Judgment :- 1. This second appeal is in a suit for partition of a Marumakkathayam Ezhava tarwad, the last members of which were three brothers Kandan, Iypi and Raman. There was a karar or family arrangement in the tarwad by Ext. P.1 in the year 1082, under which, according to the plaintiff-appellant, each of the brothers took an equal share in its properties, descendable on his death to his heirs. The plaintiff is the daughter of Raman, defendants 1 to 4 are the lineal descendants of Kandan and defendants 5 to 7 are the children of Iypi. The plaintiff was born after the date of Ext. P.1. The suit was contested by defendants 1 and 2 the children of Kandan, and by defendants 9 to 11 the mortgagees of a part of the tarwad properties. According to them, Raman had no separate interest in the properties of the tarwad which continued to be joint and so the plaintiff is not entitled to sue for partition. This contention though negatived by the first court, was accepted on appeal by the District Judge. 2. In second appeal, the main question for decision is whether the plaintiff is entitled to a share in the tarwad properties. That share is claimed through her father Raman. Before me, learned counsel put the case on two grounds, first on the construction of Ext. P.1, and second on the terms of S.35 read with S.25 of the Cochin Thiyya Act (Act VIII of 1107). The latter ground has not been taken in either of the courts below, but being a legal point and an obvious one for that matter, cannot be dismissed from consideration. That Act applied to all Thiyyas domiciled in Cochin, other than those who follow Makkathayam & under S.35 "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 Chapter IV and to be partible among the persons so entitled." Raman died in the year 1100, Iypi in the year 1112 and Kandan in the year 1131. According to the above provision, the properties of the tarwad of the three brothers must be deemed to have been the properties of their mother and to have descended from her according to the rules of succession contained in Chapter IV. According to the above provision, the properties of the tarwad of the three brothers must be deemed to have been the properties of their mother and to have descended from her according to the rules of succession contained in Chapter IV. The relevant rule is enacted in S.25, which reads: "Where the intestate has left surviving him a child Of children, the property shall belong to his surviving child, if there is only one, or shall be equally 'divided among all his surviving children: Provided that if a child shall have predeceased the intestate, the lineal descendants of such child shall be entitled to the share which such child would have been entitled to, had the child survived the intestate." 3. Learned counsel for defendants 1 and 2 contended, that Raman having died before the Act came into fores, the plaintiff claiming through Raman, is not entitled to rely on the Act. The terms of S.25 including the proviso to it, and of S.35, leave me in no doubt whatever, that they have retrospective operation. The point is covered by the decision of a Full Bench of the Travancore-Cochin High Court in Narayanan v. Raman (1953 KLT. 216) In this view the plaintiff is entitled to the share which Raman would have inherited from his mother, had he survived her. 4. I am not also satisfied, that the view of the District Judge on the construction of Ext. P.1 can be sustained. The properties were vested at the time of Ext. P.1 in the three brothers and it was open to them to make any arrangement with respect to them, which the law did not abhor. Under Ext. P.1, certain provisions were made for the continued management of the properties in common, until the death of the last surviving brother. At the same time it was provided that the share of each of them would descend on his death on his heirs and further, that after the death of all of them, may be partitioned between their heirs, including any child who may be born of Raman, who was childless at the time. The intention of the brothers was that each of them has an equal share in the properties descendable to his heirs, but partition by metes and bounds shall be made only after the death of the last surviving brother. Ext. The intention of the brothers was that each of them has an equal share in the properties descendable to his heirs, but partition by metes and bounds shall be made only after the death of the last surviving brother. Ext. P.1 is in the nature of a settlement or family arrangement and there is no reason for holding, that the intention cannot be given effect to. I therefore agree with the Sub-Judge in holding that the plaintiff is entitled to sue for partition. 5. Defendants 9 to 11 have set up a mortgage right in their favour under Ext. D.15 which was found to be invalid by the Subordinate Judge. Defendants 9 to 11 were also the appellants before the District Judge, and they questioned the correctness of the above finding. In the view the District Judge took regarding Ext. P.1 the District Judge did not consider Ext. D 15. Now that his view is found to be not supportable, the case will go back to the District Judge for the disposal of the question regarding Ext. D 15, and for passing a fresh decree in the light of the above observations. 6. In the result, the decree dismissing the suit is hereby set aside and the case is sent back to the District Judge. The plaintiff is allowed costs of this second appeal and of the appeal before the lower court, from defendants 1 and 2 and 9 to 11, who have contested this appeal in this court. Allowed.