JUDGMENT : S. KRISHNA PILLAI, J. 1. The plaintiffs in O.S. No. 14 of 1105 of the Trivandrum District Court are the appellants. They are nine out of the 37 members of a Nayar Marumakkathayam tarwad who claimed to have their 9/37th share of the tarwad properties partitioned and allotted to them by metes and bounds. The 1st defendant is the karnavan and the 2nd defendant the manager of the tarwad and the 3rd defendant their brother. 4th defendant is a sister and the other defendants are the descendants of deceased sisters. Plaintiffs and defendants 15 to 20 are members of one thavazhi being descendants of a sister called Valli. The 2nd defendant is the main contesting defendant. His defence is that there was already a partition of tarwad properties with the common consent of all the adult members including the plaintiffs on 25.9.1104, that though the plaintiffs recalcitrantly refused to subscribe to the partition deed they concurred in the terms of the partition deed and accepted the properties allotted to them for their share. According to him the suit was instituted merely for the purpose of defeating him. He was supported in this by 3, 4, 5 and 9 to 14 defendants, and though defendants 17 to 21 have themselves joined in the execution of the partition they repudiated the same as the result of fraud. Defendants 37, 40, 48, to 52, 58 and 59 who are alienees also pleaded in support of the partition, their title having been derived on the strength of such partition. The lower court dismissed the plaintiffs’ suit on the ground that they had consented to the terms of the partition and accepted the properties allotted to them in lieu of their share but recorded findings on some of the other issues which raised questions relating to the nature of the acquisitions standing in the name of the 2nd defendant. Against the decree dismissing the suit the plaintiffs have preferred this appeal and against the findings recorded against the defendants they have filed a memorandum of objections. 2. It is regretable that this case has been pending for the last twenty years. The suit was instituted on 8.2.1105, within four months of the date of partition. Against the decree dismissing the suit the plaintiffs have preferred this appeal and against the findings recorded against the defendants they have filed a memorandum of objections. 2. It is regretable that this case has been pending for the last twenty years. The suit was instituted on 8.2.1105, within four months of the date of partition. No records were filed indicating the consent of the plaintiffs to the partition or the acceptance of the properties allotted or any other document indicating that by conduct they had accepted the terms of the partition. As the suit was instituted within so short a period of the date of the partition it is but natural that there should be such paucity of documentary evidence. However the case was allowed to drag on for twenty years, apparently for harnessing the oral evidence of witnesses. The members of the family who obtained possession of what was allotted to them under the partition have been improving them as it best suited their purpose. However we have to dispose of the case as it stood on the date of the so called partition. 3. The alleged consent and acceptance of the terms of the partition are sought to be established by a large volume of oral evidence. We have examined the statements of the witnesses which are long, confused and uncertain. D.W. 1 is the 2nd defendant himself. D.W. 2, though he claims to be a man of worth is but an alienee in possession of tarwad properties claiming under the 2nd defendant who has even otherwise a hold on him under some decree obtained for a debt due to him. D.W. 3 had taken no part in the negotiation for partition, except that he was present for a single day about three weeks before the date of the execution of the partition deed. D.W. 4 professes to be a rich jenmi but he seems to have no occupation except to mind other people’s concern. D.W. 5 is a document writer who for six months kept himself engrossed in this transaction for the 2nd defendant. He is avowedly the writer of the 2nd defendant’s chitty accounts, the person who drafted the large number of documents executed by the 2nd defendant during the course of his management and one who follows the 2nd defendant through thick and thin. He is in no sense an independent witness. He is avowedly the writer of the 2nd defendant’s chitty accounts, the person who drafted the large number of documents executed by the 2nd defendant during the course of his management and one who follows the 2nd defendant through thick and thin. He is in no sense an independent witness. D.W. 6 is like D.W. 5 a member of the 2nd defendant’s wife’s family and a hanger on of the 2nd defendant. D.Ws. 7 and 8 are two proverthikars who swear to the payment of tax by the plaintiffs for the properties allotted to them and also to their possession of such properties. They speak about some revenue enquiry relating to the transfer of registry pursuant to the partition and also say that each party including the plaintiffs have been paying tax in pursuance to such registry. These facts, if true, could have been well proved by the production of the thandaper accounts of the revenue proceedings. The mere fact that they are proverthikars is not in our view, sufficient to compel credence. D.W. 9, the only attestor to the document in the case, is the 7th defendant’s husband who now supports the 2nd defendant. Apart from the interested nature of the evidence we are unable to accept it as in any way compromising the plaintiff’s claim. The best that may be said of the witnesses, evidence is that