before its amendment, in 1951, provided:

"(1) Except for consideration and for illom necessity or benefit and with the written consent of the majority of the major members of the illom, no karanavan shall sell immovable property of the illom or mortgage with possession or lease such property, for a period exceeding twelve years.

(2) No mortgage with possession or lease with premium returnable wholly or in part of any such property executed by a karanavan for a period not exceeding 12 years shall be valid unless such mortgage or lease is for consideration and for illom necessity or benefit."

It then follows that an alienation, being an assignment or a mortgage with possession or lease with returnable premium, of illom land, would not be valid unless it was for illom necessity or benefit. Counsel for the appellants was not able to make out illom necessity or benefit in respect of any of the aforesaid alienations and therefore the finding of the court below in regard thereto has to be accepted.

The alienations evidenced by Exts. B32 to B36 were within a period of 12 years prior to the institution of the suit. No bar of limitation arose in regard to them, the Nambudiris being governed by Hindu Law, though modified by well established customs of their own, as has been held in Narayanan v. Varnasi (AIR. 1947 Madras 76 F. B.). Their cancellation decreed by the court below has therefore to be affirmed.

3. But different questions arise as regards Exts. B39 and B75.

Though this suit was instituted on March 16, 1953, there was then no prayer to set aside Ext. B75; nor were the concerned parties or property included in the plaint. It was by an amendment on October 24,1956, that defendants 151 and 152 were impleaded, the concerned property included as item 80 in the plaint BI schedule and a prayer to set aside the alienation, Ext. B75, added. By that time, the plaintiff was over 21 years of age, and therefore the benefit of S. e of the Limitation Act was exhausted. Under S.22 of the Limitation Act, where, after the institution of a suit, a new defendant is added, the suit, as regards him, has to be deemed instituted when he was so made a party. The suit in regard to Ext. B75 has therefore to be held barred by limitation.

4. In regard to Ext. B39, executed more than 12 years before date of suit, a question of limitation urged before, but repelled by, the court below was strongly pressed by the learned Advocate-General; and it is that, though the plaintiff was within three years of his attainment of majority on the date of the suit, the 3rd defendant, his elder sister, who had not joined in the alienation and could therefore have sued for its cancellation, had attained majority more than three years before the date of suit, and by her inaction had brought about a bar of limitation

Click Here to Read the rest of this document

Judicial Analysis