JUDGMENT K. Bhaskaran, J. 1. Defendants 1 to4 and 6 in O.S. No. 4 of 1970 on the file of the Subordinate Judge of Attingal, are the appellants; plaintiffs and defendants 5 and 7 to 12 are the respondents. The suit was one for setting aside an alienation evidenced by Ext. P1 sale deed dated 1st July 1954 executed by defendants 7 to 12, with one Rama Kurup who is the husband of the 7th defendant and the father of the plaintiffs and defendants 8 to 12, acting as the guardian of the minor defendants 9 to 12, in favour of one Govindan Sadanandan, now deceased, whose children are defendants 1 to 5, and for recovery of the plaint schedule property with mesne profits, for and on behalf of the sub tarwad of the plaintiffs. The trial court set aside the sale deed holding it as not binding on the sub tarwad of the plaintiffs. The plaintiffs have been allowed to recover possession of the plaint schedule property from defendants 1 to 6 on behalf of their sub tarwad with past mesne profits for three years prior to the suit at the rate of Rs. 500 a year and future mesne profits at the above rate from the date of suit till the date of recovery of possession of the plaint schedule property or for three years from the date of the decree, whichever event first occurs. It is against this decree that the appeal has been preferred by defendants 1 to 4 and 6. The 6th defendant claims himself to be the tenant in possession of the plaint schedule property. 2. The case of the plaintiffs in brief is as follows:-- The plaint property was obtained by the sub tarwad of the plaintiffs and defendants 7 to 12 as per a partition deed in their tarwad on 13th Edavam 1120; on 1st July 1954 defendants 7 to 12 assigned the property to one Govindan Sadanandan, and on the death of the said Sadanandan defendants 1 to 5 are in possession and enjoyment of the property; the assignment deed dated 1st July 1954 (the original of Ext. P1) is invalid; it is against the provisions of the Nair Act and Marumakkathayam Law; it is not supported by consideration and necessity binding on the sub tarwad; the assignors had no right to execute the document; Rama Kurup who acted as the guardian of the minors was incompetent to represent them, he being not the legal guardian in respect of the tarwad property of the minors; there was no necessity to sell the property; the recitals in Ext. P1 are false; and the property was worth more than the price at which it was sold. Defendants 1 to 6 contested the suit, while the other defendants remained ex party. Defendants 1 to 4 contended, inter alia, that the assignment deed in favour of their predecessor was valid; the property was sold for consideration and necessity; all the necessary parties had joined the document; the price for which the property was sold was the highest that could be obtained at the relevant time; the assignment deed (original of Ext. P1) was not liable to be set aside for all or any of the reasons stated in the plaint; the mesne profits claimed was excessive; the 6th defendant was possessing the property on pathivaram arrangement even on the date of the assignment deed; the plaintiffs were not competent to sue; and the suit was barred by limitation. 3. Sri C. K. Sivasankara Panicker, the counsel for the appellants, advanced his arguments mainly under the following heads:-- (1) The original of Ext. P1 having been executed by all the adult members, with the father of the minors acting as their guardian, a presumption arises as to the existence of necessity binding on the sub tarwad of the plaintiffs, and the plaintiffs having failed to rebut that presumption, the document could not be set aside for all or any of the reasons mentioned in the plaint; (2) in any event by virtue of the provisions contained in S.28 of the Travancore Nair Act, 1100, the appellants are entitled to have the sum of Rs. 8,500 paid by way of consideration for Ext. 8,500 paid by way of consideration for Ext. P1 sale refunded to them; (3) the finding of the court below that the suit was not barred by limitation was erroneous and was not in accordance with the true spirit of the provisions in S.7 of the Limitation Act; and (4) the finding of the trial court that the 6th defendant was not a lessee in respect of the property is not correct. 4. Elaborating his argument on the first point, namely, the binding nature of the original of Ext. P1 sale deed, the counsel submitted that it is not seriously disputed that a sum of Rs. 8,500 was received by the vendors for the sale of the plaint schedule property comprising of 85 cents of wet land, which alone was allotted in the tarwad partition of 1120, to the sub tarwad of the plaintiffs. The counsel submits that it has not been shown that this consideration of Rs. 100 per cent for the wet land in the year 1954 was not proper consideration for the sale. It is the admitted case that defendants 7 and 8 who alone were the adult members at the time of the sale had joined in the execution of the document and that the father of defendants 8 to 12 and the plaintiffs had joined in the execution of the document as the guardian of the minors, defendants 9 to 12 and plaintiffs 1 and 2. The counsel also submitted that the contention that Rama Kurup, the husband of the 7th defendant, was not the competent person to represent the minors in regard to the sale of sub tarwad property could be of no significance in this case inasmuch as in terms of S.25 of the Nair Act, tarwad property could be sold for necessity