Judgment :- 1. This second appeal is by the plaintiffs and arises out of a suit instituted by them for recovery of possession of the plaint schedule properties ignoring an otti deed executed by the majority of the senior members in the tarwad, which was allowed by the trial court but dismissed by the court below. 2. The plaintiffs and defendants 1 to 9 are members of Kakkat Madathil Kovilakam which is an impartible Marumakkathayam tarwad. Under Ext. Al family karar dated 23-2-1909 the management and karnavasthanam of the Kovilakam had been vested permanently in the senior-most female member subject however to the limitation that she had no right by herself to incur debts binding on the Kovilakam, the senior most males and females in the three branches of the Kovilakam could alone together act in the matter. While the management of the Kovilakam was being conducted in manner provided under Ext. Al, Akku Amma Thamburatti, the karnavathi of the Kovilakam for the time being, along with the senior ladies of the two other branches, gave Ext. A2 power-of-attorney dated 15-10-1937 in favour of the 10th defendant for the management of the Kovilakam, with power to spend his own moneys, if necessary, for the purposes of the Kovilakam and recoup the same from the income of its properties. Ext. A2 mentioned that the amount of Rs. 1000 which was being taken as security from the 10th defendant thereunder was utilised for meeting the binding necessities of the Kovilakam. Ext. A2 was, under its terms, to enure for a period of ten years but within two years thereof, viz., on 29-9-1939, the 10th defendant surrendered his management to the karnavathi by Ext. B2 deed and obtained at the same time, Ext. BI the mortgage deed impugned in the case. Ext. BI was executed by the defendants 1 to 4 and 6 and three others comprising the majority of the adult members in the Kovilakam at the time and included the senior-most male and female members from each of the three branches of the Kovilakam as required by Ext. Al karar. The consideration for the deed was Rs. 2950 made up of three items, (i) Rs. 1000 advanced by the 10th defendant at the time of Ext. A2 power-of-attorney, (ii) Rs. Al karar. The consideration for the deed was Rs. 2950 made up of three items, (i) Rs. 1000 advanced by the 10th defendant at the time of Ext. A2 power-of-attorney, (ii) Rs. 1875 ascertained as due to the 10th defendant on settlement of his accounts of management of the Kovilakam under the power, & (iii) Rs. 75 advance made by the 10th defendant for the expenses in connection with the deed. Ext. BI provided also for a term of 12 years. The plaintiffs who constituted the minority of the adult members as well as the minors in the Kovilakam, attack in this suit, Ext. B1 as wanting in consideration and necessity and so not binding the Kovilakam. The plaint averred that Ext. A2 power of attorney in 10th defendant's favour was invalid as against the terms of Ext. Al family karar and the consideration of Rs. 1000/- recited therein, had neither been paid by the 1st defendant nor utilised for any valid necessities of the Kovilakam. The plaintiffs also denied that the amount of Rs. 1875/- as recited in Ext. BI mortgage or any portion thereof was due to the 1st defendant from the Kovilakam on settlement of accounts. The assertion was further made that defendants 1 to 4 were made to execute the mortgage deed in question by unlawful and illegal means. The 10th defendant contested the suit on the footing that Ext. BI was perfectly valid and unimpeachable. In this he was supported by the 6th defendant who was one of the executants of the mortgage deed. 3. The courts below found concurrently in the first instance, and against the 10th defendant that Ext. BI mortgage was unsupported by consideration and necessity binding upon the Kovilakam and accordingly allowed the suit. In second appeal, however, by the 10th defendant before the Madras High Court, the judgment and decree of the Subordinate Judge was reversed and the case was remanded to the first appellate court for fresh consideration and disposal in the light of the principle, specially stressed, that the junction of the majority of the senior members in Ext BI was presumptive proof in favour of the necessity and the genuineness of the consideration thereunder. After remand the court below found that the prima facie presumption allowed to be raised by the High Court in favour of the 10th defendant had not been in any way rebutted by the plaintiffs and so it dismissed the suit. Hence this second appeal by the plaintiffs as above said. 4. Mr. C. K. Viswanatha Iyer, learned Counsel for the plaintiffs-appellants referred me to certain passages in the judgment of the court below where the learned subordinate judge had observed that the case had to be disposed of on the footing that the original borrowing of Rs. 1000/- by the three ladies who executed the power-of-attorney Ext.A2 in favour of the 10th defendant was without necessity