The judgment established that the acquisition of a mortgage interest may not always amount to legal necessity for a sale of tarwad property, and that the sale must be supported by tarwad necessity as per S. 25 of the Travancore Nair Act.

1. This Second Appeal is by the plaintiffs in a suit to set aside a sale of their tarwad property.

The facts are as follow: Plaintiffs 1 & 2 and the 3rd defendant are the children of the 2nd defendant, and plaintiffs 3 to 5 the children of the 3rd defendant. They thus constituted one tavazhi. To this tavazhi was allotted the suit property, being one-half of 2 acres 95 cents in S.No. 29/4 in Thripperunthura village, at the partition of their main tarwad had in the year 1102 M.E., the other half of the property being allotted to the tavazhi of a sister of the 2nd defendant. On 15-9-1117 defendants 2 & 3, who were then the only adult members in 2nd defendant's tavazhi, executed a sale of the suit property to the 1st defendant for a consideration of Rs. 8621/2/-, in conjunction with the other tavazhi who sold their share also to the same buyer, the common deed of sale being Ext I in this case According to the plaintiffs the sale of the suit property belonging to their tavazhi was not supported by consideration or tarwad necessity and therefore was invalid. The plaintiffs therefore prayed that the sale be set aside and the property allowed to be recovered with mesne profits. The alienee contended that the sale was to the manifest advantage of the plaintiffs' tavazhi and supported by adequate consideration and therefore binding on the plaintiffs. The Munsiff found the sale not supported by tarwad necessity and therefore decreed the suit, allowing recovery of property with mesne profits at 70 parahs of paddy per annum. The Subordinate Judge, on appeal by the 1st defendant, reversed the same and dismissed the suit with costs throughout. Hence this second appeal by the plaintiffs.

3. The consideration for sale of the suit property as per Ext. I was Rs. 8621/2 made up of a cash consideration of Rs. 10/- and a sum of Rs. 7891/4 to be advanced for an assignment, Ext. II, in the name of 2nd defendant's tavazhi, of a mortgage on a property belonging to Velayuda Kurup, the husband of the 2nd defendant, and Rs. 631/4 for paying for a puravaippa, Ext. III, taken from Velayuda Kurup in regard to the same property. It is thus seen that excepting the cash consideration of Rs. 10, the rest of the price was for investment on a mortgage of property that belonged to Velayuda Kurup, the husband of the 2nd defendant and the father of plaintiffs 1 & 2 and the 3rd defendant. The Munsiff held: Ext I property was larger in extent and was yielding adequate profits. To part with that property and go in for a mortgaged property under Ext. II is not, in my opinion, advantageous to the plaintiffs' sakha tarwad." The Subordinate Judge was of the view: "The property covered by Ext II is less in extent than the plaint property. While the plaint schedule property measures 1 acre and 471/2 cents, the property covered by Ext. II is only 1 acre & 6 cents. But the evidence adduced in the case shows that the income from the property covered by the mortgage deed was greater than that from the plaint property The evidence of Dw.1 shows that whereas the plaint property is 4 miles away from the tarwad house of the plaintiffs, the property covered by Ext II was only 2 miles away. From the date of execution of Exts. I to III defendants 2 & 3 and their children were in possession of the property covered by Ext. II and they were taking the income therefrom. The plaintiffs have enjoyed the benefits on account of the execution of

Ext. II find that Ext. I is fully supported by consideration and necessity binding upon the tarwad of the plaintiffs and defendants 2 & 3."

4. Counsel for the alienee relied on Gourikutty Pilla Thankachy v. Velayudhan Pilla [1957 KLT. 577) and contended that the sale of tavazhi property for the purpose of acquiring a mortgage interest was for a legal necessity binding on the tavazhi and supported the reasons accepted by the Subordinate Judge to find its validity.

Reliance was also made on the attestation, indicative of approval, of the impugned tr