THOMA Vs. THANKAMMA

JUDGEMENT

(1.) The defendants 3, 9 and 11 are the appellants in this second appeal. Plaintiffs and defendants 4 to 8 claim to be members of a Nair tarwad. The tar ward appears to have executed a mortgage as early as 1073. In or about 1107, there was a division in the main tarwad and in and by that partition arrangement, the items which arc the subject of the present controversy, were allotted as and for the share of the Sakha of plaintiffs and defendants 4 to 8. Defendants 1 and 2 are the assignees of the mortgage rights in respect of item 1. As the 1st defendant is dead, defendants 10 and II are the legal representatives of the deceased first defendant. The third defendant is an assignee of the mortgage rights in respect of item 2 and the 9th defendant claims to be in possession of this item under the third defendant.

(2.) Under Ext. A dated 7-11-1116, defendants 4 to 8 who were the then adult members of the plaintiff's Sakha, sold the enquity of redemption to defendants 1 to 3 and the present suit is for a declaration that the sale of enquity of redemption under Ext. A does not bind the plaintiffs' Sakha on the ground that (a) the transaction is not supported by consideration; and (b) that there was no tarward necessity to justify the alienation.

(3.) The defence was that the transaction evidenced by Ext. A is supported both by consideration as also by tarwad necessity. There was also another contention raised, that is in or about 1118, there was a division in the Sakha of the plaintiff himself and as such, he is not entitled now to institute the present suit for getting back the property for and on behalf of the tarwad or the Sakha.