The central legal point established in the judgment is the application of the Madras Marumakkathayam Act, particularly Section 48, in determining the division of properties and the mode of partition, emphasizing the principle of stirpital division and its impact on thavazhi properties.

C.M.A. was filed by the first defendant against an order appointing a receiver for the suit properties. Appeal was by the fourth defendant against the preliminary decree for parition and cross objection was filed by the plaintiffs challenging the decree, in so far as it went against them.

2. Parties are Marumakkuthayee Nairs of the erstwhile Malabar area governed by the Madras Marumakkathayam Act. Ancestress was one Lakshmi Amma. First defendant is her son and second defendant her daughter. Second defendant was married in 1921 to Dr. Kunhikanna Menon, who was having lucrative medical practice. He died in 1941. First plaintiff and third defendant are their daughters and defendants 4 and 5 the sons. Plaintiffs 2 to 5 are the children of the first plaintiff and defendants 6 to 14 are the children of the third defendant. Defendants 15 to

20 are alienees of some of the suit properties. Plaintiffs and defendants 1 to 14 are thus the members of the thavazhi of Lakshmi Amma and, excluding the first defendant, all others among them are membes of the thavazhi of the second defendant.

3. The fifteen items of immovable properties in plaint A schedule were obtained by the thavazhi of Lakshmi Amma on 19-6-1935 under Ext. A1 partition deed. There is no dispute that each among plaintiffs and defendants 1 to 14 is entitled to 1/19 share. Preliminary decree regarding A schedule properties in that manner is not under challenge.

4. There are fifty items of immovable properties in B schedule. Items 1 to 27 were obtained by the thavazhi of the second defendant under Ext. A2 partition deed on 16-6-1934. There is no dispute that each among plaintiffs and defendants 2 to 14 is entitled to 1 / 18. Preliminary decree to that extent is also not in dispute.

5. B schedule items 28 to 50 are subsequent acquisitions in the name of second defendant. Items 28 to 30 were acquired by her under Ext. A3 on 3-3-1936, Items 31 to 42 under Ext. A4 on 5-1-1938, Items 43 to 48 under Ext.A5 on 24-4-1939 and Items 49 and 50 on 18-6-1940 under Ext. A6. One of the disputes is whether they are acquisitions with thavazhi funds and as such belong to the thavazhi or whether they are acquisitons with her separate funds and us such belonged to her separately. Second defendant died after suit and the appellant laid claim under a will alleged to have been executed by her bequeathing major portions of the properties to him and some minor portions to defendants 3 and 6. Genuineness of the will was disputed by others. In an interlocutory application for recording the heirs of second defendant, evidence was taken on this matter and the trial Court entered finding against the genuineness of the will. Civil revision petition against that order was dismissed in limine, observing that whatever is stated in the order should not influence the court at the final stage.

6. Thereafter, no evidence was adduced to prove the will. The trial Court maintained its finding that the will is not genuine. B schedule items 28 to 50 were also found to be thavazhi acquisitions. All B schedule items were allowed to be partitioned in shares of 1/18. That part of the decree is under challenge in the appeal.

7. C schedule items are immovable properties, which belonged to Dr. Kunhikanna Menon. He bequeathed them to his wife and children under Ext.A7 in 1928. The dispute is whether these properties also are divisible in shares of 1/18 or only among the widow and children in shares of 1/ 5 under the proviso to Section 48 of the Madras Marumakkathayam Act. Trial court decreed only shares of 1/5. That part of the decree is challenged in the cross objection.

8. C schedule items are movables, which belonged to the second defendant. Admitted and proved movables among them were ordered to be divided in shares of 1/5. That part of the decree is challenged in the appeal and cross objection. First defendent alone was held liable for mesne profits. In the cross objection, plaintiffs want mesne profits as against the