JUDGMENT C.A. Vaidialingam, J. 1. In this appeal, on behalf of the plaintiff - appellant who has lost in both the subordinate courts, Mr. M. P. Varghese, her learned counsel, contends that the approach made by both the subordinate courts is wrong in law. A few facts may be stated to appreciate the contentions of the learned counsel for the appellant and also of the respondent, Mr. T. S. Krishnamurthi Iyer. The plaintiff and defendants 3 and 4 are children of the second defendant. The suit was for partition and separate possession of the plaintiff's 1/9th share in the suit properties on the ground that the plaintiff and defendants 1 to 8 are members of an undivided marumakkathayam family. The plaintiff wanted also an 1/9th share to be allotted absolute ignoring certain liabilities incurred by defendants 1 and 2 regarding at any rate item No. 1. The subject matter of the litigation comprised of four items. 2. In this second appeal, I am not concerned with items 2 to 4, because the plaintiff's right to have a partition of those items has been recognised and the only controversy is, as to whether the dismissal of the plaintiff's suit by both the subordinate courts negativing her right to get partition in item No. 1, is correct or not. 3. The 9th defendant, who is now in possession of item No. 1 was the chief contesting defendant regarding this item. On 29-5-1100 defendants 1 and 2 executed a mortgage over item No. 1 evidenced by Ext. C in favour of one Lakshmi Amma. In view of default committed by defendants 1 and 2 in respect of the payment of the mortgage amount the mortgagee appears to have instituted O. S. No. 1038 of 1106, the plaint being Ext. I. The suit ultimately resulted in a decree evidenced by Ext. X dated 25-1-1107. The properties were sold in court auction in 1114, and ultimately it is also seen by Ext. IV that on 18-3-1117 Lakshmi Amma, the mortgagee obtained delivery of this item. 4. The present suit itself was filed on 12-2-1122. 5. According to the plaintiff, on the date of the transaction evidenced by Ext. C, which resulted in the proceedings connected with O. S. No. 1038 of 1106, the first defendant was not the karnavan of the tarwad. IV that on 18-3-1117 Lakshmi Amma, the mortgagee obtained delivery of this item. 4. The present suit itself was filed on 12-2-1122. 5. According to the plaintiff, on the date of the transaction evidenced by Ext. C, which resulted in the proceedings connected with O. S. No. 1038 of 1106, the first defendant was not the karnavan of the tarwad. According to the plaintiff, the karnavan of the tarwad was one Kochupilla and he continued to be the karnavan till his death in 1119. Therefore, defendants 1 and 2 have no right to execute a mortgage so as to be binding on the tarwad. Again, even in the proceedings connected with O. S. 1038 of 1106 the mortgagee did not implead the karnavan of the tarwad and the suit also appears to have proceeded only against defendants 1 and 2 personally and a decree has been obtained. In consequence, the plaintiff challenges the transaction evidenced by Ext. C and also the various court proceedings connected with O. S. 1038 of 1106 and asks for a declaration that they are not binding on the plaintiff and claims an absolute 1/9th share to be decreed to her in item No. 1 also. 6. On the other hand, the 9th defendant who, as stated earlier, is now in possession of item No. 1 contended that defendant 1 who executed the mortgage bond, Ext. C, was the karnavan and the second executant of the document was the senior anandiravan at that time. It is also stated that in any event, the first defendant was also the de facto karnavan managing the tarwad and the liability incurred under Ext. C was itself for a binding purpose on the tarwad, namely, the discharge of a debt incurred by defendants 1 and 2 when they obtained a renewal of this property from the jenmi in 1099. He also pleaded that the transaction is supported by consideration also; i. e., the 9th defendant pleaded that Ext. C is supported by consideration and tarwad necessity. So far as the proceedings in 0. He also pleaded that the transaction is supported by consideration also; i. e., the 9th defendant pleaded that Ext. C is supported by consideration and tarwad necessity. So far as the proceedings in 0. S. 1038 of 1106 are concerned, according to the 9th defendant there has been a partition in the tarwad as early as 1104 and Kochupilla, though nominally the karnavan, really was not taking any part in the management has also retired from the scene taking his share from the tarwad properties and therefore the only person who could properly represent the tarwad was the first defendant, who was the karnavan on the date of the institution of O. S. 1038 of 1106. 