Pailoth v. Arya Antharj anam — 1961 DIGILAW 239 (KER)

Judgment :- 1. The 1st & 2nd defendants in O.S. No. 1057 of 1952 of the Court of the District Munsiff, Irinjalakuda, are the appellants in this Second Appeal. They were also the appellants before the court of first appeal, the court of the Subordinate Judge of Irinjalakuda, in A.S. No. 147 of 1955. 2. Ext III dated 9-3-1122 evidences a lease in their favour. The suit was for a declaration that the lease was not binding on the illom of the plaintiffs and the plaint schedule properties and for the recovery of the possession of those properties. 3. It is common ground that the lease was not in conformity with S.9 of the Cochin Nambudiri Act, XVII of 1114 That section as amended by Act XVI of 1118 is in the following terms: "Except with the written consent of the majority of all the major members of the illom, no Karanavan shall sell, lease, mortgage or pledge illom property, movable or immovable, or grant renewals of kanam for a period of more than twelve years or give discharges of mortgages or pledges: Provided the Karnavan by himself can alienate illom properties for meeting the marriage expenses and for payment of the dowry under S.17 of the Act. For the purposes of this section movables do not include usufructs and grains realised in the shape of pattam, michavaram, renewal fees or interest." The main question for consideration is the effect of the non-compliance with this provision, the absence of the written consent of the majority of the major members of the illom. According to the appellants the absence of such consent only makes the transaction voidable, it can hence be ratified by the majority of the major members of the illom, and such ratification is available in this case. 4. According to the appellants the absence of such consent only makes the transaction voidable, it can hence be ratified by the majority of the major members of the illom, and such ratification is available in this case. 4. A similar question arose for decision in 25 Cochin 603 under S.28 of the Cochin Nayar Act, XIII of 1095, which reads as follows: "Except with the written Consent of all the major members of the tarwad, wherever possible no karnavan or the manager for the time being, shall sell tarwad property movable or immovable, or lease it for a period of more than 6 years or mortgage it with possession or pledge or hypothecate it or give discharges of mortgages with or without possession" For the purpose of this section, movables include ornaments, vessels and other valuables, and do not include usufructs and grains realised in the shape of pattam." Sahasranama Ayyar, J. with whom Ouseph, J. agreed, said: "Under the section, the written consent therein provided for is a condition precedent to the validity of the manager's act. A subsequent ratification is, therefore, insufficient." The judgment then proceeded to approve the reasoning adopted in 22 Cochin 515 and to hold that a document which was executed "in violation of S.28" was "absolutely void and of no legal effect." 5. The decision in 22 Cochin 515 was rendered on 18-8-1106 and the decision in 25 Cochin 603 on 21-11-1109. The Cochin Nambudiri Act, XVII of 1114, was passed on 18-12-1114. It is settled law that there is a presumption that when a Legislature uses phraseology which has already been the subject of judicial construction, the Legislature intended the phraseology to mean what the courts have said they meant. 6. In ILR. 30 Madras 426 the Privy Council said that this is an ordinary presumption and that a Legislature when it repeats in substance in a later Act an earlier enactment that has obtained a settled meaning by judicial construction it intends the words to mean what they meant before. In AIR, 1931 Allahabad 483 the High Court said: "It must be presumed that the Legislature was aware of the trend of rulings in this country. And when in re-enacting the statute, it had adhered to the former phraseology, we are justified in inferring that the interpretation laid down in the rulings has been approved of by the Legislature" 7. In AIR, 1931 Allahabad 483 the High Court said: "It must be presumed that the Legislature was aware of the trend of rulings in this country. And when in re-enacting the statute, it had adhered to the former phraseology, we are justified in inferring that the interpretation laid down in the rulings has been approved of by the Legislature" 7. In 102 LJPC. 22 Lord Buckmaster dealt with the matter as follows: "It has long been a well-established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it. James, L. J., in the case of Campbell v. Ex-parte; Catheart in re (L. R.5 Ch., at p. 706) said. "Where once certain words in an Act of Parliament have received a judicial construction in one of the superior courts, and the Legislature has repeated them without any alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a court of competent jurisdiction has given to them And this opinion was expressed in a case where the learned Lord Justice himself said it was difficult to bring the interpretation within the words of the Act. The same opinion was expressed by Lord Halsbury in delivering the judgment of the Judicial Committee in the case of Webb v. Quttrim (76 L. J. P. C., at p. 27), and I know of no authority that has in any way weakened the effect of this pronouncement. It is, in my opinion, a salutary rule and one necessary to confer upon Acts of Parliament that certainly which, though it is often lacking, is always to be desired." In applying the rule one has, of course, to remember the observations of Denning, L.J., in (1949) I All E.R. 749: 1 do not believe that whenever Parliament re-enacts a provision of a statute it thereby gives statutory authority to every erroneous interpretation which has been put on it. The true view is that the court will be slow to overrule a previous decision on the interpretation of a statute when it has long been acted on, and it will be more than usually slow to do so when Parliament has, since the decision, re-enacted the statute in the same terms, but if a decision is, in fact, shown to be erroneous, there is no rule of law which prevents it being overruled." 8. Quite apart from the principle enunciated above and the principle of stare decisis we also feel that a reading of S.9,10 & 11 of the Cochin Nambudiri Act, XVII of 1114, leads to the same conclusion as was reached in 25 Cochin 603. S.10 & 11 are in the following terms: S. 10. "No sale, mortgage, pledge or other alienation of illom property or debt shall bind the illom unless it is executed or made or contracted for illom necessity or it is, executed or made or contracted with the written consent of the majority of all the major members of the illom when there are only major members in the illom". S. 11. "The burden of proving illom necessity shall be on the purchaser, mortgagee, pledgee, or other alienee, or creditor as the case may be. But the court may presume such necessity where the majority of all the major members of the illom are parties to or have given their written consent to the transaction." 