Judgment :- 1. This Second Appeal by the 1st defendant is from concurrent decrees setting aside an alienation and directing recovery of possession of property from him. The 3rd defendant is the mother of the plaintiff and defendants 4 and 5. In 1103 when the plaintiff and defendants 4 and 5 were minors, a partition deed Ext. A was executed between the 3rd defendant and her brother Narayanan Krishnan, the former acting as guardian of her minor children. Under the said deed, Narayanan Krishnan received a sum of money in lieu of his share of tarwad property and the property described in the plaint schedule thereafter belonged to the sub-tarwad of the 3rd defendant and her children. Defendants 3 and 4, the former acting as guardian of the plaintiff, executed a Nischaya patrom Ext. B dated 20.12.1106 whereunder the plaint property was conveyed to Narayanan Krishnan, reserving a life estate therein for the 3rd defendant. The latter and Narayanan Krishnan then jointly mortgaged the property to one Chellappan Pillai who assigned the same to the 1st defendant. Narayanan Krishnan and the 3rd defendant then sold the equity of redemption to the 2nd defendant and the latter transferred his rights to the 1st defendant. The plaintiff sought to set aside Ext. B on the ground that it was not supported by consideration or necessity binding on the sub-tarwad. The later alienations viz., the mortgage and the sale were also impeached and the plaintiff prayed for recovery of possession of all the property with mesne profits, on behalf of the sub¬tarwad. The 1st defendant contested. According to him Ext. B was a valid family arrangement supported by consideration and necessity. He further contended that the plaintiff was not entitled to sue on behalf of the sub-tarwad as the same had become divided in the year 1107. The courts below decreed the suit as prayed for, holding that the Nischayapatrom and the subsequent alienations were not binding on the sub¬tarwad, as the same were unsupported by consideration and tarwad necessity. 2. The concurrent finding that the Nischayapatrom is not supported by consideration and necessity does not call for interference. The only point that arises for decision is whether the plaintiff is entitled to sue on behalf of the sub-tarwad which had become partitioned long before the suit or whether she is entitled to recover only her 1/4th share. 2. The concurrent finding that the Nischayapatrom is not supported by consideration and necessity does not call for interference. The only point that arises for decision is whether the plaintiff is entitled to sue on behalf of the sub-tarwad which had become partitioned long before the suit or whether she is entitled to recover only her 1/4th share. The lower appellate court decided this question against the appellant on the strength of the decision of the High Court of Travancore in Kochupennu v. Rukmani Amma (1946 TLR 948). Before considering the correctness of this decision it is necessary to refer to certain earlier decisions, especially as the learned judges wrongly assumed that the point was not covered by any previous decision. Kumaran Kumaran v. Krishnan Kauli (16 TLR 79) is one of the earliest decisions of the High Court of Travancore holding that when a Marumakkathayam tarwad became divided, the status of division applies to properties left out by mistake at the time of partition. Their Lordships observed: "We think we should be acting against the intention of the parties and introducing confusion if we assume the fiction of an undivided tarwad merely because one item or even more of common property has been by mistake left out in the division. Both principle and convenience require that division should be enforced with regard to the property so discovered". This decision was followed in Kumaran Ramakrishnan v. Vikraman Sridharan (26 TLR 202) and Anantha Nangeli v. Padmanabhan Narayanan (29 TLR 125). The judgment in the latter case refers to two unreported decisions of the High Court of Travancore in one of which viz., A.S. No. 386 of 1087 it was held that the principle laid down in 16 TLR 79 applied to property left out by mistake or even left in common at the time of partition. This question again came up before the Travancore High Court in Lekshmi Pillai v. Parameswara Iyer (8 TLT 722). The view taken in the earlier decisions referred to above was followed. It has thus been held from very early times that when once a Marumakkathayam tarwad becomes divided, the divided status applies to properties left out in partition and that the members thereafter are in the position of tenants-in-common in respect of such property. The view taken in the earlier decisions referred to above was followed. It has thus been held from very early times that when once a Marumakkathayam tarwad becomes divided, the divided status applies to properties left out in partition and that the members thereafter are in the position of tenants-in-common in respect of such property. The fact that one or more properties were left out at the time of partition of the tarwad cannot have the effect of re-constituting the original tarwad in respect of such properties. It necessarily follows that after division, there will be no tarwad on behalf of which a divided member can sue. 3. The learned judge over-ruled this contention of the 1st defendant on the