JUDGMENT S. Velu Pillai, J. 1. These three second appeals are from a suit by six plaintiffs for partition of their share of the properties in suit, some of which were alleged to belong to their tarwad comprising also defendants 1 to 33, and other properties which were alleged to belong to the branch of the plaintiffs and defendants 1 to 25. Defendants 38, 43, and the legal representative of defendant 26, are the appellants in S. A. 506, S. A. 699, and S. A. 680 of 1960 respectively. The suit was contested by defendants 26, 38 and 43, inter alia on the ground, that by virtue of a prior partition deed Ext. III dated the 28th Edavom, 1117, entered into by some of the members of the tarwad along with others, as also by a long course of conduct, the tarwad became divided and so the plaintiffs are not entitled to the shares in the properties as claimed. These contentions were repelled by the Subordinate Judge, who gave the plaintiffs a preliminary decree for partition, differing from the Munsiff who dismissed the suit. 2. The first question to consider is whether Ext. III is a bar to the suit. The 26th defendant sued for partition of the tarwad in O. S. 365 of 1115; Padmanabhan Ayyappan of the tarwad was alive then and was impleaded as the first defendant. He and the present first defendant contended that the tarwad was not joint, but had become divided into four branches, that they were the sole surviving members of two of the branches and that some of the properties in suit belonged to them exclusively. During the pendency of the suit, some of the properties were partitioned by allotting them to the four branches, which were specified as those of Padmanabhan Ayyappan, of the first defendant, of the plaintiffs and defendants 2 to 25 and of defendants 26 to 33. The branch of the plaintiffs & defendant 2 to 25, consisted of the lineal descendants of Easwari who were, Bhagavathi, Bhagavathi's sister's daughter the 8th defendant, the 8th defendant's children being the first plaintiff, defendants 3 to 5, 9 to 11, 17 & Kamalamma the deceased mother of plaintiffs 2 to 6, and the 8th defendant's sister's children being defendants 2 and 24. Four of the nine adult members of this branch who were then in existence have alone signed Ext. Four of the nine adult members of this branch who were then in existence have alone signed Ext. III, and the remaining five who have not signed it were Bhagavathi, Kamalamma, and defendants 3, 5 and 24. Basing on Ext. III presumably, the 26th defendant filed an application for withdrawal of the suit, upon which the present 24th defendant was transposed as plaintiff on her application. Plaintiffs 1 to 6 and the 3rd defendant in this suit then filed their written statement Ext. U, in the year 1121, raising substantially their present contentions. Padmanabhan Ayyappan succeeded in the C.M. appeal preferred by him against the order of transposition and the 24th defendant failed in the revision petition preferred by her against the appellate order, but obtained a direction, that if so advised, she may file a fresh suit. Soon after the order of transposition was quashed in appeal, the plaintiffs commenced the present suit on the 5th Chingom, 1123. The principal ground on which the plaintiffs attacked Ext. III was, that it was not executed by all the adult members of the tarwad and so is not binding on the plaintiffs who were minors at the time, and the principal defence was that it is valid, because the first plaintiff was represented in it by his mother the 8th defendant and plaintiffs 2 to 6 were represented in it by their mother Kamalamma as their respective guardians and that in any event, three out of the five adult members who did not sign it, have subsequently ratified or accepted it. 3. There is no doubt, that by Ext. III, the parties to it desired to purchase peace and to give a quietus to the dispute as to the status of the tarwad, whether it was joint or undivided, and as to what were the partible properties. Ext. III was thus a family arrangement by which outstanding disputes were intended to be settled, but in form and substance it was a partition of tarwad properties by metes and bounds. Family arrangements may be of different forms, partition being one of them. Ext. III has therefore to conform to the requirements of a valid partition. Ext. III was thus a family arrangement by which outstanding disputes were intended to be settled, but in form and substance it was a partition of tarwad properties by metes and bounds. Family arrangements may be of different forms, partition being