Judgment :- 1. These two appeals are connected and arise out of a suit instituted in 1976 as O.S. No. 186 of 1979 of the Sub Court, Trivandrum, a suit for partition of tarwad properties and extinguishment of mortgage rights over items 1 to 3 created under mortgages outstanding from the Tarwad. 2. Defendants 1 to 6 are the appellants in A. S. No. 262 of 1979. Defendants 9 to 25, 30 to 37 and 47 to 53 were initially the appellants in A.S. No. 286 of 1979. At about the time of final hearing, counsel who was appearing for them relinquished the vakalat. A new counsel has appeared for some of them, defendants 26, 29, 31, 32, 47, 50, 52 and 53 on the basis of the vakalat executed by them; and he also appeared in person as power of attorney holder of defendants 48 and 49. We shall first deal with the substantial and main appeal, A.S. No. 262 of 1979. 3. The plaint schedule properties items 1 to 16-originally belonged to a marumakkathayam tarwad known by the name Kanikkudivilakam tarwad. A short time before the suit, the tarwad had 33 members, including Mathevi Chinna, who died in 1973. At the time of the suit, there were 32 members in the tarwad, defendants 8 to 39. 4. Innumerable transactions originated in relation to the properties of the tarwad. It is unnecessary for resolving the central controversy in the litigation to refer to the details of all those transactions. As noted earlier, the prayer for extinguishment of the mortgage which was the substantial issue with which the contending parties were concerned related to items 1, 2 and 3. It is therefore desirable that those transactions are briefly referred to, as concerning item 1 on the one hand and items 2 and 3 on the other (Of the various transactions, some centre round item 1 and some others on items 2 and 3 together. A sub-classification of the plaint items into item 1 on the one part and items 2 and 3 on the other part would therefore be convenient.) 5. As regards item 1, transactions started fairly early, transactions which are not actually evident by the documents themselves but about which there are references in the later documents. A sub-classification of the plaint items into item 1 on the one part and items 2 and 3 on the other part would therefore be convenient.) 5. As regards item 1, transactions started fairly early, transactions which are not actually evident by the documents themselves but about which there are references in the later documents. We thus find initially that there was a mortgage of item 1 from the tarwad, and that the mortgage right had been assigned in favour of Kochan Krishnan; that there was a puisne mortgage to Ayyana Govindan with an authorisation to redeem the earlier mortgage. Ayyana Govindan's rights were assigned to Kochan Krishnan under Ext. A4 dated 13-2-1095. The tarwad granted purakadaras on 2-9-1122 in favour of the legal heirs of Kochan Krishnan, some of the members executing Ext. A5 and some others Ext. A6. Some years later, Ext.A7 melotti and Kuzhikanam was executed in favour of Bhaskara Pillai on 23-8-1955. This was followed by Ext. A9 dated 25-8-1955 executed by Mathevi Chinna and another in favour of Bhaskara Pillai, authorising Bhaskara Pillai to redeem the mortgage and purakadams subsisting on the property. Armed with those rights and authorisation Bhaskara Pillai instituted O.S.No 721 of 1958 for redemption. The legal heirs of Kochan Krishnan, namely Krishnan Velayudhan and Kochuparvathi Chellamma were the defendants in the suit. The suit was ultimately decreed and the appeal therefrom dismissed During the pendency of the suit, Ext. A8 was executed on 12-11-1959 by Krishnan Sekharan in favour of Bhaskara Pillai. The defendants in the suit, O.S No. 721 of 1958 assigned their rights to the 7th defendant under Ext. A10 dated 27-12-1962. Later, on 15-1-1963 Bhaskara Pillai assigned his rights in favour of the 7th defendant. The 7th defendant and her husband 6th defendant executed a gift deed Ext. A12 dated 15-6-1974 in favour of their children, defendants 1 to 5. It would thus be seen that the various mortgage rights ultimately converged and vested in defendants 1 to 5. 