(1.) Defendants 1 and 13 are the appellants. Suit property belonged to the sub tarwad of the defendants. In the year 1118 a partition deed Ext. D-2 was executed in respect of the properties of the sub tarwad. The sub tarwad then consisted of 10 members. The properties were divided into 10 shares of which 3 were allotted to the group of the 12th defendant and defendants 1 and 13. The plaint property was included in the shares of defendants 1, 12 and 13. Defendants 1 and 13 were then minors. They were represented at the partition by their mother the 12th defendant. After the partition, mortgages and purakkadam were executed by the 12th defendant in her own behalf, and as guardian for defendants 1 and 13, The mortgage and purakkadam were later redeemed and the 1st defendant is in possession of the property. In the year 1955 some of the defendants joined together and executed another partition deed Ext. P-3 in respect of the same properties. The 12th defendant joined in the execution of Ext. P-3 purporting to act as guardian of defendants 1 and 13 who were stated to be minors. But in fact, the 13th defendant had attained majority on Ext. P-3 date. Re-allotment of shares was made in Ext, P-3 and the suit property was given over to defendants 2 to 11. They executed a sale deed Ext. P-4 in respect of the suit property in favour of the plaintiff, and he accordingly instituted O. S.836 of 1961 for redemption of the mortgages Exts. P-1 and P-2 which the tarwad had executed in the year 1944 and 1953. The plaintiff's suit for redemption was resisted by defendants 1 and 13 on the ground that Ext. B-3 partition is incompetent and void on account of the non junction of the 13th defendant thereto. According to them therefore, the plaintiff is not entitled to redeem. The Trial Court, however, decreed redemption which has been confirmed by the District Judge of Trivandrum in A, S.735 of 1965.
(2.) The courts below. I am afraid, have failed to take note of the fact that the second partition evidenced by Ext. P-3 was invalid, in that the 13th defendant who was the only adult male member of the tarwad was not a party to it. The Trial Court has observed:
(3.) The result is that the decree and judgment of the courts below are set aside, and the plaintiff's suit is dismissed. The Second Appeal is thus allowed, but in the circumstances without costs.