1. The appellant, plaintiff brought this suit to recover money lent under a usufructuary-mortgage deed, Ex. A, and a subsequent mortgage deed, Ex. C. He also sought to include in the mortgage money, the rent due under a lease Ex. B. His claim was made not only against the karnavan of the tavazhi of Defendants 1 to 16, but also against the properties of the tavazhi. The members of the defendants tavazhi and the other members of the tarwad entered into a, karar in 1914 under which certain debts were allotted to the several tavazhis and power was given to charge the tavazhi properties with the repayment of those debts, but it was expressly forbidden to charge the tavazhi properties with any further debt. Rs. 3,000 was thus allotted to the tavazhi of Defendants 1 to 16 and they were authorised to borrow money to pay off the debt, but it was expressly provided that they should not borrow for the interest thereon, which interest had to be paid out of the current income. If it became necessary to borrow, all the adult members were to join in borrowing and if they did not do so, the debt would not be binding on the tavazhi properties. When the plaintiff entered into the plaint transactions, he was fully aware of the terms of the karar and knew, therefore, that unless all the adult members of the tavazhi joined in borrowing, the loan would not be binding on the tavazhi properties except in respect of the Rs. 3,000 mentioned in the karar. At that time there were 6 adult members of the tavazhi, i.e., Defendants 1 to 6 first defendant being the karnavan. Accordingly Ex. A. was executed by Defendants 1 and 4 on 30-4-1914 for a sum of Rs. 3,000 and in order that interest should not accrue on this sum, 29 out of 46 items of property mortgaged were put into the possession of the plaintiff mortgagee so that out of the proceeds he could repay himself the interest due. On the same date as Ex. A, the plaintiff re-transferred the 29 properties to the mortgagors stipulating for payment of a rent of Rs. 225 the equivalent of the interest on the Rs. 3,000 borrowed under Ex. A. This lease, Ex. B. was for one year only and it provides that the rent due under it should be a charge on the tarwad property. These two documents Exs. A and B were executed by Defendants 1 and 4, the karnavan of the tavazhi and the eldest female member. They were also attested by two other male members.



2. So far as Ex. A is concerned it cannot be disputed that it is binding on the tavazhi property, for it is executed for tavazhi necessity by the karnavan and it is within the karnavans powers under the family karar. The charge for rent accrued under Ex. B cannot, however, be binding upon the tavazhi properties. In the first place the only rent which has been charged on the property is one years rent from Kumbam 1090, and it is admitted that that years rent has been paid.



3. It is now argued for the appellants that inasmuch as Defendants 1 and 4 continued to hold over as tenants the rent for the subsequent years is also a charge on the property. This point was specifically dealt with in Kutti Umma v. Mahadeva, Menon [1901] 11 M.L.J. 18l, where it was held in almost indentical circumstances that such rent could not be a charge and that the lessors only remedy was to recover three years, arrears of rent from the lessees. Kutti Umma v. Mahadeva Menon [1901] 11 M.L.J. 18l, was followed in Mamambath Pettiyeth v. Cheria Uthalamma [1912] 16 I.C. 560, and in accordance with these decisions we must hold that the plaintiff has no charge on the properties for arrears of rent. The claim for 3 years arrears cannot be enforced against Defendants 5 and 6 and is not a charge on the tavazhi properties. Further Ex. B is in excess of the karnavans powers under the karar, which expressly stipulated that the interest on the Rs. 3,000 was to be paid out of the current income ; admittedly there was no necessity for execution of Ex. B which, therefore, cannot be binding on the tarwad in any event. So far as the claim under Ex. B is concerned the plaintiffs appeal must fail. The subsequent mortgage deed Ex. C was executed by Defendants 1 to 4 alone and the debt has been found by the Subordinate Judge to have been borrowed for the purpose of the tavazhi. It appears that it was borrowed for the expenses of litigation between the first defendant and Defendants 5 and 6 who were claiming separate maintenance. The borrowing, however, is in excess of the powers of the karnavan under the karar and would, therefore, not be binding upon Defendants 5 and 6 and the tavazhi property unless all the adult members joined. The suggestion that Defendants 5 and 6 impliedly joined in the borrowing cannot be held proved on the mere assertion of plaintiff that they told him he could borrow from first defendant if he liked. It is, however, contended that inasmuch as the money was borrowed for tavazhi purposes the tavazhi properties are liable. Mr. Ramchandra Aiyar relies for this proposition on Puzhakkal Edom v. Mahadeva Pattar [1918] 35 M.L.J. 96: in that case an injunction had been granted against a karnavan restraining him apparently from borrowing money. Notwithstanding this injunction, he borrowed money and it was held that because the loan was contracted for tarward purposes it was binding on the tarward properties. The reason for that decision is that the effect of the injunction was merely what is laid down in the Civil P.C. and that, therefore, it could not be held that when money was borrowed and utilised for the benefit of the tarwad, the tarwad would not be liable. Reliance is also placed on Sinaya Pillai v. Munisami Ayyan [1899] 22 Mad. 289, where an alienation made by a guardian appointed by Court, without the sanction of the Court, was held to be valid and binding on the minor in accordance with the principle laid down in Section 64 of the Indian Contract Act. Other cases cited in support of the proposition are cases in which suits brought against receivers are held to be maintainable although the leave of the Court had not previously been obtained, such as Ammukutty v. Manavikraman [1920] 43 Mad. 79

