JUDGMENT K. Bhaskaran, J. 1. The plaintiff in a suit for partition and separate possession of his alleged 1/9 share in the plaint A schedule immovable and B schedule movable properties, with proportionate mesne profits, is the appellant; defendants 1 to 8 respectively are respondents 1 to 8. The first respondent died during the pendency of the appeal; and respondents 4, 5, 6 and 7 have been recorded as her legal representatives as per the order in C.M.P. No. 8926 of 1975 dated 23rd June 1975, The trial court dismissed the suit with costs. 2. The appellant-plaintiff case briefly stated is as follows: The plaintiff and defendants 2 and 3 are the sons, and the first defendant is the daughter of one Kunji Amma who died in August 1952. Defendants 4 and 5 are the sons, and defendants 6 and 7 are the daughters of the first defendant. The 8th defendant is the minor son of the 6th defendant. Plaint A and B schedule properties are the sub-tarwad properties of Kunji Amma. A schedule items 1 to 9 were obtained by the sub-tarwad under Ext. D-1 partition deed of the year 1107. A schedule items 10 to 12 belonged to Kunji Amma, and on her death they became the properties of the sub-tarwad. The plaintiff was having business in motor cars. Fearing that he might possibly get himself involved in debt he had executed a formal sale deed dated 15th November 1957 (Ext. D-3) (Document No. 1647/57 of Anthicad Sub Registry Office) in the name of the 1st defendant and her children (defendants 4 to 7), which was neither acted upon nor intended to be acted upon, it being a sham document. There was no consideration for the alleged transfer. In spite of that document (Ext. D-2), the plaintiff continued to be a member of that tarwad, managing the tarwad properties and living in the tarwad house. In any event the undivided share of the plaintiff was inalienable, and therefore the document purported to be the sale deed is void, and the vendees thereof did not get any right. The plaintiff got married in 1969 which was not to the liking of defendants 1 and 4 to 7. This led the plaintiff to ask for partition by issuing a notice Ext. P-2 dated 24th January 1969 to defendants 1 and 4 to 7, and Exts. The plaintiff got married in 1969 which was not to the liking of defendants 1 and 4 to 7. This led the plaintiff to ask for partition by issuing a notice Ext. P-2 dated 24th January 1969 to defendants 1 and 4 to 7, and Exts. P-4 and P-5 notices dated 24th January 1969 separately to defendants 2 and 3 respectively. Defendants gave replies resisting the plaintiff right to seek partition. Ext. P-2 dated 1st February 1969 is the reply sent by defendants 1 and 4 to 8 through their advocate and Ext. P-6 is the reply sent by defendants 2 and 3 jointly. The annual mesne profits of the plaint A schedule properties would be Rs. 20,000. The plaintiff is entitled to have the A and B schedule properties divided into 9 equal shares, and to have one such share with separate possession allotted to him. 3. Defendants 1,4 and 6 to 8 filed a joint written statement contending that there was a division of status after the plaintiff had demanded partition; there was mediation for fixing the value of his share; consideration was actually paid; a sale deed was executed as the plaintiff was in need of money in connection with his motor car business; and if the first defendent did not come forward to purchase the share at the request of the plaintiff, he would have been constrained to sell the property to outsiders. It was also stated in the written statement that after the sale deed the plaintiff went to Trichur with the money he got as a divided member, and that two years before the institution of the suit the plaintiff seriously fell ill and when he had almost recovered under the treatment of Dr. Vaidya natha Iyer, he was taken to the first defendant house. It was also pointed out that items 10 to 12 were the self acquisitions of Kunji Amma, the mother of plaintiff and defendants 1 to 3, and that it was never treated as their sub-tarwad property. Defendants 2, 3 and 5 by their written statement have adopted the contentions put forward by defendants 1, 4 and 6 to 8. 4. Before us Sri A. K. Sreenivasan, counsel for the appellant, has advanced a two-fold argument : (i) Ext. Defendants 2, 3 and 5 by their written statement have adopted the contentions put forward by defendants 1, 4 and 6 to 8. 