by a karanavan or any managing member of the tarwad with the written consent of all the major members of the tarwad, ignoring the minors altogether. There appears to be substance in the contention that the fact that the minors were not represented by competent person in the execution of the sale deed in the present case is not by itself a ground for setting aside the document. There appears to be substance in the contention that the fact that the minors were not represented by competent person in the execution of the sale deed in the present case is not by itself a ground for setting aside the document. It is well settled that in order that a sale of immovable property belonging to a Nair tarwad to be valid, three conditions have to be satisfied: (1) there should be written consent of all the major members of the tarwad; (2) the sale should be for consideration; and (3) there should be necessity binding on the tarwad. In the case on hand, we have already found that there was consideration for the sale, and that in the execution of the document the 8th defendant, karanavan, and 7th defendant, mother of defendants 8 to 12 and the plaintiffs, who was the only other adult member of the sub tarwad at the relevant time, had joined in the execution of the document. If, therefore, defendants 1 to 5 are in a position to establish that the sale was for necessity binding on the sub tarwad, the plaintiffs cannot successfully assail the transaction. 5. Now we may briefly examine the relevant recitals in Ext. P1 sale deed. If, therefore, defendants 1 to 5 are in a position to establish that the sale was for necessity binding on the sub tarwad, the plaintiffs cannot successfully assail the transaction. 5. Now we may briefly examine the relevant recitals in Ext. P1 sale deed. Therein it is stated, inter alia, that the plaint schedule property comprising of 85 cents of wet land was the only item allotted to the sub tarwad of the 7th defendant in the tarwad partition of the year 1120; the 7th defendant and her children had been permanently residing with Rama Kurup, the husband of the 7th defendant, in a place about 30 miles away from the plaint schedule property; there was no convenience for looking after the property or for profitably cultivating it, as the 7th defendant's sub tarwad had no other interest in the place where the plaint schedule property was situate; it would be more advantageous to sell the property for a good price and utilise the proceeds thereof for acquiring immovable property anywhere near Rama Kurup's residence which was the residence of all the members of the sub tarwad of the 7th defendant; to be able to bargain effectively in the matter of the sale of the plaint schedule property as well as in the matter of the acquisition of the immovable property with that amount it would be better that the sale was effected before the property to be acquired was fixed; in order to safeguard the interest of the buyer in the event of the minors raising any objection after they attained majority, sufficiently valuable property belonging to Rama Kurup was given by way of security to the buyer. 6. The substance of the recitals in Ext. P1 mentioned above has been practically corroborated in full by the oral evidence of the first plaintiff who was examined as P.W. 1. 6. The substance of the recitals in Ext. P1 mentioned above has been practically corroborated in full by the oral evidence of the first plaintiff who was examined as P.W. 1. He has stated, inter alia, that the only item of immovable property allotted to his sub tarwad in the tarwad partition of the year 1120 was the 85 cents of land described in the schedule to the plaint, they had no other interest in the locality in which the plaint schedule property was situate, his mother with all her children had permanently been staying with his father Rama Kurup about 28 miles away from the plaint schedule property, and they had no convenience for managing the plaint schedule property while they resided at such a distance though one of his uncles was alive and was staying not far away from the plaint schedule property at that time. We are in agreement with the submission of Sri Panicker that though the admitted case is that no acquisition of immovable property was, as a matter of fact, made by the vendors with the consideration received under the sale deed, that itself will not be a ground for setting aside the document when it "is established that the sale was supported by consideration and necessity binding on the sub tarwad, as it is not always the duty of a bona fide purchaser to see to the utilisation of the consideration received by the vendors. 7. In Akku Thamburatti v. Raman 1957 KLT 1026 Varadaraja Iyengar, J. has dealt with the" question of presumption in regard to necessity binding on the tarwad where all the major members have joined in the execution of the sale deed. In paragraph 5 what has been stated reads as follows:- "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. .......................... Further the law in Madras, see -- Chalil Krishnan v. Raman Maran ( AIR 1935 Mad. 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. .......................... Further the law in Madras, see -- Chalil Krishnan v. Raman Maran ( AIR 1935 Mad. 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'............................" In paragraph 6 what has been stated is as follows:- "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 karanavan. It is no doubt true that section 33 does not in terms provide for such presumption. But it does not mean that that rule as settled so long ago as (1882) Kombi v. Lekshmi, (ILR 5 Mad. 