ARAYALPRATH KUNHI POCKER Vs. KANTHILATH AHMAD KUTI HAJI

JUDGEMENT

(1.) In this case the appellants did not press the appeal in respect of the properties found by the lower Court to be separate properties of the second and third defendants, apart from exhibits A and FF. The question is thus limited to the share alleged to have passed to the second defendant under exhibit A, and to the share alleged to have passed to the third defendant under exhibit FF. If the effect of those documents was not to transfer validly to the respective transferees the share intended to be transferred to them, the appeal so far must succeed. Both the documents rotate to property hold by the parties thereto and others as joint property governed by Marumakkatayam Law. No doubt it is competent to the owners of such property to divide the same by mutual consent though no suit for compelling a partition will lie. On analogy therefore it would be competent to such joint owners to allow any one or more of themselves to take any portion of the joint property as his or their separate property. That such transactions however require the consent of each and every one of the persons interested in the property is unquestionable. If there are minors who are not in a position to give their consent, no partition or other arrangement as referred to above will, as a rule, be binding upon them. It may ho that, if the arrangement can be shown to have been entered into for considerations beneficial to the family as a whole including the minor members, the minors are bound. The question therefore is whether the transactions evidenced by exhibits A and FF are valid with reference to the view of the law just stated. In regard to the former document it is found that there was at least one member of the Tavazhi in existence at the time of its execution who did not join in it and who was then a minor, namely, the twenty- sixth defendant. As it is not alleged that the arrangement made under exhibit A was for any consideration binding upon Tavazhi to which the executants of the instrument and the twenty- sixth defendant belonged as a whole, and as the twenty-sixth defendant was incapable of assenting to the transaction, being then under age, it follows that the transaction failed to bind the Tavazhi and the second defendant acquired under it no separate share in the Tavazhi properties. We are unable to attach any weight to the argument of Mr. Ramachandra Row Sahib appeared that, having regard to the state of the decisions of this Court prior to the Full Bench decision Kunhacha Umma V/s. Kutti Mammi Hajee I.L.R. 16 Mad. 201 in regard to the character of interest taken by persona to whom property was given to be held by them as joint property according to Marumakkatayam Law, exhibit A should be hold to have conferred on the second defendant a right to treat his share given by exhibit A as is separate estate. It is sufficient to state that the deed itself was executed after the Full Bench decision referred to though we should not be understood as implying that a different view would have had to be taken with reference to such a deed if it had boon executed prior to the said decision. We are also unable to accept the suggestion that the twenty-sixth defendant ratified the arrangement. This question of ratification was not made the subject of an issue in the lower Court and the evidence to which our attention was drawn by Mr. Ramachandra Row Saheb as bearing upon the point shows that she was not of age when she is stated to have joined in the application exhibit N, on which the contention of ratification is rested though no doubt she was not there represented as a minor and though she did not purport to appear by a next friend.

(2.) Passing now to exhibit FF it is dear upon the face of the instrument that the Tavazhi concerned in it consisted among others of three persons at the time of its execution who were incapable of assenting to the transaction intended to be effected thereby on the ground of their minority. As in this instance also it is not alleged that any consideration passed from the third defendant to the Tavazhi that could make it an instrument binding upon the branch as a whole, we must for reasons already given held that the third defendant acquired no separate share under it. In this view it is not necessary to consider the other contentions raised on behalf of the appellants.

(3.) We therefore modify the decree of the lower Court in so far as it declares the plaintiff's right to sell items Nos. 1 to 20 and Nos. 25 to 58 inclusive of the plaint properties and dismiss the suit to that extent, otherwise the decree of the lower court is affirmed.