Judgment :- 1. This appeal is by the 1st plaintiff in a suit to set aside certain alienations of properties which he claimed to belong to the tarwad consisting of the plaintiffs 1 to 3 and the defendants 30 to 44. Defendant No. 32 is the ancestress of the plaintiffs 1 to 3 and defendants 33 to 44. Plaintiffs claimed defendants 30 and 31 to be direct brothers of the 32nd defendant. Defendants 30 and 31 on the other hand claimed to be of a different branch of the tarwad which was separated from the branch of the plaintiffs and defendants 32 to 44. The Additional District Judge found a division by course of conduct to have been established in the case and therefore dismissed the suit in regard to alienations made by defendants 30 and 31 of their properties. 2. Exts. G, II and III, and Exts. VIII, IX and V are held to evidence the course of conduct establishing separation between the parties. Ext. G dated 27-11-1087 is a lease executed by the 30th defendant and Narayanan who was admittedly the senior most member in the plaintiffs' branch. Ext. G of course does not spell any separation between the 30th defendant and Narayanan. Ext. II is a lease executed on 17-7-1100 by the 32nd defendant and her brother the aforesaid Narayanan, in regard to their "one-half share" in a tarwad property. Ext. III is another lease dated 20-4-1100 by defendants 30 and 31 for the other "half" of the property leased under Ext. II. The two branches could not have separate half shares in the property that belonged originally in common to them as a tarwad unless a division in status has been mutually agreed to between them. Hence the course of conduct evidenced by Exts. II and III indicated a separation between the two branches. Though they do not constitute one transaction in which both the branches joined to effect a separation between them, the two transactions together express a consensus ad idem as to separation from each other and that amounts to attainment of a divided status by the branches concerned. 3. Ext. VIII is a mortgage dated 11-4-1111 by the 30th defendant of what he purported to be his separate 1 4 share in a property which originally belonged to the tarwad of the parties. Ext. 3. Ext. VIII is a mortgage dated 11-4-1111 by the 30th defendant of what he purported to be his separate 1 4 share in a property which originally belonged to the tarwad of the parties. Ext. IX is a mortgage dated 6-11-1111 by the 31st defendant of another 14th share of the same property claimed to be his exclusively. Ext. V is a mortgage dated 10-3-1112 by defendants 32 and 44, as representatives of the plaintiffs' branch, of an undivided one half share in the same property. These 3 mortgages were in favour of the 1st defendant in the case. The mortgages in regard to separate shares by defendants 30, 31, 32 and 44 are consistent only with the divided status attained earlier and therefore confirms the agreement attained in Exts. II and III. The court below was therefore right in finding division in status among the parties and in that view holding the alienations made by defendants 30 and 31 unimpeachable by the plaintiffs. 4. Counsel for the appellant relied on the judgment in S.A. No. 471 of 1959 by Raman Nayar, J., (1962 KLT 349) and contended that a division by course of conduct is an impossibility. It is observed in that judgment: "Admittedly there was no partition deed; nor did the contesting defendants set up a specific case of an oral partition. They depended on a long course of conduct to prove the division set up by them, and it is to be remarked that even this division, as is clear from the evidence, is not a division of the property by metes and bounds, but only a severance of status as between the two branches resulting in each branch getting an undivided half share in the properties to be enjoyed in udukur. (The Courts below have referred to the partition set up by the contesting defendants as partition by long course of conduct, phraseology not adopted by the defendants themselves who in their written statements, spoke only of a division from a long time ago. And although there would appear to be a number of decisions beginning from Authitchan Easwaran v. Easwaran Narayanan (24 TLR.187) which speak of partition by long course of conduct I would prefer to call it a partition proved by long course of conduct. And although there would appear to be a number of decisions beginning from Authitchan Easwaran v. Easwaran Narayanan (24 TLR.187) which speak of partition by long course of conduct I would prefer to call it a partition proved by long course of conduct. The disruption of a Marumakkathayam family (before the statutes giving a right of partition to individual members or groups of members) could only be effected by a consensus of intention, in other words, by agreement express or implied, and it is this consensus of intention, which may be inferred from a long course of conduct, and not the course of conduct that effects the severance. Where division is proved by a long course of conduct as something which can be inferred from that conduct, it seems to me that the division must be regarded as having taken place some time prior to the commencement of the course of conduct and not at the close of the course of conduct which would be the case if it had been the conduct that affected the division)." I beg to differ, with great respect, from the dictum in the aforesaid decision in so far as it disapproves a separation by course of conduct. There is nothing impossible or unnatural in a partition being arrived at by a course of conduct, apart from an agreement arrived at by all concerned in joint deliberation at one particular point of time. Of course partition does require the concurrence of all the units at separation; but such concurrence can be made by a series of transactions by the units separately or by a joint transaction of all the units. Even a contract can be formed by a course of conduct, that is to say, by an offer being made by one party giving a time for the other to make his acceptance and if before the expiry of the time so stipulated (irrespective of the length of time so conceded) the acceptance is made, a contract is struck in law. So also between two branches in a tarwad it is open to one branch to execute an alienation of what it purports to be of its own share in the tarwad and if subsequently that transaction as such is affirmed by the other branch by an alienation of the remaining share in the property taken as its own the course of dealing evidenced by the two transactions tantamounts to a consensus in partition, such consensus becoming accomplished at the latter dealing only. I am therefore of the view that a partition by a course conduct is not a legal impossibility and that in such a partition the consensus of all the branches concerned becomes accomplished only when the last branch has participated in the course of conduct, completing the consent of all the branches in the matter. 