9. Leaving aside the cases covered by the proviso to S.9, and the second part of S.10, the position can be summed up as follows: 1. Under S.9 the written consent of the majority of all the major members of the Illom is necessary If there was no such consent, the transaction will not be binding on the Illom. 2. Even if such consent was available the transaction to be binding on the Illom should also be for Illom necessity as provided by the first part of S.10. 3. The burden of proving Illom necessity is on the purchaser, mortgagee, pledgee, or other alienee, or creditor, as provided by the first part of S.11. Under the second part of that section, however, the court may presume such necessity when the majority of the major members of the Illom are parties to or have given their consent to the transaction. 10. Under the second part of that section, however, the court may presume such necessity when the majority of the major members of the Illom are parties to or have given their consent to the transaction. 10. Counsel for the appellants drew our attention to decisions which have held that a stranger is not entitled to question the validity of documents executed in contravention of provisions like S.9 and 10 of the Cochin Nambudiri Act, XVII of 1114, and contended that those decisions should mean that such transactions are not void but only voidable, that a ratification is possible, and that the question as to whether there has been a ratification should be investigated We are unable to agree. 11. In 37 Cochin 96 - a case under S.9 of the Cochin Nambudiri Act, XVII of 1114, Krishnaswamy Iyyengar, C.J. referred to S.29 of the Cochin Nayar Act, XIII of 1095 and said: "Though the word used in the section is 'void' it is reasonably clear that the intention of the Legislature was to declare the alienation void only as against the other members of the family as they alone were affected by it. It is quite obvious that the section was enacted to protect the rights of the tarwad against the improper and improvident acts of its karanavan, and so long as the other members of the tarwad do not choose to challenge an alienation made by him, there is no reason for regarding it as null and void ab initio, so as to put it in the power of a tenant or any other person who is a stranger to the tarwad, to ignore it and thereby evade his own obligations. The alienation must be held to have the character of a void transaction only so far as the members of the tarwad are concerned, and not as against the rest of the world". In AIR 1952 TC. 368 the court quoted S.5 of the Travancore Malayala Brahmin Act, III of 1106, and said: "The provision is clearly mandatory and would render any transaction in violence of it, void and inoperative as against the members for whose benefit the provision was made and whose consent has not been obtained as provided therein. In AIR 1952 TC. 368 the court quoted S.5 of the Travancore Malayala Brahmin Act, III of 1106, and said: "The provision is clearly mandatory and would render any transaction in violence of it, void and inoperative as against the members for whose benefit the provision was made and whose consent has not been obtained as provided therein. It may not be void in the sense that it is an absolute nullity as though no transaction took place so as to enable strangers to question and contend that persons claiming under a transaction otherwise than in conformity with that section have obtained no rights at all. Except in this regard, the transaction is void and of no effect." To the same effect is the decision in AIR. 1953 TC. 269, a case under S.9 of the Cochin Nambudiri Act, XVII of 1114. 12. That a stranger is not entitled to raise the contention was laid down as early as 15 Cochin 143 In that case Nambiar, J., with whom Varugis, C.J. agreed; said: "For the first defendant what is next argued is that the said mortgage deed is invalid under S.28 of the Nayar Regulation as it has been executed by the 2nd defendant alone without the written consent of all the other major members of his family. It is true that the said mortgage deed has been executed by the 2nd defendant alone and that there is nothing on record to show why he did not try to obtain the written consent of all the other major members of his family for its execution. But here also I do not think that it is open to a stranger like the 1st defendant to call in question the validity of the mortgage deed on the said ground. For in my view the validity of a mortgage deed executed by a karanavan can be questioned on the ground above referred to only by a member of the family'. In 37 Cochin 96 Krishnaswami Iyengar, C.J. pointed out that this observation has not been questioned either in 22 Cochin 351 or 22 Cochin 515 and said that "though the words 'void as against the other members of the tarwad' do not occur in S.28 of the Act of 1095, the effect, taking into consideration the objects of the Act appears to be the same". 13. 13. S.29 of the Cochin Nayar Act, XIII of 1095, provided: "Every sale, mortgage, pledge of other alienation of tarwad property shall be void unless it is executed or made for tarwad necessity;" and it is the use of the word "void" that gave rise to the controversy. The word "void" does not occur in the Cochin Nayar Act, XXIX of 1113 (S. 54) or the Cochin Nambudiri Act, XVII of 1114 (S.10). They provide that no transaction in contravention of those sections "shall bind" the tarwad or the Illom. 14. We see nothing wrong in a Legislature providing that certain conditions precedent should be satisfied before a transaction can be considered as valid, and stipulating at the same time that the plea of invalidity on the basis of a non-satisfaction of the conditions precedent shall be confined to those for whose benefit those conditions were engrafted. And that is exactly what seems to have been done. 15. In the light of what is stated above we must hold that the transaction is invalid for lack of compliance with S.9 of the Cochin Nambudiri Act, XVII of 1114, that the members of the Illom are entitled to treat it is as absolutely void and of no effect, & that as a result no subsequent ratification is possible. The only further question for consideration is whether the appellants are entitled to a return of the muppattom amount paid by them. 16. After a full and careful discussion of all the relevant factors the trial court said: "I find that the Illom is bound to repay to the defendants 1 & 2 the muppattom amounts of Rs. 284 received by the Illom." (paragraph 7) This direction was upset by the lower appellate court for reasons which we are unable to appreciate or accept. The decree of the trial court regarding the repayment of the return of the muppattom will stand restored. 17. Except to the extent indicated in the last preceding paragraph the Second Appeal fails and is dismissed. The parties will pay and receive proportionate costs here and in the courts below.