This second appeal projects an unusual, exceptional and interesting question of law. Second defendant in O.S. 950 of 1959 on the file of the Munsiff's Court, Badagara is the appellant in this second appeal. In order to appreciate the rival contentions some little facts are necessary.

2. A Nair lady by name Unichira had two daughters Kalliani Amma and Kunhi Amma. Third defendant Ammalu Amma is the daughter of Kunhi Amma. Plaintiff and 4th defendant are the sons of the 3rd defendant. Defendants 1 and 2 are the sons of Kalliani Amma. O.S. 950 of 1959 was filed by one of the sons of the 3rd defendant for partition. In that suit all the descendants of Kalliani Amma and Ammalu Amma are parties. He claimed partition as if all the properties are the thavazhi properties of himself and all the defendants namely descendants of Kalliani Amma and Ammalu Amma. We are now concerned only with the plaint schedule items 1 to 3 which are plaint schedule items 1 and 4 in O.S. 606 of 1955 on the file of the Payyoli Munsiffs Court. That is also a suit for partition which was filed by the 2nd defendant. Plaintiff and 3rd defendant in O.S. 950 of 1959 alone are the defendants in that case and