Judgement

VARADARAJA IYENGAR, J. :- This appeal is by the plaintiffs in a suit for reopening a prior partition in their tarwad, on grounds of its invalidity and fraud and unfairness otherwise, and for fresh partition. The suit was dismissed by the court below in toto and hence this appeal. There is also a cross objection by certain members of the tarwad, forming the group of defendants 6, 16, 17 and 18.

2. We are concerned in this appeal with only one of the grounds put forward in the court below for invalidating the prior partition arrangement to which all the majors for the time being were parties and evidenced by Ext. M., that is to say, that the 1st plaintiff, who according to the plaintiffs was in fact a major, was dealt with as a minor under Ext. M. The fraud or unfairness which were said to have characterised Ext. M are, for our purpose, confined to two transactions, viz. (i) Ext. M release of a tarwad mortgage by the karanavan to two junior members, and (ii) execution of Ext. AD mortgage of tarwad properties by the karanavan and senior anandravars in favour of strangers, We will take up these one after the other.

3. Taking up first, the aspect of invalidity of Ext. M arising from the personal non-participation therein of the 1st plaintiff, the question depends on whether she had attained majority on 5-6-1099 the date of Ext. M. Admittedly she was born on 17-3-1082 and was therefore less than 18 years of age then. Now the Travancore Majority Act 7 of 1099 prescribing 18 as the age of majority came into force only a few months after Ext. M viz., on 27-11-1099, There was however the Full Bench decision of the Travancore High Court in Kochuvariathu v. Sachidananda Aiyar, 12 Trav. LJ 1 (FB) though by majority, but passed earlier on 27-4-1097, holding,

"The age of majority for contractual purposes, for a person in respect of whom the Civil Court has, not been moved under the Guardian and Ward; Regulation to exercise its jurisdiction, is that fixed by the Common Law of the State, which is sixteen."

On this basis it was argued for the 1st plaintiff that to the extent she had passed 16 by Ext. M date, she must be deemed to have come of age so as to be able to participate in Ext. M along with other adults, and to the extent she was not so allowed, Ext. M must be treated as void and ineffectual so far at any rate, as she and her children, the plaintiffs 2 to 4 were concerned. The court below got over the argument by placing reliance on the definition of minor in Sec. (2) of the Nair Act I of 1088 governing the parties.

"Minor" means a person who has not completed eighteen years of age".

and to a similar definition in the Travancore Registration Act under which Ext. M was registered.

4. Learned Counsel for the plaintiffs appellants strenuously argued before us that the partition arrangement under Ext. M fell outside the scope of the express provisions of the Nair Act above referred to. It must therefore be governed by Section 26(2) therein,

"Nothing in this Regulation shall-

(1)...

(2) affect the existing Rules of Marumakkathayam law, custom or usage, except to the extent hereinafter expressly provided for."

The common law age of majority, so the argument ran, must therefore govern the capacity of parties for purpose of joining in Ext. M. The argument is ingenious but is unacceptable. For, the transaction as here by way of partition, involves enough absolute transfers covered by S. 19 of the Nair Act dealing with sale andc.

5. No doubt Spencer, J. in Indoji Jithaji v. K. Rama Charlu, AIR 1920 Mad 20, observed :

"It (partition) effects a change in the mode of enjoyment of property, but it is not an act of conveying property from one living person to another."

But in the absence of any other authority to agree with those observations, the learned Judges in Rasa Goundan v. Arunachala Goundan, AIR 1933 Mad 577, accepted the views of the Calcutta High Court in Atrabannessa Bibi v. Safatullah Mia AIR 1916 Cal 645 : ILR 43 Cal 504,

"The object of a suit for partition is to alter the form of enjoyment of joint property by the co-owners; or, as has sometimes been said, partition signifies the surrender of a portion of a joint right in exchange for a similar right from the co-sharer."

There can be no doubt in our opinion, that where immovable property has been partitioned among co-sharers by metes and bounds, there is a transfer. And as observed in Waraan Ramakrishna v. Ganpat Mahadeo, AIR 1936 Bom 10,

"Partition can in fact be adequately described as a mixture of the surrender and a conveyance of rights in property."

6. Learned counsel for the respondents referred to the legislative history of the deeming provision in S. 2 of the Travancore Majority Act,

"Every person domiciled in Travancore shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before"

, and said that it reflected the position even as regards persons who had completed 16 and had not attained 18 when the Act came into force. The exception governing such persons and relevant for our purpose, he pointed out was provided by S. 4(c).

"Nothing contained in this Regulation shall affect-

(a)...

(b)...

(c) the capacity of any person who before this Regulation comes into force, has attained majority under the law applicable to him "

The argument was that this exception will, if at ell, affect only the acts of the minor (but major under other law) and not those to which others than he are parties. We were inclined to accept this argument. But it is not necessary in the view we have taken, to express our final view on the matter. We therefore hold that it is not open to the 1st plaintiff to seek to invalidate Ext. M on the mere ground that she had attained 16 years of age by the date it came into being.