5. Reference was also made to the following observations in the aforesaid judgment in S.A. No. 471 of 1959 (1962 KLT 349): "If a state of division is to be inferred from a transaction, that transaction must be one in which the branches or the recognised heads of the branches have taken part. Further the transaction must be one that can be taken to be approved by all the adult members of both branches by the surrounding circumstances and by their not having tried to set it aside for a reasonably long period. When these conditions are fulfilled a state of division might safely be found." To these observations, I respectfully agree. Counsel for the appellant pointed out that the course of conduct relied on by the court below as constituting partition between the branches has not been shown to have the assent of all the major members of the plaintiffs' branch and therefore the course of conduct cannot be held to be binding on the plaintiffs. As the partition was between two branches of a tarwad, only the heads or the accredited representatives of the two branches need join in it, leaving it for the members of either branch who feel such partition to be to their prejudice to set aside the same. I have already held in A.S. No. 576 of 1957 (since reported in 1962 KLT 99) thus: "Thus the position seems to be well established that for a division of a Hindu family into its several branches the heads of the different branches only need join. I have already held in A.S. No. 576 of 1957 (since reported in 1962 KLT 99) thus: "Thus the position seems to be well established that for a division of a Hindu family into its several branches the heads of the different branches only need join. It then follows that for a division of a Marumakkathayam tarwad into its several tavazhi is (tavazhi is the name of a branch in a Marumakkathayam tarwad) the heads of the different tavazhis only need join Partition is a transaction among co-sharers. If the co-sharers be individuals all the individuals concerned must join in it; but if the co-sharers be branches of a family, only the branches concerned need participate in it. In a division between branches, the individuals in a branch have no locus standi. Under the Marumakkathayam system the karnavan of a tarwad or tavazhi is its accredited representative, its "head, manager and mouthpiece". He represents the tarwad or the tavazhi as the case may be and it is represented only by him. Hence, when tavazhis or branch-tarwads are to partition, the common tarwad, only the karnavans of the different tavazhis being the co-sharers at partition can and need join. Of course, as the karnavan participates in the partition as the representative of the group of persons constituting the tavazhi, if he has betrayed the group and acted to their prejudice it is open to them to impeach his act and set aside the partition. If in a partition among tavazhis the adult members of a tavazhi, apart from the karnavan thereof, join, it can only be to express their approval of the karnavan's part in it. It cannot therefore be said that without the junction of all the individual members a partition of a joint family or tarwad into its different branches cannot take place." 6. If the question of legality of a partition by course of conduct was the issue in this case, I having differed from the view taken in S.A. 471 of 1959, (1962 KLT 349) would have certainly referred this case to a Division Bench for decision. But in this case the question of separation between the branch of the plaintiffs and of 30th defendant is one of res judicata by an earlier decision in Ext. I between the identical parties. Ext. But in this case the question of separation between the branch of the plaintiffs and of 30th defendant is one of res judicata by an earlier decision in Ext. I between the identical parties. Ext. I is a judgment in a Land Acquisition Reference in which the present 1st defendant, the mortgagee claimed the entire compensation money towards discharge of his mortgage amount to which the present defendants 30 and 31 agreed, and the branch of the plaintiffs represented by the defendants 32, 33, 39, 42 and 44 opposed. It was contended there that defendants 30 and 31 were not divided out from the tarwad and therefore had no authority to execute the impugned mortgages and therefore the mortgagee should not be given the compensation money. The question of division between defendants 30 and 31 on the one hand and the plaintiffs' branch on the other thus arose directly for decision in that case; and without deciding the same neither the validity of the mortgages claimed by the present 1st defendant from defendants 30 and 31 nor his claim to the compensation money could have been adjudged therein. It was found in Ext. I "Defendants 2 and 3 have Udukur one-half right over the tarwad properties and plaintiffs 1, 2 and defendants 4 to 6 and others Odukur one-half right over the remaining half", defendants 2 and 3 there being present defendants 30 and 31 and plaintiffs 1, 2 & defendants 4 to 6 there being defendants 32, 44, 33 and 39 and 42 respectively in the present case. The finding is then clear that the branch of defendants 30 and 31 has attained a status of division from the plaintiffs' branch. It has been held in Raj Lakshmi Dasi v. Banameli Sen (AIR. 1953 S.C. 33) that where a question of title has arisen in a land acquisition reference between the parties and been decided therein, the finding would be res judicata on the same question between the same parties in a subsequent civil suit. It then follows that the finding in Ext. I as to division between the branches of defendants 30 and 31 on the one hand and the plaintiffs' branch on the other is res judicata so far as this case is concerned. 7. In the result the finding of the court below that the parties have attained a divided status is accepted. I as to division between the branches of defendants 30 and 31 on the one hand and the plaintiffs' branch on the other is res judicata so far as this case is concerned. 7. In the result the finding of the court below that the parties have attained a divided status is accepted. No other question arises in this appeal which therefore fails and is dismissed with costs, one set. Dismissed.