The main legal point established in the judgment is the requirement for clear evidence to establish the intention to put an end to joint ownership and corporal character of a tarawad in order to prove a partition.

1. In this appeal arising out of a suit for partition the main question for decision is whether the tarawad sought to be partitioned was an undivided tarawad on the date of the suit or whether a partition had been effected in that tarawad long before the suit. The lower court decided this question against the plaintiff and dismissed the suit, and so he has filed the appeal.

2. According to the plaint allegations, plaintiff and defendants 1 to 9 belong to an undivided Nair tarawad which itself was a branch of a bigger tarawad which had become divided into four separate branches under a partition deed Exhibit B, executed on 4-11-1088. Of the four separate branches into which the main tarawad became divided under Ext. B, one was known as the Trivandrum Branch and another was the Quilon Branch Plaintiff and defendants 1 to 9 belong to the Trivandrum Branch and the plaint properties are the properties which that Branch got under Ext. B. Plaintiff's case is that on the execution of Ext. B the Trivandrum Branch became a separate tarawad by itself & that the said tarawad was undivided on the date of suit & he is entitled to get 1/10 of the properties belonging to it as his share in the tarawad properties.

3. There are four tavazhis in this tarawad, i. e. the Trivandrum Branch. Plaintiff and defendants 5 to 9 belong to one tavazhi, and another consists of defendants 1 and 2. Defendant 3 is the sole member of the third thavazhi and defendant 4 is the sole member of the fourth tavazhi. It was said in the plaint that there was a maintenance allotment in the tarawad, i. e. the Trivandrum Branch, after Ext. B partition and that under the maintenance allotment the different tavazhis were in separate possession and enjoyment of the tarawad properties. The various properties in the possession of the different branches were also specified in Para.6 of the plaint. Plaintiff claimed that he was entitled to get Rs. 152 per year on account of his share in the mesne profits of the tarawad properties, and he prayed that from the said amount the income of the I properties in his possession might be deducted and he might be allowed to recover the balance amount on account of mesne profits. Defendant 10 is a mortgagee under defendant 2. Plaintiff impugned his mortgage as lacking in consideration and necessity binding on the tarawad and also sought to set it aside.

4. Defendant 4 was the main contesting defendant. He contended that the tarawad, i. e. the Trivandrum Branch, ad effected an oral partition soon after the execution of Ext. B and the various properties specified in the plaint as in the possession and enjoyment of the different thavazhis were in the possession of the respective tavazhis under this oral partition, that what was stated in the plaint to be a maintenance allotment, was really an oral partition and not a maintenance allotment and that the present suit for partition of the tarawad which had thus become divided was not maintainable.

5. One of the branches which had become divided under Ext. B filed a suit in 1106 for partition of the main tarawad on the basis that Ext. B itself was not a partition but only a maintenance allotment. That suit, O.S. 39 of 1106 of the Trivandrum District Court, was dismissed with the finding that Ext. B was an outright partition and that the Branches had become divided thereunder from each other and had formed into separate tarawads. On the dismissal of that suit the Quilon Branch filed another suit, O. S.156 of 1123 of the Trivandrum District Court, for setting aside the decree therein and for partition of the main tarawad, and it was while O. S.156 of 1123 was pending that the plaintiff filed the present suit. Defendant 1 filed a written statement stating that the present suit was premature on account of the pendency of O.S. 156 of 1123, that there was an oral partition in the Trivandrum Branch soon after the execution of Ext. B, that if the court took the view that there was no such partition a