1 This second appeal raises a question of some importance on the rights of a person governed by the Madras Marumakkathayam Act (XXII of 1933) to alienate his interest in the family properties. The facts are that there was a thavazhi consisting of six persons one of whom was Kunhimatha. She died leaving behind three sons, who are defendant 3 and plaintiffs 1 and 2 in this action and a daughter called Chirutha Kutti. The daughter died subsequently and so the three sons of Kunhimatha became entitled to her share in the family properties. On 26-11-1934 there was a partition among the members of the Thavazhi and at that partition the suit properties along with others fell to the share of Kunhimathas sons. The 3rd defendant is the eldest of them and is the manager of the family consisting of himself and the two minor plaintiffs. On 26-5-1942 he executed Ext. D2 a deed of melpattom in favour of the 2nd defendant and on 28-9-1942 another melpattom deed in his favour, Ext. D3. On 23 -12 1942 he sold under Ext. P2, the suit properties to the 1st defendant for a consideration of Rs. 1000/-.

2 The two plaintiffs instituted the suit out of which the present second appeal arises for recovery of possession of the properties comprised in these deeds on the ground that the alienations were not binding on them. The learned District Munsiff upheld this contention. He also held that the sale was not valid even in respect of the share of the 3rd defendant as no member of the Thavazhi had, until partition, a disposable interest in the family properties. On appeal the learned District Judge came to the conclusion that the sale under Ext. P2 was supported by necessity and was binding on the plaintiffs and he accordingly dismissed the suit. Against that judgment the plaintiffs have preferred this second appeal and their contention is that the finding given by the lower appellate court is vitiated by misdirections and is erroneous. As I considered that there was considerable justification for this complaint I called for a fresh finding and the District Judge has on a review of the entire evidence now submitted a revised finding that the sale was not binding on the plaintiffs but that it is valid to the extent of one-third share of the 3rd defendant. Both sides have filed objections to the findings.

3 The main point that has been taken on behalf of the appellants is that on the finding that the sale under Ext. P2 was not for purposes binding on the family it ought to have been held to be void in its entirety and not merely as against the shares of the plaintiff and that the lower court was in error in granting a declaration that the first defendant was entitled to the third share of the 3rd defendant and that he was entitled to work out his rights with reference thereto in a separate suit for partition. The argument is that under the Marumakkathayam law by which the parties are governed no member has any such interest in the family properties as could be disposed of that when the karanavan makes an alienation it is either completely valid if it is for a proper purpose or totally void if not.

4 There cannot be, it is contended an alienation which is valid as regards the share of the alienor and void as against the shares of others. That undoubtedly would be the position under the customary Marumakkathayam law. Under that law though every member acquires by birth a right in the family properties, that right is only to be maintained out of those properties. No Maru-makkathayi is entitled to claim partition and separate possession of his interest, unless all the other members agree to it. It follows from this that when a member purports to alienate his interest in the family properties the transferee can get nothing under it - not a right to be maintained, which is personal to the alienor and not a right to partition and separate possession as the alienor himself had no such right. The position, therefore, is that a Marumakkathayi has no such interest in the

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