there were negotiations and discussions in the presence of the plaintiffs and their father without any objection from them. This, to our mind, does not indicate consent. In the partition of a tarwad like this, where extensive properties are involved and negotiations extend overlong periods, it is impossible to expect a non-consenting member to completely disappear from the tarwad and its surroundings where such operations are going on least he should be open to a charge by some scheming member that he was a consenting part to all that was taking place during the period. Often out of curiosity and sometimes for no reason junior members are found to be spectators of such proceedings with the least intention of being bound by the ultimate decision, which some members may take. The 2nd plaintiff’s evidence clearly shows that the plaintiffs did not take part in the partition or give any consent to the partition. Often out of curiosity and sometimes for no reason junior members are found to be spectators of such proceedings with the least intention of being bound by the ultimate decision, which some members may take. The 2nd plaintiff’s evidence clearly shows that the plaintiffs did not take part in the partition or give any consent to the partition. If as a matter of fact, they took part in the negotiations at its various stages and finally accepted the terms of the partition the defendants should have been able to produce some scrap of paper to indicate such conduct. The transference of possession of the properties which is one of the last of the several stages accomplishing a partition would also have been capable of easy proof. Of the parties to the partition only the 2nd defendant has been examined and amongst the attestors D.W. 9 alone has been examined. We were told that the 5th defendant had taken a conspicuous part in these arrangements, but we are denied the benefit of his evidence, as he has been kept out of the witness box. He is a responsible member of the tarwad, having been a member of the Legislative Council for long periods and a president of the local Municipality. In these circumstances we have to discard the testimony of the defence witnesses as unreliable. 4. In the nature of the above findings it may be unnecessary to discuss the questions of law raised at the hearing by the respondent’s learned Counsel or accepted by the lower court. However, we shall refer to them here. In Devaki Amma v. Kumara Pillai, 25 T.L.I. 80, where a question of consent to a partition arose under similar circumstances it was held that the omission to obtain the signature of the plaintiffs was prima facie evidence of dissent or want of consent and that the partition deed executed by some only of the members of the tarwad was insufficient to bind the other members who did not join in the execution of the deed. In a later case Parvathi Pillai v. Raman Pillai, 16 T.L.J. 231, which the lower court followed in this case, it was held that where all the members were shown to have consented to the arrangement but only some joined in the execution of the deed and others chose to withdraw their consent recalcitrantly and unreasonably at the last stage, the partition must be held to bind them. While we are satisfied that under the Marumakkathayam Law as under the Hindu Law a partition might by effected by oral arrangement between the parties we cannot accept a partition deed executed by only a few of the members of the tarwad as indicating the result of an oral partition come to amongst all. Common experience shows and prudence dictates that such pleas should not be countenanced as a matter of course. Ordinarily partitions of tarwad properties are evidenced by registered instruments. At partitions which involve not merely allotment of properties but settlement of disputes and claims amongst themselves, or the extent of tarwad debts and other equities in favour of minors and unmarried females etc., the usual course is to reduce them to writing and to be bound by their terms only when they are reduced to writing and registered. Ordinarily when negotiations are started and discussions progress, members have no intention of being bound by them until it is reduced to writing, signed and registered with the common consent of all. The very fact that some have thought it necessary to execute the deed and register it, is in our opinion, clear indication that the members when they started on the venture assumed that whatever was said or done would be without prejudice until execution and registration of the deed by consent of all. Where therefore a partition by mutual consent evidenced by a registered deed fails, the proper remedy would be by a decree of court. We think that as an authority laying down a rule for guidance Devaki Amma v. Kumara Pillai 25 T.L.J. 80, is to be preferred and Parvathi Pillai v. Raman Pillai, 16 T.L.T. 231, may be ignored as being justified only by the facts of the case. The position in this case is exactly what we indicated above. We think that as an authority laying down a rule for guidance Devaki Amma v. Kumara Pillai 25 T.L.J. 80, is to be preferred and Parvathi Pillai v. Raman Pillai, 16 T.L.T. 231, may be ignored as being justified only by the facts of the case. The position in this case is exactly what we indicated above. We accordingly hold that the plaintiffs are entitled to a decree for partition and division by metes and bounds of their 9/37 share of the tarwad properties. 