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 seniormost Anandaravan raises a prima facie presumption of necessity is, without doubt, a rule of Marumakkathayam Law, custom or usage, within the meaning of this sub-s.(b). And practically to the same effect is the statutory rule in Marumakkathayam Law as codified in adjacent jurisdictions." It may be noted that the provisions contained in S.44(a) of the Travancore Nair Act is almost identical to that is found in S.50(b) of the Madras Marumakkathayam Act. The view expressed by Varadaraja Iyengar, J. in Akku Thamburatti v. Raman 1957 KLT 1026 = 1957 KLJ 902 was relied on by Velu Pillai, J. in Sreedharan Pillai v. Narayana Pillai and others 1959 KLT 775 = 1959 KLJ 633 . In Rev. Fr. The view expressed by Varadaraja Iyengar, J. in Akku Thamburatti v. Raman 1957 KLT 1026 = 1957 KLJ 902 was relied on by Velu Pillai, J. in Sreedharan Pillai v. Narayana Pillai and others 1959 KLT 775 = 1959 KLJ 633 . In Rev. Fr. K. M. John v. Divakara Menon 1966 KLJ 676 a Division Bench consisting of Velu Pillai and Anna Chandy, JJ. has observed that the existence of a pressing need by way of a demand for the money or the filing of a suit for its recovery is not a factor that should invariably exist in all cases before an alienation to discharge that debt is upheld, and that the actual pressure on the estate, the danger to be averted or the benefit to be conferred on it in the particular instance is the thing to be regarded. 8. Sri P. Sukumaran Nayar, the counsel for the respondents, has placed reliance on the following observation of Madhavan Nair, J. in Thankamma v, Kunjulakshmi 1965 KLT 1111 : "........... .If the requirement of necessity is to have any significance, it must be to meet some need for the consideration of the alienation, extent at the time of its execution. Taking the consideration for investment in other property at the unknowable convenience of the vendors in the indefinite future cannot be a 'tarwad necessity' to support an alienation under S.21 of the Travancore Ezhava Act." In the same decision it has also been observed that -- "........... no presumption of necessity or consent can be drawn by the Court in cases coming within the scope of S.21." (Travancore Ezhava Act) Madhavan Nair, J. speaking for the Bench which consisted of M. S. Menon, C. J. and himself in Janardhana Kurup v. Saraswathi Amma and others 1963 KLJ 395 , has observed as follows:- "............ In the context in which the word 'sale' appears in S.25 of the Nayar' Act, it is obviously used in a rather generic sense to mean an outright alienation. All alienations of tarwad properties are purported to be covered by S.25 and 26 of the Act, but the only words used therein are sales, mortgages and leases. It is not then clear that, in the context, the word 'sale' covers all absolute alienations, 'mortgage' means all encumbrances in favour of creditors, and 'lease' denotes all grants of under rights in immovable property. It is not then clear that, in the context, the word 'sale' covers all absolute alienations, 'mortgage' means all encumbrances in favour of creditors, and 'lease' denotes all grants of under rights in immovable property. Exchanges are really a specie of sales, ad the only difference between a sale stricto sensu and a sale in the form of exchange lies in the consideration which is money in one and equivalent property in the other. It is a very familiar principle in law that one cannot do that indirectly which one is prohibited from doing directly. If an absolute alienation for a price is prohibited, to an equal extent must an absolute alienation for another property be held prohibited. The fact that sales and exchanges are treated separately in the Transfer of Property Act, is of no consequence in construing the Nayar Act, as the two enactments are not in pari materia. An exchange of tarwad immovable property for a property of another is well within the mischief of S.25 of the Travancore Nayar Act, 1100. It follows that such an exchange cannot be made by a karanavan unless it be for adequate tarwad necessity. Mere convenience of enjoyment, which must necessarily vary according to the whims and fancies of particular individuals, cannot be a necessity of the tarwad. ..........." Sri Sukumaran Nayar also has drawn our attention to paragraph 4 of Justice Madhavan Nair's decision in the Full Bench case reported in Mathew v. Ayyappankutty 1962 KLT 61. After having quoted S.21 of the Travancore Ezhava Act and almost identical provisions contained in the Travancore Nayar Act, Travancore Malayala - brahmin Act, Travancore Kshatriya Act, Travancore Krishnavaka Marumakkathayee Act, Cochin Nayar Act, Cochin Marumakkathayam Act, Cochin Nambudiri Act, Madras Nambudiri Act, Madras Marumakkathayam Act and the Madras Aliyasanthana Act, it was observed therein as follows:- "As per the above said sections, a sale of immovable property belonging to a Marumakkathayam tarwad would be valid only if it is supported by (i) consideration, (ii) tarwad necessity and (iii) the written consent of all the major members of the tarwad. ..." 9. On a consideration of the various decisions we find that preponderance of judicial pronouncement is in favour of the proposition that a presumption of necessity binding on the tarwad arises where the sale of the tarwad property is with the consent of all the adult members of the tarwad. ..." 