Thottathil B. Radhakrishnan, J.

1. This appeal arises from a suit for partition.

2. Keloth Kunhikannan and the 12th defendant had four sons and two daughters, namely, the plaintiff, defendants 1 to 4 and the 9th defendant. Defendants 5 to 8 are the children of the fourth defendant. Defendants 10 and 11 are the children of the 9th defendant.

3. Kunhikannan executed Ext.A1 registered Will on 07.06.1950. On 30.08.1973, the plaintiff executed Ext.A2 release deed, in the name of his mother, the 12th defendant, stating that it is in favour of the members of the thavazhi. Thereafter, defendants, 1, 2, 3, 4, 9 and 12 entered into Ext.B3 on 29.09.1978, by which, they agreed to partition the properties dealt with in Exts.A1 and A2.

4. Thereafter, the suit from which this appeal arises was filed in 1994; the plaintiff claiming partition of the properties dealt with in Ext.A1 as if it was an allotment inuring only to him, his mother the 12th defendant and his siblings – defendants 1, 2, 3, 4 and 9.

5. Defendants 9, 10 and 11 resisted contending that the bequest made by Kunhikannan as per Ext.A1 was in favour of the thavazhi headed by the 12th defendant and therefore, it inured to the benefit of all members who were born in that thavazhi in terms of the Marumakkathayam Law on or before 01.12.1976, the date of coming into force of the Kerala Joint Hindu Family system (Abolition) Act, 1975.

6. Defendants 1 to 3 and 12 contested the aforesaid stand of defendants 9 to 11 and also challenged the right of the plaintiff to claim partition on the face of Ext.A2 release deed executed by him.

7. The trial court held that the plea of the plaintiff and defendants 1 to 3 and 12 that the allotment under Ext.A1 was made exclusively to the 12th defendant and her children, does not stand. It was found that the said allotment was in favour of the thavazhi, of which, the 12th defendant was the manager and therefore, the children born to the family members of that thavazhi, namely defendant, 5 to 8, who are the children of the fourth defendant, and defendants 10 and 11 who are the children of the 9th defendant, are also entitled to partition. It was held that Ext.B3 agreement for partition is not binding. A preliminary decree for partition was accordingly passed, granting the plaintiff and the 12th defendant one upon 13 shares each.

8. The appeal in hand is filed by the widow of Kunhikannan, namely the 12th defendant and her three sons, defendants 1, 2 and 3. They challenge the findings of the court below that the allotment through Ext.A1 inured to the benefit of the thavazhi and the grand children in the female line were also entitled to their share. The interpretation given to Ext.A2 is also under challenge.

9. By the time this appeal is taken up for final hearing, the plaintiff has filed, what he calls a statement, to the effect that he would stand by the allotment made under Ext.B3, provided the item allotted thereunder to the mother, the 12th defendant (who is now no more) is allotted to the plaintiff. The first defendant, who, it is stated, has in his favour a bequest from the 12th defendant, has also taken the stand before us that he is prepared to abide by and accept the suggestion of the plaintiff. If this happens, the consequence would be that defendants 5 to 8, who are the children of the fourth defendant and defendants 10 and 11 who are the children of the 9th defendant, will lose their shares in terms of the preliminary decree and the allotment will be confined to defendants 1 to 4 and 9 and the plaintiff taking the share of the 12th defendant in terms of Ext.B3. The aforesaid proposed settlement is hence opposed by defendants 9 to 11. They stand to assert that this being an appeal arising from a suit for partition and they having claimed share in accordance with the law and having succeeded in the court of first instance, they are entitled to hold the status of a plaintiff and sustain the decree by opposing this appeal.

10. In the lig