The main legal point established in the judgment is that in cases involving partial partition of Marumakkathayam tarwad properties, the intention of the parties, as evidenced by the terms of the partition deed and other circumstances, should be considered in determining the status of the property.

1. This appeal arises out of a suit for recovery of possession of property with past and future mesne profits. Defendant 9 is the appellant. The suit was brought by two plaintiffs who are father and son plaintiff 1, Kesavan Unnithan, being the father and plaintiff 2 the son Plaintiff 1 had an elder brother, Krishnan Unnithan by name, who died in Kumbhom 1121. Defendants 5 and 8 are Krishnan Unnithan's widows, and defendants 1 to 4, 6, 7 and 9 to 12 are his children.

2. Krishnan Unnithan and plaintiff 1 belonged to an ancient and aristocratic (Matampi) Nair family. The seat of their sub-tarwad house was Valiaveettii purayidom, a compound in Paravoor Pakuthy measuring 1 acre 50 cents and bearing survey No. 3177. In 1106 when these two brothers were the only surviving members of their tarwad, they executed a partition deed, Ex. A, whereby they divided most of their tarwad properties between them each brother taking the properties allotted to his share as his absolute and separate property, and also made certain provisions with respect to the remaining properties. Clause.7 of Ext. A related to Valiaveettil purayidom (Survey No. 3177). It was said in that clause that the said compound was in the joint possession and enjoyment of the two brothers and was not included in the schedules to Ex. A but Krishnan Unnithan had taken for enjoyment the eastern 71 cents in it and the building in the said 71 cents and plaintiff 1 had taken for enjoyment the western 79 cents in accordance with their joint rights and that in future also they would hold the compound as per that arrangement. The clause reads:

The suit property is the plot of 71 cents in the eastern portion of Survey No. 3177 Valiaveettil purayidom, and the house mentioned therein in the above clause. Until Krishnan Unnithan's" death he was living in it, in pursuance of the above arrangement, with his wives and children, defendants 1 to 12. About five years after his death Kesavan Unnithan (plaintiff 1) and his son (plaintiff (2) brought the present suit for recovery of possession of the suit property from defendants 1 to 12. Defendants 13 to 18 are persons living in, or in occupation of portions of, the suit property under defendants 1 to 12.

3. According to the plaint allegations, although by Ex. A Krishnan Unnithan and plaintiff 1 divided most of their tarwad properties and each of them took as his absolute and separate property the properties allotted to his share, it was not executed with the intention of severing their joint status or disrupting the jointness of their tarwad and even after its execution they continued to be joint in status and remained members of a joint tarwad. On account of their mutual love and affection they desired to continue the existence of their tarwad and remain members of it even after the execution of Ex. A, and so, they left the compound in which the tarwad house was situated, survey No. 3177, undivided to be held as their tarwad property. The arrangement made in Clause.7 of Ex. A was only an arrangement for convenient enjoyment of the undivided tarwad property by the two members of the tarwad and was not a partition so far as that property was concerned. On the death of Krishnan Unnithan in 1121, plaintiff I obtained by right of survivorship the whole of Valiaveettil purayidom including the suit property in which Krishnan Unnithan was living, as he was thereafter the only surviving member of the tarwad. He thus became the full owner of Valiaveettil purayidom with absolute powers of disposal over it, and on 20-2-1950 he assigned his rights in respect of it in favour of his son, plaintiff 2, by Ex. D. Being the widows and children of Krishnan Unnithan defendants I to 12 were allowed by plaintiff 1 to live in the suit property for some time even after Krishnan Unnithan's death. As they are not surrendering possession in spite of demands and have let the other defendants also into possession plaintiffs have been obliged to bring the suit.

4. D