KESAVAN KOCHUVELU Vs. GOPINATHAN NAIR

JUDGEMENT

(1.) This second appeal is by disappointed alienees of a tarwad property. The impugned alienation is a sale executed on 6-2-1112 M. E. by the 6th defendant, the mother of the plaintiffs, in favour of Kutty Chinna, the late mother of the appellants. The consideration for the impugned alienation was Rs. 800, out of which Rs. 700 was reserved with the vendee to be paid in an year with interest. S.25 of the Travancore Nayar Act, 1100, says that no sale of tarwad property would be valid unless supported by three factors consideration, tarwad necessity and written consent of all adult members. I have indicated in Thankamma v. Kunjulakshmi ( 1965 KLJ 14 ) and in Gangadharan Pillai v. Narayana Pillai ( 1962 KLT 952 ) that necessity as a factor justifying an alienation means pressure of some necessity which could not be met by the alienor acting prudently and reasonably at the time except by the alienation. Obviously there was no necessity on the date of the impugned alienation for its making. The cancellation of the conveyance by the Courts below was therefore well justified. The appeal fails.

(2.) The plaintiffs have preferred a cross objection against the direction to pay Rs. 606 1/2 to the heirs of the alienee before recovering the properties from the defendants. The Courts below have concurred to find that out of Rs. 100 received in cash on the date of alienation Rs. 20 1/2 were paid to a lessee for his surrender of the properties that day, that out of Rs. 550 received from the vendee on 22-3-1115 a sub mortgage has been acquired on 25-6-1116 for Rs. 400 in the name of the 6th defendant and the plaintiffs and that Rs. 186 have been paid by the vendee on 25-12-1114 to a creditor of the plaintiffs' tarwad. The plaintiffs' tarwad had thus benefit of the consideration of the impugned alienation to the aggregate extent of Rs. 606 1/2 which the Courts below directed the plaintiffs to repay to the heirs of the alienee. In Varkey v. Meenakshy Amma ( 1964 KLT 952 ) it has been held that, while cancelling an alienation, the plaintiff should be directed to surrender or restore to the disappointed alienee the benefits obtained by the alienation. The impugned direction is therefore right and the cross objection also has to fail.

(3.) In the result, both the appeal and the cross objection are dismissed. As both are without merit, there need be no order as to costs in either.