The grantor of a melcharth, if alive at the time of the expiry of the previous demise, is the only person entitled to avoid it, if it is in other respects a proper lease.

Pakenham Walsh, J.

1. The legal representative of the 2nd plaintiff in the suit is the appellant in this Court. Under Ex. B, dated June 26, 1919, the 2nd plaintiff got a melcharth of the suit property from the first plaintiff the sthani. The previous demisee who was the 1st defendant, had a kanom which did not expire till 1922. The 1st plaintiff (the sthani) and the 2nd plaintiff waited till the expiry of the [previous demise, and then instituted a suit for redemption. The 1st defendant transferred his rights to the 2nd defendant, who is now the principal contesting defendant and he impugned the validity of the melcharth and in the alternative claimed reclamation expenses in case the melcharth be found good. During the pendency of the suit, the 1st plaintiff died and the 15th defendant came on the record as his legal representative. He did not prosecute the suit but contented himself with appearing as a defendant and disputed the validity of the melcharth Ex. B, and he further executed a renewal in favour of the 2nd defendant. During the pendency of the appeal the 15th defendant died and his legal representative came on the record as 20th respondent. He supported the appellant and impugned the kanom granted by the 15th defendant to the 2nd defendant. The Court of first instance held that the melcharth having been granted before the expiry of the existing demise was void and dismissed the suit and the lower Appellate Court took the same view. The 2nd plaintiffs legal representative has preferred the present appeal.

2. There had been conflicting decisions in this Court as to whether a melcharth granted before the expiry of an already subsisting demise was void in law. An unreported decision in S.A. No. 774 of 1917 was relied on by the 2nd plaintiff. In that case it was held that where the grantor lived after the expiry of the subsisting demise, the subsequent demise could not be impugned merely on the ground that it was made before the subsisting demise had expired. But in Kunhammad v. Kunhunni (1920)38MLJ461 a Bench of this Court took the opposite view and held that a melcharth granted before the expiry of an existing demise was not good in law except for absolute necessity. In the present case there is a finding that there was no necessity for the melcharth Ex. B, and that finding of fact is not contested. Another unreported decision in S.A. No. 1147 of 1917 approved of the decision in S.A. No. 774 of 1917. These were both cases of a sthani granting a melcharth before the expiry of the time. The matter has since been set at rest by the Full Bench decision in Trivikrama Konuraya v. Sankaranarayanan Vazhunnavar (1932)63MLJ743 . From this decision it is clear that where a karnavan grants a melcharth, which is not otherwise improper, before the termination of an existing demise, that is not void per se, though it may be avoided by his successor if the latter is in office at the time of the expiry of the previous demise. It is not necessary for the purposes of the present case to go into the grounds on which the successor could avoid the melcharth because it is abundantly evident from that case that if the grantor is alive at the time when the previous demise expires, he and he only is the person who is entitled to avoid it, if it is in other respects a proper lease. The present case is much stronger than the Full Bench case, because there the karnavan who granted the second lease and who survived the expiry of the earlier lease for some months took no action one way or the other either to confirm or disown it. Anantakrishna Ayyar, J., who wrote the leading judgment, says at pages 751 and 752:

As the transaction entered into by him is prima facie binding upon him, the argument that after the expiry of the term of the prior lease he (the executant) should indicate, by some formal act of his, that he proposes to stand by the same, is too technical even if there is any force in it. When the question of its binding nature is raise