Sir Lawrence Jenkins:—

The plaintiffs and Mammad, the first defendant, who has died since the institution of this suit, were descendants from a common stock. It is the plaintiffs' case that they were members of an undivided Mopla Tarwad governed by Marumakkaththayam law, and that the Tarwad possessed considerable properties, including those in the suit. Mammad, it is alleged, was the senior and Karnavan of the whole Tarwad, and it is charged that he dealt with Tarwad property in fraud of the plaintiffs, and improperly alienated portions of it to Sulaiman the second defendant.

The plaintiffs accordingly pray by their plaint that the first defendant be deposed from the management of the plaint properties, or in the alternative that the plaintiffs' right thereto be declared free of any encumbrance made by the first defendant. They further seek a declaration that the alienations in favour of the second defendant specified in the plaint are invalid and not binding against the plaintiffs.

By way of defence it is denied that the plaintiffs and first defendant were members of an undivided Mopla Tarwad, or that the first defendant was the senior and Karnavan of the whole Tarwad. On the contrary, the allegation in the written statement is that the branch of the plaintiffs and of the first defendant with seven others, became divided as far back as 1837-38, and that each branch has been living separately and enjoying and dealing with the properties separately and independently of the other branches. The suit was heard in the Court of the Subordinate Judge of South Canara, and was dismissed on the 14th September 1904. On appeal this decree was reversed by the High Court of Madras on the 20th August, 1909, and it was declared that the alienations made by the first defendant in favour of the second defendant of certain specified properties were invalid and not binding against the plaintiffs. From this decree of the High Court the present appeal to His Majesty in Council has been preferred.

Though by the law which governs a Mopla Tarwad there cannot be partition unless all the members consent, yet it is common ground that there has been a partition of the properties of the original Tarwad in this case. The point in dispute is as to the character and extent of this partition.

To understand the rival contentions regard must be had to the history and state of the family and this is compendiously shown in the tabular statement appended to the plaint. Descent under the law by which this family is governed is always traced through the female line to a female ancestor. It will thus be seen that the three stocks to which descent is traced were three sisters who left descendants-Bavumma, Kunhi Kathiya and Thaki. There were two other sisters, but they can be left out of consideration as they apparently left no issue. Bavumma left four descendants, and Thaki two; of Kunhi Kathiya's descendants only three left issue. It is with the line of Kunhi Kathiya alone that this litigation is concerned.

The plaintiffs' contention is that the partition which was effected was only between the three branches of Bavumma, Kunhi Kathiya, and Thaki, and that the allotment made to the nine branches tracing from the several descendants was not by way of complete partition, but was merely a division for convenience of enjoyment. The case made by the defence is that there was a complete partition between the nine branches, and that thereby nine separate and independent shares were constituted.

The last view was affirmed by the Subordinate Judge and no dissent from it is expressed by the High Court; on the contrary, such inference as is suggested by that Court's meagre and inconclusive judgment is that it accepted the finding of the Subordinate Judge on this point, for the course followed by the High Court seems to assume partition into nine shares. In these circumstances, it might be enough for their Lordships to say that they are not satisfied that the Subordinate Judge was wrong