4. Before us Sri A. K. Sreenivasan, counsel for the appellant, has advanced a two-fold argument : (i) Ext. D-2 sale deed dated 15th November 1957 executed by the plaintiff in favour of the first defendant and her children is void for the reason that at the time of its execration the plaintiff, in terms of section 62 of the Cochin Nayar Act, 1113, had no right to alienate the property, and as such no title to his share in the property passed to the vendees; and (ii) it (Ext. D-2) is a sham document, not acted upon, and never intended to be acted upon, and is therefore void. 5. On the question of demand for partition we have the evidence of D.W. 1 (the first defendant) and D.W. 2 (the 2nd defendant, who was the karanaVan of the tarwad). D.W. 1 has stated that D.W. 2 came down at the instance of P.W. 1 (plaintiff the sole witness on the side of the plaintiff) who had also brought scribe George and made arrangements for fixing the value of his share in the properties and for division there of. D.W. 2 has substantively corroborated the evidence of D.W. 1 and D.W. 3 (the 4th defendant) and has specifically stated that P.W. 1 had in the first instance asked for, and arranged for, partition by metes and bounds, but later on informed him that he was willing to sell his share to the first defendant and her children, and it was after the demand for partition that Ext. D-2 happened to be executed. It is only natural that the other members of the family also might have been informed about the demand for partition. The evidence of D.Ws. 1 and 2 on the question of demand for partition by the plaintiff and the resultant division in status of the tarwad has been accepted by the trial court, and we have no reason to take a different view. 6. The evidence of D.Ws. 1 and 2 on the question of demand for partition by the plaintiff and the resultant division in status of the tarwad has been accepted by the trial court, and we have no reason to take a different view. 6. Section 62 of the Cochin Nayar Act, 1113, reads as follows: Until partition, no member of the tarwad shall be deemed to have a definite share in the tarwad property liable to be seized in execution nor shall such member be deemed to have any alienable or heritable interest therein.� Counsel for the appellant has argued that unless there was physical partition by metes and bounds in respect of the properties, particularly in respect of items 1 to 9 which admittedly belonged to the sub-tarwad of plaintiff and defendants, there could not have been a valid alienation by the plaintiff of his share in the properties in favour of the first defendant and her children in terms of sections 62 of the Cochin Nayar Act. 7. After having referred to the decisions in Ramaswami Pattamali v. Lekshmi,1963 K.L.T. 243 and Venkatapathi Raju v. Venkata- narasimha Raju, I.L.R. 1937 Madras 1, Raman Nair, J., as he then was, in Dhanalakshmi Bank Ltd. v. Neelakantan Nambndiripad, 1964 K.L.T. 219 in paragraph 12 observed as follows: But I must not be understood as having decided that this is so. No doubt Mulla says at page 494 of his book on Hindu Law, 12th Edition, that, partition is a severance of joint status. But, although this might be true in the sense in which the word, partition is used in Mitakshara Law I am by no means certain that it is the sense in which it is used in the Cochin Nayar Act or in the customary Maru makkathayam Law. In fact I doubt whether either the customary Marumakkathayam Law or the Cochin Nayar Act recognises the intermediate position of a mere division in status (converting the coparceners into tenants-into- common) between joint status and an out-and-out partition, unless we import the Mitakshara doctrine as a necessary incident of the statutory right to demand a partition, as was done in Karthiyayini Kunchi Amma v. Minakshi Amma (LXX M.L. J. 114). The Cochin Nayar Act does not define partition (compare section 46 of the Travancore Khatriya Act, the section corresponding to section 62 of the Cochin Nayar Act, which says that a demand for a division under section 43 or 45 will also constitute a partition for purposes of the section), but section 59, the marginal note to which reads Any member can claim partition and which says that the share which a member is entitled to claim shall be so much of the tarwad properties as will fall to him (which can hardly mean an undivided share) if a division per capita were made among all the members of the tarwad at the time, would seem to indicate that it uses the word, partition in its strict sense�. The passage quoted above is relied on by the appellant counsel in support of his argument that mere division in status will not constitute partition in terms of section 62 of the Cochin Nayar Act. What came up for decision before Raman Nayar, J., as he then was, was the question whether the interest of a member of a marumakkathayam tarwad in his tarwad properties, was saleable properties belonging to him liable to be attached in execution of a decree against him. Looked from another angle, the question was: when the interest of a judgment-debtor in his tarwad property was not property answering to the description given in section 60 of the Code of Civil Procedure, whether, as a result of an attachment, such interest could be deemed to have been converted into a property which would justify attachment. While considering the issue whether the attachment of the judgment-debtor share in the undivided