one of them. Ext. III has therefore to conform to the requirements of a valid partition. It is undoubted, that while a karnavan may order things to be done in the course of management, he by himself or in con junction with a majority of the adult members only but not all, cannot deal with tarwad properties so as to create permanent interests in respect of them. It is well settled, that except with the junction of all the adult members of the tarwad, no permanent alienation of its property could be validly made. So too it has been ruled from very early times, that for an outright partition of tarwad properties, all the adult members must concur. The concurrence of the minor members is of course not to be expected. When all the adult members of the tarwad bring about a partition of its properties, the minor members of the tarwad are bound by such partition, although it may be open to them to prove, that it was vitiated by fraud or was demonstrably to their prejudice. In Karthiayini Amma v. Kesava Pillai ( 1957 KLT 355 ), even for partition of properties held as tenants in common, it was observed, that "the determination of the tenancy in common and the making of each cotenant separate owner over a specific portion of the land is effectuated only by a partition, which can be either voluntary or compulsory (i.e.) with consent or through court. It must follow that the rule by majority, however large it may be, has no place". A fortiori must this rule apply, in the case of property held by a tarwad. Decided cases have stated the rule in two ways. In Aiyappan Sankaran v. Aiyappan Velayudhan (18 TLJ 719), a Full Bench of the Travancore High Court held, that it is an undoubted proposition of Marumakkathayam law that for partition of tarwad properties there must be the consent of all the adult members of the tarwad. Decided cases have stated the rule in two ways. In Aiyappan Sankaran v. Aiyappan Velayudhan (18 TLJ 719), a Full Bench of the Travancore High Court held, that it is an undoubted proposition of Marumakkathayam law that for partition of tarwad properties there must be the consent of all the adult members of the tarwad. In Narainikutti Amma v. Achuthan Kutti Nair (ILR 42 Madras 292) it was treated as well settled in Malabar, that there can be no partition at all, except with the consent of all the adult members. The other line of cases which have laid down the same rule in another form i.e., it is open to the adult members of the tarwad to make a partition so as to bind the minors, are Bhagavathy Amma v. Remalekshmi (19 TLJ 1233), Krishnan Velu v. Narayanan Velu (25 TLJ 1183), Janaki Pilla Ammukutty Pilla v. Kanukku Narayana Pillai Padmanabha Pillai (30 TLJ 812), Aiyappan Nair Ramakrishnan Nair v. Sankaran Nair Krishnan Nair ( 1953 KLT 876 ), Achuthan alias Kuttan Nair v. Anandavalli Amma ( 1959 KLJ 982 ) and Veluthakal Chirudevi v. Veluthakal Tarwad Karanavan (31 MLJ 879). A partition deed entered into by some of the adult members of the tarwad only, was considered to be invalid in Lekshmi Pillai Amma Devaki Amma v. Kanakku Champakaraman Padmanabha Pillai Kumara Pillai (25 TLJ 80 at p. 83). The court observed: "By partition the parties to it relinquish their rights to other properties and secure title to the shares allotted to them. This is not a transaction connected with the administration of family affairs, but one by which individual rights are created and surrendered. Partition can be effected only by mutual agreement or by a decision of a civil court." Kunji Pennu Nangeli v. Sankaran Krishnan (36 TLR 206) related to a nischayapatrom which was executed in settlement of longstanding disputes and in which a recalcitrant member of the tarwad alone did not take part and was distinguished as pertaining to an act of management of the tarwad and not to tarwad partition. A plea, that there was a partition by consent expressed orally, when the partition deed was not assented to by all the members, was discouraged in Kanakku Thanu Pillay Mathevan Pillay v. Kanakku Mathevan Pillay Narayana Pillay (1949 KLT 143). 4. A plea, that there was a partition by consent expressed orally, when the partition deed was not assented to by all the members, was discouraged in Kanakku Thanu Pillay Mathevan Pillay v. Kanakku Mathevan Pillay Narayana Pillay (1949 KLT 143). 