The main legal point established is the application of the Madras Marumakkathayam Act and S.17 of the Evidence Act in determining the thavazhi character of the property, entitlement to reservation of improvements, and the award of mesne profits.

1. This appeal is by the sole defendant and arises out of a suit for partition in a Malabar Tarwad which has been decreed by the court below.

2. The plaintiffs 1 to 4 and the defendant comprises a Marumakkathayam thavazhi governed by the Madras Marumakkathayam Act. The defendant is the Karnavan and Manager of the thavazhi. The first plaintiff is his deceased sister's daughter and the plaintiffs 2 to 4 are the children of the 1st plaintiff. The plaintiffs claim partition by metes and bounds of their 4/5 share in the two schedules of property B and C attached to the plaint. B schedule consists of two items of immovable property. Item 1 of the B schedule is the subject of a controversy between the parties. For, while the plaintiffs claim it to be a puthravakasam gift in favour of the thavazhi, the defendant claims that it was a joint acquisition by way of tenancy-in¬common in the names of himself, his mother and his sister, viz., 1st plaintiff's mother and with the death of his mother one-half of the property belonged to him, the other half to the 1st plaintiff's mother and it was only this half that the plaintiffs could claim. Item 2 of the B schedule is admittedly thavazhi property. The C schedule consists of certain movables valued at Rs. 200/- on the whole. The plaint averred that on the retirement of the first plaintiff's husband in July 1949, as Deputy Controller of the Southern Railways, himself and the plaintiffs settled down in item 1 of the B schedule and continued to live there until February 1950 when they left on account of differences with the 1st defendant's wife. During the interval the 1st plaintiff's husband put up fresh constructions in item 1 of the B schedule by way of office room, bed room, store room, kitchen, etc. at an expense of Rs. 3743-13-3. This was done with the help and co-operation of the defendant and in the expectation held out by him that that item will be allotted to the plaintiffs' group in the partition in the thavazhi. The claim was therefore made in the plaint that in the partition of the properties a reservation may be made of the new structures in favour of the plaintiffs. The plaintiffs also claimed mesne profits for the three years before suit and for the future until actual division.

3. The suit was contested by the defendant mainly on the question already noticed of the title of the thavazhi to item I of B schedule and on the claim for reservation of the improvements therein in favour of the plaintiffs. According to the defendant all the improvements in item 1 were effected by him at his own expense and not at the instance of the 1st plaintiff's husband and the reservation to be made must be rather in his favour than otherwise. As regards the C schedule movables the defendant objected that item 3 bureau did not exist at all and as regards the rest the plaintiffs had removed their share when they left the house in February 1950. He also disclaimed liability for mesne profits.

4. The court below found that item 1 of the B schedule was thavazhi property and partible as such and that it was the 1st plaintiff's husband and not the defendant who effected the improvements in that item and that too in the circumstances alleged by the plaintiffs and the plaintiffs were accordingly entitled to the reservation thereof in the partition allotment. The actual allocation of item 1 of B schedule was however left for later consideration at the stage of final decree. As regards movables the court below found that except as regards item 3 the rest of the movables did exist in the possession of the defendant and the plaintiffs were entitled to their share. The court below also granted mesne profits to plaintiffs for three years before suit and also for the future at the rate to be settled later. In the result the court below granted a preliminary decree for the partition of the plaintiffs' 4/5 share in the B schedule immovable properties and C schedule movables except item 3 thereof. The costs o