tarwad property in execution of a decree by itself would operate as an act of partition of the tarwad property, the question whether division in status would be sufficient, or actual partition by metes and bounds was necessary to constitute partition, does not appear to have been directly involved. A doubt whether the Cochin Nayar Act recognises the intermediate position of a mere division in status between joint status and out-and-out partition, was nevertheless expressed by the learned Judge, induced by the construction sought to be placed on section 59 of the Act. A doubt whether the Cochin Nayar Act recognises the intermediate position of a mere division in status between joint status and out-and-out partition, was nevertheless expressed by the learned Judge, induced by the construction sought to be placed on section 59 of the Act. It is true that the term "partition"� has not been defined by the Cochin Nayar Act, as, for instance, is done by section 46 of the Travancore Kshatriya Act, which lays down that a demand under section 43 or 45 (of the same Act), as the case may be, will also constitute a partition for the purpose of that section. Section 59 of the Cochin Nayar Act reads as follows: "Every member of a tarwad shall be entitled to claim his share of the properties of the tarwad. Such share shall be so much of the tarwad properties as will fall to him if a division per capita were made among all the members of the tarwad at the time."� The section, read with the marginal note thereto, broadly indicates as to who could claim partition, and the manner in which division of tire properties should be effected. With due respect to Ramari Nayar, J., we are afraid, there is no warrant for so construing section 59 as to convey the meaning that the term partition occurring in section 62 of the Cochin Nayar Act connotes something more than division in status of the tarwad. The absence, in the Cochin Nayar Act, of a definition of the term partition, and the absence of provisions similar to what is contained in section 46 of the Travancore Kshatriya Act, also would not lead us to such an inference. Partition, in our view, consists in a numerical division of the property, defining the shares of the members of the tarwad. Once the shares are defined, whether by agreement or otherwise, the partition is complete. The position would be the same even if, after the shares are so defined, the members chose to live together and enjoy the property in common as before, without dividing the property by metes and bounds. This view is in consonance with the well-settled principles of Hindu Law in regard to enjoyment and partition of joint family properties. The position would be the same even if, after the shares are so defined, the members chose to live together and enjoy the property in common as before, without dividing the property by metes and bounds. This view is in consonance with the well-settled principles of Hindu Law in regard to enjoyment and partition of joint family properties. In the absence of a definite legislative intent to the contrary, we do not find any justification to depart from this traditional concept of Hindu Law on this aspect of the matter. For this conclusion we have reached, we find support in a passage from the decision of a Division Bench of the High Court of Travancore-Cochin which consisted of Subramonia Iyer, J. and M. S. Menon, J., as he then was, in Sankara Pillai Madhavan Pillai v. Sankara Kurup Gopala Kurupi 954 K.L.T. 934 ). Construing the provision of section 39 of the Travancore Nair Act, 1100, which is identical to that of section 62 of the Cochin Nayar Act, Subramonia Iyer, J., who spoke for the Bench, observed as follows: "Disruption of the joint status tantamounts to partition within the meaning of that section. The contention of learned counsel for the plaintiff respondent that nothing short of actual division would amount to partition cannot be accepted, because, had that been the legislative intent, the expression apt and appropriate to indicate it would have been used instead of the words definite share in tarwad property and alienable or heritable interest therein. If the contentions were to be correct, section 39 would have to be redrafted somewhat as follows: Until allotment of properties at a partition in the tarwad, no part of the tarwad property is liable to be seized in execution nor shall such member be deemed to have any alienable or heritable part thereof"� 8. The above decision, unfortunately, does not appear to have been brought to the notice of Raman Nayar, J., who, later on, has subscribed to the view that "By exercising his power to claim partition which is a separate and distinct power from the power to dispose of his undivided interest - a member becomes divided and what he disposes of thereafter is not his undivided interest in tarwad property. In the majority decision of the Full Bench case