4. It was strenuously contended, that in so far as the first plaintiff and plaintiffs 2 to 6 were represented by their mothers who may be regarded as their natural guardians, they must be held to be parties to Ext. III. The right to partition properties of the tarwad by metes and bounds is of the adult members. So long as the tarwad is joint and undivided, its karnavan is the guardian of the minor members. See Ukkandan Nair v. Unikumaran Nair (6 MLJ 139). "No guardian can be appointed in respect of the individual interests of members of the family as the interest is not individual property." See Sundara Aiyar on Malabar and Aliyasanthana Law, page 39. When the adult members by themselves make a partition so as to bind the minors, a special representation of the minors by their guardian can hardly arise and the participation of the natural guardian in such a partition affords but a presumptive proof, however weak it may be, that the minor's interests were not disregarded. A division bench of this court has held in Parukutty Amma v. Chellamma ( 1957 KLT 176 ) that "in the absence of fraud and prejudice to the minors, the partition deed assented to and executed by all the adult members of the tarwad would be binding upon the minors also. It is wholly unnecessary for any one to join in the execution of the partition deed as a special representative or guardian of the minor members. So long as there is no fraud and the partition is just and fair the partition deed would be binding upon the minors even without any representative of their taking part in its execution ... In fact the participation of the minors' father as their father and guardian in the execution of a partition deed which has been assented to and executed by all the adult members of a tarwad amounts to little more than attestation of the partition deed by the father and prima facie evidence of the fact that the partition is just and fair and has been made without any fraud or prejudice to the minors". This was followed by another bench in Rangayya Gowder v. Narayanaswami Gowder ( 1958 KLJ 638 ). My attention was invited by learned counsel to S.36 of the Nair Act of 1100, by which every female member who claims to get her share of the tarwad properties, is bound to claim and also entitled to get the shares of her minor children also; this applies only when a female exercises her right to claim partition conferred under the Act. In Ext. III, the tavazhy of Easwari took as one group; neither the 8th defendant, nor Kamalamma the mother of plaintiffs 2 to 6, purported to claim a share for herself. It was pointed out, that there can be a separation by a tarwad member by an unequivocal declaration of his intention. It is one thing to say, that a member of the tarwad may separate himself from the tarwad, but it is another thing to say that some of the members of tarwad alone are competent to make a partition of the properties so as to bind the minors. Under Ext. III, there was a purported partition between the branch of Easwari and others and so far as that branch was concerned, Ext. III is clearly hit by the rule in Kuriakko v. Ouseph ( 1963 KLT 61 ) 5. It was then argued, that there has been a subsequent ratification by Kamalamma by Ext. V, and by Bhagavathi by Ext. XXV. Ext. V is a sale deed of the year 1118 executed by Kamalamma and attested by her husband, for Oodukoor 41 cents in Survey No. 362/3A. In Ext. V there was no reference to Ext. III at all. The allotment in Ext. III was only of 1.18 acres, the per capita share was only 4 cents and in this view, on division Kamalamma and her children were not entitled to more than 24 cents. Similarly Ext. XXV sale deed was executed by Bhagavathi in the year 1119, in which also there was no reference to Ext. III. These alienations were not in consonance with the allotment in Ext. III and if the executants had no right to make them, they can only be regarded as unauthorised alienations. The release deed Ext. XXXVIII taken by defendants 3 and 4 in respect of a mortgage of a property also allotted under Ext. III. These alienations were not in consonance with the allotment in Ext. III and if the executants had no right to make them, they can only be regarded as unauthorised alienations. The release deed Ext. XXXVIII taken by defendants 3 and 4 in respect of a mortgage of a property also allotted under Ext. III, did not refer to it & can be viewed only as having the force of an assignment of a mortgage. The 5th defendant gave no document to bind her to Ext. III and the 24th defendant was not precluded by the order on her application in the previous suit for transposition, from impeaching Ext. III. For these reasons, Ext. III is not binding on the plaintiffs or on defendants 5, 6 and 24 who had not participated in it. 6. The next question for decision is whether