K. Sadasivan, J.
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:
'even if the 13th defendant happens to be the karnavan of the tarwad. a partition deed entered into by all the other members of the tarwad will not become void simply because he has not consented to that document'.
On the question whether the 13th defendant had attained majority on the date of Ext. P-3, the courts below have concurrently found that he was a major. Being the only adult male member, it goes without saving that he was the karnavanIof the tarwad. Law stands settled that for the validity of a partition in thetarwad all the adult members must concur. M. P. Joseph in his commentary on the principles of Marumakkathayam Law observes:--
'But, in practice, tarwad property is divisible and it is not unusual to find registered deeds of partition in tarwads, when tarwads have become so unwieldy owing to the number of the members to be maintained, and the difficulty of providing shelter for every single member in the tarwad house. But no member has any right to demand a share or for compulsory partition. All the adult members of the tarwad must consent before a partition could take place in a Malabar tarwad'.
The question was considered by a Full Bench of the Travancore High Court in Bhagavathi Amma v. Ramalakshmi. (1929) 19 Trav LJ 1233 (FB) and the following passage from a previous judgment was auoted with approval by the learned Judges in their judgment. The passage runs:--
'It is an undoubted proposition of Marumakkathayam Law that for the partition of Tarwad properties there must be the consent of all the adult members of the tarwad ..... of course theconsent of the adult members need not always be in writing but may be implied from their conduct, such as by their acquiescing in it when there were opportunities for impeaching it or by their subsequent dealings from which an inference that they admitted the validity of the partition, necessarily arises. Under what circumstances consent would be implied is a question which would depend upon the facts of each particular case'.
This view has been endorsed by the Kerala High Court in a number of decisions -- See Kuriakko v. Ouseph 1963 Ker LT 61 ' (AIR 1963 Ker 354); Krishna Pillai v. Sivarama Pillai. 1965 Ker LT 160 etc. In the latter case Velu Pillai. J. observed:--
'Except with the junction of all the adult members of the tarwad, no permanent alienation of its property could be validly made. For an outright partition of tarwad properties, all the adult members must concur'.
(See also Judgment in S. A. No. 1316 of 1968 (Ker) unreported D/- 29-6-1970. In that case, the mortgagee questioned the right of the plaintiff to redeem. The plaintiff therein was a purchaser from one Sankara Pillai to whom the equity of redemption was set apart in a partition. But in that partition all the members of the tarwad had not joined. So. its validity was challenged by the mortgagee. The trial court upholding the contention of the mortgagee, dismissed the suit but on appeal the learned Subordinate Judge took the view that the mortgagee was not competent to question thepartition in the mortgagee's tarwad. Learned Single Judge (Krishna Iyer, J.) observed in allowing the appeal and remanding the case:--
'It is surprising that the Subordinate Judge should think that a mortgagee cannot be heard to question the partition in the mortgagor's tarwad when there is no valid partition in that tarwad. We would otherwise reach the absurd position that the karnavan of the tarwad could bring a suit for redemption on the ground that he had not ioined in the partition deed and continued to function as karnavan while other junior members could also bring suits for redemption claiming that the tarwad had been already partitioned and the mortgagee (says the learned appellate Judge) cannot question it. Legally speaking, until a valid partition binding on all the members exists, the karnavan is the only person who can speak on behalf of the tarwad in court unless the special conditions under which junior members can represent the tarwad are made out'.
Thus, the partition (Ext. P-3) being one executed without the junction of the karnavan cannot have any validity in the eve of the law and that can be ignored by the members who were not parties thereto. The courts below have also pressed into service the Limitation Act to shut the mouth of the defendants saying that since they have not challenged the validity of the document within the statutory period, they are stopped from questioning the competency of the plaintiff who is a purchaser from persons to whom the equity of redemption was allotted under Ext. P-3 to redeem. A Full Bench of this Court has held by a majority in Mathew v. Ayyappankutty, 1962 Ker LT 61 = (AIR 1962 Ker 164) (FB) that it is open to the tarwad to urge the invalidity of the transaction in defence to a suit for its enforcement by the alienee. The following passage from Rustomji on Limitation 6th Edition, page 416 was quoted by the learned Judges in that case. The passage is:--
'a defendant is not precluded from urging by way of defence that the instrument or transaction sued upon ought not to be enforced, although a suit by him to cancel or set it aside would then be time-barred'.
Thus, the non-institution of a suit by defendnant 1 or 13 to set aside the partition is not of any serious consequence. It is open to them to ignore it as the document of partition was not in fact, implemented.
'Where an alienation is not followed by possession, the tarwad has nothing to worry about the property. It continues with the tarwad itself. If ever the alienee seeks to proceed against the property, the tarwad is sure to have an opportunity to resist its deprivation and urge in courtthat the transaction sought to be enforced is not binding on it. 1962 Ker LT 61 at p. 84 = AIR 1962 Ker 164 (FB))'.
There is also another feature about the case which will go against the sustain-ability of the plaintiff's action. His suit is for redemption of Exts. P-1 and P-2 mortgages. But as a matter of fact, these mortgages are now non-existent. They have both been redeemed by the 1st defendant consequent on the first partition deed. Ext. D-2 of the year 1118. The subsequent partition resulting in a re-allotment of the properties would not revive Exts. P-1 and P-2 mortgages which in fact, have ceased to exist. In any view of the matter, the suit should have been dismissed.
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.