The adequacy of consideration for an assignment of property and the necessity for a fair price in such transactions.

Sundaram Chetty, J.

1. This second appeal arises out of a suit brought by the plaintiffs-appellants for the setting aside of certain alienations made by the adult members of the tavazhi mentioned in the plaint and for certain incidental reliefs. One set of alienations attacked in the plaint are covered by Exs. III, IV-a, and V. All these mortgages were created over the othi right which the tavazhi possessed in certain immovable property. The tavazhi had to get a sum of Rs. 500 as the mortgage money, besides Rs. 100 together with interest thereon, as purangadam and also the value of the improvements effected on the property, in case of redemption of the mortgage by the original owner. Both the Courts below have found that the aforesaid mortgages are valid and binding on the tavazhi tarwad, and in respect of those mortgages the declaration sought for by the plaintiffs cannot be given. The last of the alienations attacked by the plaintiffs is evidenced by Ex. VIII, which is a deed of assignment of the othi right possessed by the tavazhi in favour of defendant 8 for a consideration of Rs. 1,000. The trial Court held that this assignment, which is virtually an out and out sale of the othi right, is not valid and binding on the tavazhi; whereas the lower appellate Court found that even this alienation is binding on the tavazhi, and on the strength of that finding dismissed the plaintiffs suit.

2. In this second appeal, there is no valid ground to interfere with the concurrent findings of fact arrived at by both the Courts below as regards the truth and validity of the mortgages under Exs. Ill, IV series and V. No useful purpose can be served by adverting to the reasons given by the Courts below in support of the concurrent finding arrived at by them. The only important question for consideration is, whether the lower appellate Court was correct in finding that the assignment of the othi right under Ex. VIII in favour of defendant 8 is valid and binding on the tavazhi, as an alienation of an interest in immovable property possessed by it. One circumstance which must be conceded in favour of defendant 8 is that this assignment deed has been executed by all the adult members of the tavazhi. There is some discussion of the legal effect of this circumstance on the binding character of the alienation in the judgments of the Courts below. So far as I could see, the general trend of the decisions bearing upon this question seems to be that the fact of the execution of this assignment deed by all the adult members of the tavazhi leads to a presumption in favour of the propriety of the alienation, and it may safely be taken that it is prima facie evidence of the transaction being for the benefit of the tavazhi or for meeting the prime necessities thereof. But to contend that this circumstance alone is sufficient by itself to treat the alienation as binding on the tavazhi, ignoring any evidence to the contrary, would, in my opinion, be going too far. The circumstance above mentioned would not create an irrefutable presumption. All that can be safely said is that the propriety of the alienation can prima facie be presumed, but it is open to the other side to adduce rebutting proof, and the decision to be arrived at must be on a due consideration of the entire evidence; available in a particular case. One of the tests usually applied in determining the binding character of an alienation of this kind is, whether the assignment of the othi right was for a fair price or an adequate consideration.

3. As I have already said, even if the owner of the mortgaged property seeks to redeem the mortgage, in which case the tavazhi as the mortgagee cannot prevent the redemption of the mortgage, there is every prospect of the tavazhi realising Rs. 600 on account of the mortgage money together with the interest on Rs. 100 due as purangadam and also a sum of Rs. 772 odd which, according to the report of the Commissioner, was due to the mortgagee on account