the tarwad had attained a divided status by a course of conduct. On this, the Munsiff accepted the case of division, and the Subordinate Judge held in favour of non division. The complaint of learned counsel for the 38th defendant was, that material evidence was not adverted to by the Judge. I have been taken through the entire evidence & have reached the conclusion, that the Judge's finding has to be sustained. The onus of proof was on the 38th defendant, who pleaded division. At the trial some of the parties did not adhere to their pleadings, but the Judge was justified in pinning them thereto. In the plaint and in the written statement of the 26th defendant, it was common ground that the tarwad of the plaintiffs and defendants 1 to 33 is undivided, but P. W. 1 the first plaintiff swore, that the branch of defendants 26 to 33 had become divided. According to the 38th defendant, the tarwad of the plaintiffs and defendants 1 to 25 became divided by a course of conduct into four branches being, the branch of Padmanabhan Ayyappan who was the father of the 38th defendant, the branch of the first defendant, the branch of Kandan Neelakantan, and the branch of the plaintiffs and defendants 2 to 25; Padmanabhan Ayyappan and the first defendant were the last surviving members of the respective branches, and the branch of Kandan Neelakantan became extinct. According to defendants 5 and 6, though a female member of the 26th defendant's branch was adopted by another tarwad, the adoption was without prejudice to her rights in the tarwad of her birth and does not arise. 7. The two documents which may be said to point to division are Exts. XV and XXIX, otti and kuzhikanom, both dated the 13th Karkadakom 1070, executed by the ancestors of the plaintiffs, of the first defendant, and of Padmanabhan Ayyappan, and by Kandan Padmanabhan of the branch which became extinct, under which there was a sharing by each of the executants, of the consideration, in the case of two of them for specified purposes; but these documents appear to stand apart, as the dealings before and after them were different. Under Ext. XIV of the year 1062, the four ancestors made an allotment of properties between themselves, and though it was styled a "bhaga pathram", it was clearly an allotment for maintenance. Ext. J or XXX of the year 1057, was a mortgage given by Easwaran Easwaran to Ayyappan and has no evidentiary value, in the absence of proof that the executant was not the karnavan of the tarwad. The settlement depositions in Ext. AA only point to the issue of pattah jointly to the ancestors of Padmanabhan Ayyappan, of the first defendant, and of the plaintiffs, and to Kandan Padmanabhan of the extinct branch. Exts. AB to A F are the classification registers for some of the properties, evidencing the issue of joint pattah in some of which the 26th defendant's mother's name also was included. Exts. L and M evidence joint execution of documents by the ancestors; so also Ext. N of the year 1082 and Ext. XIX of the year 1084. Exts. X, XI and O are three lease deeds of the year 1085 executed by the ancestors, in which there was no sharing of the rent as such as contended, but only a stipulation for the payment of a specified share of the dues in kind, to one Easwaran Kunchena, the balance of rent being payable to the executants; some trees were also reserved for enjoyment. Ext. Ext. IX otti is virtually a gift by the ancestors in favour of the widow and children of Kandan Neelakantan of the extinct branch shortly after his death and it described the property as of their common tarwad and as in their "thanathu" possession. Ext. AC of the same date as Ext. IX, was executed in order to raise 1000 fanams for meeting the funeral expenses of Kandan Neelakantan, in which reference was made to the property as belonging to them and as having been mortgaged by their predecessor Kandan Mathevan. Ext. I is a partition deed of the year 1105 in the branch of the plaintiffs and defendants 2 to 25 to in which they expressly reserved their rights to the equity of redemption of certain properties and to other properties which belonged to their common tarwad and which would be partitioned later. Exts. XV and XXIX when weighed against the other evidence discussed above, are insufficient to establish division by a long course of conduct. It may be that for some reason, the executants wanted the mortgage amount for themselves. Two stray dealings of this kind are not of much importance. The argument of learned counsel for the 38th defendant was, that in none of these, there was reference to a common karnavan of the tarwad. This is not conclusive. Most of them evidence joint dealings by the ancestors. Similarly Exts. XXII, XXIII and XXVI to XXVIII which were dealings with tarwad properties do not spell division. Exts. XXVI and XXVII were by the ancestors. Ext. XXII was a release taken by the 26th defendant and Ext. XXIII a release taken by her mother, in respect of mortgages of tarwad properties. The executants of the mortgages might well have been the karnavans of the tarwad at the time, and so the release deeds by themselves are of little value. I accept the finding of the Subordinate Judge on this point as correct. 