In a partition suit, the court held that the properties in suit were tarwad properties, acquired with tarwad funds, and that the subsequent acquisitions made from time to time, in the name of the deceased karnavan and of the different members of the tarwad, with the exception of certain items, must all be held to belong to the tarwad, based on the factors such as the documents of title, mingling of properties, nucleus for acquisitions, and absence of evidence of use of private funds.

1. These appeals are directed against the decree passed by the Subordinate Judge at Ottapalam, in O.S. 60 of 1948, a suit by three plaintiffs, for partition of 3/9 share in 82 items of immovable properties described in Schedule B, and in the movable properties mentioned in Schedule C, of the plaint, as belonging to their tarwad which, on the date of the institution of the suit, was composed of the plaintiffs and of defendants 1 to 6. The suit was resisted chiefly, by the second defendant, the son-in-law, and by defendants 7 and 9 to 14, the widow and some of the children of deceased Sankaran Nair, who was said to have been in management of the tarwad, and in whose time, the acquisitions were made. The Subordinate Judge held, that the immovable properties belonged to the tarwad, but that items 72 to 82 thereof, are not available for partition, having been validly alienated in favour of defendants 15 to 18; the movables, the existence of which was held to be not proved, need not be referred to in this judgment, and the items referred to hereinafter, relate to the immovable properties in Schedule B. Of the two appeals, A.S. 575 of 1955 (M) is by the second defendant, and A.S. 587 of 1955 (M) is by defendants 7 and 9 to 14.

2. Sankaran Nair died in July, 1948. By a will, Ext. B1 dated the 20th September, 1944, he bequeathed items 1 to 20, 27 to 30 and 32 to 34 in favour of the tarwad, items 36 to 39 to the second defendant, item 40 to the 14th defendant, items 41 to 51 to defendants 7 to 14 and he set apart items 21 to 26 for certain charitable purposes. Earlier, on the 23rd September, 1931, he had executed an assignment, Ext. B13, in favour of the first defendant for item 35; items 52 to 71 had been assigned by him to the 10th defendant by Ext. B178 dated the 27th March, 1930 and by Ext. B179 dated the 13th September, 1931, and these properties were purchased by the 14th defendant, Sankaran Nair's daughter, under Ext. B169, sale certificate dated the 15th June 1942, in execution of a decree against the tenth defendant and Sankaran Nair. The assignments for items 72 to 82 in favour of defendants 15 to 18 are not the subject-matter of these appeals, and need not be mentioned.

3. The original tarwad of the plaintiffs and defendants 1 to 6, and others was Kelankandathu of which the ancestress was Kunju Amma. She had three daughters Sreedevi Amma, Thayi and Unnipiri Sankaran Nair, the plaintiffs and defendants 1 to 6 are members of Sreedevi Amma's branch; Thayi's branch consisted of her two daughters and the descendants of one of them, the other having had no issue, and Unnipiri's branch consisted of her two sons only, of whom Kunjukrishnan Nair, who died in 1930-31, alone need be mentioned. Sreedevi Amma had a daughter, Ittymayamma from whom the tavazhi of Sankaran Nair, the plaintiffs and defendants 1 to 6 originated, and a son Ravunni Nair, who died in 1106 M.E. corresponding to the year 1931. Sankaran Nair had a sister Chirutheyi Amma, who was the mother of the second defendant and who died in the year 1921. Her sister Unnipiri Amma was the mother of the first plaintiff and the third defendant. Sankaran Nair's brother Gopalan Nair was the first defendant, and he died after the suit was disposed of by the lower court; plaintiffs 2 and 3 are children of the first plaintiff, defendants 4 and 5 are children of the third defendant and the 6th defendant is the daughter of the fifth defendant.

4. In the year 1916, Ravunni Nair instituted a suit 0. S.426 against the sons of Kunju Amma and others, alleging himself to be the karnavan of Kelankandathu tarwad, for the removal of trespass on two items of properties. It was found by the court, in that suit, that Ravunni Nair and others of the branch of Sreedevi Amma, had no community of interest with the other branches, and that the former had left Kelankandathu house for good, about 9 years before the date of the judgment, which was rendered on the 16th December, 1918. In the meanwhil