and against the terms of the family karar Ext. Al and the only question was whether the borrowing had been ratified. Learned counsel said that if the original borrowing was without any necessity, any amount of ratification by the majority of the senior members however large or by the whole body of them even if it be, would not avail the creditor as against the Kovilakam Mr. Gopalan Nambiar appearing for the contesting respondents countered by saying that this was not a case where the evidence was clear at any stage that there existed no purposes binding upon the family in connection with the loan and the creditor depended solely on the doctrine of ratification in support of his claim for relief against the Kovilakam. He argued that even otherwise the doctrine had its own place in the law governing the matter and referred to the passage in Kesavan v. Lekshmi, A. I. R.1939 Madras 137. "If the loan was for a necessary purpose there can be no question that the contract will bind the other members whether they assented to the transaction or not. If the loan was not for a necessary purpose, prima facie the contract will not be binding on them. It is only in such circumstances the question arises under what circumstances the other members of the family can be rendered liable? If the loan was not for a necessary purpose, prima facie the contract will not be binding on them. It is only in such circumstances the question arises under what circumstances the other members of the family can be rendered liable? Whether it is a case of a joint Hindu family or a case of a Malabar tarwad, even though the members of a family or tarward were not actual contracting parties to a loan entered into by a manager still it is open to them to ratify and adopt it in cases where the contract was entered into by the manager, in his capacity as manager but not for a necessary family purpose". Indeed, according to learned counsel, the argument against the applicability of the doctrine in this case, was not available in view to the specific reference in the order of remand, to the 1939 Madras case he had just cited, as follows: "The prima facie presumption, is in favour of necessity and the genuineness of the consideration, as was pointed out in a recent decision of this court in Kesavan Nambudiri v. Lekshmi Varasyar (1939) I M. L. J. 568 at 572. This would have a very important bearing in deciding the question of the genuineness of the consideration and also its binding nature. It is no doubt true that at the time when the power-of-attorney was executed in favour of the 10th defendant the 10th defendant advanced a sum of Rs. 1000 without the assent of the six members as required by the karar. But this debt was again considered by the members when they executed the otti and therefore whatever may be the initial defect, when the debt was incurred at the time of the execution of the power-of-attorney, the matter received further consideration by the members of the three branches and they agreed that the sum of Rs. 1000 due to the 10th defendant should form part of the consideration of the deed" 5. 1000 due to the 10th defendant should form part of the consideration of the deed" 5. Having heard learned counsel and looked into the records, it seems to me that what the learned subordinate judge really meant was that there was no positive evidence in the case pointing to any particular necessary purpose for which, the borrowing was made, not that there was no necessity at all For, except that the relevant documents stated and the 10th defendant also asserted that the moneys were utilised to clear off the pressing debts of the Kovilakam there was neither a clear specification of the debt nor proof as to its actual discharge with the help of the 10th defendant's loan. The matter was further complicated by the notion pressed for by the plaintiffs and accepted by the lower courts, that if the amount was borrowed for payment of debts already incurred by the executants of Ext. A2, power-of¬attorney that debt will not be binding on the family as they had no power by themselves to borrow money as per the karar Ext. Al. That is to say, the distinction was not kept between the factum of the debt incurred and the capacity to incur it. This was therefore a case where the binding nature of the debt was at worst merely ambiguous and the senior members made the matter clear by their acceptance. It was not a case where the liability of the Kovilakam was for the first time sought to be raised on the basis of the ratification or subsequent acceptance of the debt and its binding nature by the senior members. For, it must always be remembered that when the alienation is impeached by junior members, the creditor has to prove the passing of consideration under the document. He has to adduce independent proof of the same. The recitals in the document by themselves cannot amount to such proof. They can only bind parties thereto or their privies. In cases where third