T.K. Joseph, J.@mdashThe appellants in this Second Appeal are the plaintiffs in O.S. No. 483 of 1116 of the District Munsiff''s Court of Neyyattinkara. They are also the appellants in S.A. No. 78 of 1955 which has been disposed of today by a separate judgment. The subject matter of this litigation is a plot of 10 cents sold by the plaintiffs mother to defendants 1 to 3 in the year 1106. The suit for recovery of this plot on the basis of a lease was dismissed and that decision was confirmed by the Judgment in S.A. No. 78 of 1955. The plaintiffs sued for cancellation of the sale deed executed by their mother during their minority in respect of the plaint property in this case. Ext. B is copy of the sale deed dated 27-1-1106. According to the plaintiffs, this property belonged to their sub-tarwad consisting of themselves and their deceased mother. The sale deed in question was sought to be set aside and the property recovered, on the ground that the sale transaction was unsupported by consideration and necessity. The defendants contended that the document was a valid and bonafide one fully supported by consideration and necessity. The trial court found that Ext. B was supported by consideration and necessity to the extent of Rs. 25/- only. The plaintiffs were accordingly given a decree for recovery of possession of the property on payment of the sum of Rs. 25/- and the value of improvements effected by the defendants on the property. The defendants preferred an appeal to the District Court and the plaintiffs objected to the decree by a memorandum of cross objections. The appeal was allowed and the memorandum of cross-objections dismissed, holding that Ext. B was fully supported by consideration and necessity. The suit was accordingly dismissed and the plaintiffs have come up in Second Appeal. The property was sold for a total consideration of Rs. 100/-. It is stated in the deed that a portion of the consideration was received in cash and that the balance was reserved for redemption of a mortgage. The finding regarding consideration is concurrent. Both courts have found that the whole consideration was paid by the vendees. As regards necessity for the sale, the trial court found that it was supported by tarwad necessity to the extent of Rs. 25/-. This finding stands confirmed by the lower appellate court. This sum of Rs. 25 was reserved with the vendees for payment at the time of redemption of the mortgage. The evidence in the case is that the plaintiffs mother wrote to the defendants that a larger sum was required for redemption and that she urgently required money for the treatment of her children who were ill. The sum of Rs. 25 was thus paid to her husband Mathevan Pillai under Ext. I dated 7-10-1106. The concurrent finding regarding necessity for this sum of Rs. 25 is thus based on evidence and does not call for interference.
2. The only point that comes up for decision in this Second Appeal is whether the payment of Rs. 75 was found by the courts below is supported by tarwad necessity. The defense case is that the plaintiff''s mother and her husband represented that they required this sum for the purchase of buffaloes for ploughing their paddy field and that the amount was accordingly advanced for purchasing the animals. The trial court did not believe the defense case on this point mainly because it was considered unlikely that the vendors would purchase buffaloes from a place forty miles away from the place where they were residing at that time. It was also observed that there were markets near to their residence. Dw. 1 deposed that he sold the buffaloes to the plaintiff''s mother and that he was paid the price out of the sum received from the defendants. Dw. 2 stated that he was present when payment was made to Dw. 1. Apart from the reason stated earlier the only other ground relied on by the learned Munsiff for disbelieving these witnesses is that they appeared to have a bias in favor of the 1st defendant. I do not think the reasons relied on by the learned Munsiff are sufficient to disbelieve this part of the defense case viz. that the sum of Rs. 75 paid by defendants 1 to 4 was utilized for the purchase of buffaloes.
3. The lower appellate court upheld the defense case mainly the ground that when consideration for the sale transaction was found tarwad necessity for the same could be presumed. I do not think this view is correct. The presumption may no doubt arise in the case of transaction falling under Sections 26 and 28 of the Travancore Nair Act. Sales of tarwad property are covered by Section 25 of the Act and. this section does not provide for any such presumption. The vendees are bound to prove consideration as well as necessity. It has therefore become necessary to examine the evidence relating to necessity. Before doing so a few circumstances which appear in the case have to be considered. The plaintiff''s father Mathevan Pillai was the eldest brother of defendants 1 to 3. They partitioned their properties which were in Neyyattinkara in the year 1102 Mathevan Pillai''s wife, i.e. the plaintiff''s mother belonged to Pathara about 40 miles south of Neyyattinkara. Mathevan Pillai had shifted his residence to his wife''s place. Within one year of the partition of 1102 Mathevan Pillai executed a settlement deed conveying the whole property obtained by him in partition to his wife and children. They were all living at Pathara at the relevant time. It can be seen from the evidence that there was perfect amity and concord among the brothers. There was a partition in the family of the plaintiff''s mother in the year 1103 but there were some disputes regarding its validity and the disputes were finally settled only in the year 1113 by the execution of another partition deed Ext. C.P.W. 2 who is the husband of the next friend of the plaintiffs deposed that he had allowed Mathevan Pillai and his wife to cultivate and take the income of his properties near their residence. There is no difficulty in believing this because the plaintiff''s case also is that they were not in needy circumstances at that time. There was no allegation that Mathevan Pillai was at any time acting adversely to the interests of his wife and children. On the other hand it is seen that he settled all the properties obtained by him in partition on his wife and children. Mathevan Pillai and his wife went over to Neyyattinkara to execute the sale deed. Mathevan Pillai attested the execution of Ext. B. The plaintiffs were all minors at that time and their parents were the only persons competent to decide whether the transaction was an advantageous one or not. The plaintiffs have no case that the property would have fetched a higher price in 1106. No hard and fast rule can be laid down regarding the validity of such a transaction where a small bit of immovable property is sold for providing livestock for the cultivation of the rest of the properties. The vendees who were brothers of Mathevan Pillai could not possibly have any reason to think that the purpose for which money was raised was not one advantageous to the vendors. Considering the relationship between the parties, the small extent of the land sold, the fact, that the vendors had come all the way to Neyyattinkara to effect the sale and the absence of any adverse interest on the part of the parents towards their children, there is no difficulty in holding that the sale transaction was bonafide one fully supported by legal necessity. It may be mentioned that this court has held that even the sale of tarwad property for the purpose of acquiring mortgage interest may in certain cases amount to legal necessity binding on the tarwad. A.S. No. 575 of 1953 is one such decision. On the evidence in this case I hold that Ext. B is supported by necessity. In the result, the decree of the lower court dismissing the suit is confirmed and the Second Appeal is dismissed. In view of the relationship of the parties both sides are directed to bear their costs throughout.