7. Taking up next Ext. E as an act of fraud and unfairness : Ext. E is a release dated 3-12-1096 of mortgage right of the tarwad over the C schedule items for Rs. 7540/- executed by 1st defendant in favour of the defendants 2 and 3 who had obtained Melptti from the Jenmies with provision to redeem the tarwad. This amount of 7540 fanams 01 any portion was not paid in cash by defendants 2 and 3 under Ext. E but they were directed to utilise 5350 fanams thereof to clear off a decree already obtained by the tarwad for redemption of other tarwad property and to pay the balance of 2195 fanams whenever called on in the future.

It would appear that the defendants 2 and 3 did discharge the decree for redemption and recover the properties covered thereby and further spent the amount reserved with them, for discharge of certain tarwad liabilities at the behest of the Karnavan. These facts are gatherable from Ext. M itself. There was also no evidence before the court below that the original mortgage in favour of the tarwad and released under Ext. E was for more than 10,000 fanams as alleged by the plaintiffs both in the plaint and to their evidence. On this state of the evidence, the court below found no merit in the attack against Ext. E.

Nothing has been addressed before us calling for our interference with the above finding. The plaintiffs have not even cared to file the Melotti document in favour of the defendants 2 and 3 to show if possible that more than 7540 fanams had been reserved with the defendants 2 and 3 for purpose of redeeming the tarwad mortgage and that they had accounted to the tarwad for less amount only. It is also worthwhile finally to notice that Ext. E was specifically referred to and accepted in Ext. M partition deed to which all the adult members including the mother of the 1st plaintiff, were parties. We have therefore no hesitation in rejecting along with the court below, the execution of Ext. E as an act of fraud and unfairness aimed against the tarwad and much less against the plaintiffs. We agree with the court below in upholding Ext. E.

8. Coming finally to Ext. AD mortgage, Ext. AD was executed on the same day as the partition deed, viz., on 5-6-1099 by the defendants 1, 2 and 23 in favour of defendants 47 and 48 for a sum of Fs. 10,175 and charging certain items of tarwad properties, separately scheduled as D in the plaint Major portion of the consideration was in adjustment of the amounts due to the mortgagee themselves on account of two decrees obtained by them against the tarwad and subsisting unpaid. Ext. AD was also referred to in Ext. M.

The court below therefore found no reason to accept the plaintiffs contentions as to fraud and unfair dealing rested on Ext. AD. Having heard learned counsel, we also have found no reason to interfere with the Judges finding on the matter. Learned counsel however referred us to Ext. 29 mortgage executed on the same day as Ext. E by the 1st defendant in favour of defendants 2 and 3 for 7000 fanams with provision to pay off among other debts, the hypothecation bond in favour of the defendants 47 and 48 which later matured into one of the decrees provided for in Ext. AD.

This may show that defendants 2 and 3 did not discharge an obligation under-taken by them in Ext. 29. But how Ext. AD can stand to be affected thereby is not clear. No case against defendant 1 or the defendants 2 and 3 was stated either, on basis of the breach of obligation under Ext. 29. For it would appear, they did not get credit under Ext. M to the extent Ext. 29 failed in consideration.

9. No other point was addressed before us. It follows there is no merit in this appeal. The appeal therefore fails and is dismissed with costs, of the contesting Respondents 59, 61 and 55. Advocates fee one set only.

10. Taking up now the cross-objections filed by the group of defendants 6, 16, 17 and 18. These defendants supported the plaintiffs in the court below in their attack on Ext. M partition deed, but on a ground peculiar to themselves that is to say, that the 6th defendant had attained 19 years of age at the date of Ext. M, and still had not been allowed to participate personally in the partition transaction but on the other hand was treated as a minor and so represented by other persons. Preliminary objection was raised before us on behalf of the Respondents 59, 61 and 55 that cross-objection of this type by one Respondent against other Respondents was not maintainable. The principle is summarised in Mullas Civil Procedure Code, 12th Edn. p. 1207 as follows :

"It has been held by the High Courts of Calcutta, Patna, Bombay and Allahabad, and the Chief Court of Oudh that as a general rule, the right of a Respondent to urge cross abjections should be limited to his urging them only against the appellant and that it is only by way of exception to this general rule that one respondent may urge cross-objections as against other respondents, the exception holding good in those cases in which the appeal opens up questions which cannot be disposed of completely without matters being allowed to be opened up as between co-respondents as in the case where the appellants interest is intermixed with that of the respondent."

We agree. The objection memorandum cannot therefore sustain. Indeed It is difficult to suppose that the 6th defendant who got busy for the first time and so filed her written statement on 22-4-1120 about 12 years after the institution of the suit (in the Munsiffs Court) and when she was 40 years old, can have a subsisting cause of action on the basis now trotted, to be urged at all against the other members. It is unnecessary in this view to consider whether the 6th defendant was a major on the date of Ext. M as contended by her, but refuted on the other side.

11. The cross-objection memorandum of the defendants 6, 11, 17 and 18 is therefore dismissed with costs of the Respondents 59, 61 and 55. Advocates fee one set only.

Order accordingly.