parties question the validity of documents the creditors themselves have to prove the passing of consideration by evidence of proof aliunde. And consent on the part of all the adult members however valuable it may be to lead to a reasonable presumption, cannot by itself constitute tarwad necessity. In other words "consent" and "tarwad necessity" are not synonymous terms nor are they interchangeable. And consent on the part of all the adult members however valuable it may be to lead to a reasonable presumption, cannot by itself constitute tarwad necessity. In other words "consent" and "tarwad necessity" are not synonymous terms nor are they interchangeable. It is well-established by a long course of decisions of this court that the consent of adult members can lead only to a reasonable presumption of tarwad necessity, which if unrebutted will favour the creditor. But the strength of such presumption will vary with the nature and character of the admission made, the occasion where it was made and other attendant circumstances. It is worth while in this connection to note that the remand order has not even once used the word 'ratification'. The case of Kesavan v. Lekshmi, A I.R. 1939 Mad. 137 referred to in the remand order was also concerned with a case where the karnavan had not even acted 'as such' in contracting the loans and the so-called ratification was therefore held insufficient as against the consenting major members themselves. Further the law in Madras, see Chalil Krishnan v. Raman Maran A.I.R. 1935 Madras 38, had otherwise gone only to the extent of deciding that "Where the alienation is made by all the adult members, there is a presumption in favour of the propriety of the alienation as being supported by benefit or necessity to the tarwad. But this presumption is a rebuttable one and it is open to the minor members to challenge the transaction by adducing proof to the contrary." On the whole it seems to me that the doctrine of ratification cannot apply to this branch of the law except as limited above. 6. Learned counsel for the plaintiffs then said that after the enactment of S.33 of the Madras Marumakkathayam Act there was no scope for any presumption in favour of the creditor arising from the junction of the senior members in a transaction entered into by the karnavan. It is no doubt true that S.33 does not in terms provide for such presumption. But it does not mean that rule as settled so long ago as (1882) Kombi v. Lekshmi, I.L.R. 5 Madras 201 and since been uniformly followed has been abrogated by the Statute. Indeed S.50 (b) was specially intended for such savings. That section says: "50. It is no doubt true that S.33 does not in terms provide for such presumption. But it does not mean that rule as settled so long ago as (1882) Kombi v. Lekshmi, I.L.R. 5 Madras 201 and since been uniformly followed has been abrogated by the Statute. Indeed S.50 (b) was specially intended for such savings. That section says: "50. Nothing contained in this Act shall- (a) (b) be deemed to affect any rule, of Marumakkathayam Law, custom or usage, except to the extent expressly laid down in this Act." The principle that conjunction or concurrence of the senior-most anandravan raises a prima facie presumption of necessity is, without doubt, a rule of Marumakkathayam Law, custom or usage within the meaning of this sub-section (b). And practically to the same effect is the statutory rule in Marumakkathayam Law as codified in adjacent jurisdictions. 7. Learned Counsel for the appellants was not able to say that the court below has gone wrong in holding that the prima facie presumption arising in favour of the 10th defendant as above discussed has not been rebutted by the plaintiffs' evidence. In fact the only important witness examined on behalf of the plaintiffs was the 3rd plaintiff whom the Munsiff himself characterised as incompetent to speak in the matter, because he was only a young boy at the relevant times and had also no personal knowledge about the transactions. Members elder to him in the Kovilakam had, none of them, come forward to support the case laid in the plaint. The plaintiffs did not also make any serious attempt to examine any one of the seniors who were parties to the mortgage impugned. There was on the other hand, in favour of the 10th defendant, the admission contained in the 6th defendant's written statement, that the transactions in question were genuine and justified. The 10th defendant had further sworn to his case. In my judgment the learned Munsiff had rather misled himself by not keeping the distinction between the actual incurring of the debt and its valid and binding nature as against the family. The learned Subordinate Judge was therefore right in holding that the evidence of Pw.1 was hardly sufficient to raise a conclusion that the presumption in favour of the 1st defendant has been rebutted. 8. It follows there is no merit in the second appeal and it is therefore dismissed with costs.