JUDGMENT : S. GOVINDA MENON, J. 1. Defendants 1 to 3 in O.S. No. 403 of 1117 on the file of the District Munsiff of the Temporary Munsiff's Court of Chengannoor are the appellants in this Second Appeal. The respondents are the plaintiff and the 4th defendant in the suit. 2. O.S. No. 403 of 1117 was filed by the plaintiff Chandy Varghese for a declaration of his title to and for recovery of vacant possession from defendants 1 to 3 of item No. 1 in the plaint schedule after removal of the building therein described in the schedule as item No. 2 and for other reliefs. Defendants 1 to 3 resisted the suit. The District Munsiff overruled their contentions and virtually decreed the suit as prayed for. His decree was confirmed in Appeal (A.S. No. 89 of 1121) by the District Judge of Mavelikkara. Hence this Second Appeal by defendants 1 to 3. 3. It is necessary to state the facts which led to the institution of O.S. No. 403 of 1117. The first defendant Janaki Amma is a Nayar lady, the 4th defendant, Krishna Pillai, is her husband and defendants 2 and 3 are their minor children. In family partition the first defendant had obtained the plaint schedule first item as well as another item of property for her individual and separate share in her tarwad properties. Her children, defendants 2 and 3, were born subsequent to that partition. On 12th Chingom 1116 four sale deeds were drawn up and signed by the executants thereof in pursuance of a scheme arrived at by them for exchange of their properties. These sale deeds are Exts. A, E, C and D. Under that scheme the first defendant was to assign the plaint item No. 1, the property obtained by her in tarwad partition, to the plaintiff for a consideration of Rs.475. The sale price, Rs.475, was to be utilised by her for purchasing another property near her husband's residence in the name of herself and her child born by that time, namely, the second defendant, from one Govinda Kurup, his wife and their children. The sale price, Rs.475, was to be utilised by her for purchasing another property near her husband's residence in the name of herself and her child born by that time, namely, the second defendant, from one Govinda Kurup, his wife and their children. The consideration fixed for the assignment by Govinda Kurup and others of their property to defendants 1 and 2, was also Rs.475 and it was to be satisfied by payment in cash of Rs.375, out of which Rs.200 was to be invested on the purchase in the names of Govinda Kurup, his wife and children of two items of immovable property, and reserving the balance namely, Rs.100 with the vendees for payment at a future date towards the discharge of certain liabilities charged on the property. Pursuant to that scheme the said four sale deeds were drawn up on that day signed and executed by the parties. Ext. A is the document drawn up for the sale in favour of the plaintiff by the first defendant, Ext. E for the sale in the names of the first and second defendants by Govinda Kurup and others and Exts. C and D for the two sales in the names of Govinda Kurup, his wife and children, the former by one Parvathi Amma and the latter by one Yohannan and others. After these four documents were drawn up and signed and executed by the respective executants thereof they were produced for registration in the office of the Sub Registrar of Arammula. Ext. A was produced for registration by Varghese, Ext. E by Janaki Amma, Ext. C by Parvathi Amma, and Ext. D by the 3rd executant thereof, namely, Annamma. On the admission of execution by the executants thereof Exts. D and C were registered first. Both these documents recite that the consideration was paid in cash by the plaintiff Varghese on behalf of the vendees to the vendors. The endorsement made by the Registrar on Ext. C at the time of registration also shows that the sale price thereunder was actually paid in his presence by Varghese to the vendor. Subsequent to the registration of Exts. C and D it would appear that Govinda Kurup, one of the executants of Ext. E, snatched Exts. A and E from the Registrar's table and bolted away from the Registry Office. Subsequent to the registration of Exts. C and D it would appear that Govinda Kurup, one of the executants of Ext. E, snatched Exts. A and E from the Registrar's table and bolted away from the Registry Office. The Registrar immediately gave information about the removal of the documents by Govinda Kurup in the nearby Police Station. The Police at once went after Govinda Kurup and apprehending him made him return the documents to the Registrar. Thereafter, Ext. A was registered by the Registrar on the admission of the execution of that document by the first defendant. However, when Ext. E was taken up for registration Govinda Kurup appeared before