reported in Ammalu Amma and others v. Lakshmy Amma and others 1966 K.L.T. 32 Govindan Nair, J., as he then was, sitting with M. S. Menon, C. J., Raman Nayar, Vaidialingam and Madhavan Nair, JJ., in paragraph 23 of the judgment at page 45, has stated as follows: "It was further suggested that a member by his own will directed to that end, can alter the situation and hence it is clear that he has a disposing power over the undivided interest. With great respect this reasoning, too is misleading. By exercising his power to claim partition which is a separate and distinct power from the power to dispose of his undivided interest a member becomes divided and what he disposes of thereafter is not his undivided interest in tarwad property. The question whether he has a power to dispose of his undivided interest cannot be answered by stating that he can exercise a different power, viz., the power to claim partition and get himself divided and thereafter transfer his divided interest which is of course an alienable interest."� M. S. Menon, C. J. and Raman Nayar, J. had agreed with Govindan Nair, J. in the view expressed above. 9. It may also incidentally be noted that the above observation was made by Govindan Nair, J., after having earlier extracted in the very same paragraph the following passage from Dhanalakshmi Bank Ltd. v. Neelakantan Namhidiripad 1964 K.L.T. 219 "Under section 60 of the Code only saleable property belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit is liable to attachment. If, before the attachment, the interest of a member in his tarward property is not property answering to this description it is difficult to see how the fact that the result of an attachment would be to convert the interest into such property can justify the attachment."� While affirming the above view the Full Bench chose to maintain silence about the doubt whether something more than division in status was not required to constitute partition of Marumakkathayam tarwad properties, expressed by Raman Nayar, J. in paragraph 12 of the judgment in Dhanalakshmi Bank Ltd. v. Neelakantan Nambudiripad 1964 K.L.T. 219. Raman Nayar, J., we note, had not only agreed with the judgment of Govindan Nair, J., but had also written, short though, a separate judgment in which the learned Judge is not seen to have expressed the view that until actual partition of the properties of the tarwad is effected, in spite of division in status, the share of the member in the tarwad property cannot be alienated or attached in terms of section 62 of the Cochin Nayar Act. In the context of the positive assertion that by exercising his power to claim partition a member becomes divided, and what he disposes of thereafter is not his undivided interest in the tarwad property, it has to be thought that the Full Bench did not share the doubt expressed by Raman Nayar, J., in the decision stated above. 10. We are therefore of the view that there is no substance in the contention that until partition by metes and bounds is effected the properties of a member in the tarwad property cannot be alienated. 11. Elaborating his argument that Ext. D-2 is a sham document, it was submitted by the counsel that the plaintiff did not receive any consideration for the transfer, though a consideration of Rs. 10,000 was recited in the document. According to him, the document happened to be executed on the advice and guidance of the first defendant husband Velayudhan Nair, as the plaintiff was then doing business in motor cars and was keen on avoiding the possibility of his property being attached by his creditors in the event of his incurring loss in the business and becoming indebted to anyone. 12. We find it difficult to believe the case of the appellant-plaintiff that the document was executed without consideration. The consideration of Rs. 10,000 recited in the document, Ext. D-2, comprised of three items: (i) a sum of Rs. 1,187.50 was to go in discharge of the proportionate share of the plaintiff towards the debt in Ext. D-4 promissory note dated 5th September 1953 for Rs. 4,750 executed jointly by the plaintiff and defendants 2 and 3 in favour of the first defendant; (ii) a sum of Rs. 3,000 was reserved with the first defendant to discharge the liability of the plaintiff to Velayudhan Nair, the husband of the first defendant; and (iii) a sum of Rs. 5,812.50 was received by the plantiff in cash. 4,750 executed jointly by the plaintiff and defendants 2 and 3 in favour of the first defendant; (ii) a sum of Rs. 3,000 was reserved with the first defendant to discharge the liability of the plaintiff to Velayudhan Nair, the husband of the first defendant; and (iii) a sum of Rs. 5,812.50 was received by the plantiff in cash. As for Ext. D-4 promissory-note is concerned, its execution is not denied by the plaintiff. He has no case that he did not receive consideration mentioned therein (Ext. D-4). This document did not come to court from his custody. The appellant argument is that as he had discharged his liability, and as it had also become time-barred, he did not care to take back the promissory note. There is no evidence to show that the plaintiff had discharged the liability under Ext. D-4 at any time prior to the execution of Ext. D-2 sale deed. It is beyond one comprehension as to why then this liability was specifically recited as an item of consideration in Ext. D-2. May be, there was no endorsement by him on the promissory note, though we see that defendants 2 and 3 had made endorsements thereon referring to payments made by them towards interest. Even assuming that the first defendant could not have enforced Ext. D-4 against the plaintiff on the ground that it was by then barred by limitation, discharge of time-barred debt could constitute consideration for the sale. Therefore we find nothing unnatura in the plaintiff acknowledging his debt to the first defendant under Ext. D-4, and treating it as part of the consideration for Ext. D-2 sale deed. From a perusal of Exts. X-9 and X-10 which are copies of the ledger and pronote loan registers of the Dhanalakshmi Bank standing in the name of the first defendant, we find that just a week prior to the date of Ext. D-2 sale deed namely on 8th November 1957 the first defendant had raised a sum of Rs. 4,500 taking a loan from the Bank. The evidence on the side of the defendants in this case is that a sum of Rs. 6,000 (making in a round figure though the actual amount due was Rs. 5,812.50), was paid by the 4th respondent into the hands of the appellant. 4,500 taking a loan from the Bank. The evidence on the side of the defendants in this case is that a sum of Rs. 6,000 (making in a round figure though the actual amount due was Rs. 5,812.50), was paid by the 4th respondent into the hands of the appellant. As there is credible documentary evidence in regard to the raising of substantial portion of the amount alleged to have been paid in cash, we are led to the conclusion that the recital with respect to the cash payment has to be found true. We are also of the opinion that unless there had been a debt outstanding in favour of Velayudhan Nair there would not have been a recital reserving that amount with the first defendant for payment to him. Having given our careful and anxious consideration we are convinced that the plea of the appellant-plaintiff that Ext. D-2 sale deed is bad for want of consideration cannot be accepted for a moment. 13. It is next argued that there is evidence to establish that in spite of Ext. D-2 sale deed in favour of defendants 1 and 4 to 7 the plaintiff-appellant continued to reside in the tarwad house of the plaintiff and defendant, managing the affairs of the tarwad. Ext. P-1 voters list of 1959, Part No. 75 of Manaloor Constituency, Ward No, 1,Ext. P-7 reply sent by the second defendant to plaintiffs on 24th July 1968, Ext. X-1 application dated 7th August 1958, filed by the plaintiff before the Superintendent, Trichur Electric Supply Division, Ext. X-2 agreement dated 7th May 1958 made between the plaintiff and the Chairman, Kerala State Electricity Board, Ext. X-3 consent letter dated 5th August 1958 from Sri M. N. Ramanathan to the Assistant Engineer, Electricity Sub Division, Trichur, and Exts. X-4 to X-8 minutes book of Manaloor Panchayat have been relied upon for this purpose. In Ext. P-1 voters list, reference is made to the electoral roll of Manaloor Constituency as on 1st January 1959 and to revised supplementary roll as on 1st January 1961 to show that only the names of defendants 2, 3 and 5 were removed from the roll when the revision took place in 1961. In Ext. P-1 voters list, reference is made to the electoral roll of Manaloor Constituency as on 1st January 1959 and to revised supplementary roll as on 1st January 1961 to show that only the names of defendants 2, 3 and 5 were removed from the roll when the revision took place in 1961. It is also submitted that the plaintiff was from 1953 to 1960 a member of the Manaloor Panchayat; and that unless he had his residence in that Panchayat he could not have been elected to the Panchayat and continued his membership. Our attention has been, in this connection, drawn to the provisions contained in clause (a) section 16 and clause (1) of section 20 of the Kerala Panchayats Act, 1960. Section 16 (a) lays down that no person shall be qualified for election or nomination as a member of the Panchayat unless his name appears in the electoral roll for the Panchayat area. There is no case that the plaintiff-appellant had occasion to contest for the membership of the Panchayat after Ext. D-2. Therefore the provisims contained in clause (a) of section 16 have no relevance to the point in issue. Clause (1) of section 20 of the Act lays down that a member shall cease to hold the office as such if he ceases to reside in the Panchayat