5. The next question for consideration is whether any of the plaint schedule properties are the self-acquisitions of the 2nd defendant. C schedule comprises moneys to the total value of Rs. 13000/- odd standing in the name of the 2nd defendant under several bonds taken by him. Some of the A schedule and B schedule properties also stand in his name. The 2nd defendant claimed at the time of partition the C schedule moneys as his own. The other defendants appear to have given up their claims over these as being his self-acquisitions. He also claimed compensation for improvements said to have been effected by him in tarwad properties, for which he was awarded a large number of items estimated to cost Rs. 3000/-. The plaintiffs contend that the C schedule moneys and the properties standing in his name were acquired with tarwad funds and that they do not represent either the income of tarwad properties or his self acquisitions. The lower court negatived the plea of self-acquisitions, but refused to give effect to it on the ground of the plaintiff’s consent. The 2nd defendant was the manager of this tarwad from the year 1068, under Ext. II. Beyond stating that he was in possession of funds of his own he had little to claim as his self-acquisitions at the time. The tarwad had extensive properties which all agree, including himself, fell into his undisputed possession. He has alienated a good part of the tarwad properties which the members of the family have accepted without protest. Large amounts secured by mortgages acquired in the names of the previous Karnavans or other members of the family were released one after another by the 2nd defendant. The total under this item is shown to be nearly Rs. 30,000/-. He has alienated a good part of the tarwad properties which the members of the family have accepted without protest. Large amounts secured by mortgages acquired in the names of the previous Karnavans or other members of the family were released one after another by the 2nd defendant. The total under this item is shown to be nearly Rs. 30,000/-. He has not kept any accounts of these transactions or shown how the tarwad income or corpus was utilised by him during this long period. He stated in his evidence that he had accounts to show that his earnings in the Chitty were and how he was spending all the moneys that had come into his hands. He has advisedly kept back the accounts. A large number of authorities were discussed at the Bar which cover a wide field of presumptions and evidence relating to self-acquisitions of Karnavans and others in possession of tarwad properties. Having regard to the admitted facts and circumstances of this case we have little hesitation in confirming the findings of the lower court that the properties claimed by the 2nd defendant as his own self-acquisitions really belonged to the tarwad. We therefore repel the 2nd defendant’s contentions on this account and dismiss the objection memorandum. 6. The 5th defendant’s learned Counsel contended that some propertie belonging to the 4th defendant, over which the tarwad had no right were surrendered by her to the tarwad under the partition and that if the partition was held to be not binding on the plaintiffs she must be held entitled to recover those properties. There is no force in this contention. The surrender was not without its compensation, for in lieu of the properties surrendered by her to the tarwad, she bargained for and obtained a sum of Rs. 500/- for which she was given equally valuable properties. All that we can therefore say is that this bargain must stand. The plaintiffs were not disagreeable to this court. We therefore hold that what the 4th defendant surrendered to the tarwad will enure to the benefit of the tarwad and what the 4th defendant obtained therefore will be her own. Survey numbers 301 and 1182 will be excluded from the partition. 7. The next point for consideration relates to the plaintiff’s share of the mesne profits. They claim Rs. 270/- on this account as annual share. Survey numbers 301 and 1182 will be excluded from the partition. 7. The next point for consideration relates to the plaintiff’s share of the mesne profits. They claim Rs. 270/- on this account as annual share. The 2nd defendant does not dispute the rate, but contests it on the ground that the plaintiffs are in possession of their due share. We have found that they are not in possession of any property and we do not see any reason why they should not get their share when all others are getting what is due to them. The 2nd defendant was admittedly in possession of all tarwad properties on the date of suit. The plaintiffs had claimed mesne profits from the date of suit. In the nature of the plaintiff’s case they could not be blamed for not taking possession of the properties or taking steps for the conservation of the profits of the properties set apart for them under Ext. III. The 2nd defendant who relied on a document to which he failed to make the plaintiff’s parties must have taken steps for conserving the income of such properties, especially when the plaintiffs filed the suit repudiating it. The natural inference under these circumstances is that the 2nd defendant has been taking the yield from these properties. He must therefore be ordered to pay the mesne profits to the plaintiffs until the plaintiffs are put in possession of their shares. 