7. Again, the 9th defendant contended that the plaintiff challenged the severval other alienations made by the tarwad and also sought to set aside the partition that took place in the tarwad in 1104 under Ext. D. Under Ext. D the members of the tarwad including the karnavan had accepted the liability under Ext. C as binding on the tarwad. No doubt, the plaintiff was not a party to Ext. D but nevertheless as the liability has been accepted by the karnavan and the other members, it was contended by the 9th defendant that it should be considered to be binding on the plaintiff also, especially as the liability evidenced by Ext. C and the decree was allotted to the branch of the plaintiff. Having chosen to attack the several other alienations and having chosen also to attack the partition arrangement of 1104, it is also the contention of the 9th defendant, that the plaintiff did not at all whisper anything in that litigation about the non binding nature of either Ext. C or the proceedings connected with O. S. 1038 of 1106. On these grounds the 9th defendant contested the suit of the plaintiff. 8. The learned District Munsiff and also the learned Subordinate Judge on appeal, were impressed by the defence set up by the 9th defendant and have rejected the claim of the plaintiff for a share in item No. 1. As mentioned earlier the plaintiff has been given a decree in respect of items 2 to 4. 9. Mr. Varghese, learned counsel for the appellant, contended that the transaction evidenced by Ext. C cannot bind the tarwad at all. As mentioned earlier the plaintiff has been given a decree in respect of items 2 to 4. 9. Mr. Varghese, learned counsel for the appellant, contended that the transaction evidenced by Ext. C cannot bind the tarwad at all. His contention is that Kochupilla was the karnavan and whatever may have happened in 1104, at any rate on the date of Ext. C, namely, 29-5-1100, Kochupilla was admittedly the karnavan and defendants 1 and 2 had no right to represent the tarwad and as such execute the document so as to make it binding on the other members of the tarwad also. The learned counsel also contended that so far as the proceedings connected with O. S. 1038 of 1106 is concerned, again a reading of the plaint will clearly show that the mortgagee, who had instituted the suit, had no idea whatsoever of asking for a decree against the tarwad as such and the proceedings will clearly show that the suit itself is against defendants 1 and 2 in their personal capacity and that no reliefs whatsoever were asked for as against the properties of the tarwad or as against defendant 1 as representing the tarwad as karnavan. Again, regarding the proceedings connected with O. S. 506 of 1106, Ext. E, namely, the suit instituted by the plaintiff herself to set aside the partition in the tarwad evidenced by Ext. D and also certain other transactions, Mr. Varghese contended, that it was absolutely unnecessary then for his client to make any mention about the transaction covered by Ext. C or the proceedings connected with O. S. 1038 of 1106 which are being challenged in these proceedings. The plaintiff was interested only in challenging transactions in respect of properties which had by that time gone out of the family and therefore she was making an attempt to bring back those properties to the tarwad. No such contingency had arisen so far as the transaction evidenced by Ext. C is concerned. It was only a simple mortgage and it was open to his client to wait till the necessary action, if any, is taken by the mortgagee to enforce his rights and in this case the properties have been sold and taken delivery of in the said decree by the mortgagee, the plaintiff has instituted the suit within 12 years of the date of delivery. I understood Mr. I understood Mr. Varghese to contend that the transaction evidenced by Ext. C and executed by defendants 1 and 2 will be an absolutely void document, if the first defendant was not the karnavan. 10. On the other hand, Mr. T. S. Krishnamurthi Iyer, learned counsel appearing for the 9th respondent, has supported the conclusions and findings of both the learned Subordinate Judge and the learned District Munsiff. According to the learned counsel, Kochupilla was not the karnavan on the date of Ext. C, namely, 29-5-1100. Even though technically Kochupilla can be considered to be the karnavan, still there is material on record to show that the first defendant was the de facto karnavan looking after the management of the tarwad and also entering into transactions for and on behalf of the tarwad. Transactions incurring a debt on behalf of the tarwad by such junior members has been recognised by law and it cannot certainly be said that the transaction covered by Ext. C is a totally void transaction. Again the learned counsel placed considerable reliance upon certain subsequent events that took place, and which according to him, would show that the other members of the tarwad including the karnavan have given the stamp of approval to this transaction, Ext. C, and also the proceedings connected with O. S. 1038 of 1106. Learned counsel contended that at no time has the present plaintiff taken the position to the effect that the original renewal obtained by defendants 1 and 2 in 1099 in respect of this property from the jenmi is not for and on behalf of the tarwad. Learned counsel again contended that the plaintiff, whether by the operation of order 2, Rule 2, Civil Procedure Code, or by the law of estoppel, cannot now be heard, to contend that the proceedings connected with the document, Ext. C, are not binding on the plaintiff, especially when she chose to institute an action, namely, O. S. 506 of 1109 challenging certain other transactions, and also the partition arrangement. C, are not binding on the plaintiff, especially when she chose to institute an action, namely, O. S. 506 of 1109 challenging certain other transactions, and also the partition arrangement. The learned counsel also has drawn my attention to some rulings of the Travancore, Travancore-Cochin High Courts and also the Kerala High Court to the effect that whatever may be the position regarding the transaction of sale by a junior member, at any rate so far as debts incurred by junior members under certain circumstances which are subsequently accepted as binding by the karnavan and other members have been held to be valid and, therefore, it cannot be said that mortgage evidenced by Ext. C is totally void. Again, the learned counsel, as I mentioned earlier, placed reliance on the confirmation of this transaction in the partition arrangement and the liability being allotted to the plaintiff's group with a direction to discharge the mortgage liability as also the decree following upon that mortgage. 11. Mr. Krishnamurthi Iyer also contended that in any event the share that the plaintiff will be entitled to get if otherwise a decree is to be passed will be not 1/9th but only 1/10th in item No. 1. According to the learned counsel, the karnavan, after separating under the partition arrangement in 1104, whatever may be the effect of the subsequent decree setting aside the partition arrangement, still must be considered to have got this definite undivided share in the tarwad properties which he has conveyed under Ext. C in favour of his client on 12-8-1117. I need not pursue this point, because after hearing both the learned counsel on the main second appeal itself, I am satisfied that the claim of the. plaintiff regarding a share in this item No. 1 cannot be allowed. 12. The extreme contention of Mr. Varghese that the transaction covered by Ext. C and entered into by the first and second defendants is totally void and is not supported by the decisions of the Travancore, Travancore-Cochin and the Kerala High Courts. As I mentioned earlier, the contention of Mr. Krishnamurthi Iyer is that whatever may be the position regarding a sale by a junior member, courts have recognised the limited right of junior members even under certain circumstances, to enter into transactions of loans provided certain conditions are satisfied. As I mentioned earlier, the contention of Mr. Krishnamurthi Iyer is that whatever may be the position regarding a sale by a junior member, courts have recognised the limited right of junior members even under certain circumstances, to enter into transactions of loans provided certain conditions are satisfied. It is not necessary for me also to go very much into the case law in this matter because I am also satisfied that the plaintiff in this case is debarred from claiming any further relief in this action, especially in view of her attitude evidenced by O. S. No. 506 of 1106. It is clear from the Travancore decision relied upon by Mr. Krishnamurthi Iyer that in the case of a debt contracted by junior members of the tarwad, the tarwad can be bound only if the creditors prove not only the passing of actual consideration under the document but also the actual application of the funds advanced for tarwad purposes. The decisions that I have got in mind is the decision of the Travancore High Court reported in Kesavan v. Atchuthan (10 TLT 179) and the decisions referred to therein especially, 24 TLR 195 FB. No doubt, in that case the learned Judges were prepared to hold that the transaction, notwithstanding the fact that the junior members alone entered into it, should be considered to be binding on the tarwad itself because the karnavan also was an attestor in the said document. But the learned Judges had referred to the case law on the subject as to how far a debt can be contracted by junior members of the tarwad and under what circumstances such transactions can be held to be binding on the tarwad. I would only wind up the discussion on this point by reference to the latest decision of the Kerala High Court reported in Achutha Menon v. Anna Cheriyan ( 1959 KLT 30 ), a decision by Mr. Justice Sankaran (as he then was) and Mr. Justice Varadaraja Iyengar. If I may say so with great respect, both the learned Judges have considered the entire case law on such points. Justice Sankaran (as he then was) and Mr. Justice Varadaraja Iyengar. If I may say so with