1. Defendants 6 to 9 in O.S. No. 7/1996 of Sub-Court, Quilandy are the appellants herein. The suit was one filed by the plaintiff, who is the 1st respondent herein for partition of the plaint schedule properties and allotment of 1/11 share in the plaint B schedule property with profits past and future with the following allegations:

The plaint A schedule is the geneology of the family. Plaint B schedule with other properties originally belonged to Marumakkathayam Thavazhi consisting of Alankottu Thekke Puthukkudi Pennuttiamma and others. The property belonged to the thavazhi was partitioned as per partition deed No. 1341/1952 of Sub-Registrar's Office, Naduvannur dated 27.7.1952 evidenced by Ext.A4 partition deed and plaint schedule property was allotted to group consist of Kunhamma Amma and defendants 1 and 6 as a unit constituting a sub thavazhi and they have been in possession and enjoyment of the same. Kunhamma Amma had only two female children, who are defendants 1 and 6 and Kunhamma Amma was the daughter of Pennutty Amma. Kunhamma Amma was executant No. 7 and defendant Nos. 1 and 6 were the executant Nos. 8 and 9 in the partition deed who were minors at that time and they were represented by their mother Kunhamma Amma. Kunhamma Amma died during April 1995 and defendants 1 and 6 inherited their mother's 1/11 share. Plaintiff and defendants 2 to 5 are the children of first defendant and defendants 7 to 9 are the children of 6th defendant. The Plaintiff and defendants 1 to 9 are the members of Kunhamma Amma's thavazhi as on 1st December, 1976 when the Kerala Joint Hindu Family System Abolition Act came into force. Defendants 10 and 11 are the transferees of portions of plaint B schedule property who obtained the same from the 1st defendant and the same is without the knowledge and consent of the plaintiff and it is not binding on him. They are in joint possession of the property. Plaintiff is entitled to 2/22 share and defendants 1 and 6 are entitled to 3/22 share each and defendants 2 to 5 and 7 to 9 are entitled to 2/22 share each. There are two houses in the plaint schedule property occupied by defendants 6 to 11. They were liable to pay profits for the last three years as defendants 6 to 11 were enjoying the profits exclusively, without sharing the same with the plaintiff. Plaintiff did not want to continue joint possession. Though he wanted a partition, defendants 6 to 9 were amenable for the same. So plaintiff filed suit for partition and allotment of his share with past and future profits.

2. 1st defendant remained absent and ex-parte.

3. Defendants 2 to 5 filed written statement admitting the claim of the plaintiff and seeking partition and allotment of their share with past and future profits for which they have paid separate court fee. They also contended that the houses in the property had to be divided without any reservation.

4. Defendants 6 to 9 filed joint written statement contending as follows:

The suit is not maintainable the properties are not in joint possession as the plaintiff and defendants as alleged. They denied the allegation that the plaint schedule property belonged Marumakkathayam Thavazhi and the parties neither members of thavazhi nor Alankottu Thekke Puthukkudi Pennuttiamma and her descendants constituted any thavazhi. None of them lived together as members of the thavazhi or shared a common residence as thavazhi house. The properties were never treated as thavazhi property at any time. So it is not correct to say that the thavazhi properties were partitioned as per partition deed dated 27.9.1952. The properties were never treated as thavazhi properties. The properties were allotted to the joint shares of the allottees and they never treated this as thavazhy property but they have treated this as a co ownership property. Kunhamma Amma was not having any right in the property when she died. She assigned her rights in favour of 6th defendant as per registered document No. 302/1974 dated 15