GANGADHARAN PILLAI Vs. NARAYANA PILLAI

JUDGEMENT

(1.) The appellants are the plaintiffs who sued to set aside a sale of their tarwad property under Ext. A dated 24-6-1118 by their mother the 4th defendant, father the 7th defendant, and a grandmother who was no more on the date of the suit. The plaintiffs have been represented in the sale deed by their mother as their guardian. The sale was in favour of defendants 1 to 3 for a sum of Rs. 552, out of which Rs. 24 odd was recited to have been received in advance and the balance Rs. 527 odd recited to have been received in cash for the purpose of acquiring other property for the benefit of the 4th defendant and her children. The Munsiff found that an alienation of tarwad property for acquisition of future property would not be lawful and therefore allowed the suit. But the Subordinate Judge reversed the same. Hence this Second Appeal.

(2.) The 4th defendant, examined as Dw. 1, has deposed that with Rs. 100/- a property, 1 acre in extent, has been acquired in her name where she has put up a small house and is residing with her husband and children. The deed of acquisition is not in proof in this case. The 1st plaintiff as Pw. 1 has sworn that that property is an unregistered land in which the prior occupiers improvements only have been purchased by the 4th defendant. As has been observed by the Privy Council in AIR 1920 PC 80 (83) Of things that do not appear and things that do not exist the reckoning in a Court of law is the same. The deed of acquisition having not been proved in this case, the said acquisition needs no consideration in this decision; and even if it be true it will not constitute a tarwad necessity for the impugned alienation. The acquisition was more precarious in nature than a mortgage right which has been held consistently in many rulings of this Court, the latest being S.A. No. 876 of 1958 (Since reported in 1962 KLT 804 ), not to form a necessity for an outright alienation of tarwad property.

(3.) Counsel for the alienee relied on a passage in the judgment in 1962 KLT 804 to contend that an alienation of tarwad property need only be to the manifest advantage of the tarwad, and need not be for a tarwad necessity as such. That passage reads: