A partition by a course of conduct is not a legal impossibility, and the consensus of all the branches concerned becomes accomplished only when the last branch has participated in the course of conduct, completing the consent of all the branches in the matter.

1. This appeal is by the 1st plaintiff in a suit to set aside certain alienations of properties which he claimed to belong to the tarwad consisting of the plaintiffs 1 to 3 and the defendants 30 to 44. Defendant No. 32 is the ancestress of the plaintiffs 1 to 3 and defendants 33 to 44. Plaintiffs claimed defendants 30 and 31 to be direct brothers of the 32nd defendant. Defendants 30 and 31 on the other hand claimed to be of a different branch of the tarwad which was separated from the branch of the plaintiffs and defendants 32 to 44. The Additional District Judge found a division by course of conduct to have been established in the case and therefore dismissed the suit in regard to alienations made by defendants 30 and 31 of their properties.

2. Exts. G, II and III, and Exts. VIII, IX and V are held to evidence the course of conduct establishing separation between the parties. Ext. G dated 27-11-1087 is a lease executed by the 30th defendant and Narayanan who was admittedly the senior most member in the plaintiffs' branch. Ext. G of course does not spell any separation between the 30th defendant and Narayanan. Ext. II is a lease executed on 17-7-1100 by the 32nd defendant and her brother the aforesaid Narayanan, in regard to their "one-half share" in a tarwad property. Ext. III is another lease dated 20-4-1100 by defendants 30 and 31 for the other "half" of the property leased under Ext. II. The two branches could not have separate half shares in the property that belonged originally in common to them as a tarwad unless a division in status has been mutually agreed to between them. Hence the course of conduct evidenced by Exts. II and III indicated a separation between the two branches. Though they do not constitute one transaction in which both the branches joined to effect a separation between them, the two transactions together express a consensus ad idem as to separation from each other and that amounts to attainment of a divided status by the branches concerned.

3. Ext. VIII is a mortgage dated 11-4-1111 by the 30th defendant of what he purported to be his separate 1 4 share in a property which originally belonged to the tarwad of the parties. Ext. IX is a mortgage dated 6-11-1111 by the 31st defendant of another 14th share of the same property claimed to be his exclusively. Ext. V is a mortgage dated 10-3-1112 by defendants 32 and 44, as representatives of the plaintiffs' branch, of an undivided one half share in the same property. These 3 mortgages were in favour of the 1st defendant in the case. The mortgages in regard to separate shares by defendants 30, 31, 32 and 44 are consistent only with the divided status attained earlier and therefore confirms the agreement attained in Exts. II and III. The court below was therefore right in finding division in status among the parties and in that view holding the alienations made by defendants 30 and 31 unimpeachable by the plaintiffs.

4. Counsel for the appellant relied on the judgment in S.A. No. 471 of 1959 by Raman Nayar, J., (1962 KLT 349) and contended that a division by course of conduct is an impossibility. It is observed in that judgment:

"Admittedly there was no partition deed; nor did the contesting defendants set up a specific case of an oral partition. They depended on a long course of conduct to prove the division set up by them, and it is to be remarked that even this division, as is clear from the evidence, is not a division of the property by metes and bounds, but only a severance of status as between the two branches resulting in each branch getting an undivided half share in the properties to be enjoyed in udukur. (The Courts below have referred to the partition set up by the contesting defendants as partition by long course of conduct, phraseology not adopted by the defendants themselves who in their written statements, spoke only of a division from a long time ago. And although there would appear to be a number of decisions beginning from Authitcha