1961 (12) TMI 104 - HC - Indian Laws

Alienation of Tarwad Property: Voidable vs. Void, Limitation Bar, Possession's Role Clarified

Chacko Mathew Versus Ayyappan Kutty

The High Court determined that the alienation of tarwad property without the required consent is voidable, not void. The suit was found not barred by ... - Issues Involved:1. Whether the alienation of tarwad property without the written consent of all major members as required by Section 21 of the Travancore Ezhava Act is void or voidable.2. The applicability of the statute of limitations to the suit filed by the plaintiff.3. The interpretation of the terms 'void' and 'voidable' in the context of legal transactions.4. The legal implications of possession and its impact on the validity of alienation.5. The effect of subsequent ratification by the members of the tarwad on an initially defective transaction.Issue-wise Detailed Analysis:1. Whether the alienation of tarwad property without the written consent of all major members as required by Section 21 of the Travancore Ezhava Act is void or voidable:The core issue in the appeal was whether an alienation of tarwad property, not conforming to the conditions laid in Section 21 of the Travancore Ezhava Act, is void or voidable. The Munsiff held the sale to be voidable, while the Additional District Judge held it void. Section 21 mandates that no karnavan or managing member shall sell tarwad immovable property without the written consent of all major members. The High Court analyzed various precedents and legal interpretations to determine the nature of the transaction. The consensus of judicial opinion, as reviewed, indicated that such an alienation is not void but only voidable at the instance of the tarwad. The court concluded that the transaction is one which the junior members of the tarwad can, at their choice, either affirm or avoid.2. The applicability of the statute of limitations to the suit filed by the plaintiff:The 1st defendant contended that the suit was barred by limitation as it was instituted more than 12 years after the execution of the impugned sale. The Munsiff dismissed the suit on this ground, but the Additional District Judge held that the suit was not barred by limitation. The High Court discussed the principle that if possession accompanied the alienation and continued unchallenged with the alienee for a period of 12 years, he obtains an indefeasible right to the property. However, if the alienation is merely voidable, the tarwad members can ignore it and sue for redemption of the admitted mortgage. The court ultimately held that the suit was not barred by limitation, as the plaintiff's tarwad had the right to challenge the transaction within the statutory period.3. The interpretation of the terms 'void' and 'voidable' in the context of legal transactions:The court delved into the legal definitions and implications of the terms 'void' and 'voidable.' A void transaction is non-existent in the eyes of the law and can be disregarded by the whole world, whereas a voidable transaction is effective in law but can be annulled by the affected parties. The court cited various legal authorities and precedents to elucidate these concepts. It was emphasized that the use of the term 'void' in legal parlance often means 'voidable at the instance of' the affected party. The court concluded that the alienation in question was voidable at the instance of the tarwad members, not void ab initio.4. The legal implications of possession and its impact on the validity of alienation:The court examined the impact of possession on the validity of the alienation. It was noted that if possession did not pass to the alienee and remained with the tarwad, the tarwad could resist any attempt by the alienee to enforce the transaction. If possession passed with the alienation and continued unchallenged for over 12 years, the alienee could obtain an indefeasible right to the property. The court also discussed the scenario where the mortgagee's possession could change to that of an owner if the mortgagor agreed to transfer the equity of redemption, even if the transaction was initially invalid.5. The effect of subsequent ratification by the members of the tarwad on an initially defective transaction:The court considered whether subsequent ratification by the members of the tarwad could validate an initially defective transaction. It was held that the provisions of Section 21 are meant to conserve the interests of the tarwad and do not involve public policy. Therefore, the members of the tarwad have the option to affirm or avoid the transaction. The court concluded that subsequent ratification by the members of the tarwad could validate the transaction, making it effective from the outset.Conclusion:The High Court held that the alienation of tarwad property without the written consent of all major members as required by Section 21 of the Travancore Ezhava Act is voidable at the instance of the tarwad members, not void ab initio. The suit filed by the plaintiff was not barred by limitation, as the tarwad had the right to challenge the transaction within the statutory period. The court emphasized that the terms 'void' and 'voidable' have specific legal implications, and possession plays a crucial role in determining the validity of the alienation. Subsequent ratification by the members of the tarwad could validate an initially defective transaction. The Civil Miscellaneous Appeal was allowed, and the order of remand made by the court below was set aside.