JUDGMENT : K.T. Koshi, J. This is an appeal by defendants 79 to 84 in O.S. No. 16 of 1120 on the file of the Anjikaimal District Court. The appeal is directed against the preliminary decree for partition passed by that Court on 26th Thulam 1123. Plaintiffs 1 to 3, defendants 1 to 78 and defendant 92 are, or were members of a Nanjanad Vellala family settled down at Ernakulam. In 1102 there was a partition in the family. That is evidenced by the partition deed Ext. A, dated 27th Vrischigam 1102. The present suit is to set aside that partition and to effect a division de novo. On the date of Ext. A the three plaintiffs were minors. Defendants 79 to 84, the appellants before us, are the widow and children of Velayudhan Pillai who was the Karnavan when the division was effected. He died in Kumbhom 1119 bequeathing all his properties to the appellants. Defendants 85 to 91 are the legal heirs of one Chakyat Narayana Menon, deceased, to whom Velayudhan Pillai had assigned a portion of one of the items he got in partition. The plaintiff’s claim to have the partition arrangement under Ext. A set aside and to have a fresh division of the plaint schedule properties found favour with the Court below and that Court accordingly passed a preliminary decree for partition after declaring Ext. A to be not valid and binding. Defendants 79 to 84 who were the main contesting defendants in the suit have hence preferred this appeal. 2. Besides the appellant No. 78, one of the surviving brothers of Velayudhan Pillai, and defendant No. 87, the senior male member among the heirs of Narayana Menon, the vendee of a portion of the plaint properties from Velayudhan Pillai, contested the suit. All other defendants remained ex-parte. Defendant 78, who in his written statement supported the partition arrangement under Ext. A, ceased to make his appearance after a certain stage and he was therefore declared ex-parte. All other defendants remained ex-parte. Defendant 78, who in his written statement supported the partition arrangement under Ext. A, ceased to make his appearance after a certain stage and he was therefore declared ex-parte. Defendant No. 87 while supporting the main defence raised by defendants 79 to 84 also claimed by way of equitable relief that in case the Court were to direct a fresh division, the property his father purchased should be set apart to the share of the vendor, the deceased Velayudhan Pillai and that in any event, the value of improvements effected after the property came into his father’s hands should be awarded to defendants 85 to 91. The preliminary decree provides that in dividing the properties the portion in the possession of defendants 85 to 91 should as far as possible be allotted to the share of Velayudhan Pillai and that the question of value of improvements will be gone into if and when it is found that such a division is not possible. Defendant No. 87 was content with that relief and he has not therefore preferred any appeal. 3. According to the plaintiffs the partition effected under Ext. A was neither fair nor legal. The properties dealt with there under belonged to their Marumakkathayam tarwad and to have divided them per stirpes instead of per capita was clearly wrong and opposed to marumakkathayam tenets and practices. The second ground of attack on Ext. A was that there were gross inequalities in the division and that while the shares allotted to Velayudhan Pillai, defendant 78 and the latter’s younger brother Lekshmanan Pillai were undervalued, the shares allotted to the two female branches of the tarwad were overvalued. Another ground alleged as a circumstance to vitiate the partition was that bogus, or at any rate debts for which certain members alone were liable were treated as tarwad debts and division effected accordingly. Besides these three main grounds the plaint also contained very many other grounds of attack such as fraud, undue influence, coercion, etc. to invalidate the partition. But as the three main grounds alone found favour with the Court below it is unnecessary for our present purposes to enter into the details of the other grounds mentioned in the plaint. 4. Besides these three main grounds the plaint also contained very many other grounds of attack such as fraud, undue influence, coercion, etc. to invalidate the partition. But as the three main grounds alone found favour with the Court below it is unnecessary for our present purposes to enter into the details of the other grounds mentioned in the plaint. 4. Defendants 79 to 84 sought to uphold the partition as one effected bona fide with the full and free consent of all the adult members of the tarwad and denied the various allegations made in the plaint to invalidate the arrangement. It was further contended by them that the friends and wellwishers of the family were consulted and all points of dispute duly considered before the partition was effected, and that it was too late now to seek to upset it. According to them it was a bona fide family arrangement and the parties had all along acted upon it and freely dealt with the properties they got under the arrangement. It is their further case that the suit is an insidious attempt to harrass them after Velayudhan Pillai who was really the main stay and benefactor of the family died. 5. The key to the decision of this appeal must in my view be sought in the character of the properties dealt with under Ext. A. It has first to be ascertained whether the parties held the same as Marumakkathayam properties or as properties held by a body of ordinary co-owners. The question whether the division ought to have been per stirpes or per capita would largely depend upon it. For that we must first know something of the family and how these properties were acquired. The common ancestress was one Chemmazheth Thankammal who belonged to Vaikom and who was married to one Panamparambil Raman Pillai of Ernakulam. After the marriage Thankammal settled down at Ernakulam with her husband and they had six sons and two daughters. The sons were Perumal Pillai, Narayana Pillai, Velayudhan Pillai, Nilacanta Pillai (defendant 92), Raman Pillai (defendant 78) and Lekshmanan Pillai, Defendant 39 Champakakutty Amma and defendant 4 Thayamma are the two daughters. Plaintiffs 1 and 2, defendants 1 to 3 and 5 to 38 belong to Thayamma’s branch while plaintiff 3 and defendants 40 to 77 belong to Chempakakutty Amma’s branch. Among the sons defendants 92 and 78 alone now survive. Plaintiffs 1 and 2, defendants 1 to 3 and 5 to 38 belong to Thayamma’s branch while plaintiff 3 and defendants 40 to 77 belong to Chempakakutty Amma’s branch. Among the sons defendants 92 and 78 alone now survive. At the time of the suit there were in all 81 members in the family. 6. We have next to see how the properties were acquired. Exts. D and E are the title deeds thereof. Ext. D is gift deed executed by Thankammal on 7th Karkadagam 1076 in favour of her 8 children and all her grand-children in the female line then alive. In all there are 13 donees and Ext. D and of the 5 grand-children three are Chempakakutty’s daughters (Ammalukutty-Defendant 41, Ammalukutty-Defendant 55 and Meenakshi-Defendant 63). The remaining donees are defendant 1 Velayudhan Pillai and Defendant 5 Thangamma, the two children of Thayamma born to her before the gift deed. Item No. 1 in the plaint schedule forms part of the subject of the gift under Ext. D. The next document Ext. E bears the same date as Ext. D and under it Sankara Pillai, husband of Chempakakutty (Defendant 39) assigned items 2 to 8 in the plaint schedule to the 13 donees mentioned in Ext. D. The vendor Sankara Pillai was nephew of Thankammal’s husband Raman Pillai and the property he sold to Thankammal’s children and her grand-children formed part of the properties Raman Pillai had assigned to him under Ext. C, dated 11th Kanni 1069. Ext. C was for a consideration of Rs. 12,250 and out of it a sum of Rs. 4,000 was reserved for payment to Thankammal in lieu of amounts Raman Pillai had borrowed from her from time to time. This amount of Rs. 4,000 was to be paid to Thankammal without any interest when she demanded it. Sankara Pillai executed Ext. E as per Thankammal’s direction and she passed a receipt to him in token of having received the amount reserved for payment to her under Ext. C. Thus the entire consideration for Ext. E moved from Thankammal and Ext. E is as much a gift deed by Thankammal to her children and grand-children (then alive) as Ext. D itself. The question is how the donees took these properties, whether as a Marumakkathayam co-parcenary, or as ordinary co-owners. 7. C. Thus the entire consideration for Ext. E moved from Thankammal and Ext. E is as much a gift deed by Thankammal to her children and grand-children (then alive) as Ext. D itself. The question is how the donees took these properties, whether as a Marumakkathayam co-parcenary, or as ordinary co-owners. 7. To my mind it admits of no doubt that the 13 donees mentioned in Exts. D and E took the properties as ordinary co-owners and they did not and could not form a co-parcenary as understood by Marumakkathayam law. The plaintiffs’ case is that the gifts were intended to be gifts to the Thavazhi of which the 13 donees were members. The learned Judge in the Court below accepted that case and proceeded to decide the other issues arising on that basis. The view is fundamentally wrong. In the first place the 13 donees by themselves did not and could not form a Marumakkathayam co-parcenary so long as the mother was alive. The term “thavazhi” has always been understood as consisting of a mother and all her children and defendants in the female line. The definition of the term “thavazhi of a female” in the Nayar and Marumakkathayam Acts accords with this view and so long as Thankammal was alive her children and grand-children did not themselves form a Marumakkathayam group entitled to hold property with the special incidents of tarwad or thavazhi property. This has long been recognised in Cochin as one of the fundamental concepts of Marumakkathayam Law and I shall in this connection first refer to the observation Narayana Ayyar, J. as he then was, made in Madhava Menon v. Kunchi Amma, 29 Cochin LR 503. At page 505 of the report the learned Judge remarked: “It is true that a “thavazhi” as such cannot be created by mere agreement among the members of a tarwad. At page 505 of the report the learned Judge remarked: “It is true that a “thavazhi” as such cannot be created by mere agreement among the members of a tarwad. Consequently where property is acquired by some alone of the members of a tarwad, who are incapable of constituting a “thavazhi” or corporate unit as understood in Marumakkathayam law, they do not hold such property with the incidents of ordinary thavazhi property.” Also in Kuttikrishnan Nair v. Cheethamma, 10 Cochin L.R. 402 F.B., Saidalikutty v. Kittunni, 20 Cochin L.R. 42 F.B. and Devaky Amma v. Kanju Nayar, 36 Cochin L.R. 937 F.B. it was held that Marumakkathayam laws does not recognise an artificial group composed of some children alone of a mother as a ‘thavazhi’. In Devaki Amma v. Kunju Nayar, 36 Cochin L.R. 937 F.B. the decision in Moithiyankutty v. Mamali and others, A.I.R. 1928 Mad. 870 cited before us in this case by the appellants’ learned Advocate and the decision in Mariamma Rachel v. Narayana Pillai, 2 T.L.J. 15 cited by the respondents’ learned advocate as also other decisions bearing on the point are referred to and discussed in paragraph 19 of the leading judgment which I happened to write. Nothing that I have heard or read since induces me to change the view held there that a Marumakkathayam group as a legal entity or ‘thavazhi’ cannot be created ad hoc. To be a legal entity the group must be a natural group composed of a mother and her children and their descendants in the female line. Krishnaswamy Iyengar, C.J. and Krishna Menon, J. agreed in that view. In passing it may be noticed that in Devaky Amma v. Kunju Nayar, 36 Cochin L.R. 937 F.B. the Full Bench only accepted the view Sankaran Nayar, J. had set out in his order referring Chakkara Kannan v. Kunhi Pokker, ILR 39 Mad. 317, to a Full Bench and which view the Chief Court of Cochin had accepted in Kuttikrishnan Nayar v. Cheethamma, 10 Cochin L.R. 402 F.B. The decision in Moithiyankutty v. Mamali and others, A.I.R. 1928 Mad. 870 also took the same view. 8. Apart from the legal impediment to treat the donees under Exts. 317, to a Full Bench and which view the Chief Court of Cochin had accepted in Kuttikrishnan Nayar v. Cheethamma, 10 Cochin L.R. 402 F.B. The decision in Moithiyankutty v. Mamali and others, A.I.R. 1928 Mad. 870 also took the same view. 8. Apart from the legal impediment to treat the donees under Exts. D and E as a Marumakkathayam unit the language of the documents also does not warrant the inference that the gifts were intended for persons specified in the document as also for the descendants in the female line of the female donees. Ext. D is an out-right gift to thirteen specified persons and Ext. E is an out-right sale to the same individuals. We have seen the latter document also had only the effect of a gift by Thankammal. When a gift is given to specified persons, in the absence of an express or necessarily implied intention to the contrary, the Cochin High Court has always held that the donees take the properties as co-owners or tenants-in-common even though the donees or both the donor and donee may belong to a Marumakkathayam community. The case law on the point is discussed by Krishnaswami Iyenger, C.J. in his decision in Thripurasundari Amma v. Anantha Padmanabha Ayyar, 36 Cochin L.R. 759. As observed there the Cochin High Courts struck an independent line for itself differing in this respect from both the Madras and Travancore High Courts. One would look for in vain in Exts. D and E for any indication express or necessarily implied to show that persons yet un-born were sought to be benefitted by Thankammal’s bounties there under. It would also appear that after these documents mutuation was effected in the joint names of all the donees. This would not have been the case if the intention was that the donees should take the properties gifted as Marumakkathayam properties. 9. I would therefore both as a proposition of law and as a matter of construction of Exts. D and E hold that under them the donees took the properties as ordinary co-owners and not with the special incidents pertaining to tarwad or thavazhi property. In this view of the matter the main grounds of attack against Ext. A would lose much of their importance if the grounds themselves do not altogether disappear. D and E hold that under them the donees took the properties as ordinary co-owners and not with the special incidents pertaining to tarwad or thavazhi property. In this view of the matter the main grounds of attack against Ext. A would lose much of their importance if the grounds themselves do not altogether disappear. Before proceeding to examine them I must not omit to notice certain grounds the learned Advocate for the plaintiffs respondents urged before us to induce us to hold that the view taken by the learned Judge in the Court below that the properties partitioned under Ext. A constituted Marumakkathayam properties is correct. 10. First it was urged that in their written statement in the case the appellants have not raised the question that the donees under Exts. D and E took the properties gifted to them as co-ownership properties. The criticism is no doubt true, but that does not in my view preclude us from considering what the character of these properties was in the hands of the persons in whose favour the two documents were executed. The 78th defendant had raised this question specifically and issue No. 2 in the case related to it. Defendant No. 78 withdrew from contest after a certain stage, but the correctness of the plaint averment that the property constituted tarwad property was disputed by defendant No. 87 as well. His contest was never withdrawn. The learned Judge in the Court below found that the determination of the question was necessary to decide whether the partition was prejudicial to the interests of the two female branches or to the minors belonging to those branches. Indeed the learned Judge bases his decision that the partition was prejudicial to them mainly on his view that the property formed thavazhi properties. There is no admission by the appellants that the properties formed thavazhi properties, nor could there by any estoppel against them from contending otherwise even if they had made any such admission. 11. It was next argued that Ext. D should be treated as a document whereby one member of a Malabar coparcenary renounced all her interests in favour of the remaining members of the co-parcenary and that such a renunciation is valid in law. In order that such renunciation may be valid the persons in whose favour rights are renounced must have had some antecedent interests in the properties. In order that such renunciation may be valid the persons in whose favour rights are renounced must have had some antecedent interests in the properties. Here there is nothing on the records to show that the property dealt with under Ext. D formed joint property. The document proceeds as if it is separate and self-acquired property of Thankammal. The argument cannot hold good with respect to Ext. E either. Ext. C shows that the money reserved for payment to Thankammal formed her money exclusively. A further argument raised was that under Exts. D and E what Thankammal did was to declare and convert what was up till then her separate and self-acquired property into thavazhi properties. We cannot find any warrant for such an inference in either document. The only possible inference is that under Ext. D Thankammal divested herself of all her interests in the property comprised therein and that under Ext. E and the receipt referred to therein in the money which formed the consideration for Ext. E. She retained no further interest in them thereafter. There is also no vestige of these grounds in the plaint or in the judgment of the court below. I advert to this only to reinforce the conclusion, that the properties gifted under Exts. D and E constituted co-ownership and not thavazhi properties. In a sense these arguments assume or concede that the normal incident of a gift to certain specified person is to constitute them co-owners. 12. Now we shall examine Ext. A, the partition deed. When it was brought into existence on 27th Vrischigam 1102 Thankammal was long dead and her two elder sons Perumal Pillai and Narayana Pillai were also no more. Perumal Pillai died in 1098 or 1100 and Narayana Pillai had predeceased him. In 1102 there were, as many as 38 descendants of Thankammal in the Marumakkathayam line and of them 35 are parties to Ext. A, 14 of them as adults and 21 as minors represented by their respective guardians. A little over a year before Ext. A was executed Nilacanta Pillai, the 4th son of Thankammal had transferred his interests in the properties to his elder brother Velayudhan Pillai. Nilacanta Pillai is hence not a party to the partition arrangement evidenced by Ext. A, 14 of them as adults and 21 as minors represented by their respective guardians. A little over a year before Ext. A was executed Nilacanta Pillai, the 4th son of Thankammal had transferred his interests in the properties to his elder brother Velayudhan Pillai. Nilacanta Pillai is hence not a party to the partition arrangement evidenced by Ext. A. The where-abouts of two members (Defendants 2 and 3) of Thyammal’s branch were not known at that time and those members have also not joined Ext. A. Defendant 3 returned to Ernakulam from his wanderings soon after and gave his concurrence with the partition arrangement under a registered document Ext. I dated 2nd Makaram 1102. The whereabouts of Defendant 2 are still unknown. Perumal Pillai died possessed of self-acquired properties and his widow is a party to the execution of Ext. A. She is executant No. 36. Some portion of Perumal Pillay’s self-acquired properties was given to her in lieu of her Ookamthudama right. Those self-acquired properties stood charged for certain debts of Nilacanta Pillai to the tune of over Rs. 3,000 and Ext. G was the mortgage deed executed by Perumal Pillai and Nilakanta Pillai in respect of the debt. What Ext. A shows is that Perumal Pillai, while in management of the common properties and after him Nilacanta Pillai, who succeeded to the management on account of Velayudhan Pillai’s absence from the State on official duties elsewhere, had contracted large debts and that those debts were all discharged or undertaken to be discharged by Velayudhan Pillai in lieu of properties for their value being set apart to his share. It would also appear that Nilacanta Pillai had certain private or personal debts and that it was in lieu of the undertaking to discharge those debts that he surrendered his share in the common properties to Velayudhan Pillai. The debts which Velayudhan Pillai undertook to discharge under Ext. A amounted in all to Rs. 7,429 and under the scheme of arrangement evolved under Ext. A Rs. 9,000 worth of properties were set apart to his share in lieu of his and Nilacanta Pillai’s shares and for the discharge of the debts referred to above. Those properties are mentioned in Schedule A to Ext. A. Defendant No. 92 and Defendant No. 78 were each given properties worth one thousand rupees (Rs. A Rs. 9,000 worth of properties were set apart to his share in lieu of his and Nilacanta Pillai’s shares and for the discharge of the debts referred to above. Those properties are mentioned in Schedule A to Ext. A. Defendant No. 92 and Defendant No. 78 were each given properties worth one thousand rupees (Rs. 1000) and those properties are described in Schedules B and C respectively in Ext. A. The female branches, that is, the branch of defendant 39 and the branch of defendant 4 were each given properties worth Rs. 1,750 and their properties find mention in schedules D and E of Ext. A. Perumal Pillai’s widow was given properties mentioned in F Schedule. This in short is the scheme of the partition arrangement effected under Ext. A. Each of Thankammal’s surviving children become separate from one another, but her daughters’ children and grand-children remain joint with their mothers. 13. Mention has already been made as to what the main grounds of attack on Ext. A are and in what sense Ext. A is said to have prejudicially affected the interests of the female branches or the minors belonging to those branches. One important aspect of the case which the learned Judge in the Court below missed to notice is that of the eleven surviving donees under Exts. D and E ten of them are parties to Ext. A and that all of them joined the execution of that document with full competency to enter into valid and binding agreements so far as their respective interests are concerned. Between them these ten donees represented eleven (Velayudhan Pillai represented his own and Nilacanta Pillai’s interests) out of thirteen shares in the properties gifted under Exts. D and E and as co-owners they had full right to deal with those shares as they liked. The afterborn children of Chempakakutty Amma or Thayamma or of the other four female donees under Exts. D and E (Defendants 41, 55, 63 and 13) have no right or voice to question the arrangement made with respect to those eleven shares. It is also significant that defendants 8 and 9 belonging to Chempakakutty Amma’s branch and defendants 13 and 14 belonging to Thayamma’s branch also joined the execution of Ext. A as persons who had come of age. No party to Ext. It is also significant that defendants 8 and 9 belonging to Chempakakutty Amma’s branch and defendants 13 and 14 belonging to Thayamma’s branch also joined the execution of Ext. A as persons who had come of age. No party to Ext. A who had joined it as an adult ever came forward to challenge it and even the present plaintiffs raised their voice or were made to raise their voice only after Velayudhan Pillai died in 1119. The suit notice was issued 4 or 5 months after his death. Be that as it may, what we are concerned with now is that no descendant of Thankammal has any right to now to challenge the arrangement evidenced by Ext. A so far as it relates to eleven out of the thirteen shares in the properties. As all the thirteen donees were co-owners having equal rights defendant 41 Ammukutty, defendant 55 Ammalukutty, defendant 63 Meenakshi, and defendant 5 Thangamma were no doubt entitled to say that they should get equal shares with the other co-owners but they are parties to the arrangement and never sought to avoid it within the time limited by law. The ten donees who were parties to Ext. A decided that they should disintegrate into five units, and how much each unit should get. They decided what value should be placed on the different items of properties. It was also their decision as to what debts should be treated as common. Even if any one of them had valid grounds to seek to avoid the arrangement they did not choose to do it in good time and the arrangement has now become final so far as the eleven out of the thirteen shares are concerned. These are the reasons why I said earlier that the importance of the grounds of attack the plaintiffs make on Ext. A if not the grounds themselves disappear once it is found the parties took the properties they got under Exts. D and E as co-owners and not as co-parceners. 14. All that I have said so far cannot apply to the two shares of Perumal Pillai and Narayana Pillai which on their death devolved on the Marumakkathayam unit composed of Thankammal’s children and their descendants in the female line. Over the disposition of those shares all persons alive on the date of Ext. 14. All that I have said so far cannot apply to the two shares of Perumal Pillai and Narayana Pillai which on their death devolved on the Marumakkathayam unit composed of Thankammal’s children and their descendants in the female line. Over the disposition of those shares all persons alive on the date of Ext. A had a right to be heard and if it is shown that the partition has prejudicially affected the rights of the minors it will have to be reopened so far as it affects them and they will have to be awarded the share which should have been set apart for them. It is now however open to the erstwhile minors to seek to upset the arrangement as a whole even as it affects the two shares that devolved on the thavazhi. The major members will be bound by their agreement. See Palkishen Das v. Ram Narain Sahu, I.L.R. 30 Cal. 738 P.C., Yechuri Ramamurthi v. Yechuri Ramamma, 30 M.L.J. 308, Veluthakkal Chirudevi v. Veluthakkal Tarwad Karanavan, 23 M.L.J. 879, Bhagavathy Amma v. Ramalekshmi, 19 T.L.J. 1233, and Pappi Parvathi v. Narayanan Nayar, 13 Cochin L.R. 12. The first two are cases relating to joint Hindu families and the other three relate to Marumakkathayam tarwads. The question therefore is whether it has been shown that the minors have really been prejudiced by the arrangement which the adult members of the tarwad entered into on their on behalf and on behalf of the minors. 15. In considering this aspect of the case it has to be borne in mind that the plaint proceeds on the assumption that the minors are interested in the entirety of the interest over the plaint schedule properties and not in 2/13 share alone of the same. The partition was made at a time when no member could have enforced a partition through court. A partition was possible only with the consent of all. Looking at the case from this aspect it has not been shown that the interests of the minors would have been better served by a per capita division of the 2/13 share than being admitted to a present right to a half share of the entire properties. We have seen that between them the two female branches obtained properties worth Rs. 3,500 while the four brothers between them the two female branches obtained properties worth Rs. We have seen that between them the two female branches obtained properties worth Rs. 3,500 while the four brothers between them the two female branches obtained properties worth Rs. 3,500 while the four brothers between them got properties worth an equivalent amount or a little more. It is open to argument whether this 2/13 share ought not to have been divided per capita. The Cochin Courts have always applied to Nanjinad Vellalas settled down in Cochin the law which applied to them in their homeland Nanjinad as it obtained there before the Travancore Nanjinad Vellala Act was passed. That Act is Act VI of 1101 and Ext. A as we know of 1102. A reference to page 1193 of” The Regulations and Proclamations of Travancore, Vol. VI” will show that when that Act was passed opinion in the community of the Nanjinad Vellalas was equally divided as to whether the partition enforceable under it should be per stirpes or per capita. This is how the Select Committee summed up the question:- “We have discussed and considered the various points placed before us and we think that per capita division is the just and more reasonable course to adopt. If the documents produced showed a definite usage as to per stirpes partition, we would have hesitated to accept this view. But the documents do not prove any definite usage at all. There are documents evidencing per stirpes partition, there are also documents evidencing per capita partition, and there are again documents which establish neither the one nor the other. We are therefore unable to find a definite usage with regard to per stripes partition has been established, so as to affect the vested rights of the members of a Marumakkathayam tarwad.” It is clear that it was more to fall into line with the major Marumakkathayam communities that legislation was made for per capita division than as a recognition of the existing custom. We cannot in the circumstances say that the adult members went wrong or acted in derogation or to the prejudice of the rights of the minors when they agreed to effect per stirpes division. The decision in Bhagavathi Amma v. Ramalekshmi, 19 T.L.J. 1233 relates to a case of Nanjinad Vellalas and the relevant portion of the head-note to that case may usefully be quoted here. The decision in Bhagavathi Amma v. Ramalekshmi, 19 T.L.J. 1233 relates to a case of Nanjinad Vellalas and the relevant portion of the head-note to that case may usefully be quoted here. “The adult members of a Marumakkathayam Tarwad are competent to divide the Tarwad properties and execute a partition deed. In the absence of fraud, it is binding upon the minor members of the Tarwad ................................................................... The adult members of a Tarwad have the discretion to decide whether the division should be per stripes or per capita, and the principle to be adopted in cases where there are minors at the time of partition is what would best serve the interests of the minors.” In this connection I would also refer to a decision of the Madras High Court reported in Sreedevi Nathiar v. Peruvunni, A.I.R. 1935 Mad. 71. The case was decided by Madhavan Nayar and Anantakrishna Ayyar, JJ., if I may say so with respect, two eminent Judges well-versed in Malabar law. It was held that a bona fide partition arrangement would be upheld, if assented to by all the adult members of the tarwad, whether scheme of division be per capita or per stirpes. All the earlier decisions cited before us in this case are referred to and discussed by both the learned Judges. In that case the question was whether the division among a Marumakkathayam group should be per capita or per stirpes. After referring to earlier decisions Madhavan Nayar, J. summed up the position in the following words: “The substance of the two decisions read together is only this, that the minors at the time of partition on attaining majority cannot claim to set aside the partition on the ground that the partition effected was per stirpes or per capita; they will have to show real prejudice to set aside the partition, and the adoption of either of the above methods, which can have been according to law only by the consent of all the members, cannot be said to prejudice them.” The following extracts from the judgment Ananthakrishna Ayyar, J. gave in that case may also be useful quoted here: At page 78 of the report the learned Judge stated as follows: “There could not be partition of the properties of a Marumakkathayam tarwad, except with the consent of all. See Narayani Kutti Amma v. Achuthankutti Nayar (42 Mad. See Narayani Kutti Amma v. Achuthankutti Nayar (42 Mad. 292) and Sulaiman v. Biyathumma (322 M.L.J. 137 P.C.) It was however argued that when partition takes place it should only be on per stirpes basis and that partition should not be on per capita basis. The decision in 42 Mad. 292 was strongly relied on for that position. As I read that judgment, it only decided that when a partition was effected with the consent of all the adult members of a Marumakkathayam tarwad, it was not open to a member who was minor at that time to impugn that partition on the mere ground that partition was effected on per stirpes and not on per capita basis and that such minor member could not upset the partition if it was bona fide entered into by all the adult members of the thavazhi. In another case Appeal No. 237 of 1918 decided by Sir John Wallis, C.J., and Krishnan, J., a minor member sought to set aside a partition entered into by all the adult members on the sole ground that division was made per capita. The Court held that if the partition was a bona fide arrangement come to by all the adult members of the tarwad, it could not be set aside by a minor member on that sole ground. The result is that a bona fide partition arrangement would be upheld, if assented to by all the adult members of the tarwad whether the scheme of division be per stirpes or per capita.” 16. In the light of the above authorities the fact that the division was per stirpes and not per capita would seem to be of very little moment for the decision of this case. The Select Committee Report on the Nanjinad Vellala Act referred to above would show that among the community unlike the major Marumakkathayam communities per stirpes division was as much, if not more, in vogue in their homeland. If that method was adopted it is only the surviving children of Thankammal who would have inherited the shares of her deceased sons Perumal Pillai and Narayana Pillai, and not their sister’s children or their descendants. Exts. X, XI and XVIII are partition deeds with respect to properties of Nanjinad Vellala families in Cochin and there the mode of division adopted is per stirpes. Exts. X, XI and XVIII are partition deeds with respect to properties of Nanjinad Vellala families in Cochin and there the mode of division adopted is per stirpes. To me it is doubtful whether those documents - one of which (Ext. XVIII) relates to the division in Chempakakutty Amma’s branch - can be explained away in the manner the Court below has done that they relate to the division or puthravakasom properties and not of tarwad properties. 17. As for the other objections as to overvaluation of certain shares and undervaluation of others and the acceptance of debts alleged to be not binding on the Marumakkathayam unit when it is realised that the minors are interested only in a 2/13 share those objections lose much of their significance. If eleven out of the thirteen sharers accepted the division willingly, submitted to it, and freely dealt with the properties they obtained there under I wonder whether those circumstances should not be seized as pointers that the arrangement should be allowed to stand as a bona fide family arrangement. Defendant 3 who was not in the locality when Ext. A was executed turned up within a few months of it and accepted it as per Ext. I. Until Velayudhan Pillai died in 1119 no member of the tarwad would seem to have had any grievance about Ext. A. In 1106 Chempakakutty Amma’s Branch partitioned the properties they got under Ext. A and their other properties under Ext. XVIII (10th Edavam 1106). On the same day Velayudhan Pillai assigned a portion of the property he got under Ext. A to the deceased father of defendant 87. On 1st Karakadakam 1106 Velayudhan Pillai assigned another portion of the property he got under Ext. A to defendant 1, the Karanavan of Thayamma’s branch (Ext. I). On the same date Velayudhan Pillai executed a gift deed to Thayamma and her branch. In 1114 Chempakakutty Amma assigned some properties she got under Ext. XVIII to her daughter defendant 56 Ammalukutty Amma, and in 1118 the latter assigned that property to a stranger. See Ext. II and III. Likewise in 1111 and 1115 the 40th defendant raised money on the properties allotted to his share under Exts. A and XVIII as per Exts. VIII and IX respectively. In 1119 Chempakakutty Amma made a gift of certain properties she got under Ext. XVIII to defendant 40. See Ext. II and III. Likewise in 1111 and 1115 the 40th defendant raised money on the properties allotted to his share under Exts. A and XVIII as per Exts. VIII and IX respectively. In 1119 Chempakakutty Amma made a gift of certain properties she got under Ext. XVIII to defendant 40. All these show that all parties had accepted Ext. A and acted upon it throughout till Velayudhan Pillai died. It looks as if the erstwhile minors have been set up by some designing persons against Velayudhan Pillai’s widow and children. That they and they alone form the target of the attack in this suit will be clear from the fact that property which Velayudhan Pillai assigned to defendant 1 nor the self-acquired properties of Perumal Pillai which went to other sharers form part of the properties included in the plaint schedule. 18. In my view it has not been shown that the minors have really been prejudiced by the partition arrangement. Even if it is seen there is some slight prejudice this is an arrangement which ought to be upheld as a bona fide family arrangement. Oral evidence in the case on the side of the plaintiffs is far too interested to be acted upon. P.W. 1 who is the husband of defendant 55 Ammalukutty Amma is a lawyer practising in the Cochin Munsiff’s Court and he has over 28 years standing at the bar. He said he was consulted before Ext. A was executed. He is an attesting witness to that document and so he is with respect to Exts. V, VI, VII and XVIII. P.W. 3 is the father of plaintiffs 1 and 2 and he admits that it is he who is conducting the litigation on behalf of the plaintiffs. If the infirmities attaching to the arrangement under Ext. A set out in the present plaint prepared under his instructions were known to him soon after Ext. A came into existence it is difficult to appreciate why he allowed so many long years to pass before he got two of his children to launch this litigation. On the other hand P.W. 1 swears that the negotiations and the discussions regarding the partition lasted for several months and that the well-wishers of the family were all consulted. Certain letters (Ext. On the other hand P.W. 1 swears that the negotiations and the discussions regarding the partition lasted for several months and that the well-wishers of the family were all consulted. Certain letters (Ext. B and AA) produced in the case from the plaintiff’s side itself show that all aspects that are now made the grounds of attack on the partition arrangements were before the parties even before the document under which the partition took place was executed. I cannot in these circumstances think of a more appropriate case where the arrangement should be upheld as a bona fide family arrangement entered into by the adult members in the best interests of the family. The question whether the division should be per stripes or per capita or whether the valuation of the properties was correct and whether all the debts were binding on the family as such were all debated before Ext. A was executed. What Sankaran Nayar, J. said in Anthi Lekshmi v. Annasami Aiyer, 23 M.L.J. 104 may usefully be quoted here:- “But in judging of the validity of a compromise we are not entitled to enquire into the right of parties as they stood before the compromise to see whether the compromise has recognised them; we are only entitled to enquire whether the claims advanced by either side were bona fide and whether the compromise really was in settlement of such claims. Every compromise may involve the giving up of certain claims to which a party may be rightly entitled and the acquisition of interests to which he may have no claim. But if such compromise to a settlement of disputes advanced bona fide, then, prima facie, it ought to be upheld. And this reason applies with greater force in cases of family settlement where the peace of the family is involved.” I may also quote from a recent Full Bench decision of the Cochin High Court reported in Kirshnan Nayar v. Krishnankutty Menon, 40 Cochin L.R. 386. Referring to family arrangement Sir C.V. Ananthakrishna Ayyar, C.J. said:- “As remarked in the leading case in Stapilton v. Stapilton 26 E.R. 1-1739, 1 Atk. 2 in While and Tuder’s Leading Cases in equity, Vol. 1, p. 178, family arrangements are encouraged and even favoured by courts to save the honour of the family and to bring peace and avoid disputes. 2 in While and Tuder’s Leading Cases in equity, Vol. 1, p. 178, family arrangements are encouraged and even favoured by courts to save the honour of the family and to bring peace and avoid disputes. Regarding family settlements if arrived at arms, length by the parties, Courts up hold the same, even though it might turn out that if the question be thrashed out in court it may turn out all the legal rights vested in one party only and that the other was not entitled to any right at all in the properties. As decided in that case. An agreement entered into upon a supposition of a right, or of a doubtful right, though it after comes out that the right was on the other side, shall be binding, and the right shall not prevail against the agreement of the parties; for the right must always be on one side or the other; and, therefore the compromise of a doubtful right is a sufficient foundation of an agreement. Where agreements are entered into save the honour of a family and are reasonable ones, a Court of equity will, if possible, decree a performance of them. Applying the above principles to the present case, I think that the arrangement come to between the parties was in the nature of family settlement within the principle of law mentioned above and that when once as a fact it is found that such an agreement was arrived at, Courts should enforce the same. It is said in one of the cases that Courts do not weigh in golden scales the legal rights of the parties in such cases but would enforce such arrangements if once it is found that they have entered into the same bona fide and after understanding the position.” The decision reported in Jamna Prasad v. Mt. Durga Devi, AIR 1933 All. 138 and Buchibai v. Nagpur University, AIR 1946 Nagpur 377 would also support the above view. A few sentences from the decision in Pappi Parvathi v. Narayanan Nair, 13 Cochin L.R. 12 F.B. may also with advantage extracted here:- “It follows that the division effected by Ext. A is not proper division and is obviously unfair, so far as the members of the contesting defendant’s branch are concerned, and its minors, at any rate, have therefore the right to impeach it successfully. A is not proper division and is obviously unfair, so far as the members of the contesting defendant’s branch are concerned, and its minors, at any rate, have therefore the right to impeach it successfully. If there were only slight inequalities, and if such inequalities had taken place for convenience of allotment or other justifying and compensatory considerations such as the purchase of peace and consequent prevention of waste of property, it is possible that notwithstanding such inequalities, the family arrangement, bona fide agree to by all the adult members, may be held to be fair and binding on the entire tarwad inclusive of minors, but, as no such consideration can be entertained with reference to the arrangement now in question we cannot uphold the arrangement under Ext. A.” The position here as explained above, is entirely different. 19. Viewed from whatever standards the partition cannot in my view be upset even to the extent it relates to 2/13 share to which alone the minors had any right. Regard being had to this conclusion other questions raised in the appeal such as the maintainability of a common suit by the two branches together the question of limitation etc. do not arise for decision. In the result the appeal succeeds, I allow it, reverse the decision of the Court below and dismiss the plaintiffs’ suit with costs here and the Court below. Sankaran, J. : I agree. Govinda Pillai, J. : I agree to the appeal being allowed and to the suit being dismissed with costs. Appeal allowed.