Kenath Puthen Vittil Tavazhi … vs Narayanan (Family Manager) And … on 13 October, 1904

Madras High Court
Kenath Puthen Vittil Tavazhi … vs Narayanan (Family Manager) And … on 13 October, 1904
Equivalent citations: (1904) 14 MLJ 415


1. By a razi in O.S. No. 22 of 1888 the plaintiff was appointed the manager of his tarwad in the place of the then Karnavan, one Teyunni Menon. His management proving unsatis factory, a suit to which all the members of the tarwad were parties was brought to remove him. Pending the suit, the disputes between the parties were referred to arbitration. By the karar or arrangement then arrived at the plaintiff retired from the management and it was provided that even after the death of the then karnavan, Teyunni Menon, when this plaintiff next in age would be entitled to the karnavanship and management of tarwad property he was not to take up the management of tarwad affairs unless a majority of the members of the tarwad agreed to it. His debts were paid and he was given a comparatively handsome allowance.

2. The karnavan having since died, the plaintiff claims against the terms of the karar to succeed to the karnavanship of the tarwad and to the possession and management of its properties. He con-tends that his renunciation by that karar of his right so to succeed is invalid in law and the question that is referred to the decision of the Full Bench is ” whether the renunciation by the plaintiff to succeed to the karnavanship is valid in law”.

3. A karnavan in Malabar is the senior male member of a group of persons, all of them tracing their descent in the female line from a common female ancestor owning joint property under the absolute control and management of the karnavan. This group form a Marumakkatayam tarwad. In this tarwad a mother and her descendants in the female line, by themselves, constitute a tavazhi, i. e., the line of a single mother. But this term is usually applied to any branch of a tarwad in separate possession of a portion of the joint family property holding it thus for convenience of enjoyment. The term is also occasionally applied to such a branch even when there is a severance of interest and the main tarwad loses or is deprived of all interest in the property in the possession of this branch or tavazhi and the latter has really developed into a tarwad by itself. See Valia Kaimal v. Velluthadatha Shamu 6 M.H.C.R. p. 401. While the senior male member in a tarwad is the karnavan of all the members in the tarwad and hence is called the karnavan of the tarwad, every member is the karnavan of his junior in age and anandravan of those senior to him in the tarwad, the terms karnavan and anandravan being correlative. Every member is thus a karnavan or anandravan of every other member in the tarwad. A tarwad may be split into various branches, each branch holding its own property without community in the property hold by another branch. When such division has taken place each branch or tavazhi, forms so far as Courts are concerned a separate tarwad by itself–the senior male of each branch is treated in law as the karnavan of that tarwad. As pointed out by Mr. Justice Holloway in Valia Kaimal v. Velluthadatha Shamu 6 M.H.C.R. p. 401 in popular language all the members of the separated branches still belong to the same tarwad but ” in the only sense with which Courts of Justice are concerned they do not.” The result is that the members of the original or larger tarwad continue to treat one another as karnavans and anandravans though there may be no community of property between them and they do not strictly at any rate., as Mr. Justice Holloway correctly points out, in a court of law belong to one tarwad. To put it briefly, even though the members of a tarwad may divide all the property, they still continue karnavan and anandravan. For purposes of pollution, for the performance of funeral ceremonies, for purposes of succession, the relationship is recognized to subsist.

4. It is this relationship of one person to the other members of the tarwad or group of tarwads which Mr. Justice Holloway had in view in the case in Cherukomen v. Ismala 6 M.H.C.R. 145; at any rate his remarks have reference to such relation. Such relationship may be the source of obligations social and religious and may subsist as already pointed out between persons without any community of property. As a general rule substituting females for males, the quotation in Cherukomen v. Ismala 6 M.H.C.R. 415 from Julian ” that the law of relationship (through males) cannot be dis-claimed by agreement no more than one may say that he does not wish to be himself” is applicable. But the question before us is not whether this karnavanship, the relationship due to their natural condition may be renounced or not. The question is whether the plaintiff may renounce the rights or obligations including the right of management which devolved on him as karnavan or the senior male member in the tarwad. This renunciation of the bundle of rights and duties is also called the renunciation of karnavanship.

5. Karnavans are frequently removed by Courts from the management of tarwad property. Such suits are loosely termed suits to remove karnavans–though a karnavan cannot be deprived as above stated of his relationship of karnavan to the other members of his tarwad, but can only be removed from the management of tarwad properties. When the Courts remove a karnavan, the decree does not determine the natural relationship that exists between the karnavan and the other members: they still continue karnavan and anandravan for the performance of funeral, cere-monies and the like.

6. The only question therefore is whether a karnavan may himself renounce that power of management of which for adequate reasons he may be deprived by a Court of law.

7. In the order of reference it is stated and, in our opinion, correctly that if it is not open to a karnavan to renounce the rights or obligations attached to his position, he could not do so by a razi or contract. If he could renounce by contract, there is nothing to prevent him from doing it voluntarily as a unilateral act of renunciation.

8. The general rule is in favour of renunciation so far as his right to manage the property of the tarwad is concerned and the decisions clearly recognize such right.

