The main legal point established in the judgment is that the right to claim partition under S.38 of the Madras Marumakkathayam Act, 1932, did not confer the right to alienate undivided shares in the tarwad properties under the marumakkathayam system of law.

1. The 4th defendant in O.S. No. 345 of 1948 of the District Munsiff s Court, Badagara- a suit for partition - is the appellant before us. The properties concerned belonged to one Kunhi Chekkan in kanom¬kuzhikanom from the Kauttmatath Mana.

2. On the death of Kunhi Chekkan the properties devolved on his children under his will, Ext. A7 dated 17-12-1908. The courts below have found that the children took the properties with all the incidents of a tarwad property under the marumakkathayam system of law. That finding is not challenged before us.

3. Kunhi, Kalliani and defendants 2 and 3, four of the children of Kunhi Chekkan, assigned their rights to one Kadungon by Ext. B1 dated 5-1-1943. Kadungon in his turn assigned his rights under the document to the appellant by Ext. B2 dated 26-11-1943.

4. It is common ground that the assignors under Ext. B1 could have claimed partition if they had so desired under S.38 of the Madras Marumakkathayam Act, 1932. It is also agreed that they had not done so, and that no severance of status had been effected prior to the execution of Ext. B1.

5. It is not disputed that under the marumakkathayam system of law as it stood prior to the Madras Marumakkathayam Act, 1932, the undivided share of a member of a Malabar tarwad could not have been the subject of a valid alienation, voluntary or compulsory, and that the alienee got no right in pursuance of such a transaction. The question for determination is whether the Madras Marumakkathayam Act, 1932, has made any difference in that state of the law.

6. S.38 of the Act conferred the right of tavazhi partition. That section reads as follows:

"[1] Any tavazhi represented by the majority of its major members may claim to take its share of all the properties of the tarwad over which it has power of disposal and separate from the tarwad:

Provided that no tavazhi shall claim to be divided from the tarwad during the lifetime of an ancestress common to such tavazhi and to any other tavazhi or tavazhis of the tarwad, except with the consent of such ancestress; if she is a member of the tarwad."

[2] The share obtained by the tavazhi shall be taken by it with the incidents of tarwad property.

Explanation.- For the purpose of 'this chapter, a male member of a tarwad or a female member thereof without any living child or descendant' in the female line, shall be deemed to be a tavazhi if he or she has no living female ascendant who is a member of the tarwad".

7. As already stated it is not disputed that the assignors under Ext. B1 could have claimed a partition under S.38. It is also admitted that they had not done so; but that according to the appellant is immaterial. The contention is that what they could have done, equity will permit the assignee to do, and that the assignee can obtain that share in partition which his assignors could have claimed and obtained, if they were so minded.

8. A right to partition similar to the one conferred by S.38 of the Madras Marumakkathayam Act. 1932, was granted by the Cochin Nayar Act of 1095. Similar contentions in respect of both voluntary and compulsory alienations were consistently negatived by the courts of the Cochin State.

9. In 19 Cochin 207 the question was whether the share of an undivided member of a marumakkathayam tarwad in his tarwad properties was capable of attachment before a severance in status was effected. The finding that no severance in status had as a matter of fact been, effected was not challenged by the appellant. Varugis, C.J., said;

"The appellant has not attempted to challenge this finding but contends that, where a member of a Marumakkathayam tarwad is in a position to claim a share, his creditor may bring the undivided share to sale in execution of his decree. This position is supported by the analogy of Hindu Law and it is urged that that analogy, being in consonance with the justice of the case, should be followed. But there is another side to the question. The Rule of Hindu Law is only a late dev