Requirement of pre-requisite conditions for exercise of power u/s 33 by a Karnavan.

This appeal raises certain question of law under the Madras Marumakkattayam Act, 1932, on which it was stated at the bar there is no direct authority. The circumstances under which the questions arise are these. Certain members of a Marumakkattayam tarwad constituting a tavazhi filed a suit for partition in O.S. No.992 of 1943 on the file of the District Munsif of Nadapuram.

To this suit two persons, viz., defendants 43 and 45 who claim to be alienees of the shares of some of the tavazhis belonging to the tarwad were made parties. In all. there were 7 alienations. Exhibit D-1 is an assignment deed executed by the 44th defendant to the 43rd defendant. Exhibit D-4 is an assignment executed by defendants 37 to 42 and one Yasoda, also in favour of the 43rd defendant. Exhibit D-2 is a sale deed executed by defendants 13 to 16, 35 and 36 to the 43rd defendant in respect of their shares in the properties of the tarwad. Of these persons defendants 15, 16, 35 and 36 were minors on the date of Exhibit D-2. They were represented in that document by the 13th defendant who purported to act as their guardian. Exhibit D-3 is an assignment in favour of the 45th defendant executed by defendants 5 to 12, the 6th defendant acting for himself and as guardian of defendants 9 to 12. Exhibit D-5 is an assignment executed in favour of the 43rd defendant by defendants 18 to 23 and 61 to 63. Of these, defendants 21, 22, 23, 61, 62 and 63 were minors and they were represented in the transaction by their father who purported to act as their guardian. Exhibit D-6 is an assignment deed executed in favour of the 43rd defendant by defendants 24, 25, 27 to 30, 46 to 60 and another minor child of the 52nd defendant. In this document the 27th defendant purported to act as the guardian of defendants 28 to 30 and the 25th defendant purported to act as the guardian of minor defendants 53 and 56 to 60. Exhibit D-7 is an assignment deed in favour of the 45th defendant executed by defendants 3, 17, 33 and 34. In this document the 17th defendant purported to act as the guardian of defendants 33 and 34. All these documents purported to convey to the assignees the shares which the major executants and the minors claimed to have in the properties of the tarwad, which form the subject-matter of the partition suit. The learned District Munsif specifically remarked:

“in none of these documents was it mentioned that any tavazhi right was intended to be conveyed.”

So far as two of these documents, viz., Exhibits D-1 and D-4 are concerned, the learned District Munsif had no difficulty in upholding the claims of the alienees. -It may be remarked here that the 44th defendant who executed Exhibit D-1 and defendants 37 to 42 who executed Exhibit D-4 appear-all of them-to have been majors. They also constituted separate tavazhis. Moreover there was no dispute about these documents. But the other five documents purported to convey the interests of the minor members in the concerned tavazhis. These minors were at first represented in the suit by their relations, but the trial Court considered that their interests would not be adequately safeguarded unless a Court guardian was appointed, and, accordingly it did so. The Court guardian took the plea that the assignment would not bind the minors. On that defendants 43 and 45 wanted to lead evidence to show

“that the sale deeds had been executed for the necessity or benefits of the minors, that the person who acted as guardians of the minors in the sale deeds are their guardians, and that the fathers of the various minors assented to the execution of the various sale deeds”.

The learned District Munsif refused to receive this evidence on the ground that it related to matters which had not been pleaded. Defendants 43 and 45 then asked for leave to amend their written statements, but leave was refused. In the result the claims of defendants 43 and 45 based on Exhibits D-2, D-3, D-5, D-6 and D-7 were negatived.

The learned Subordinate Ju