great respect, both the learned Judges have considered the entire case law on such points. The reasoning of the learned Judges is to the effect that in the case of a mortgage or a debt bond executed by junior members, a liberal principle has to be applied in all the jurisdictions, namely, Malabar, Travancore and Cochin, and that courts have always recognised the validity of such transactions, subject no doubt to certain limitations mentioned therein. Therefore, I cannot accept the contention of Mr. Varghese that the transaction of debt evidenced by Ext. C is void ab initio. No doubt, a power in junior members to sell tarwad properties is not recognised. In my opinion, the debt transaction has also been accepted by all the other members of the tarwad including the karnavan as will be seen from the partition arrangement evidenced by Ext. D. I am no doubt aware of the contention of Mr. Varghese that the plaintiff was not a party to the partition deed, Ext. D. But I will show presently that it will not help the plaintiff - appellant in any manner whatsoever. There is a distinct recital in Ext. D to the effect that all the parties accepted not only the transaction evidenced by Ext. C but also the decree that has followed on the basis of this transaction and there is a clear provision in the document to the further effect that the plaintiff's group is to discharge those liabilities. It is interesting to note that the plaintiff started O. S. 506 of 1109 which resulted in the decree Ext.E, to challenge this partition arrangement and it is also curious that though she challenged several other mortgage transactions in the said suit she made no attack whatsoever on this transaction. It may be that the plaintiff may not be strictly barred by the provisions of Order 2, Rule 2. But I can certainly take it as a piece of conduct and put it against the plaintiff when she now comes and claims a share in these properties. Mr. Krishnamurthi Iyer is well founded in his contention that the plaintiff has at no time challenged the original transaction of renewal obtained by the first defendant and her mother, the second defendant in 1099. Mr. Krishnamurthi Iyer is well founded in his contention that the plaintiff has at no time challenged the original transaction of renewal obtained by the first defendant and her mother, the second defendant in 1099. I am not impressed with the contention of Mr. Varghese that his client has right to wait till the properties go out of the family and then institute a suit for declaration that the several transactions regarding the property which has gone out of the family, are not binding on her. It may be such a course may be open to a party who is unaware of these proceedings or who at that stage could not institute a suit due to minority or other disability. But in this case the plaintiff not only had an opportunity but did attack some of the transactions entered into by the karnavan in O. S. 506 of 1109. Having chosen to attack certain other transactions, and in particular not having made any attack on the transaction covered by Ext. C and the proceedings in O. S. 1038 of 1106, in my opinion, it will be thoroughly inequitable to allow the plaintiff now to attack the transactions. She must be considered to be estopped from raising any such contentions in these proceedings. The other contention, namely, that the plaint in O. S. 1038 of 1106 has been so worded as to show that the suit itself is against defendants 1 and 2, does not in my opinion require serious considerations because admittedly on the date of the institution of O. S. 1038 of 1106 Kochupilla, though he may have been the karnavan prior to that, had ceased to be the karnavan by virtue of the partition arrangement in 1104. The fact that under Ext. E, eight years after the date of Ext. D, a decree is passed setting aside the partition arrangement, in my opinion, should not be taken into account in considering whether the first 'defendant was or was not the karnavan on the date of O. S. 1038 of 1106. If Kochupilla had ceased to be the karnavan in 1104, there is no other person who could be considered to be the karnavan, except the first defendant on the date of Ext. C. 13. In view of the decisions cited by Mr. Krishnamurthi Iyer, Mr. If Kochupilla had ceased to be the karnavan in 1104, there is no other person who could be considered to be the karnavan, except the first defendant on the date of Ext. C. 13. In view of the decisions cited by Mr. Krishnamurthi Iyer, Mr. Varghese contended that even on the basis of these decisions, the creditor in this case, the 9th defendant, must prove both tarwad necessity and consideration. In my opinion these questions are pure questions of fact which have been held against the plaintiff by the two courts below and I am not inclined to interfere with those findings. 14. In the result, the second appeal fails and is dismissed, but in the circumstances there will be no order as to costs. No leave.