9. In A.S. No. 336 of 1854 the claim was to set aside a mort-gage which would have been otherwise valid on the ground that the karnavan had no right to grant it according to an agreement to which all the members of the tarwad were parties. In declaring the mortgage invalid Mr. Holloway, then Sub-Judge, observed ” I am clearly of opinion that the whole of the members of a family have a right, by common consent, to regulate the karnavan’s agency”…. “I am of opinion that with the consent of all the members it was possible for the tarwad to narrow his authority.” Zillah Decisions, Sep. 1855, page 18.

10. In S.A. Nos. 87 and 88 of 1857 (Sudder Decisions 1857, p. 158) the Sudder Court upheld an agreement under which the karnavan had renounced his right of exclusive management and the tarwad properties were agreed to be managed by himself jointly with another.

11. The karnavan could thus renounce the right of exclusive managements vested in him.

12. In S.A. No. 368 of 1862 the High Court confirmed a decision of Mr. Holloway in which he held that the plaintiff, the karnavan, was estopped by an agreement entered into between himself and the 2nd defendant, a junior member, by which the 2nd defendant was to be in management of the tarwad properties in one taluk and himself, the karnavan, of such properties in another taluk and a suit brought by the karnavan was dismissed.

13. This is an instance of an absolute renunciation of the right to manage a substantial portion of the properties of the tarwad.

14. The High Court in S.A. No. 8 of 1880 in upholding a karar against the karnavan held :–” The contention of the appellant is the karar (agreement) of 1868 was illegal. It is not necessary for us to consider whether the karar if objected to by the family is one which could be allowed to stand against them. There is no such objection by any of the family, though it was executed in 1868 and has been acted upon with full consent of the family down to the present time. There is ample reason to suppose that the karar was executed for the benefit of the family. It is the outcome of disputes and litigation in the family and by it those disputes and that litigation were happily ended. There is apparently no reason for setting aside this karar and certainly none at the instance of the plaintiff (the karnavan)”.

15. The karar there sought to be set-aside was entered into between the karnavan and one of the anandravans by which the income of the tarwad was to be collected and expenses defrayed by the anandravan and all the documents on behalf of the family were to be in his handwriting. Properties were not to be demised without his consent. It also provided for the custody of the tarwad documents. The anandravan is to file suits in the karna-van’s name on his vakalat for rents, & c.

16. There was thus practically a renunciation of the rights of the karnavan to manage the tarwad property. There was only the title and the shadow of his old power left to him. The tarwad management was practically handed over to a junior member and such renunciation was held valid.

17. Again in S.A. No. 357 of 1881 the High Court held :–” The rights of the parties were adjusted by the compromise and the decree passed thereon and in our judgment it has been properly held that the respondent was to hold possession at least till some other arrangement was made or possibly until the death of the karnavan. The right of the karnavan to recover possession applies to cases in which he has voluntarily conceded a temporary possession to an anandravan for management. Here he has no greater right to put an end to the contract than any member of the family”.

18. By the agreement there sought to be set aside certain lands were left in the possession of the defendant, an anandravan, who was to maintain himself and his tavazhi, i. e., some other members of the family with the income thereof. The karnavan sought to set aside the agreement and to recover the lands. The words in italics indicate the right principle to be followed.

19. Similarly in S.A. No. 363 of 1883 a family agreement was held to be binding upon the succeeding karnavan–the High Court holding ” Both the Courts have found that the lands in suit are included in the paddy tract called Kallamulli which was set apart for the defendants’ branch of the tarwad in the family agreement. The plaintiff, however, as the common karnavan asserts a right to resume the lands and re-allot them at pleasure. He has no such right since the allotment was not one made by the former karuavan of his own authority but as part of a family arrangement which binds him in common with the whole family”.

20. Appeal No. 120 of 1889 was a remarkable case. As an exception to the ordinary rule the karnavanship of the tarwad in question was vested in the senior female called Valia Rani and on account of disputes among the members a karar was entered into by which the Valia Rani surrendered the entire right of management to the senior male and after her death, that right to manage was vested dejure in the then senior female but the de facto management was vested in the senior male according to the old usage in the family subject to certain specific powers preserved to the senior female who held the karnavastanom. It will be noticed that the then Valia Rani was excluded from all management even to the extent to which future Valia Ranis were permitted to interfere. This renunciation was enforced against the Rani when she sought to resume management. It is true the case of Cherukomen v. Ismala 6 M.H.C.R. 145 was not quoted nor was the question discussed. Nevertheless the case is important as showing that such renunciations have been always recognized.

21. In Kanna Pisharodi v. Kombi Achan I.L.R. 8 M. p. 381 it was held that ” ordinarily, it is of course true that the karnavan of a Malabar tarwad is entitled to grant a renewal of a kanom, but it is in the power of the family, with the assent of the karnavan, to place a restriction on his ordinary powers”.

22. To the same effect is the decision in Komu v. Krishna I.L.R. 11 M. p. 134. ” As to the contention that he did not consider the objection taken by the petitioner, viz.: that, as the present karnavan of the tarwad, he was entitled to set aside the karar sued upon, we are of opinion that the karnavan is not entitled of his own authority to sot aside a family arrangement made on behalf of all the members of the tarwad”.

