Seshagiri Aiyar, J.
1. I have listened with interest to the resume of the case law regarding the liability of tarwad property to partition given by Mr. Anantakrishna Iyer. From 1814 onwards, it has been regarded as accepted law in this High Court that, unless all the members of a tarwad consent, there can be no partition of the tarwad property. The decisions to which Mr. Anantakrishna Aiyar drew attention, namely those which give rights to the Anandravans of a tarwad to question alienations made by the Karnavan are not decisions which help the disruption of a tarwad; but are rather decisions which tend to preserve the property of the tarwad. These rights have been recognized by Courts of Law in Anandravans for the express purpose of enabling them to see that the tarwad property is not wasted or damaged or alienated to their prejudice. I do not think that those cases are a halfway house to the contention that it is open to any member of a tarwad to sue for a partition of the family property. It is conceded by Mr. Anantakrishna Aiyar that there has never been any instance in which either some or a majority of the members of the tarwad have been allowed to divide the property behind the back even of one single dissenting member. The principle of the father of a joint Hindu family allotting the share of some of the members and keeping the rest of the properties of the family intact is no doubt prevalent in the East Coast; and that is due to the development of the theory of partition mostly by the commentators on ancient Smriti texts. There has been no such development so far as Malabar is Concerned ; the Subordinate Judge says that there has not been evidence before him of a single instance in which tarwad property has been partitioned against the wishes of a dissenting member. The evidence in this case is clear that there is no such practice in this part of Malabar. I am therefore of opinion that it is not open to the Court to introduce this innovation by giving a share to the plaintiffs out of the tarwad property. It is not open to the Courts to introduce such a practice in the absence of clear and cogent evidence on the point. On the second question, I entirely agree with Mr. Anantakrishna Aiyar that there is no reason why minor members of a tarwad should not be allowed to question the acts of a Karnavan if he is found to mismanage the tarwad property. If adult members are entitled to come to a Court of law for a declaration that the acts of the Karnavan are not binding and also to ask that he must be removed, I see no reason why that privilege should be withheld from the minor members of the tarwad. It would be to the interest of the minor members that they should be allowed to question the acts of the Karnavan and to preserve the tarwad property for their benefit.
2. I take it that on the last occasion the learned Judges who heard this appeal were inclined to the view that it is open to the present plaintiffs, if they are not entitled to get a share of the tarwad property, to question the acts of the 1st defendant against whom a large number of charges have been alleged in the plaint. This question has not been considered by the Subordinate Judge. Therefore the Decree of the Lower Court will be reversed so far as this point is concerned and the case remanded to it for disposal according to law. The enquiry should as far as possible be restricted to showing whether the minors (plaintiffs) have been prejudiced by the Karar or whether the tarwad property has been endangered by the acts of the first defendant. The costs will abide the result.
Coutts Trotter, J.
3. I wish just to add one word, because I was a party to the original decision. My view is that it is not open to these minors to interfere with the family arrangement carried out by the karar in so far as the persons who were parties to it and who were adults at the time are concerned ; and that all that they are entitled to is to come to the Court for relief for themselves on the footing that their own maintenance has to be provided for by the Court. The onus of course will be upon them to show that the karar was carried out in fraud of their rights. The onus will also be upon them to show that subsequent to the date of the karar there was mismanagement by the. Karnavan. In my opinion if they can show that the karar was carried out in order to defeat their rights and can show that by fraudulent recitals of nonexistent debts the property in the hands of the Karnavan was misrepresented or understated in the karar, they will be entitled to relief in. respect of those false debts and in respect of subsequent acts of mismanagement. What they are not entitled to is to have the whole karar set aside in a manner that would affect the position of the signatories to it. I agree in the order proposed.