JUDGMENT C.A. Vaidialingam, J. 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. 4. The learned District Munsiff of Changanacherry held that the document was supported to a major extent, by consideration, but on the question of tarwad necessity it held against the defendants. It is rather significant that the document itself docs not mention any reason for effecting a sale of the property, i. e., the document does not recite the necessity for the sale. It is rather significant that the document itself docs not mention any reason for effecting a sale of the property, i. e., the document does not recite the necessity for the sale. This finding, so far as the consideration and tarward necessity is concerned, has also been accepted by the learned Judge in appeal and therefore, it is not necessary for me to consider the various items of consideration in any great detail, because even if the document is held to be supported by full consideration, it will have to fail in view of the findings that there was no tarwad necessity to justify this alienation. 5. The other main attack on the plaintiff's action was, as mentioned by me earlier, that the plaintiff, after a division in the tarwad and in his Sakha, has no right to maintain an action for and on behalf of the tarwad. This contention, rather curiously has been disposed off by the learned District Munsiff in this single sentence namely, "The suit is legally maintainable". There is no further discussion and it is also not known as to how exactly the learned District Munsiff came to this very criptic conclusion. 6. On appeal, the learned Judge has agreed with the conclusions of the Trial Court on the question of consideration and tarward necessity. But the learned Judge, purported to follow a decision of the Travancore High Court reported in Kochu Pennu v. Rukmini Amma (1946 TLR 948) and came to the conclusion that the plaintiff's action, notwithstanding the fact that there has been a division in the tarwad, is legally maintainable and therefore, the learned Judge confirmed the order of the learned District Munsiff decreeing the suit of the plaintiff. 7. In this second Appeal on behalf of the defendants 3, 9 and 11, Mr. Vadakkel, their learned counsel, has quite properly not challenged the finding of fact recorded against his clients by both the courts that Ext. A is not supported by tarwad necessity. The only contention that the learned counsel has advanced before me is a pure point of law namely, the reasoning of both the courts that the suit by the plaintiff, notwithstanding a partition in the tarwad and Sakha, is maintainable. A is not supported by tarwad necessity. The only contention that the learned counsel has advanced before me is a pure point of law namely, the reasoning of both the courts that the suit by the plaintiff, notwithstanding a partition in the tarwad and Sakha, is maintainable. That is, according to the learned counsel, after the tarwad has been partitioned, it is not open to a member of the tarwad to institute a suit for recovery of properties for and on behalf of that tarwad. 8. On the other hand on a previous occasion, when this Second Appeal came on for hearing, Mr. Vadakkel also drew my attention to the fact that the statement of P. W. 1 in re-examination to the effect that the partition in the family has been set aside by a decree in O. S. 473-of 1951, is not correct and in support of this contention, the learned counsel had produced before me then a certified copy of the judgment in O. S. 473 of 1951 and I had also by virtue of the power vested in me under Order 41 rule 27 C. P. C., Suo motu admitted the said document as additional evidence on behalf of the defendants. 9. At the request of Mr. K. N. Narayanan Nair. learned counsel for the respondent, I had adjourned this matter to enable him to get further particulars as to whether the judgment in O. S. 473 of 1951 has become final or whether it was subject to any appeal and if so, with what result. 10. Mr. K. N. Narayanan Nair has stated before me that this court must now proceed on the basis that there has been a partition of the family and it has not been set aside In O. S. 473 of 1951 as wrongly mentioned by P. W. 1. Therefore, the question is whether the plaintiff, notwithstanding a partition in the tarward, is entitled to maintain this action for and on behalf of the tarwad. The Trial Court had nothing else to say on this matter excepting this observation, namely, "The suit is legally maintainable." On the other hand, the learned Judge purported to follow a decision of the Travancore High Court reported in Kochu Pennu v. Rukmini Amma (1946 TLR 948), It is now contended before me by Mr. The Trial