(Mavili) Erochan Menoki vs Punnasseri Elevana Tarwad Karnavan and Others

Walsh, J.—Defendant 1 who is the karnavan of the tarwad executed a pronote to the plaintiff who brought a suit on it. The Sub-Judge found

that defendant 1 was not the manager of the tarwad which was being managed by defendant 4 under karar from defendant 1. He found that the

plaintiff was aware of the fact. He also found that the loan was not for family necessity and therefore gave plaintiff a personal decree against

defendant but no decree against the tarwad property. A revision is filed against this order.

It is sought to get over the findings of fact with regard to management by arguing that the appointment of defendant as agent under the karar did

not preclude the karnavan from acting himself and that the provisions of the karar must be strictly construed. That a power of attorney or karar

must be strictly construed is not denied. Krishna Menon v. Krishnan Nair AIR 1921 Mad. 520 is quoted for the position that a karar executed by

the karnavan in favour of an anandaravan under which the latter was to carry on the management under virtue of a muktearnama does not deprive

the karnavan of his right to grant a melcharth. The remark on p. 123 P. of R. Sundara Aiyar''s Malabar and Aliyasantana Law that the appointment

of a junior member as a muktear or agent cannot preclude the karnavan from acting himself, is also relied on. That remark must be read however in

the light of Krishna Menon v. Krishna Nair which is quoted immediately afterwards. It does not mean that a karnavan cannot surrender his

management: vide the opening remarks of Ch. 8, p. 117 of the same book. Now turning to the muktearnama in this case it is clear that in the matter

of raising loans the karnavan has divested himself by it of his power to act alone and without defendant 4.

In para 5 it is stated:

If any new debt is to be contracted either in any of the matters that may arise accidentally or extraordinarily or in the case where expenses have to

be met beforehand such debts ought to be contracted by both of us jointly and it is only when I shall be unable to participate with you in the said

matter for some reason or other that you can raise such debts independently and by yourself.

Para 7 says:

As long as the power of attorney remains in force I shall not enter in the tarwad affairs without participating with you.

So it is clear that while loans should ordinarily be raised by defendant 4 with defendant 1 the former can in urgent circumstances raise them by

himself but the latter has no such power.

The finding of the Court that defendant 1 had no power to raise the suit loan is obviously in accordance with the karar. As regards the question

of necessity, that also is a finding of fact. The plaintiff admitted that defendant simply told him that there was necessity and that he made no

independent enquiries. He now says that the amount was to pay kist but he seems to have put forward a different version before that; it was to

repair a temple and his own witness, plaintiff''s witness 4, stated that defendant 1 spent it for that purpose. The mere fact of payment of kist does

not itself constitute a necessity to borrow. In the face of both the findings of fact there is no scope for a revision petition. The petition is dismissed

with costs.