9. On a consideration of the various decisions we find that preponderance of judicial pronouncement is in favour of the proposition that a presumption of necessity binding on the tarwad arises where the sale of the tarwad property is with the consent of all the adult members of the tarwad. In this case, as has already been pointed out, the original of Ext. P1 sale deed was executed by defendants 7 and 8 who together exhausted the major members of the tarwad; as the guardian of the minors, defendants 9 to 12 and plaintiffs 1 and 2, Rama Kurup, their father also had joined in the execution of the document. No doubt, it ultimately turned out that with the money secured by the sale of the property, no property was actually acquired, though such acquisition was in contemplation in the minds of the vendors when they executed the original of Ext. P1. The counsel for the appellants has rightly pointed out that it is not the duty of a bona fide purchaser to see that the amount obtained by the vendors is utilised for the purpose recited in the document. We are concerned only with the facts and circumstances as were obtainable at the time of the impugned transaction. Here we find that the sale was not only by the karanavan and the other adult member, but also by the minors, represented by their father. The father had furnished adequate security to safeguard the interest of the vendee in the event of the minors on attainment of majority challenged the validity of the transaction. The recital in Ext. P1 and the oral evidence of P.W. 1 himself disclose that the sub tarwad was not having the convenience for cultivating the land profitably, and that it was more advantageous for them to convert the property into cash so that at the appropriate time that amount could be utilised for better purposes, namely, to secure immovable property which would ensure convenience of enjoyment and better profit to the sub tarwad. That Rama Kurup has offered sufficiently valuable property by way of security is abundant proof to show that neither he nor defendants 7 and 8 had any intention to defraud the minors. It is also to be noted that defendants 9 to 12 who attained majority much earlier did not choose to challenge the validity of the transaction. That Rama Kurup has offered sufficiently valuable property by way of security is abundant proof to show that neither he nor defendants 7 and 8 had any intention to defraud the minors. It is also to be noted that defendants 9 to 12 who attained majority much earlier did not choose to challenge the validity of the transaction. The plaintiffs have not succeeded in rebutting the presumption -- that the sale evidenced by the original of Ext. P1 was supported by tarwad necessity on account of the fact that all the major members of the sub tarwad had joined in the execution of the document. With this finding on the question of tarwad necessity, it is established that all the three requirements for the validity of a sale under the provisions of S.25 of the Nair Act, as analysed in Paragraph 4 of the decision in Mathew v. Ayyappankutty 1963 KLT 61 FB namely, (1) consideration, (2) tarwad necessity and (3) the written consent of all the major members of the tarwad, are present in this case. 10. Points Nos. 2 and 3 urged by the counsel for the appellants with respect to the refund of the sale consideration in case the sale is not upheld, and the question of limitation need not be gone into in this appeal inasmuch as, for the reasons already stated, we have necessarily to hold that the plaintiffs are not entitled to succeed in their action to have the sale deed set aside. We, however, note that the counsel for the appellants has argued before us that the ruling of the Full Bench of this Court in Kunhammad and others v. Narayanan Nambudiri AIR 1964 Ker. 8 FB requires reconsideration, as, according to him, the right to challenge the validity of the document is not confined to the tarwad, as, in the instant case, the 9th defendant himself was a person competent to give a discharge in view of the disqualification of the 8th defendant and he had a right to question the validity of the transaction in his individual capacity, and that therefore the suit was barred by Limitation under S.7 of the Limitation Act. 11. The only other question surviving for consideration is the tenancy right claimed by the 6th defendant. 11. The only other question surviving for consideration is the tenancy right claimed by the 6th defendant. Now that it has been held that the sale deed is not liable to be set aside, there appears to be not much necessity to have a finding on this issue, as it is evident that defendants 1 to 6 go hand in hand from the very fact that defendants 1 to 4 and 6 have preferred a common appeal raising the same contentions. We are, however, satisfied that the 6th defendant has not succeeded in establishing the tenancy claimed by him. According to him, he was in possession of the property as a varamdar or as a tenant even prior to Ext. P1 sale deed in support of which contention he has not adduced any satisfactory evidence, either oral or documentary. In the result, the appeal is allowed and the decree of the court below is set aside, the suit shall stand dismissed. The appellants would be entitled to get their costs from respondents 1 to 5 -- the plaintiffs in the suit in this court as well as the trial court.