Judgment :- 1. The tenth defendant is the appellant. The suit is for partition. Parties are Ezhavas governed by the Cochin Thiyya Act, Act VIII of 1107. Plaint properties belonged to one Unnooly who died before 1088. She had three daughters, Kurungali, Koma and Nani. Koma died issueless. Kurungali had seven children, Aravanthi (P1), Ayyappan (P2), Cheeru (P3), Ayyan (deceased), Ikkoran (deceased), Narayanan (deceased) and Kunjan (deceased). The other plaintiffs are the descendants of Cheera, Ayyan, Ikkoran, Narayanan and Kunjan. Nani died in 1088. She had six children, Kochukrishnan, Kunjunni, Kesavan, Sekharan, Paru and Kutti. Kochukrishnan died issueless. Defendants 19 to 22 are the heirs of Kunjunni, 16,17 and 18 the heirs of Kesavan,10 to 15 the heirs of Sekharan, the 9th defendant the daughter of Paru and defendants 1 to 7 the heirs of Kutti. The 8th defendant is the husband of the 9th defendant. Plaintiffs who constitute the thavazhi of Kurungali have instituted this suit for partition of one-half share in the plaint properties, Nani's branch being entitled to the other half. They also claimed mense profits at the rate of Rs. 100/- per annum in respect of their one-half share. It was alleged in the plaint that some of the heirs of Kurungali had executed an assignment in 1105 in respect of their share in the plaint properties in favour of the 10th defendant, that the sale was void since the executants of it had no transferable interest in the properties on the date of the sale and that the sale deed was not supported by consideration and good faith. The plaintiffs, therefore, ignored the sale deed and sought partition of the properties. 2. Defendants 1 to 7, 8,10 and 16 to 18 filed written statements in the case. For the purpose of this appeal, we are concerned only with the contention of the 10th defendant. The 10th defendant contended that the sale deed in her favour was valid, that it was fully supported by consideration and good faith, and that the plaintiffs were estopped from contending that it was not binding on them. It was, therefore, contended that the plaintiffs were not entitled to any share in the plaint properties and that the suit was liable to be dismissed. It was, therefore, contended that the plaintiffs were not entitled to any share in the plaint properties and that the suit was liable to be dismissed. She also contended that in case of partition she should be awarded one-half share purchased by her and that herself and her children, defendants 11 to 15, should be awarded Sekharan's 1/ 5th share in the other half. 3. The sale deed in favour of the 10th defendant is Ext. I dated 12.1.1105. The court below held that the executants of Ext. I had no alienable interest in the properties on the date of the document and that, therefore, it was void. Accordingly it was held that the plaintiffs were entitled to one-half share in the plaint properties. Defendants 1 to 7 were awarded 1/6th share, the 8th defendant another 1/6th share, and defendants 10 to 15 the remaining one-sixth share. A preliminary decree was passed to the effect. Hence this appeal. 4. There was no appearance for the respondents in this Court. Mr. K. Rama Iyer who appeared for the respondents submitted that he had no instructions. The appeal was, therefore, heard exparte. 5. The only question for consideration in this appeal is whether the 10th defendant has acquired the rights of Kurungali's branch in the plaint properties by virtue of the sale deed, Ext. I. The executants of Ext. I are Ayyappan (P2), Ikkoran (deceased), Narayanan (deceased), Aravanthi (P1), Ayyan (deceased) and Cheera (P3). Cheera also represented her five minor children. Kunjan, the father of the 19th defendant, did not join the execution of the sale deed. On the date of Ext. I the parties were governed by the Marumakkathayam law and under that law no member of the tarwad could be said to have a separate interest in the tarwad properties which he could alienate. The 10th defendant, however, relied on S. 35 of the Cochin Thiyya Act, Act VIII of 1107, which is to the following effect: "The property of a marumakkathayam tarwad will be considered to have been the property of the nearest common ancestress and to have descended according to the rules of succession contained in Chap.4 and to be partible among the persons so entitled." Ext. I was executed before the Thiyya Act came into force. I was executed before the Thiyya Act came into force. But it was urged for the appellant that the wording of the section goes to show that it was intended by the Legislature to have retrospective effect. Learned counsel relied on certain observations in Narayanan v. Raman (I.L.R.1953 T-C. 265 F.B.). It was recently held by a Division Bench of this Court in A.S. Nos. 57 and 206 of 1125 that the Full Bench decision cannot be taken to be an authority for the position that the provision contained in S. 35 of the Thiyya Act would apply to transactions that took place before the date of that Act. We are, however, of opinion that the appellant is entitled to succeed in this case even