8. The 2nd defendant claimed and the other defendants, junior members, agreed to grant a sum of Rs. 3000/- for which they set apart to him additional properties over and above his legitimate share. This was purported to be claimed and granted under S. 40 of the Nayar Act. We find that these are not acquisitions strictly so called but improvements to tarwad properties in the shape of planted trees and buildings. The trees planted by a Karnavan in the ordinary course of husbandary cannot be treated as acquisitions falling within S. 40. The karnavan’s claim under this head cannot be put on the same basis as value of improvements effected by a junior member on tarwad properties allotted to him for maintenance. The 2nd defendant if he has planted any trees, must have done so only in the ordinary course of management. The karnavan’s claim under this head cannot be put on the same basis as value of improvements effected by a junior member on tarwad properties allotted to him for maintenance. The 2nd defendant if he has planted any trees, must have done so only in the ordinary course of management. The tarwad buildings the construction of which was started by the 2nd defendant and assessed by Commissioners at a high value are incomplete. Any money utilised for this purpose has not been shown to be from the income of the properties but on the other hand the plaintiffs have shown them to be from the very corpus of the tarwad. Exts. H, J and K show the enormity of the fund under this head. We hold that such claim is not binding on the plaintiffs. Members who have already given their consent are not to be affected by the plaintiff’s stand. They will be bound by their consent and the 2nd defendant who is benefitted by such consent will not be called upon to disgorge to them what he has already obtained. But in giving the plaintiffs their adequate share the 2nd defendant will contribute in proportion to the excess share that has fallen into this hands. 9. Various alienations made by the 2nd defendant and other members subsequent to the date of partition have been impeached in the suit. We do not propose to set aside these alienations but only declare that they shall not be binding on the plaintiffs but only those who have executed them. If it is found that such allocation cannot be made otherwise than by taking any such property it will be available for such purposes free of all encumbrances. The purakkadoms and other alienations created by the 2nd defendant on the date of the partition and in purported exercise of some powers conferred by other members either for expenses of the partition or for other alleged tarwad purpose are hereby set aside to the extent they affected the plaintiffs. Ext. A is a mortgage executed by the 2nd defendant in favour of the 37th defendant. This mortgage is not shown to be supported by consideration and tarwad necessity, the only evidence adduced being the interested testimony of the 2nd defendant himself. Ext. A is a mortgage executed by the 2nd defendant in favour of the 37th defendant. This mortgage is not shown to be supported by consideration and tarwad necessity, the only evidence adduced being the interested testimony of the 2nd defendant himself. This document is declared to be not binding on the plaintiffs and is set aside to the extent of their share in such properties which they will recover on partition with mesne profits as claimed in the plaint. 10. At the close of the argument it was suggested by the respondent’s learnedCounsel that if we are inclined to reverse the decree of the lower court and order a fresh division we might issue a direction to the lower court not to disturb the existing arrangement and possession as far as possible. This we think is an eminently fit course to adopt in this case, especially after the lapse of all this long period extending over twenty years. The plaintiffs’ learned Counsel very fairly conceded that he was prepared to accede to this course. We therefore direct that in allotting to the plaintiffs their due share all the properties included in the partition as having been set apart for their share would be given to the plaintiffs and only the balance necessary for making up the due share would be taken from the schedules allotted to the other members. This, however, will be confined to the A and B schedule properties. In respect to C schedule moneys which the 2nd defendant has either recovered or is recovering from the various debtors from whom they are due, the plaintiffs will get a personal decree against the 2nd defendant for their due share which will also be charged on the properties allotted to the 2nd defendant out of the A, B and C schedule properties. No relief is granted as regards D schedule movables. 11. In the result we pass a decree in the following terms: (i) The plaintiffs are declared to be entitled to a 9/37th share of the A and B schedule properties which will be allotted to them on partition by metes and bounds by commissioners appointed by the lower court. (ii) In making such allotment the commissioners will be directed to allot to them properties set apart for them under Ext. (ii) In making such allotment the commissioners will be directed to allot to them properties set apart for them under Ext. III partition free of encumbrances and to allot further properties for making up their due share with due regard for area, quality and income, from the other properties comprised in the A and B schedules. (iii) The plaintiffs will take a decree for a similar share of the C schedule moneys with interest at the rate of 4 per cent per annum from the date of suit against the 2nd defendant and his share of A, B and C schedule properties over which it shall be a first charge. (iv) The plaintiffs will have all mesne profits as claimed in the plaint from the 2nd defendant from the date of suit till this date and hereafter for three years or until recovery of possession of the properties whichever happens first. (v) Ext. A mortgage is set aside to the extent of the plaintiff’s share and they will recover the same with mesne profits. (vi) The plaintiffs will have a decree for costs in both courts against defendants 1 to 28. 12. The appeal is allowed with costs in the above terms.