Mudholkar, J. - (1.) This is an appeal from a decree of the High Court of Kerala by a certificate granted by it under Art. 133(1) of the Constitution.
(2.) The appeal arises out of a suit instituted by a Karnavan of a Tarwad along with two minor members of the Tarwad for setting aside a registered assignment deed (hereafter referred to as sale deed) executed by his Mukthiar Karunakara Menon, who is a junior member of the Tarwad and by all the other adult members of the Tarwad on 17-6-1117 (M.E.). We have not been able to ascertain the correct date according to the Gregorian Calendar; but it has been accepted before us that the document was executed in the month of Fcbruary,1942. Nothing however turns on the precise date of the execution of the document. This document is in fact a sale deed and thereunder certain property belonging to the Tarwad was sold to the first defendant to the suit, who is appellant No. 1 before us, for a consideration of Rs. 8,000/-. Out of the amount of Rs. 8,000/- a sum of Rs. 5,250/ was required for discharging the debt due under a mortgage decree against the Tarwad.
(3.) The grounds on which the sale is challenged by the plaintiffs are briefly these: (1) That the sale outright of the suit properties for Rs. 8,000/- was not justified for satisfied the decretal debt of Rs. 5,250/- because the preveiling price of immovable property would be Rs. 40,000/- or so. (2) That the sale was effected by a collusion between the first defendant and the third defendant Karunakara Menon who was the Mukthiar of the plaintiff No.1. (3) That upon a proper construction of the power of attorney the Mukthiar could execute a sale deed only if the Karnavan in his discretion thought it to be necessary for meeting the pressing needs or for the benefit of the Tarwad to effect it and that as the Karnavan had not consented to the execution of the sale deed it is not binding upon the Tarwad. (4) That if the power of attorney is construed as having vested in the third defendant with the discretion and judgment of the Karnavan regarding the necessity and expediency of alienating the Tarwad prosperity such a delegation is beyond the powers of the Karnavan and would be void and inoperative in law. An act purporting to be done under the colour of such authority is not valid and cannot bind the Tarwad. (5) That the plaintiffs 2 and 3 were not represented by their legal guardian, that is, the Karnavan, and the purported representation by their mother the 5th defendant as their guardian is ineffective because she could not in law act as guardian in this transaction. The sale deed is, therefore, null and void. (6) That the defendants 2, 4 and 5 who had joined in the sale deed had obviously done so on the footing that it was an intended conveyance of the rights of the Tarwad and that if the deed is not legally effective to pass the rights of the Tarwad as not being a valid act of the Karnavan, it cannot be regarded as having been intended to be executed by those three defendants. Further, that these defendants did not apply their minds to the propriety or necessity of the transaction but were merely misled by the statements and representation of the third defendant as to the necessity for executing the deed. ;