the Registrar and denied its execution. The other executants of Ext. E did not put in their appearance. Therefore, the registration of Ext. E was refused by the Registrar. Admittedly under Exts. A and E there did not take place any delivery of possession of the property sold thereunder even though the sale transactions evidenced by them were completed by the execution and delivery of the sale deeds by the vendors to the vendees. Subsequent to the refusal of registration of Ext. E there were two criminal prosecutions against Govinda Kurup and others, one at the instance of the Sub Registrar in C.C. 54 of 1116 and the other at the instance of the first defendant in C.C. 53 of 1116. In the former case, the Criminal Court convicted Govinda Kurup and sentenced him to undergo imprisonment for six months but acquitted the other accused. In the latter case all the accused including the present plaintiff were acquitted. After the termination of the proceedings in the Criminal Court the present suit was filed by the plaintiff Varghese to recover possession of the property purchased by him under Ext. A on the strength of his title from Janaki Amma, her husband and their two children. The first defendant and minor defendants 2 and 3 filed separate written statements, the father of the minors, defendant No. 4, acting as their guardian and opposed the suit. The main contention raised by the defendants was that the sale deed Ext. A was unsupported by consideration, that it was not executed for any tarwad necessity and, therefore not binding on them or the plaint property. Fraud in the matter of its execution was also pleaded by them. The main contention raised by the defendants was that the sale deed Ext. A was unsupported by consideration, that it was not executed for any tarwad necessity and, therefore not binding on them or the plaint property. Fraud in the matter of its execution was also pleaded by them. The two main questions considered by the District Munsiff as arising for decision in the case were (1) whether the property involved in the suit was the tarwad property of defendants 1 to 3 or the exclusive property of the first defendant, and (2) whether the sale evidenced by Ext. A was for tarwad necessity and for valid consideration. The findings entered by the learned Munsiff on both these questions were against defendants 1 to 3. The plea of fraud was also repelled. He therefore, passed a decree in favour of the plaintiff practically as prayed for. In appeal the learned District Judge of Mavelikara confined her attention to an examination of the questions whether the assignment, Ext. A, was supported by consideration and tarwad necessity and whether the fraud alleged was proved. On these questions she concurred in the view expressed by the District Munsiff. Therefore the appeal of defendants 1 to 3 (A.S. No. 89 of 1121) was rejected by her. Hence this Second Appeal. 4. From what has been stated above it will be remembered that in the opinion of the trial Court the property sold under Ext. A was the absolute property of Janaki Amma and not her tarwad property and over it her children had no sort of right. The learned District Judge did not express any opinion on this question. The correctness of the above view of the Munsiff was seriously challenged before us by the learned Advocate for the appellants. He contends that though this property was obtained by the first defendant separately on account of her individual share in her tarwad properties in partition at a time when she had no children and, therefore constituted for the time being property over which she had absolute power of disposal, the moment her first child was born it became the property of the sub-tarwad for thavazhi composed of herself and her child and thereafter it could be allienated by her only for tarwad necessity and binding consideration. I may at once observe that the contention, to my mind, is unexceptionable, as it is founded upon the correct view to be taken regarding the character of the property under Malabar Law. To dispute the correctness of the above proposition, I am afraid, is to plead ignorance of the fundamental principles of Marumakkathayam Law. Under the Marumakkathayam Law every female of a tarwad by herself, and if she has children along with them, constitutes a thavazhi or sub-tarwad. Properties obtained in family partition separately by a childless female member form and continue in her hands as thavazhi properties. No doubt, so long as she remains the sole member of the thavazhi she will have in respect of those properties absolute powers of management and disposal. However, the moment a child is born to her she and her child together will constitute that tarwad or thavazhi and in respect of the properties of that tarwad