Court had nothing else to say on this matter excepting this observation, namely, "The suit is legally maintainable." On the other hand, the learned Judge purported to follow a decision of the Travancore High Court reported in Kochu Pennu v. Rukmini Amma (1946 TLR 948), It is now contended before me by Mr. Vadakkel, learned counsel for the appellant that the said Travancore decision relied upon by the learned Judge, has been overruled by a decision of the Kerala High Court consisting of Koshi C. J., and myself reported in Neelakanta Pillai v. Madhavi Amma & Others ( 1958 KLJ 916 ). Therefore, the basis of the decision on which the learned District Judge came to the conclusion that the suit is maintainable, now goes and therefore, it follows that it is not open to the plaintiff, afier the partition in the tarwad, to maintain an action for and on behalf of the tarwad. But the only relief that the plaintiff can now get in this action is to have a declaration that the sale of the equity of redemption evidenced by Ext. A dated 7-11-1116 is not binding, so far as her share is concerned. Both the learned counsel agreed before me that the share to which the plaintiff will be entitled is 1/6 share. 11. The decrees and judgments of both the subordinate courts will be modified to this extent namely, that the plaintiff's 1/6 right in the equity of redemption conveyed under Ext. A dated 7-11-1116" is declared and she will have to work out her further rights in other appropriate actions brought for this purpose. Therefore, the Second Appeal is allowed to this extent and in all other respects, the decrees of both the courts are confirmed. Parties will bear their own costs in this court. No leave. 12. My order dated 16th October 1959 will be annexed to this judgment. ANNEXURE The main point that is now urged in this Second Appeal by Mr. Vadakkel, learned counsel on behalf of the appellants namely, defendants 3, 9 and 11 is that the view of the lower appellate court that the suit is maintainable, is not correct. No leave. 12. My order dated 16th October 1959 will be annexed to this judgment. ANNEXURE The main point that is now urged in this Second Appeal by Mr. Vadakkel, learned counsel on behalf of the appellants namely, defendants 3, 9 and 11 is that the view of the lower appellate court that the suit is maintainable, is not correct. The learned counsel has stated that the ruling relied upon by the learned Judge namely, the decision in Kochu Pennu v. Rukmini Amma (1946 TLR 948) in support of his conclusion that, notwithstanding the division of the tarwad, it is open to a person in the position of the plaintiff to challenge a transaction entered into by the tarwad, has been superseded by later decisions of the Kerala High Court, the latest being the ones reported in Neelakanta Pillai v. Madhavi Amma & others ( 1958 KLJ 916 ). In view of this, the learned counsel contends that the view of the appellate Judge on the question of maintainability of the suit is not correct. 2. This is sought to be controverted by Mr. K. N. Narayanan Nair, learned counsel for the plaintiff respondent, on the ground that the partition, on which reliance was placed by the appellants to non suit the present action, has itself been set aside and in this connection, he relied upon the evidence of P. W. 1 in re-examination to the effect that the partition has been set aside by means of a decree in O. S. No. 473 of 1951. 3. Mr. Vadakkel has produced before me a certified copy of the Judgment in O. S. No. 473 of 1951 on the file of the District Munsiff's Court, Changanacherry. By virtue of powers vested in me under Order 41, rule 27, admit it suo motu as additional evidence on behalf of the defendants. A perusal -of that judgment shows that the answer given by the lady, P. W. 1 that the partition arrangement has been set aside in O. S. 473 of 1951, cannot be correct. On the other hand, the judgment passed in that suit to set aside the partition arrangement, clearly shows, that the suit itself is dismissed. That means, the partition arrangement stands. Mr. K. N. Narayanan Nair is not now in a position to know whether the decision in O. S. No. 473 of 1951 has become final or not. On the other hand, the judgment passed in that suit to set aside the partition arrangement, clearly shows, that the suit itself is dismissed. That means, the partition arrangement stands. Mr. K. N. Narayanan Nair is not now in a position to know whether the decision in O. S. No. 473 of 1951 has become final or not. He has no information on that. I am adjourning the further hearing of the Second Appeal by two weeks to enable Mr. Narayanan Nair to obtain further particulars regarding this judgment.