1. This appeal is by the plaintiffs who sued for partition of a marumakkathayam family, known as Kizhakke Madhom tarwad, comprising them and defendants 1 to 74. The defendants contended that the said tarwad had become divided on June 4, 1943 by the partition embodied in Ext. B14 and that this suit instituted more than 20 years after such division, as if the tarwad were undivided, was not maintainable. The Subordinate Judge found Ext. B14 to be a valid partition binding on the plaintiffs, but suit items 29 and 30, which stood in the name of the 1st defendant, really belonged to the tarwad, and not having been included in Ext. B14 were decreed to be partitioned among the parties. Items 25 to 28, 31 and 32 claimed by the 2nd defendant as his self-acquisitions were found to have been acquired with the surplus of the income of the tarwad properties in his management, but held "2nd defendant had the right to enjoy the surplus and as such out of the surplus if he had made acquisitions they are his own and the tarwad has no rights therein."

Hence this appeal by the plaintiffs and cross-objection by the heirs of the 1st defendant.

2. Counsel for the plaintiffs argued strenuously that a partition in a marumakkathayam tarwad before the enactment of the Marumakkathayam Act could only be by consent of all the adult members thereof and that the 1st plaintiff and defendants 6, 8, 63 and 64 have not executed Ext. B14 which was therefore incompetent as a partition of the tarwad and void. Counsel for respondents contended that the tavazhi of the plaintiffs and defendants 62 to 72 was legally and effectively represented in Ext. B14 by the 62nd defendant, the karnavan of their tavazhi and therefore the partition evidenced by it bound the plaintiffs also.

3. The question then is whether partition of a tarwad into tavazhis could be effected by the karnavans of the respective tavazhis only.

In Hindu Law, the principles of which necessarily apply to Marumakkathayees also, except where they are in conflict with the Marumakkathayam system, the rule is, as stated by Mayna in his treatise on 'Hindu Law and Usage' 1953 Edn. p. 561,

"Where the partition is claimed as between branches of the family only, the heads of all the branches alone need be made parties".

See also Mulla's Hindu Law, para 333 (2).

4. In Subba Rao v. Subba Rao (A.I.R.1936 Mad. 689) Venkataramana Rao, J. observed:

"There can be no doubt that a father is entitled to and competent to represent his sons in a partition with his brothers, and a partition effected by him will be binding on the sons unless it is shown that it was fraudulent or unfair or prejudicial to their interest."

Ramanathan v. Veerappa (A.I.R.1956 Mad. 89) observes: -

"The proposition is undisputed, as stated in Mayne on Hindu Law and Usage, that if the division is between branches inter se without the individuals claiming their separate share, then it is sufficient to make the heads of the branches alone parties".

Bishamber Das v. Kanshi Parshad (A.I.R.1932 Lahore 641) has held:

"The pleadings of the parties show beyond doubt that the suit is not for partition of the properties between all the alleged coparceners inter se, but what is prayed for is a division between the two branches of the family, i.e., Badri Prashad and his son Bishamber Das and grandsons on one side and the descendants of Shio Dayal on the other. It is settled law that to such a suit the really necessary parties are the heads of each branch of the family and it is not obligatory on the plaintiffs to implead all the members of the two branches."

See also Digambar Mahton v. Dhanraj Mahton (A.I.R.1922 Patna 96) and the observations of Sadasiva Aiyar, J. and Spencer, J. in an unreported decision cited and followed in Parukutty Amma v. Janaki Amma (1957,1 M.L.J. 29). Thus the position seems to be well established that for a division of a Hindu family into its several branches the heads of the different branches only need join. It then follows that for a div