if S. 35 of the Act has no retrospective effect. The facts of this case are similar to those in A.S. Nos. 57 and 206 of 1125. In that case all the adult members of the tarwad executed a sale deed in respect of tarwad properties on 30.9.1102 in favour of another. The question that arose for decision in those appeals was whether the sale deed would be binding on the executants thereof. This Court held that the principle underlying S. 43 of the Transfer of Property Act applied to the case and that the executants of the sale deed were estopped from contending that the sale deed was not binding on them. 6. In this case, plaintiffs 1, 2 and 3 are parties to Ext. I. The other plaintiffs, except plaintiff No. 19 claim under persons who are parties to the document. According to S.35 of the Thiyya Act the plaint properties should be considered to have been the separate properties of the common ancestress, viz., Unnooly, and to have descended according to the rules of succession contained in Chapter IV of the Act. According to the provisions of that chapter after the death of Unnooly the properties must be deemed to have devolved on her children in equal shares. Since Koma died issueless Kurungali got one-half right in the properties and Nani the other half. Kurungali's one-half right devolved on her death upon her seven children. All those children except Kunjan have joined in the execution of Ext. I. Kurungali's children were the only adult members of the thavazhi. Since Koma died issueless Kurungali got one-half right in the properties and Nani the other half. Kurungali's one-half right devolved on her death upon her seven children. All those children except Kunjan have joined in the execution of Ext. I. Kurungali's children were the only adult members of the thavazhi. The document could at the most be only voidable at the instance of Kunjan and the minor members of the thavazhi. The only persons who would be entitled under the Thiyya Act to the properties that belonged to Kurungali's branch were the executants of Ext. I and their brother Kunjan. The effect of S.35 of the Act was to enlarge the rights of those persons. According to the principle underlying S.43 of the Transfer of Property Act the tenth defendant would be entitled to the benefit of such enlargement as was held by this Court in the aforesaid case, i.e., A.S. Nos. 57 and 206 of 1125. Since the question has been discussed at length in that case we do not think it necessary to discuss it again. We hold that the rights of the executants of Ext. I and those claiming under them in the plaint schedule properties have passed to the 10th defendant under the sale deed, Ext. I. In this view of the case it is not necessary to consider whether Ext. I is supported by consideration and tarwad necessity. Since Kunjan has not joined in the execution of the sale deed his 1/ 7th right in one-half share in the properties has not passed to the 10th defendant. Kunjan's only heir is the 19th plaintiff. The 19th plaintiff is, therefore, entitled to 1/7th of the one-half share, i.e.,1/14th share in the plaint properties. The 10th defendant has got, under Ext. I, the remaining 6/7 of the one-half share, Le, 6/ 14th share in the properties. Her deceased husband Sekharan was entitled to 1/5th of the other one-half share, Le,1/10th share in the plaint properties. That share has devolved on his wife, the 10th defendant, and his children, defendants 11 to 15. They will, therefore be entitled to 1/5th of the one-half share, viz.,1/10th share in the plaint properties. Defendants 1 to 7 will together be entitled to 1/10th share. The 8th defendant has purchased the rights of his wife, the 9th defendant. He will, therefore, be entitled to 1/10th share. They will, therefore be entitled to 1/5th of the one-half share, viz.,1/10th share in the plaint properties. Defendants 1 to 7 will together be entitled to 1/10th share. The 8th defendant has purchased the rights of his wife, the 9th defendant. He will, therefore, be entitled to 1/10th share. Defendants 16,17 and 18 will together be entitled to another 1/10th share and defendants 19 to 22 to the remaining 1/10th share in the properties. 7. The question of mesne profits will be determined at the time of the passing of the final decree. 8. We, therefore, modify the judgment and decree of the court below and pass a preliminary decree for partition of the plaint schedule properties as follows:- The 19th plaintiff will be entitled to 1/14th share, the 10th defendant 6/14th share, defendants 1 to 7 together to 1/10th share, the 8th defendant to 1/10th share, defendants 10 to 15 together to 1/10th share, defendants 16 to 18 together to 1/10th share, and defendants 19 to 22 together to 1/10th share in the plaint schedule properties. We hold that plaintiffs 1 to 18 are not entitled to any share in the properties. 9. The appeal is allowed in the manner stated above. Plaintiffs 1 to 18 will pay the costs of the 10th defendant both here and in the court below. They and the other defendants will bear their respective costs in both the courts. Allowed.