6. The equity of redemption was still with the tarwad. Two of the members of the tarwad, defendants 8 and his mother Mathevi Chinna sold their shares in the equity of redemption to one Narayana Pillai under Ext. All dated 12-4-1965. Narayana Pillai in turn assigned those rights on 12-6-1975 by Ext. A21 in favour of the plaintiff. Under Ext. 6. The equity of redemption was still with the tarwad. Two of the members of the tarwad, defendants 8 and his mother Mathevi Chinna sold their shares in the equity of redemption to one Narayana Pillai under Ext. All dated 12-4-1965. Narayana Pillai in turn assigned those rights on 12-6-1975 by Ext. A21 in favour of the plaintiff. Under Ext. A22 dated 9-7-1976, the plaintiff had purchased the rights of equity of redemption over item 1 from defendants 9 to 11. The 40th defendant purchased from the 12th defendant the equity of redemption over items 2 and 3, under Ext. B8 dated 15-12-1964. Under a release Ext. B9 dated 12-6-1975, the plaintiff released in favour of the 40th defendant rights over items 2 and 3, retaining with him the right over item 1, 7. As regards items 2 and 3, a mortgage deed Ext. A13 dated 22-11-1956 had been executed by the members of the tarwad, defendants 8 to 10,12 and 15 to 17, in favour of Pachan and Kamalakshi, who assigned the rights in favour of the 7th defendant. The gift deed Ext. A12 already referred to executed on 15-6-1974 takes in items 2 and 3 also. Thus defendants 1 to 5 became the owners of the mortgage rights of items 2 and 3 as well. 8. On 5-3-1975, items 1 to 3 were mortgaged by defendants 1 to 5 under Ext. Al in favour of the plaintiff. It is seen that defendants 1 to 5 had filed a suit for redemption of the mortgage Ext. Al from the plaintiff. 9. As noted earlier, the plaintiff and the 40th defendant had taken documents from some of the undivided members of the tarwad. It was then apparently a battle of wits between the plaintiff and the 40th defendant on the one hand and defendants 1 to 5 on the other. Defendants 7, 9.12,13 and 14 with some other undivided members of the tarwad executed Ext. B10 in favour of the 40th defendant. Thus it will be seen that the undivided shares of some of the members over the equity of redemption were claimed by the plaintiff and the 40th defendant. 10. The suit was filed for partition and for extinguishment of the mortgage rights over the properties as referred to above. The 6th defendant gave evidence as D.W.1. Thus it will be seen that the undivided shares of some of the members over the equity of redemption were claimed by the plaintiff and the 40th defendant. 10. The suit was filed for partition and for extinguishment of the mortgage rights over the properties as referred to above. The 6th defendant gave evidence as D.W.1. That was mainly on the question of O. S. No. 204 of 1975 and the tenancy rights in respect of certain items of the property with which these appeals are not directly concerned. Twenty two documents were marked on the side of the plaintiff and thirty on the side of the defendants. Neither the plaintiff nor the 40th defendant has given any oral evidence. 11. The very maintainability of the suit with the prayers including the one for the extinguishment of the mortgage rights over the property was challenged before the court below. 12. The court below excluded certain items from the properties available for partition holding that defendants 7,41 and 43 to 46 have fixity of tenure over some of the items of the property. 13. The court below itself found difficulty in granting the plaintiffs who were strangers to the tarwad any relief in the suit on the basis of a sale deed in their favour as the sale deed had been executed only by some among the junior members of a marumakkathayam tarward. It observed: "The sale deeds relied on by the plaintiff are executed by junior members of a marumakkathayam tarwad. The plaintiff is not a member of that tarwad That the Kanikkudivilakam tarwad is a marumakkathayam tarwad is an admitted fact. Such being the position, in so far as it remained undivided, the contention of the defendants has force." Ordinarily the above finding should have resulted in the dismissal of the suit. That course was not adopted by the court below as, according to it, the coming into force of an enactment, the Kerala Joint Hindu Family System (Abolition) Act, 1976, Act 30 of 1976 during the pendency of the suit, on 1-12-1976, changed the situation. It was contended that under the said enactment all members of the tarward obtained a statutorily divided status and had become tenants in common as regards the properties, and that in such a situation S.43 of the Transfer of Property Act could be pressed into service. This argument appealed to the court below. It was contended that under the said enactment all members of the tarward obtained a statutorily divided status and had become tenants in common as regards the properties, and that in such a situation S.43 of the Transfer of Property Act could be pressed into service. This argument appealed to the court below. The correctness of the decision is challenged before us. 14. It is not necessary to heap up all the authorities on the question relating to estoppal feeding the grant, starting with the well known case of Holroyd v. Marshall, (1861) 10 HL 210. The principle has been statutorily incorporated in S.43 of the Transfer of Property Act, 1882. Various aspects of the section have been discussed deeply, and the principles formulated clearly, by the Supreme Court in Jumma Masjid v. Kodimaniandra Deviah, AIR 1962 SC 847, (Though various decisions have been referred to by the court below while considering the issue, this decision was unfortunately missed by that court). We are of the view that a lack of appreciation of the correct principles as enunciated by the Supreme Court has vitiated the ultimate conclusion of the court below. 