Mundakath Mathu vs Chalora Illath Sankaran Nambudripad and Others

Venkatasubba Rao, J.—The first question we have to decide is, whether this second appeal has been compromised as alleged by Vishnu

Nambudri respondent 1. The suit relates to a Nambudri illom. Its karnavan was one Sankaran Nambudri, respondent 2. Vishnu, above named, is

the cousin of that Sankaran. Vishnu filed the suit out of which this second appeal arises, namely, O.S. No. 344 of 1923 on the file of the District

Munsif''s Court, Quilandy. That suit was filed on 5th July 1923. Vishnu, the plaintiff, impeached in that suit a certain alienation made by the

karnavan Sankaran in favour of defendants 9 and 10. Defendant 9 is the appellant before us. The alienation took the form of a kanom dated 7th

December 1922. The District Munsif dismissed the suit holding that the transaction was binding on the tarwad. His judgment was delivered on 17th

December 1924. From that, an appeal was taken to the District Judge who set aside the Munsif''s judgment on 16th March 1926. This second

appeal was presented on 6th September 1926. (Here his Lordship here considered the question as to the factum of compromise and proceeded

as follows:). We must therefore negative the contention that there was a compromise and allow the second appeal to proceed.

Coming then to the merits, the question that has to be decided is whether the alienation in favour of defendants 9 and 10 is binding on the tarwad

or not. The kanom in their favour was executed on 7th December 1922, the consideration being Rs. 700. There is a concurrent finding that that

amount was borrowed to meet the expenses of the marriage of one Devaki, a female member of the illom and that the sum was in fact utilized in

connexion with the marriage expenses as well as the jewels and the dowry which of necessity had to be given. It is also found that the marriage of

Devaki could not have been postponed and that there was thus justifiable necessity for the loan. But the District Judge who set aside the alienation

relied upon a karar in this illom which had been executed in the year 1905. To that karar all the then members of the illom were parties including

Sankaran, the present karnavan; he was at that time a junior member of the illom. That karar contains a clause, that no debts shall be incurred

except with the consent of all the adult members for the time being and that if any charges are created without the concurrence of all such

members, they shall not be valid. It is on this clause of the karar that the plaintiff relies. He did not join in executing the kanom in question though all

the other adult members for the time being were parties to it. There was ill feeling between him and the karnvan and he chose to live separately.

There is a finding that the kanomdars took the kanom with notice of this restriction. The learned District Judge, following R. Rama Vadhyar Vs. T.

Krishnan Nair and Others, has held that in such circumstances the kanom is not binding on the illom. The appellant''s counsel says that he is

prepared to argue that although Sankaran as a junior member was a party to the karar he ceased on his becoming a karnavan, to be bound by its

provisions. It is unnecessary to deal with this argument for granting that the transaction as a kanom is not binding on the illom the question is

whether the alienees are not u/s 64, Contract Act, entitled to be restored to the sum they paid, for the appellant''s learned Counsel does not insist

that the transaction should be upheld as a kanom but says that his client is content to have the relief u/s 64. In this case the money raised was

utilized for the benefit of the illom; in other words, every member of that illom including the plaintiff had the benefit of that money. Granting that the

karnavan acted in excess of his powers in borrowing the sum of which on the findings, every member had the benefit can the transaction be set

aside unconditionally? The principle on which Sections 64 and 65 rest is not confined to cases expressly included in either of them and is thus

stated in Clough v. L. and N.W.R. [1871] 7 Ex. 26 at p. 37:

No man can at once treat the contract as avoided by him so as to resume the property which he parted with under it and at the same time keep the

money or other advantages which he has obtained under it"": see Pollock and Mulla''s Contract Act Commentaries u/s 64.

This rule is applied as a rule of equity and good conscience. Even in R. Rama Vadhyar Vs. T. Krishnan Nair and Others, on which the District

Judge relies there is a dictum recognizing this principle.

It is common ground that the property did not pass into the possession of defendants 9 and 10 in pursuance of the kanom. The result is that the

kanom is set aside, on the condition that the illom or its karnavan for the time being shall pay defendants 9 and 10 in six months from this date Rs.

683 with interest thereon at 6 per cent per annum from 7th December 1924. If the payment is not so made the suit shall stand dismissed and there

will be a declaration that the kanom is binding on the whole illom.

As regards the costs we make the following order. The appellant shall have her costs in the first Court and in the lower appellate Court but in

this Court each side shall bear its own costs.

Appeal No. 145 of 1928.

The judgment which we have just delivered in S.A. No. 1927 of 1926 disposes of this appeal also. In accordance with that judgment the

defence of the lower Court so far as it relates to the alienation the subject of charge Q is set aside. The court fee paid on the memorandum of

appeal shall be refunded to the appellant, otherwise we make no order as to costs.