The main legal point established in the judgment is the presumption of necessity binding on the tarwad in the context of the validity of a sale deed under S.25 of the Nair Act.

K. Bhaskaran, J.

1. Defendants 1 to4 and 6 in O.S. No. 4 of 1970 on the file of the Subordinate Judge of Attingal, are the appellants; plaintiffs and defendants 5 and 7 to 12 are the respondents. The suit was one for setting aside an alienation evidenced by Ext. P1 sale deed dated 1st July 1954 executed by defendants 7 to 12, with one Rama Kurup who is the husband of the 7th defendant and the father of the plaintiffs and defendants 8 to 12, acting as the guardian of the minor defendants 9 to 12, in favour of one Govindan Sadanandan, now deceased, whose children are defendants 1 to 5, and for recovery of the plaint schedule property with mesne profits, for and on behalf of the sub tarwad of the plaintiffs. The trial court set aside the sale deed holding it as not binding on the sub tarwad of the plaintiffs. The plaintiffs have been allowed to recover possession of the plaint schedule property from defendants 1 to 6 on behalf of their sub tarwad with past mesne profits for three years prior to the suit at the rate of Rs. 500 a year and future mesne profits at the above rate from the date of suit till the date of recovery of possession of the plaint schedule property or for three years from the date of the decree, whichever event first occurs. It is against this decree that the appeal has been preferred by defendants 1 to 4 and 6. The 6th defendant claims himself to be the tenant in possession of the plaint schedule property.

2. The case of the plaintiffs in brief is as follows:-- The plaint property was obtained by the sub tarwad of the plaintiffs and defendants 7 to 12 as per a partition deed in their tarwad on 13th Edavam 1120; on 1st July 1954 defendants 7 to 12 assigned the property to one Govindan Sadanandan, and on the death of the said Sadanandan defendants 1 to 5 are in possession and enjoyment of the property; the assignment deed dated 1st July 1954 (the original of Ext. P1) is invalid; it is against the provisions of the Nair Act and Marumakkathayam Law; it is not supported by consideration and necessity binding on the sub tarwad; the assignors had no right to execute the document; Rama Kurup who acted as the guardian of the minors was incompetent to represent them, he being not the legal guardian in respect of the tarwad property of the minors; there was no necessity to sell the property; the recitals in Ext. P1 are false; and the property was worth more than the price at which it was sold. Defendants 1 to 6 contested the suit, while the other defendants remained ex party. Defendants 1 to 4 contended, inter alia, that the assignment deed in favour of their predecessor was valid; the property was sold for consideration and necessity; all the necessary parties had joined the document; the price for which the property was sold was the highest that could be obtained at the relevant time; the assignment deed (original of Ext. P1) was not liable to be set aside for all or any of the reasons stated in the plaint; the mesne profits claimed was excessive; the 6th defendant was possessing the property on pathivaram arrangement even on the date of the assignment deed; the plaintiffs were not competent to sue; and the suit was barred by limitation.

3. Sri C. K. Sivasankara Panicker, the counsel for the appellants, advanced his arguments mainly under the following heads:-- (1) The original of Ext. P1 having been executed by all the adult members, with the father of the minors acting as their guardian, a presumption arises as to the existence of necessity binding on the sub tarwad of the plaintiffs, and the plaintiffs having failed to rebut that presumption, the document could not be set aside for all or any of the reasons mentioned in the plaint; (2) in any event by virtue of the provisions contained in S.28 of the Travancore Nair Act, 1100, the appellants are entitled to have the sum of Rs. 8,500 paid by way of consideration for Ext. P1 sale refunded to them; (3) the finding of the court below that the suit was not barred b