15. As far as the effect of the alienation of an undivided member of a marumakkathayam tarwad, the position has been explained even recently by a Bench decision of this Court in Achutha Menon v. Jaganatha Menon, 1983 KLT 939. Referring to the decisions in Antherman v. Kannan & Others, 1960 KLT 1313, remembering the decision in Kunhikrishnan v. Anantharaman, 1959 K L.T. 1160, and pointing out to the large Bench ruling in Ammalu Amma v. Lakshmy Amma, 1966 K L.T. 32, this Court observed: "It was reiterated that the undivided interest of a member of a Marumakkathayam tarwad governed by the Madras Marumakkathayam Act, 1932 is not transferable. There can therefore be no doubt that the share the plaintiff had over his tarwad properties could not be alienated by execution of registered deed " 16. In the background of the above legal position as regards the rights of a junior member of a Marumakkathayam Tarwad, a question may arise whether by virtue of Act 30 of 1976, the plaintiff, and for that matter the 40th defendant, did acquire a new title over the property when that enactment was passed. In the background of the above legal position as regards the rights of a junior member of a Marumakkathayam Tarwad, a question may arise whether by virtue of Act 30 of 1976, the plaintiff, and for that matter the 40th defendant, did acquire a new title over the property when that enactment was passed. If not, could it be said that S.43 of the Transfer of Property Act is attracted to such a situation? In a sense it could be said that the Act did not create any new title in a member of the tarwad. Looked that way it may be possible to contend that S.43 cannot be invoked by a transferee from an undivided member of a Marumakkathayam tarwad. It is unnecessary to express any final view on that aspect. 17. One of the important aspects to be borne in mind while considering S.43 of the Transfer of Property Act is the fact whether the transferee did have information regarding the erroneous or fraudulent statement in the document of transfer. That fact will have a serious impact on the applicability of S.43 of the Act. In the aforesaid decision, the Supreme Court pointed out that S.43 of the Transfer of Property Act embodied a rule of estoppel and enacted that a person who made a representation shall not be heard to allege the contrary as against a person who acts on that representation. It continued: "It is material whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given, the relevant words of S.43 were, "where a person erroneously represents," and now, as amended by Act 20 of 1929, they are "where a person fraudulently or erroneously represents", and that emphasises that for the purpose of the section it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee has acted on it. Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer." (emphasis supplied) 18. Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer." (emphasis supplied) 18. The position of the person who claims the benefit of estoppel had been discussed by the Supreme Court in a later case also, Chhanganlal v. Narandas, AIR 1982 SC 121. Para.23 of the judgment sketches the various circumstances under which a case could be brought within the scope of an estoppel. It was, among other things stated therein: "The person claiming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel." (emphasis supplied) 19. In the light of the principles laid down by the Supreme Court, it could not be said that the plaintiff did not know the true position. The documents in favour of the plaintiff specifically referred to the fact that the tarwad was an undivided one. Even in the plaint, Para.2 is specific and categoric that the family is undivided. It cannot then be said that the plaintiff did not know or that they did not have the means to know, about the invalidity of the transaction. In a similar situation, when the very document indicated the absence of title, Poti J. held "that there was no scope for invoking S.43 of the Transfer of Property Act" (See Ouseph v. Govindankutty Menon, 1971 KLJ 809). 