T. Chandrasekhara Menon, J.
1. Plaintiff is the appellant. She is the daughter of a deceased member of a namboocliri. family known as Kunnappilly Illom. A partition was effected in the family in 1960, which is evidenced in the case by document marked as Ex. P1. This deed of partition was executed by 24 members of the family. The legal guardians acted on behalf of the minor members. Besides these 24 members, there was at that time another member in the family, one Naravanan Namboodripad, whose whereabouts were unknown. In the partition effected, shares were set apart to three ladies including the plaintiff, who were not members of the Illom, but who were daughters of deceased members of the Illom on the ground that they were not given sthridanam at the time of their marriage. Besides, one member an executant of the deed was allotted an additional share in view of the fact that she was a widow without any support. A share was also set apart to Narayanan Namboodripad earlier mentioned. The family properties were thus divided into 29 equal shares. To the branch of the defendants were allotted 16 shares including that which have been set apart to the plaintiff. The partition deed is dated 20-7-1960.
2. The present suit was brought forward by the appellant alleging that she is not being given income due on her share, and that she is entitled to a separate 1/16th share of the plaint schedule properties, which in the partition deed, had been set apart to the defendants. The suit is one for partition by metes and bounds and for giving the plaintiff separate possession of her 1/16th share. The plaint properties form B schedule of Ex. P1 partition deed. The plaintiff is not a member of the Illom nor is she an executaut of the partition deed. By the division effected in accordance with Ex. P1, the Illom got itself separated into four branches, of which the defendants are members of what is termed in the deed as the second branch. Defendants 1 and 2 are described in the plaint as the karnavan and senior ananthiravan of the second branch.
3. In the joint written statement filed by defendants 1 and 2, they while admitting the execution of Ex. P1 took 'p the position that the plaintiff had been giver, her sthridhanam, and the provision in the document setting apart the rights to the ladies (obviously meaning those who had been married away from the illom) is invalid in law. Minor defendants 6 to 10 through their guardian also took up the same stand. It will be relevant to extract the particular portion from their written statement:
(Original in Malayalam omitted.--Ed.)
4. Defendants 11 to 15 who are also minors and who were represented in the proceedings by court guardian, only contended in a wild manner that the properties are not partitioned as claimed by the plaintiff, nor the minors' assets in any way be prejudicially affected by the plaint claim.
5. The partition deed was marked as Ex. P1 as staled earlier. No further evidence oral or documentary have been adduced in the case. The trial court passed a preliminary decree for partition allotting 1/16th share to the plaintiff. The District Judge, in appeal, held that as the interests of the minors were prejudicially affected by the provision in the partition deed granting shares to married daughters of the Illom which was illegal, the minors are entitled to challenge the validity of the said provision by way of defence in this suit. Therefore, the court held that in the circumstances, the plaintiff is not entitled to the reliefs prayed for in the suit.
6. I would hold that the view taken by the learned District Judge is erroneous in law and his decision, therefore, wrong. From what has been stated earlier it is clear that not only the minors have not sought for setting aside the partition deed in proper proceedings, even by way of defence in the suit, they have no case that Ex. P1 partition deed will have to be reopened so far as they are concerned, on the ground of it being prejudicial to the interests of the minors. What they contend is that the plaintiff should not be given the share allotted io her as such in Ex. P1, while they themselves hold to the shares allotted in the same partition deed to the second branch as a whole. They do not repudiate the partition deed as such, As correctly contended by Sri P, K. Kesavan Nair,; learned counsel for the appellant, second branch of the Illom having been entrusted by the common Illom with the share agreed to be given to the appellant, defendants could not now refuse such share to her and enrich themselves at the expense of the other members of the Illom, who had agreed to the allotment of the share. The plaintiff's share had been carved out from the shares of all the members of the Illom and entrusted to the defendants' branch, which therefore was, in the position of a 'trustee as regards her share. The plaintiff being a beneficiary to, the trust so created could file a suit for implementing the trust, though she is not a party to Ex. P1. In the case of a joint family whether it be a Hindu joint family or a Marumakkathayam tarwad, a valid arrangement for partition may be made even if there be one or more minor members in the family. Such a partition would be effective and valid as against the minors also; otherwise the partition could hardly ever take place. Mulla in his treatise on Principles of Hindu Law, 13th Edn. at page 362 says:
'A partition by agreement, though entered into during the minority of a coparcener, is binding on the minor unless it is unfair or prejudicial to the minor. If the partition is unfair or prejudicial to the manor's interests the minor may, on attaining major rity have it set aside, by proper proceedings so far as regards himself.'