8. The contention of defendants 5, 6 and 24 that defendants 26 to 33 had become divided from the plaintiffs and defendants 1 to 25, was repelled by the Subordinate Judge and the preliminary decree for partition of the properties in Schedules C, D and G was passed on that footing. They have not appealed against that decree and so their contention cannot be entertained. 9. They have not appealed against that decree and so their contention cannot be entertained. 9. The next question is as to what are the partible properties of the tarwad. On this, I am not satisfied, that the approach made by the two courts was proper or that the discussion of the evidence was full. The 38th defendant has also a complaint that his examination has not been completed. So far as the 43rd defendant, the daughter of Padmanabhan Ayyappan is concerned, her claim related to A schedule item 1 & to 44 cents in C schedule item 13. A schedule item 1 was given on mortgage to a stranger by Ext. XIII, in the year 1053, by Padmanabhan Padmanabhan and Padmanabhan Parameswaran of a branch which admittedly had become separated from the tarwad a long time ago. In the year 1055 by Ext. XII Thirutha Parvathi, the mother of Padmanabhan Ayyappan, obtained an assignment of the mortgage. Upon her death Padmanabhan Ayyappan succeeded to her rights; the mortgage itself became barred by limitation. The title of Padmanabhan Ayyappan being established, it was not disputed, that the 43rd defendant is entitled to it. So far as 44 cents in C schedule item 13 was concerned, the case set out in the plaint was denied by the 43rd defendant in her written statement. The plaintiffs adduced no evidence to prove, that the acquisition was made by Padmanabhan Ayyappan as karnavan. P.W. 1 could not say anything about the acquisition. D. W. 2 swore to the case of the 43rd defendant. The property was gifted in the year 1119 in favour of the 43rd defendant. It must therefore be held, that A schedule item 1 and 44 cents in C schedule item 13, belonged to the 43rd defendant. 10. Incidentally, a question arose with respect to the validity of the gift deed of the year 1108 executed by Padmanabhan Ayyappan in favour of defendants 34 to 38. This document has not been produced by the plaintiffs, but it was stated before me, that it has been produced by the 38th defendant. As remarked, the 38th defendant's evidence was not completed. Now that so much time has been taken by this litigation, I do not think it proper to shut out his evidence. 11. This document has not been produced by the plaintiffs, but it was stated before me, that it has been produced by the 38th defendant. As remarked, the 38th defendant's evidence was not completed. Now that so much time has been taken by this litigation, I do not think it proper to shut out his evidence. 11. In the result, S. A. 699 of 1960 is allowed, with costs against the plaintiffs in this court & in the court of the Subordinate Judge. In S. A. 506 of 1960 and S. A. 680 of 1960, subject to the findings recorded and observations made above, the judgment and decree under appeal are set aside and the case is sent to the trial court, for determination of all other points arising in the case, including what are the partible properties and for passing a final decree. The 38th defendant will be given an opportunity to complete his examination and to prove his documents by such examination. If the plaintiffs or defendants 5, 6 and 24 want to produce any counter evidence they may do so. Defendants 26 and 38 have failed in their contentions as regards the binding effect of Ext. III. So in these two appeals, the plaintiffs will realise half the costs of this court in the respective appeals from the 38th defendant and from the legal representatives of the 26th defendant, who are the appellants in these appeals. The memorandum of objections filed in S. A. 506 of 1960 is dismissed, but without costs.