area. The fact that the plaintiff continued to reside or was supposed to have been residing within the jurisdiction of the Manaloor Panchayat does not by itself establish that Ext. D-2 document was merely a sham document. In this case there is evidence to show that after the plaintiff sold his share in the property to defendants 1 and 4 to 7 he had been living in several lodges, that about two years prior to the institution of the suit he was admitted to Dr. Vaidyanatha Iyer nursing home for treatment, that on discharge from the nursing home the 1st defendant out of compassion and brotherly affection had taken him to her house, which was the plaintiff erstwhile tarwad house, and that he was staying there till his marriage in 1969 at the age of 49. It is quite probable, as contended for by the defendants, that between 1967 and 1969, till he permanently moved to his wife house after his marriage, the plaintiff was residing with. It is quite probable, as contended for by the defendants, that between 1967 and 1969, till he permanently moved to his wife house after his marriage, the plaintiff was residing with. the 1st defendant in the house which was once the tarwad house of himself also. Permissive occupation of the house by the plaintiff along with' his sister after Ext. D-2 date, also would not establish that Ext. D-2 sale deed did not take effect or that it was void. The minutes Exts. X-4 to X-8 are relied on by the plaintiff to establish that he had continued to be a member of the Manaloor Panchayat between 1956 and 1960, and that therefore a presumption has to be drawn that he had his own residence in that Panchayat. For the reasons already stated, this contention also does not advance the case of the plaintiff that Ext. D-2 did not take effect. It is true that Exts. X-1 to X-3 would go to show that the plaintiff had applied for electric connection, had secured no objection certificate from the neighbour, and had executed an agreement between himself and the Kerala State Electricity Board in connection with the electrification of what was his tarwad house once. As the plaintiff and the first defendant had been on best of terms, even after the date of Ext. D-2 sale deed, it is quite possible that the plaintiff rendered the necessary assistance for expediting the electrification of the house giving his own name as that of the applicant. In the year 1958, the title of the parties to the properties was not in issue and the relationship between the plaintiff and the first defendant was not tainted with mutual distrust; and therefore merely for the reason that the plaintiff had shown his own name as that of the owner of the house in the application and the agreement in connection with its electrification does not, in our view, advance the plaintiff case. 14. Another document relied on by the plaintiff- appellant is Ext. P-7 which is a letter sent by the 2nd defendant, his eldest brother, from Kolar in reply to the letter written by the plaintiff in connection with his proposed marriage. 14. Another document relied on by the plaintiff- appellant is Ext. P-7 which is a letter sent by the 2nd defendant, his eldest brother, from Kolar in reply to the letter written by the plaintiff in connection with his proposed marriage. The point urged by the counsel is that it is addressed to the tarwad house which, according to him, implies that everybody took it for granted that the plaintiff permanent residence was in the same house. It is the admitted case of the parties that from the time he was discharged from Dr. Vaidyanatha Iyer nursing home in 1967 the plaintiff was staying with the first defendant. Therefore the letter might have been sent by the plaintiff from first defendant house, and the reply by the 'second defendant also might have been addressed only to that house. Ext. P-7 shows that the plaintiff and the second defendant were on very cordial terms, and the 2nd defendant had been very considerate towards the plaintiff. The main purpose that the document would serve would be that the 2nd defendant had no axe to grind against the plaintiff and his evidence as DW-2 that there was demand for partition, the value was fixed, and consideration had passed, has to be accepted to be true, particularly so because he did not stand to gain from Ex. D-2 assignment deed which was in the name of the first defendant and her children defendants 4 to 7. 15. There are indications that the plaintiff was in involved circumstances, at the time of executing Ext. D-2 sale deed and even thereafter. He was a shareholder and Director of Catholic Syrian Bank in his locality, but by 1960 he had withdrawn his share amount from the Bank. Of course, he has a case that it was utilised for the repair of the tarwad house, but there is no acceptable evidence apart from his own interested versions on this point. 16. We find no merit in this appeal, and it is, therefore, dismissed with costs.