strength of the decision in Kochupennu v. Rukmani Amma (1946 TLR 948). The learned judges who decided that case observed that no earlier decision was cited before them and that they were not able to discover any on this point. The reported decisions referred to earlier show that this assumption was incorrect. Sankarasubba Iyer, J., observed that what was decided in 16 TLR 79 was that when part of the property belonging to the tarwad was left out by mistake at the time of partition, it was unnecessary to reopen the partition, that the right of the members of the tarwad in respect of such property was not lost and that the same could be enforced by a fresh partition. If we may say so with respect, this is not what was decided in that case. That was a suit by a divided branch of a tarwad against another branch for recovery of possession of one-half of a property which was left out by mistake at the time of partition and was redeemed by the other branch after partition. It was contended by the defendant in that suit that in respect of the property so left out, the parties must be deemed to be undivided and that he being the Karnavan, the plaintiff was not entitled to ask for partition. It was this plea that was overruled by the High Court on the ground that when once the tarwad became divided the fiction of an undivided tarwad could not be assumed from the fact that one property was left out. The decision in 16 TLR 79 thus does not support the view taken in Kochupennu v. Rukmani Amma. It was this plea that was overruled by the High Court on the ground that when once the tarwad became divided the fiction of an undivided tarwad could not be assumed from the fact that one property was left out. The decision in 16 TLR 79 thus does not support the view taken in Kochupennu v. Rukmani Amma. Sankarasubba Iyer, J., observed: "It is no doubt generally true to say that the plaintiffs are not competent to sue on behalf of their sub¬tarwad in view of a partition having been effected. But in respect of the plaint property, we have to presume the continuance of the existence of the sub-tarwad and adjudicate rights on that basis". The latter part of the passage extracted above is based on the fact that the property was not available for partition on account of the earlier alienation. Disputes of this nature can arise only in respect of properties alienated before partition so that the distinction does not appear to have any force. Krishna Pillai, J., who concurred with Sankarasubba Iyer, J., mainly dealt with the question whether the partition would be a bar to a junior member's suit for recovery of the property alienated before partition. The conclusion was summarised in the following words: "My conclusion therefore is that, if any junior member of a tarwad who has not consented to an alienation is entitled to sue for recovery of property wrongfully alienated by its members, he would still be entitled to have the deed cancelled and the property recovered on behalf of the tarwad, notwithstanding a partition of the other properties of the tarwad". 4. It is thus clear that in reaching this conclusion, the continuance of the tarwad after division was thus assumed. The real question is whether after division a tarwad can continue to exist for some purposes. We feel no doubt that it cannot do so in reality or by fiction. We therefore decline to follow the decision in Kochupennu v. Rukmani Amma. 5. It was, however, contended by the plaintiff-Respondent that even if the plaintiff and defendants 3 to 5 were tenants-in-common, the plaintiff was entitled to sue for recovery of possession of the whole property. Reliance was placed on the decision in Varghese Chakko v. Sivasankara Pillai (1949 KLT 5). 5. It was, however, contended by the plaintiff-Respondent that even if the plaintiff and defendants 3 to 5 were tenants-in-common, the plaintiff was entitled to sue for recovery of possession of the whole property. Reliance was placed on the decision in Varghese Chakko v. Sivasankara Pillai (1949 KLT 5). The actual decision in that case was that a tenant-in-common could sue for recovery of the whole property from a lessee. Their Lordships relied on the decision of the Travancore High Court in Phillipose v. Thoma (31 TLR 193) where it was held that one of the tenants-in-common could sue for recovery of possession of the whole property from a trespasser. Neither of these positions would apply to the present case because the Nischayapatrom is valid at least in respect of the shares of the 3rd and 4th defendants who cannot be treated either as lessees or trespassers. By reason of the partition of the sub-tarwad the plaintiff is entitled only to 1/4th share in the property and he cannot therefore be allowed to recover anything more than that. The concurrent decrees allowing recovery of possession of the whole property is therefore unsustainable, the plaintiff being entitled to a decree only in respect of his share. 6. In the result, the concurrent decrees are modified and the plaintiff is given a decree for recovery of possession of an undivided 1/4th share in the property from the 1st defendant. We do not consider it proper to convert this into a suit for partition. The Second Appeal is allowed to the above extent and is dismissed in other respects. The parties will get proportionate costs throughout. Allowed.