Madhavan Nair, J.

1. Defendant 1 is the appellant. His father one Subbier filed a suit against him for partition of joint family property on 18th August 1922. The summons in the suit was served on the defendant by affixing it on the door on 16th September 1922. On 15th September 1922 (i. e., one day before the service of the summons) Subbier settled some portions of his half share of the property on two of his daughters and simultaneously executed a "will" with respect to the other properties. He died on 1st April 1924 but even by that time the suit had not been tried. The persons entitled under "the settlement" and the "will" were after contest brought on as his legal representatives as plaintiffs 2 to 6 and defendant 10 and they got a. decree for a half share of the property. The first Courts decree was confirmed on appeal by the appellate Court.

2. In second appeal it is argued that on the date of the "will" and "settlement" (that is, 15th September 1922) the father had no power to execute them as the declaration of his intention to divide contained in the plaint was not communicated to the defendant till 16th September 1922 and as he for that reason still remained a membe