or thavazhi her erstwhile powers of absolute disposal become completely extinguished and are replaced by those of a family karnavan or manager. This, in my opinion, is the correct legal position under Malabar Law as regards the nature of such properties. There is authority to support the above view. I was told at the time of argument that there is no decision of the Travancore High Court on this question. There is, however a direct decision of the Cochin High Court regarding this matter. In Kouchukrishna Menon v. Lekshmi Amma (23 Cochin 495) the learned Judges held:- “Property obtained in partition separately by a female member of Marumakkathayam tarwad becomes thavazhi property by the birth of a child to that member. From the moment the child is born the property obtained by the mother exclusively in partition ceases to be her separate property and constitutes the property of their thavazhi tarwad.” The learned Munsiff's view that item No. 1 in Ext. A was on its date the absolute property of the first defendant is, therefore, clearly wrong. 5. The above conclusion is, however, of no real help to the appellants in this case. Tarwad property could certainly be aliented for tarwad necessity and binding consideration. We have now before us the concurrent findings of the Courts below that the sale evidenced by Ext. A is supported by consideration as also tarwad necessity. 5. The above conclusion is, however, of no real help to the appellants in this case. Tarwad property could certainly be aliented for tarwad necessity and binding consideration. We have now before us the concurrent findings of the Courts below that the sale evidenced by Ext. A is supported by consideration as also tarwad necessity. The lower Courts also repelled the charge of fraud attributed to the plaintiff in the matter of obtaining that assignment. These concurrent findings on pure consideration of fact are binding on us in second appeal. 6. For the accident of the non-registration of Ext. E for certain reasons beyond the control of the executants of Ext. A the plaintiff is not to be penalised. It would appear from the executants of Exts. A, C, D and E and the attendant circumstances disclosed by the evidence on record that in respect of the property purported to be conveyed under Ext. E by Govinda Kurup and others to the first defendant and her son, the second defendant, there was, at any rate, a valid and enforceable agreement of sale, though the instrument executed to give effect to it viz., Ext. E was not registered. The non-registration of Ext. E could not under the circumstances be deemed to have brought about a failure of the consideration for the sale in favour of the plaintiff. In this view the plaintiff's title to recover possession of the plaint schedule property, item No. 1, on foot of his title could not be denied. 7. Though in the above view the second appeal is devoid of any substance we think in the interests of justice the lower Court's decrees have to be subjected to a slight modification. From a reading of Exts. A and E together it is perfectly clear that the plaintiff has not made good to the defendants portion of the sale price of Rs.475 for which the property was sold to him. The amount of Rs.100/- reserved under Ext. E out of the sale price with the vendees for payment on a future date the plaintiff has not paid to his vendors who are liable to pay the same to their assignors under Ext. E. This amount of Rs.100/- constitutes both under Exts. A and E unpaid purchase money. The amount of Rs.100/- reserved under Ext. E out of the sale price with the vendees for payment on a future date the plaintiff has not paid to his vendors who are liable to pay the same to their assignors under Ext. E. This amount of Rs.100/- constitutes both under Exts. A and E unpaid purchase money. The plaintiff should, in any event, pay the same to the defendants before he recovers possession from them of the property purchased by him. Since he claims mesne profits at the hands of the first defendant from the date of Ext. A, it is but fair and equitable that he should give a refund to them of this amount of Rs.100 with interest. We would, therefore, on equitable grounds put the plaintiff to terms when granting him the relief of recovery of possession claimed by him. We therefore, modify the decrees, now passed by the Courts below by incorporating therein a condition that before the plaintiff applies for delivery in execution he should deposit in Court for payment to defendants 1 to 3 Rs.100 and interest thereon at 6 per cent from 28th Chingom 1116 till the date of deposit. 8. Subject to the modification mentioned in the preceding paragraph the decrees passed by the Courts below are confirmed and this Second Appeal is dismissed with costs.