KUNHI MOIDEEN KUTTY HAJI Vs. ABDUL KHADER

JUDGEMENT

(1.) This second appeal arises out of a suit for partition of a Mappilla tarwad. There were certain alienations of the tarwad properties, and the plaintiff claimed his share ignoring those alienations and on the basis that they were not binding on the tarwad. The second appeal is filed by one of the alienees, defendant 21, and relates only to the properties alienated in his favour under Ext. B 19 sale deed dated 7-3-1942. To this sale deed all the adult members of the tarwad except the plaintiff and his brother were parties. The plaintiffs case was that the sale was not supported by necessity and consideration binding on the tarwad. This contention was upheld by both the courts below. But the lower appellate court has directed in its decree that the items sold under Ext. B 19 should as far as possible be allotted to the executants of that document so as to mitigate the hardship caused to defendant 21 and enable him to get at least such of the properties as would fall to the share of the persons who had executed that document.

(2.) Under S.8 of the Mappilla Marumakkathayam Act, Madras Act 17 of 1939;

(3.) In spite of the observations referred to above, I am of the opinion that the decisions of the courts below in this case are right and proper and call for no interference. The nature and scope of the presumption under the Marumakkathayam law arising in cases of the participation of the senior anandiravan in the execution of a document along with the karanavan are indicated at page 1029 of the report in Akku Thampuratti v. Raman (1957 KLT 1026) as follows: