Judgment:- This appeal raises certain question of law under the Madras Marumakkattayam Act, 1932, on which it was stated at the bar there is no direct authority. The circumstances under which the questions arise are these. Certain members of a Marumakkattayam tarwad constituting a tavazhi filed a suit for partition in O.S. No.992 of 1943 on the file of the District Munsif of Nadapuram. To this suit two persons, viz., defendants 43 and 45 who claim to be alienees of the shares of some of the tavazhis belonging to the tarwad were made parties. In all. there were 7 alienations. Exhibit D-1 is an assignment deed executed by the 44th defendant to the 43rd defendant. Exhibit D-4 is an assignment executed by defendants 37 to 42 and one Yasoda, also in favour of the 43rd defendant. Exhibit D-2 is a sale deed executed by defendants 13 to 16, 35 and 36 to the 43rd defendant in respect of their shares in the properties of the tarwad. Of these persons defendants 15, 16, 35 and 36 were minors on the date of Exhibit D-2. They were represented in that document by the 13th defendant who purported to act as their guardian. Exhibit D-3 is an assignment in favour of the 45th defendant executed by defendants 5 to 12, the 6th defendant acting for himself and as guardian of defendants 9 to 12. Exhibit D-5 is an assignment executed in favour of the 43rd defendant by defendants 18 to 23 and 61 to 63. Of these, defendants 21, 22, 23, 61, 62 and 63 were minors and they were represented in the transaction by their father who purported to act as their guardian. Exhibit D-6 is an assignment deed executed in favour of the 43rd defendant by defendants 24, 25, 27 to 30, 46 to 60 and another minor child of the 52nd defendant. In this document the 27th defendant purported to act as the guardian of defendants 28 to 30 and the 25th defendant purported to act as the guardian of minor defendants 53 and 56 to 60. Exhibit D-7 is an assignment deed in favour of the 45th defendant executed by defendants 3, 17, 33 and 34. In this document the 17th defendant purported to act as the guardian of defendants 33 and 34. Exhibit D-7 is an assignment deed in favour of the 45th defendant executed by defendants 3, 17, 33 and 34. In this document the 17th defendant purported to act as the guardian of defendants 33 and 34. All these documents purported to convey to the assignees the shares which the major executants and the minors claimed to have in the properties of the tarwad, which form the subject-matter of the partition suit. The learned District Munsif specifically remarked: “in none of these documents was it mentioned that any tavazhi right was intended to be conveyed.” So far as two of these documents, viz., Exhibits D-1 and D-4 are concerned, the learned District Munsif had no difficulty in upholding the claims of the alienees. -It may be remarked here that the 44th defendant who executed Exhibit D-1 and defendants 37 to 42 who executed Exhibit D-4 appear-all of them-to have been majors. They also constituted separate tavazhis. Moreover there was no dispute about these documents. But the other five documents purported to convey the interests of the minor members in the concerned tavazhis. These minors were at first represented in the suit by their relations, but the trial Court considered that their interests would not be adequately safeguarded unless a Court guardian was appointed, and, accordingly it did so. The Court guardian took the plea that the assignment would not bind the minors. On that defendants 43 and 45 wanted to lead evidence to show “that the sale deeds had been executed for the necessity or benefits of the minors, that the person who acted as guardians of the minors in the sale deeds are their guardians, and that the fathers of the various minors assented to the execution of the various sale deeds”. The learned District Munsif refused to receive this evidence on the ground that it related to matters which had not been pleaded. Defendants 43 and 45 then asked for leave to amend their written statements, but leave was refused. In the result the claims of defendants 43 and 45 based on Exhibits D-2, D-3, D-5, D-6 and D-7 were negatived. The learned Subordinate Judge considered that Exhibit D-6 stood on a different footing from the rest. Defendants 43 and 45 then asked for leave to amend their written statements, but leave was refused. In the result the claims of defendants 43 and 45 based on Exhibits D-2, D-3, D-5, D-6 and D-7 were negatived. The learned Subordinate Judge considered that Exhibit D-6 stood on a different footing from the rest. He remarked: “This assignment was made by D-24 and all her descendants, defendants 25, 27 to 30 and 46 to 60 who would form a separate tavazhi in the tarwad which could claim partition under section 38’ of the Madras Marumakkattayam Act. This tavazhi could assign its shares to others. The objection to the validity of this assignment is raised on the ground that it has not been proved to be for the necessities or benefit of the tavazhi”. He therefore directed that the 43rd defendant, in whose favour this document has been executed should be allowed to amend his written statement in order to bring out this point and to lead evidence in support of it. But he negatived the claim based on the four remaining sale deeds. Defendants 43 and 45 have therefore come to this Court. Sections 33 and 38 are the provisions of the Madras Marumakkattayam Act which are relevant here. Section 38 confers the right to claim partition of the properties of a tarwad. This right, however, is given only to a tavazhi. An individual member of the tarwad, unless he or she, himself or herself, constitutes a tavazhi cannot claim partition. Where a tavazhi consists of more persons than one the demand for partition in order to be valid must be made by a majority. There is however one important qualification to this right. This is enacted in the proviso to sub-section (1) of section 38 which runs as follows: “Provided that no tavazhi shall claim to be divided from the tarwad during the lifetime of an ancestress common to such tavazhi and to any other tavazhi or tavazhis of the tarwad, except with the consent of such ancestress, if she is a member of the tarwad”. On the question as to the time at which this consent of the ancestress should be given, there was some argument, and, to that I shall refer at the proper place. Section 33 prohibits the karnavan of a tarwad from alienating immovable property of the tarwad except under certain circumstances and conditions. On the question as to the time at which this consent of the ancestress should be given, there was some argument, and, to that I shall refer at the proper place. Section 33 prohibits the karnavan of a tarwad from alienating immovable property of the tarwad except under certain circumstances and conditions. These are that the alienation must be for consideration and for the necessity or benefit of the tarwad. In addition the written consent of the majority of the major members of the tarwad is also required. It will be noticed that even this circumscribed power to alienate immovable properties of the tarwad is given only to the karnavan of the tarwad and not to any one else-not even to one who can be regarded as the karnavan of a tavazhi. Under Exhibits D-2, D-3, D-5 and D-7, which are the documents I am concerned with in this appeal, the transferors are the junior members of the tarwad and they do not purport to convey any particular property of the tarwad. On the other hand, what they purport to convey are their rights in the property of the tarwad as a whole. There is no specific provision in the Madras Marumakattayam Act dealing with an alienation of this kind. In Subramanyan Tirumurupu v. Naraina Tirumurupu1, it was held that the shares of the junior members of a tavazhi in tarwad property can be attached in execution of a decree obtained against them for their personal debts and sold. In applying this decision two or three circumstances must be borne in mind. The first is that it was a case of an involuntary alienation. The other is that no minors were involved and that the judgment-debtors whose shares in the tarwad, the Court held could be attached and sold, constituted a tavazhi. Further it does not appear though the observations of the Court suggest that the fact would not have made any difference that there was any common ancestress whose consent had to be obtained to effect a partition. The assignors under Exhibits D-2, D-3, D-5 and D-7 are all descendants of the fifth defendant, as will appear from the table below. An examination of Exhibits D-2, D-3, D-5 and D-7 will show that Exhibit D-3 stands on a footing different from the rest. The assignors under Exhibits D-2, D-3, D-5 and D-7 are all descendants of the fifth defendant, as will appear from the table below. An examination of Exhibits D-2, D-3, D-5 and D-7 will show that Exhibit D-3 stands on a footing different from the rest. To that document the fifth defendant was a party and the document explicitly recites: “We have therefore assigned all our rights belonging to us and the aforesaid minors in the property which we will get by partition from our tarwad including all kanom, tharaku and kuzhikanom, chamayams and verumpattom for a consideration of Rs.100 as follows:” When the fifth defendant put her signature to Exhibit D-3 one is justified in presuming that she intended that it should take effect. The only way in which Exhibit D-3 could take effect was by effecting a partition of the shares of the alienors so far as that was legally possible. We may, therefore, assume that the fifth defendant, when she put her hand to Exhibit D-3 envisaged the contingency of a division of the properties of the tarwad and the separation of the share of the tavazhi comprising defendants 6 to 12 from the other properties of the tarwad and gave her consent to it. This reasoning is strengthened by the specific words used in the document which speak of the rights “which we will get by partition from our tarwad”. These words in themselves make it plain that the fifth defendant knew that a partition was involved and gave her consent to it. This document cannot therefore be impeached on the ground that the consent of the fifth defendant had not been obtained for effecting a severance in status of the tavazhi to which defendants 6 to 12 belonged. In para. 10 of his judgment the learned Subordinate Judge gave certain reasons for dismissing the appeal so far as it related to Exhibit D-3. While he seems to have had no doubt that defendants 6 to 12 formed a tavazhi, he appears to have thought that the circumstance that the fifth defendant joined in the document made a difference to the position. Because the fifth defendant had no right to separate herself from the tavazhi and since the document purported to transfer her rights also the whole of the document, he thought, was bad. Because the fifth defendant had no right to separate herself from the tavazhi and since the document purported to transfer her rights also the whole of the document, he thought, was bad. In his view the document gives no indication that the 5th defendant had before the assignment given her consent to a partition and for that reason also the alienation under Exhibit D-3 must fail. I am unable to agree with this view of the matter. It may be that the fifth defendant had no right to cut herself off from the tavazhi or to assign her rights in the properties of the tavazhi or tarwad. But, I do not see how that invalidates the transfer of the rights of defendents 6 to 12. Defendants 6 to 12 could have effected a severance in status after obtaining the consent of the fifth defendant and thereafter they could have alienated the properties subject to the provisions of section 33. As I have already stated, the recitals in Exhibit D-3 are sufficient to justify the inference that the fifth defendant gave her consent to the separation of the tavazhi of defendants 6 to 12 from the tarwad and that consent was given at least contemporaneously with the alienation. The appeal so far as Exhibit D-3 is concerned must therefore be allowed and the alienee must be given an opportunity to amend his written statement to show that the alienation comes within the scope of section 33 of the Madras Marumakkattayam Act and to lead evidence on that behalf. The opposite side will naturally be entitled to lead evidence in rebuttal. The suit is remanded to the trial Court for the purpose. An examination of Exhibits D-2, D-5 and D-7 discloses certain features. They were made by the members of tavazhis which had no right to demand a partition except with the consent of the fifth defendant, their common ancestress. It is also clear that at the time these deeds were executed a separation in status had not been effected. In every one of these transactions the interests of minor members of the tavazhis were also conveyed. I shall take Exhibit D-2 first. It is also clear that at the time these deeds were executed a separation in status had not been effected. In every one of these transactions the interests of minor members of the tavazhis were also conveyed. I shall take Exhibit D-2 first. In the written statement which defendants 5 to 12 filed the following passage appears: “Defendants 5 to 12 have sold all their rights in the plaint A schedule properties in the tarwad for proper consideration on 25th Kanni 1119 (M.E.) to defendants 13 to 16 and defendants 13 to 16 along with one Sankaran, son of the 13th defendant have sold all their rights on 18th Kanni in favour of Manakkal Ammu Amma for proper consideration and they should be made parties to this litigation as the rights of these defendants are now vested in the said Ammu Amma”. Mr. Ramakrishna Ayyar the learned advocate for the appellants argued that this shows that the fifth defendant had, at any rate after the alienation given her consent to the separation of the tavazhi of defendants 13 to 16 and 35 and 36 and that even a consent given subsequent to an alienation is sufficient to effect a severance in status and to validate the alienation. Assuming for a moment that this passage in the written statement amounts to a demand by the tavazhi of defendants 13 to 16 and 35 and 36 for a partition, assuming also that this passage is sufficient to show that the fifth defendant has given her consent to such partition, I find it difficult to see how the previous alienation could be validated. No authority has been shown to me in which it has been held that the consent given by an ancestress to effect a partition can operate retroactively. Normally when we say that a person has given his consent to an arrangement we assume that the arrangement was before his mind’s eye, that he applied his mind to it and acquiesced in it. You can give your consent only to something to which your mind is directed; you cannot give your consent to something which is not in existence at all and to which therefore you cannot apply your mind. Mr. You can give your consent only to something to which your mind is directed; you cannot give your consent to something which is not in existence at all and to which therefore you cannot apply your mind. Mr. Gopala Nambiyar cited the case in Abdul Rahman Sahib v. Muhammad Siddiq1 where Venkatarama Ayyar, J., observed: “In reason, a party can be said to agree only to something which is put before him and not to something which is non-existent”. I respectfully agree. By way of analogy Mr. Nambiyar also referred to section 270 (1) of the Government of India Act, 1935, which contains a provision to the effect that no proceedings civil or criminal shall be instituted against certain classes of persons in respect of certain matters “except with the consent” of the authority specified later on in that section. In Suraj Parkash v. Emperor2, the Federal Court observed that this means that the consent must be given before proceedings are instituted; where the statute states that the consent should be obtained, it normally means that the consent cannot be ex post facto. It must also be remembered that an alienation, by itself, does not effect a severance in status. See Ramasubbaraya Sastri v. Venkata Appala Narasimharaju3and Peramanayakam v. Sivaraman4. As I remarked earlier, section 33 of the Madras Marumakkattayam Act gives only the karnavan power to alienate the property of the tarwad and to no one else. Till a severance in status actually takes place a tavazhi can have no karnavan who can exercise the power conferred by section 33 of the Act. Again and for the same reason till a severance in status actually takes place there would be nobody inside the tavazhi competent to convey the interests of the minors included in the tavazhi It will be noticed that section 33 of the Act does not confer any power of alienation on the karnavan of a tavazhi. It would therefore follow that the interests of the minors mentioned in Exhibit D-2 cannot pass under this document. So far as the adult members of the tavazhi included in that document are concerned it is difficult to see how their shares can pass under that document either, since under the Madras Marumakkattayam Act it is only the tavazhi as a whole that can claim a partition and not individual members. So far as the adult members of the tavazhi included in that document are concerned it is difficult to see how their shares can pass under that document either, since under the Madras Marumakkattayam Act it is only the tavazhi as a whole that can claim a partition and not individual members. Except in situations for which provision is made in section 39, a member of Marumakkattyam tarwad unlike a coparcener in a Mitakshara family has not, even if he be a major, any particular share or fraction which he can call his own and which he can convey. It is no doubt true that the fraction of the tarwad property which the tavazhi would obtain at a partition has to be ascertained by computing the number of members in that tavazhi. But this does not mean that individual members of the tavazhi get any specific share or a right to alienate that share. The alienation under Exhibit D-2, having been made before the severance in status, is incapable of conveying any rights to the assignee. So far as Exhibits D-5 and D-7 are concerned, it is not even possible to argue, as was done in the case of Exhibit D-2 that the fifth defendant had subsequently given her consent. The alienees under these documents are therefore in an even weaker position than the alienee under Exhibit D-2. In the result the appeal is dismissed so far as it relates to Exhibits D-2, D-5 and D-7. As the appellants have succeeded in respect of one document but failed in respect of three others they will pay three-fourths of the costs of the respondents. Advocate’s fee two sets. This case having been set down for being mentioned this day, the Court made the following further Order.-As the appellants have succeeded in this case in respect of one out of the four transactions in contention they will get one-fourth of the costs in this Court. R.M. ----- Appeal allowed in part.