Judgment :- 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 plaintiff's 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; "Except for consideration and for tarwad necessity or benefit and with the written consent of the majority of the major members of the tarwad, no karanavan shall sell immovable property of the tarwad or mortgage with possession or lease such property for a period exceeding twelve years". In this case, the majority of the major members of the tarwad including the senior anandiravan thereof had joined in the execution of Ext. B 19. The appellant's contention in this court is that as the senior anandiravan has joined in the execution of Ext. B 19 there is a presumption that the document is supported by necessity and consideration and, as the plaintiff has not rebutted that presumption, the courts below were wrong in holding that it was not binding on the tarwad. According to the courts below, the burden of proving consideration and necessity was upon the alienee, defendant 21. They held that he had not affirmatively proved consideration and necessity and, therefore, the alienation was not binding on the tarwad. According to the courts below, the burden of proving consideration and necessity was upon the alienee, defendant 21. They held that he had not affirmatively proved consideration and necessity and, therefore, the alienation was not binding on the tarwad. The only point argued at the time of the hearing of the second appeal was whether, in the circumstances of the case, there was a presumption of necessity and consideration arising in the alienee's favour and whether it was for the plaintiff to rebut that presumption or for defendant 21 to affirmatively prove that there was necessity and consideration for the sale deed. The appellant's counsel relied upon the decisions in Akku Thampuratti v. Raman 1957 K.L.T. 1026 = (1957 K.L.J. 902) and Kesavan v. Lakshmi (A.I R.1939 Mad. 137) in support of his contention that when the senior anandiravan joined the karanavan in the execution of a document there was a presumption of necessity and consideration in the alienee's favour. In Kesavan v. Lekshmi (A.I.R.1939 Mad. 137) it has been observed: "But under the law which governs the members of a Malabar tarwad the concurrence of the senior anandiravan in a transaction of the karnavan raises a prima facie presumption of necessity". In Akku Thampuratti v. Raman 1957 K.L.T. 1026=1957 K.L.J. 902 it was held that the principle that the junction or concurrence of the seniormost anandiravan raises a presumption of necessity is a rule of marumakkathayam law, custom or usage which is saved by S.50 (b) of the Madras Marumakkathayam Act. The Mappilla Marumakkathayam Act also contains a section, namely S.27 similar to S.50 (b) of the Madras Marumakkathayam Act. 4. 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 K. L. T. 1026) as follows: "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. 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. 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 worthwhile in this connection to note that the remand order has not even once used the word 'ratification'. The case of Kesavan v. Lakshmi (A.I.R.1939 Mad. 137) referred to in the remand order was also concerned with a case where the karanavan 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 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" .11 In Kombi v Lakshmi (I.L.R. 5 Mad. 201) it has been observed at page 207: "The assent of the senior anandiravan is regarded as sufficient evidence of the assent of the family. It depends on the circumstances, and not on any presumption invariably arising out of Malabar institutions, on whom, in any particular case, the burden of proof lies as to the necessity for the loan. No invariable presumption, therefore ought to be applied to the settlement of such questions". 5. It depends on the circumstances, and not on any presumption invariably arising out of Malabar institutions, on whom, in any particular case, the burden of proof lies as to the necessity for the loan. No invariable presumption, therefore ought to be applied to the settlement of such questions". 5. A Full Bench of the Travancore High Court has held in 19 T.L.R. 265: "In all cases of mortgages by karanavan, whether singly or jointly with the senior anandiravan, it is for the creditors to prove payment of consideration. When the senior anandiravan joined the karnavan the presumption as to necessity will be in favour of the creditor". 6. No decision has gone to the extent of saying that from the junction of the senior anandiravan the presumption that the document is supported by consideration would also arise. The decisions are uniform that when the validity of an alienation is challenged by a junior member it is for the alienee to prove the passing of consideration by independent evidence. When the passing of consideration is proved the fact that the senior anandiravan had joined the karanavan in the execution of the document would raise a presumption of necessity in the alienee's favour. Without proof of payment of consideration on the part of the alienee no presumption at all can be drawn in his favour by the mere participation of the senior anandiravan along with the Karnavan in the execution of the document. 7. There is practically no independent evidence in this case to prove the passing of consideration for Ext. B19, and all the circumstances connected with it have been carefully considered by the lower courts. I am therefore unable to agree with the appellant's contention that the lower courts have erred in omitting to raise a presumption in the alienee's favour and casting the burden of proof on the alienee. Further, the lower appellate court has also provided, as far as possible, to protect whatever legitimate grievance the appellant can have. The second appeal is, therefore, dismissed subject to this clarification namely, that the properties alienated under Ext. B19 would, as far as possible, be allotted to the shares of the executants thereof and that defendant 21 will be entitled to get the properties which are thus allotted to them. Parties will bear their costs in this court. Dismissed.