20. And in a similar situation, a Division Bench of this Court, (Bhaskaran. Ag.C J. and Fathima Beevi, J.) in 1983 KLT 939 supra, took the view that S.43 of the Transfer of Property Act was not attracted, in as much as the parties were deemed to know the legal incidents of the tarwad properties and the nature and extent of the right each member has. 21. Counsel for the plaintiff and the 40th defendant then urged yet another contention, making a distinction in respect of the recitals contained in the sale deed Ext. A22 and Ext. B8. There were recitals in those documents that the transferors had been in possession of distinct plots on the basis of antecedent arrangements. 21. Counsel for the plaintiff and the 40th defendant then urged yet another contention, making a distinction in respect of the recitals contained in the sale deed Ext. A22 and Ext. B8. There were recitals in those documents that the transferors had been in possession of distinct plots on the basis of antecedent arrangements. These erroneous or fraudulent representations may bring into play the provisions of S.43 of the Transfer of Property Act, it was contended. We must, however point out that no such case had been pleaded either in the plaint or in the written statement of the 40th defendant. On the other hand, as noted earlier, the specific pleading of the plaintiff is about an undivided tarwad which has not attained the status of division. The 40th defendant too does not in any way refer to his having been misled by a recital in the documents about the transferors being in separate and exclusive possession and enjoyment of distinct properties. The written statement of the 40th defendant starts with the statement in Para.1: "Plaint averments are admitted." In Para.2, 4 and 5 also, what is emphasised is only the acquisition of the undivided snares of the members of the tarwad. Para.5 states: "This defendant is entitled to get those shares partitioned and be adjusted to is items 2 and 3 and it is only just and equitable to pass a preliminary decree in that line in this case." (emphasis supplied) The plaintiff and the 40th defendant are all persons who have with open eyes entered into ventures (which may even be termed as speculative in character) in relation to a property which belonged to a marumakkathayam tarwad, by dealing with some among the very many members of the tarwad. Not even formal evidence about any such equity being deserved has been given either by the plaintiff or by the 40th defendant. We are, therefore, not satisfied that such a contention should be permitted to be raised without any pleading whatever in that behalf. In the absence of any pleading in that behalf, they are equally disentitled to urge the contention that de hors S.43, equity can be invoked by them. No doubt, reliance was placed on a decision of Poti J. in Ouseph v. Govindankutty Menon, 1972 KLT 94. That was, however, a case where the question was pleaded and an issue had been raised. No doubt, reliance was placed on a decision of Poti J. in Ouseph v. Govindankutty Menon, 1972 KLT 94. That was, however, a case where the question was pleaded and an issue had been raised. The incompetence or invalidity of a member of an undivided marumakkathayam tarwad did not apply to the transferor in that case. We may also observe that the decision in 1971 KLJ 809 supra had been considered by the Division Bench but the plea of equity had been repelled in 1983 KLT 939 supra. 22. In the light of the foregoing discussion, the decree of the court below has to be reversed and the suit dismissed. We do so. The above conclusion renders it unnecessary to deal with a subsidiary argument urged on behalf of the appellants about the error committed by the court below in passing a decree in relation to all the items, even though the sales in favour of the plaintiff and the 40th defendant cover only items 1 to 3. 23. The appeal A. S.286 of 1979 will also stand disposed of in the light of the above conclusion. C. M. P. No. 25400 and 25401 of 1982 was filed on behalf of the appellants in this appeal seeking permission to amend the written statement claiming a share for them on the basis of subsequent sale deeds and for producing fresh evidence in appeal. The prayer is opposed. The very right under the documents relied on by the petitioners has been questioned. It is pointed out that the dispute is now pending consideration before the Subordinate Court. We do not think that in the circumstances the prayers of the petitioners should be granted. The petitions are therefore dismissed. The cross objections of the 8th defendant are also dismissed. The appeals are disposed of as above. There will be no order as to costs.