3. The latter class of cases is hardly analogous to the present one. The first case Puzhakkal Edom v. Mahadeva Pattar [1918] 35 M.L.J. 96, related to injunction and may be distinguished on the ground that the disability imposed on the karnavan was a question between the Court itself and the borrower, the Court having full power to deal with disobedience of its order and, therefore, could not be allowed to affect the undoubted rights of a third party. The case of the guardian in Sinaya Pillai v. Munisami Ayyan [1899] 2 Mad. 289, is dependent on Section 64 of the Indian Contract Act and we were asked here to apply that section to the present case. That section is in terms applicable to parties to contract and on equitable principle is extended to others who are not parties, but the principle underlying that section is that the person made liable to refund must have received a benefit under the contract. In the case in Sinaya Pillai v. Munisami Ayyan [1899] 2 Mad. 289, the minor had undoubtedly received such benefit, but it cannot he said that in this case Defendants 5 and 6 have received benefit. The contention is, that inasmuch as the tavazhi as a whole has received benefit the Defendants 5 and 6 must be deemed to have received the same. The words in the section are " shall restore any benefit received." What is the benefit received by Defendants 5 and 6 that can be restored or even what benefit has been received by the tavazhi as such which can he restored The money which apparently is all the benefit received has not been received by anyone except the four members of the tavazhi who executed Ex. C. It, no doubt, was borrowed for expenses of the tavazhi, but thero is no evidence to show either that it was spent on tavazhi purposes or that there was such a lack of tavazhi money that it was necessary to borrow. In these circumstances we think it must be held that Section 64 is inapplicable. If it were to be applied, it would render the family karar entirely nugatory, for, it would empower the karnavan to spend the current income of the tavazhi, and then to borrow for tarwad purposes without obtaining the consent of the other adult members. A similar case has been decided in Travancore, Sekharin v. Painkathi 35 Travancore L.R. 110, in which it was held that a loan borrowed in excess of the powers of the karnavan could not be a charge on the tarwad property. In that case the powers of the karnavan had been restricted by a family karar, as in the present case, and we entirely agree with that decision and must hold that the money borrowed under Ex. C cannot be made a charge on the tavazhi properties. This decision is also in accordance with Second Appeal No. 615 of 1882 (unreported) where the same conclusion was arrived at.



4. The result is, that so far as the tavazhi properties are concerned the Subordinate Judges decree is right. But it is contended for the respondents that the tavazhi properties have been made liable not only for the Rs. 3,000 due under Ex. A but also for the interest thereon. This is clearly wrong, for, the interest was provided for by the document Ex. B which is certainly not binding on the tavazhi. The plaintiff appears to have been out of possession of these properties and will probably lose a great portion of his interest, thereby suffering some hardship but this loss is entirely due to his own negligence in taking such a document in contravention of the terms of the karar of which he was fully cognizant.



5. The lower Courts decree must, therefore, be modified by substituting for the figure Rs. 4,105-13-0 the words Rs. 3,000 with interestat 7 and 1/2 per cent. from the date of the decree to 3 months from this day to which date the time for the pay merit of the money is extended and proportionate costs on Rs. 3,000.



6. The appeal is dismissed with costs of respondents 5, 7 to 9, 11 and 12 and the Memorandum of Objections is allowed with costs.