An alienation of tarwad property made by a karnavan in excess of his powers or in non-conformity with the conditions laid down by the concerned statute of personal law, is not void but only voidable at the instance of the tarwad.

MADHAVAN NAlR J.:- This appeal raises a question of some nicety, viz., whether an alienation of tarwad property, not in conformity with the conditions laid in Sec.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. It 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 Sec.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 plainiffs tarwad was disentitled to any further claim on the suit property and therefore dismissed the suit.

On appeal by the plaintiff, the Additional District 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 defendants 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 of 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 karnavau 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 of 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 21 of 1933, Sec.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