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 P.C. 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:

Legal necessity has assumed various shapes and forms, and the particular one on the basis of which the transactions in question are sought to be supported is the rule that has been accepted that there can be an alienation of tarwad property for the purpose of acquiring other properties if such alienation and acquisition are to the manifest advantage of the tarwad.

It may be noted that S.25 of the Travancore Nayar Act, 2 of 1100, and S.21 of the Travancore Ezhava Act, 3 of 1100, enact:

Except for consideration and tarwad necessity and with the written consent of all the major members of the tarwad, no karnavan or other managing member shall sell tarwad immovable property.. .

They refer to tarwad necessity as a condition for an alienation and do not refer to manifest advantage of the tarwad. The corresponding provision in S.33 of the Madras Marumakkathayam Act (22 of 1933 as amended by Act 26 of 1958) is No sale ... of any immovable property of a tarwad ... shall be valid, unless it is executed by the karnavan for consideration, for tarwad necessity or benefit, and with the written consent of the majority of the major members of the tarwad. Under this provision a sale of tarwad property need not necessarily be for tarwad necessity; it is enough if it be for benefit of the tarwad. That puts the law on a par with the Hindu Law where the power of a manager to alienate joint family property is held to extend to cases of legal necessity or benefit of the estate. Vide S.242 to 244 of Mullas Hindu Law. But, the Travancore Acts (cited above) insist strictly on the sales of tarwad property being for tarwad necessity only. Of course, meeting a tarwad necessity may be a manifest advantage to the tarwad; but one cannot say manifest advantage is always tarwad necessity. Referring to the provision in the Travancore Act, Joseph., J. in Gourikutty Pilla, Thankachy v. Velayudhan Pillai (1957 KLT. 577) observed Vendees are bound to prove consideration as well as necessity; and Raghavan, J. in Omanakutty Pillai v. Krishnan Nair (1961 KLT. 626), and myself in Chandrasekhara Pillai v. Kochu Koshi (1961 KLT. 1018) have held that no sale of tarwad property would be valid unless supported by consideration, tarwad necessity and the written consent of all adult members of the concerned tarwad. And, in Mathew v. Ayyappankutty 1962 KLT. 61 it was held by all the three Judges who constituted the, Full Bench that a sale of immovable property belonging to a tarwad would be valid only if it is supported by consideration, tarwad necessity and the written consent of all the major members of the tarwad. (Vide Para.4 and 98 of the judgment). It is unfortunate that in 1962 KLT. 804 the attention of their Lordships was drawn not to the above decisions of this Court but only to a decision of the defunct High Court of Travancore which is apparently not in tune with the express enactment in the concerned statute. I may mention here that Anna Chandy, J., has in Sreedharan v. Chellappan (1959 KLT. 897) observed an alienation of immovable property of the tarwad for acquiring other properties could be upheld only if the fresh acquisition is also immovable property and the acquisition is shown to have been to the advantage of the tarwad; but no reference was made therein to any statute or case law on the matter. Occasions may easily be conceived in which manifest advantage amounts to tarwad necessity. If a tarwad, finding it impossible to maintain all its members out of its income, sells a piece of unproductive land in an industrial area in order to utilise its price to purchase arable lands in a fertile rural area and thereby makes its resources self sufficient, it would really be a case of necessity of the tarwad. I would refer to such cases as cases of tarwad necessity only, and not of manifest advantage to the tarwad. I feel that in using the expression manifest advantage of the tarwad in 1962 KLT. 804 their Lordships meant only cases in which the advantage sought out of the alienation was to overcome a tarwad necessity; but if the expression be meant to cover cases other than of strict tarwad necessity, as counsel for the respondent contends it is, I feel bound to follow the dictum of the Full Bench on the matter and hold that an outright alienation of tarwad property would not be valid unless it be for meeting a tarwad necessity.

4. The only question then is whether the impugned alienation was to meet any necessity of the tarwad. It has not been shown in this case that the impugned alienation was to meet any necessity of the plaintiffs tarwad. The consideration was received in cash & its purpose is recited in the deed as future acquisition of property. There is no indication in the deed that the executants had any property in view for such acquisition. Conversion of immovable property to cash for purposes of future acquisition of some landed property that the party may find convenient in time to come cannot be said to constitute a tarwad necessity for an alienation. The impugned sale has therefore to be held invalid. The appeal succeeds.

5. It is pointed out by counsel that compensation for improvements effected by the vendee on the suit property has been assessed not in accordance with the Kerala Act 29 of 1958.

6. In the circumstances, in reversal of the decree of the Subordinate Judge, that of the Munsiff is restored except as regards the quantum of compensation for improvements payable to the alienee which will be reassessed in execution when the property is sought to be taken possession by the plaintiffs. The respondent will pay the costs of the appellants here and in the court below.