23. The practice is widely prevalent whereby tavazhis are constituted (See S.A. No. 363 of 1883 above referred to) i. e., properties are set apart for the support of some members of a tarwad who form a tavazhi under the control and management of the senior male of that branch who so far as the management of these pro-perties is concerned takes the place of the karnavan of the tarwad.

24. In all such cases there is a renunciation by the tarwad karnavan of all his rights of management though he still continues to be styled the karnavan.

25. The Courts have gone further and have held after some hesitation that the members of tarwad may withdraw themselves entirely from his control and form themselves into a separate tarwad and thereby put an end to all the karnavan’s rights over them. In a series of cases beginning with Kunhacha Umma v. Kutti Mammi Hajee I.L.R. 16 M. 201 which overruled certain previous decisions it has been held that a mother and children may form themselves into a distinct tarwad with their own senior male as karnavan treating themselves inter se as sole members of a tarwad without interference by the karnavan of their main tarwad from which they have separated. This shows, that for the purposes of guardianship, survivorship, the succeeding members have renounced their anandravanship and determined the karnavan’s rights over them. All these cases are repugnant to the contention that a karnavan cannot renounce by contract or otherwise his rights or powers of management. His powers may be curtailed, may be exercised only under conditions imposed by the tarwad, may be reduced to a vanishing point, may be entirely renounced or taken away with reference to the tarwad members or the tarwad property.

26. These decisions are in accordance with usage and were not cited apparently before the learned Judges who made the reference. Cherukomen v. Ismala 6 M.H.C.R. 145 was a case in which what was put forward as a deed of renunciation was held to be a power of attorney and the question therefore according to Mr. Justice Holloway did not arise for decision. The passage cited from Julian shows further that Mr. Justice Holloway was then considering the question whether ” the law of relationship through males cannot be dis-claimed by agreement” which is very different from the question before us whether one may not renounce the rights acquired by him on account of his relationship, though of course he cannot get rid of his relationship. Holloway and Innes, JJ., were further considering a case where it was argued that ” there was an irrevocable waiver of the karnavan’s rights and an irrevocable transfer of them to another.”

27. This also is very different from a simple renunciation where the law vests the management in the next senior male. To appoint another person in his place as karnavan would be a direct inter-ference with the right of his successor and that question stands obviously on a very different footing from a power of renunciation and can only be upheld, if at all, as a contract. In Valiakaimal v. Velluthadatha Shamu 6 M.H.C.R. p. 401 the question was as to the effect of an arrangement made by a former karnavan. There was no renunciation of his rights by the person who then claimed as karnavan. In the course of his judgment, Mr. Justice Holloway no doubt observes referring to the previous case: ” We have recently expressed a strong inclination of opinion that the doctrine as to the power of renunciation does not apply to a person in the position of the Malabar Karnavan.” Mr. Justice Holloway could scarcely have intended to decide by these two cases that a karnavan cannot renounce his right of management by contract seeing that he had already decided in favour of that view and the true explanation, therefore, appears to bo that he made these observations with reference to the facts of the cases before him or that he was referring only to the renunciation of the natural relationship. If, on the other hand, he meant to say that it is not open to a karnavan to renounce his rights and obligations and in particular the right of managing the tarwad properties which he has by virtue of his position as karnavan, then his view is opposed to his own opinion so expressed in his previous decisions, to the course of subsequent decisions and to the practice amongst the community who follow that law.

28. Nor is there anything in principle in the position of the karnavan opposed to such renunciation. A karnavan is not a trustee, yet a trustee may renounce his trust with the consent of the bene-ficiaries or with the sanction of the Court. These restrictions are necessary in the case of a trustee for the protection of the bene-ficiaries; but the karnavan is not bound to render account or to pay to the tarwad any surplus he may have in his hands. These reasons, therefore, do not apply to the case of a tarwad where the next male in order of seniority takes the place vacated by the senior.

29. It is decidedly for the benefit of the tarwad that such power of renunciation should be recognized. An unwilling karnavan usually makes a bad manager. Delegation to a junior member, passing over his seniors, will produce discord and in the interest of the tarwad it is clearly desirable that the power of management should be accompanied with responsibility.

30. If, on the other hand, his renunciation is not irrevocable, the karnavan’s own interest and the interests of his wife and children being in conflict with his duty, the tarwad will generally be in danger from his attempts to win back his authority and the in-evitable result of refusing to recognize the power of renunciation will be litigation and great loss to the tarwad.

31. The case before us illustrates the necessity of recognizing the power of renunciation. The tarwad acknowledged the validity of debts contracted by the plaintiff to avoid litigation and gave him an allowance to which as stated by the arbitrator in his award he was not entitled. The renunciation in this case was for full con-sideration received. That of course will not make the renunciation valid if as a unilateral act of renunciation it cannot be valid.

32. We are, therefore, of opinion that it is open to the karnavan of a tarwad to renounce his karnavanship including his right to manage the tarwad affairs.

33. The question referred must, therefore, be answered in the affirmative.

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