7. The important decision on this question is the one reported in (1903) ILR 30 Cal 738 (PC), Balkrishen Das v. Ram Narain Sahu. Speaking for the Privy Council Lord Davey said at page 752:
'There is no doubt that a valid agreement for partition may be made during the minority of one or more of the coparceners. That seems to follow from the admitted right of one coparcener to claim a partition; and (as has been said) if an agreement for partition could not be made binding on minors, a partition could hardly ever take place. No doubt if the partition was unfair or prejudicial to the minor's interests, he might on attaining his majority, by proper proceeding, set it aside so far as regards himself.'
This principle was accepted as regards Marumakkathayam Tarwads in the case of P. T. V. Chirudevi v. P. T. V. Tarwad Kamavan, 31 Mad LJ 879 =(AIR 1917 Mad 845 (2)). Justice Mr. Sankaran Nair, speaking for the Division Bench, said at pages 880 and 881 (of Mad LJ) --- (at p. 846 of AIR):
'It is open to the members to enter into an arrangement for the management of the tarwad affairs. It is open to them also to divide the tarwad properties among themselves. Such a partition would ordinarily be binding on the minors, but if on attaining majority they are able to show that they have been prejudiced, that partition could be reopened so far as they are concerned and they would be awarded the share which should have been set apart for them; but subject to this, the partition is final as between those who were parties to it.'
A subsequent decision of the Madras High Court (Division Bench) -- Nanikutti v. Achuthan Kutti Nair, 36 Mad LJ 529 at p. 530 = (AIR 1919 Mad 573 at p. 574) reiterates the same view. The above decisions have been relied on by this Court in Achuthan v. Anandavalli Amma, 1959 Ker LJ 982 at p. 985.
8. The lower appellate court erred seriously in holding that the minor members of the Illom who are on the party array in this suit are entitled to question the validity of the partition deed Ex. P1, when they have not taken up a specific plea to that effect and also when they have nut chosen to reopen the partition. Not only do they not seek to reopen the partition but insist on holding on to the 16 shares allotted to their branch at the partition. In fact what they have done is only to support the unfair contentions raised by defendants 1 and 2, who as adult members of the Illom were direct parties to Ex. P1.
9. As Sri Kesavan Nair contended a partition is a settlement of all claims and disputes between members of the family. For reopening a partition entered into betweenall the adult members of the family on theground that it is unfair or prejudicial to theminors' interests the minors will have to getit set aside by proper proceedings so far asregards themselves. In such proceedings thepartition would be reopened only on proofof unfairness or prejudice to minors and onlyso far as they are concerned. The adult, members who were parties to the partition wouldbe bound by every term of the partition arrangement. Consequently it follows that insuch proceedings to reopen the partition allmembers of the family who were parties tothe partition should also be parties so thatequities amongst all could properly be worked out. Sri K Sreedharan, learned counselfor the respondents, who strenuously supported the judgment of the lower appellate court,referred to a Full Bench decision of this courtin Mathew v. Ayyappankutty, 1962 Ker LT61 = (AIR 1962 Ker 164) (FB) and in particular to the observations therein at pages 82and 83 -- paras 56 to 61 -- where it is saidthat if is not always necessary that a partyentitled to avoid a transaction not bindingon him should sue for its rescission. He canhimself avoid it by an unequivocal act repudiating it. Certainly nobody would haveany quarrel with this proposition. One cannot, however, ignore all the difference between a ease where a junior member of ajoint family questions an alienation effectedby the manager of the family without necessity or benefit to the family and a case wherea member of a family who was a minor atthe time of partition effected by all the adultmembers of the family wants to reopen iton the ground that the partition is unfair andprejudicial to the others. The weighty observations of the Privy Council, quoted earlier,support the view that I have taken that theaggrieved minor will have to set aside thepartition and reopen it as far as he is concerned by separate proceedings.
10. In the result, the second appeal is allowed with costs, the judgment and decree of the lower appellate court are set aside and that of the trial court restored.