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Showing contexts for: ratification in Chacko Mathew vs Ayyappan Kutty on 19 December, 1961Matching Fragments
5. Before proceeding to analyse the precedents I would advert to the import of the expressions Void' and 'voidable' in law. as observed by Stone J., in Visweswara Rao v. Surya Rao, AIR 1936 Mad 440 at p. 443 Terms such as voidable and void, valid or invalid, may each be a littie misleading. According to his Lordship, even the Privy Council had, on certain occasions, Overlooked the strict import of these words.
"The fact that the Privy Council have in certain cases, for example Sahu Ram Chandra v. Bhup Singh, ILR 39 All 437 : (AIR 1917 PC 61) and in Lachhman Prasad v. Sarnam Singh ILR 39 All 500 : (AIR 1917 PC 41), used the words which suggest that such a transaction is void does not assist us. Their Lordships were not deciding the question whether such a transaction is void ab initio and so incapable of ratification or merely voidable."
"On the date of Ext. VII there were in all three major members in the tarwad besides the 1st defendant viz., the 1st plaintiff and defendants 2 and 6. Admittedly, their written consent was not taken for Ext. VII.....The lower court thinks that the defect has been cured by their acceptance of Ext. VII in their written statement. According to the learned Judge, that is tantamount to a ratification on their part We are unable to appreciate the argument. 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 latest decision of this court upon the point is to the effect that the provisions of Section 28 of the Nayar Act are mandatory and not merely directory. (Vide 22 Cochin 515) .....We are of opinion that Ext. VII which was executed by the 1st defendant, the manager, in violation of Section 28 of the Act is absolutely void and of no legal effect"
Quseph, J., concurred with him and said:
"There is no room for doubt that written consent contemplated in that section should be one previously obtained. I also do not think that a subsequent ratification can validate a transaction which was void at its inception.'' Narayana Iyer C.J., could not concur with the above view, and therefore observed:
"It was settled law before the Nayar Act that there can be no partition unless all the members of the tarwad consented to it. But it was held in Kalliani Ammal v. Narayana Menon 45 Ind Gas 758: (AIR 1918 Mad 286) that a partition may be ratified by persons who were not originally parties to it, Mr. Varugis J., in Cheenu Amma v. Ramankutty Menon, 16 Cochin 202 at P. 204, similarly observed that ratification by conduct by an absent member on his return was sufficient and that the defect that the document may have had originally for want of his signature was sufficiently cured by his subsequent acceptance of the document. Similarly, an alienation even of tarwad properties which requires the consent of all the members could be ratified, be it the act of the karnavan or even an anandaravan in management (see pages 36 to 38 of Sundara Ayyar's Malabar Law). Then the question is whether the written consent of the members should be procured, before the several acts referred to in Section 28 are carried out, and it not so procured, whether they could be ratified and the defect cured. The section does not lay down that the written consent should be previous. In enactments where permission of court is insisted on for the doing of an act, the permission must naturally precede the act itself. But it has been held that such permission, even if obtained atter the doing of the act, would validate it ...... The purpose of the enactment is not to throw obstacles in the management of tarwad affairs by karnavans but to place only some wholesome checks on their management. Where a section is capable of two interpretations, the Purpose of the enactment must be looked into (See Mubarak Husain v. Ahmad, ILR 46 All 489 : (AIR 1924 All 328) (FB). When two alternative constructions are both possible and one of them leads to a manifest absurdity or to a clear risk or injustice and the other leads to no such consequences, the second interpretation must be adopted especially so when it is one which is most in accordance with the intention of the legislature so far as it can be gathered from the provisions of the Act taken as a whole. (See Dost Mahomed v. Mohandas Lalchand, 91 Ind Cas 573: (AIR 1926 Sind 8) and Arunachalam Chetty v. Official Receiver, 99 Ind Cas 284 : ILR 50 Mad 239 : (AIR 1927 Mad 166)). A court is entitled in case of doubt to reject an alternative which must lead to undesirable, if not to anomalous results, as observed in Venkatanarasayya v. Official Receiver, Godavary, 53 Mad LJ 136 : (AIR 1927 Mad 826 (2)). It is always better to adopt a construction which seems to produce a beneficent result rather than a construction which produces an opposite result. We know the surrounding circumstances that led to the enactment. They may also be examined in accepting a proper interpretation (see Hatimbhai Hassanally v. Framroz Eduljee Dinshaw, ILR 51 Bom 516 : (AIR 1927 Bom 278) (FB)). Thus, on the whole, I am of opinion that the subsequent ratification by defendants 2 and 6 cannot be lightly brushed aside."
in my humble view, the propositions that the transaction is only 'void against the other members of the tarwad' and that 'strangers are not entitled to raise contention' about the validity of the transaction are indicative of the transaction, toeing held valid and effective until challenged by the members of the tarwad. Earlier in the judgment, the learned Judges have held "that the transaction is invalid..-., that the members ot the lUom are entitled to treat it as absolutely void and of no effect....." Members who "are entitled to treat it as void an.d of no effect" must necessarily be competent also to treat it as valid and of full effect as well. It must then be within the option of the members of the tarWad to affirm it or avoid it. In other words_ a subsequent ratification, or more correctly, affirmation is possible at law. To the extent the abovesai(j decision declares the offending transaction to be impossible of subsequent ratification I am constrained with due respect to disagree with the same and follow 1958 Ker LT 220: (AIR 1958 Kerala 245) to hold that the transaction is one "which the junior members of the tarwad can, at their choice, either affirm or avoid".