N.K. Balakrishnan, J.

1. Defendants 2 and 3 in a suit for partition are the appellants. The trial Court granted a preliminary decree directing division of plaint schedule item Nos. 1 and 2 into 7 equal shares and to allot 4 such shares to the plaintiffs jointly and the remaining 3 shares to defendants 1 to 3. Plaint item No. 3 was directed to be divided into 4 equal shares and the first plaintiff was allotted one such share and the remaining 3 shares were allotted to defendants 1 to 3.

2. Deceased Pachi Amma was the grandmother of the first plaintiff. First defendant Pankajakshi Amma is the daughter of Pachi Amma. Defendants 2 and 3 are the children of the first defendant. Plaintiffs 2 to 4 are the children of the Ist plaintiff. Ist plaintiff is the daughter of D1 - Pankajakshi Amma. Plaint items 1 and 2 were allotted to Pachi Amma as per the B schedule to Ext. B4 partition deed of 1118 M.E. corresponding to 1943. Plaint item No. 3 belonged to late Padmanabha Pillai. Padmanabha Pillai died and his right devolved upon his wife and children. The first defendant is the wife and defendants 2 and 3 are the children of Padmanabha Pillai. The first plaintiff is entitled to 1/4 share over item No. 3.

3. Defendants 1 to 3 contended as follows:-

Plaint items 1 and 2 were not allotted to the tavazhi of Pachi Amma but those two items were the separate properties of Pachi Amma which were obtained by Pachi Amma as per Ext. B4 partition deed. On the death of Pachi Amma the suit property devolved upon her daughter Pankajakshi Amma (D1) who is the only legal heir of Pachi Amma. The first defendant gifted items 1 and 2 in favour of defendants 2 and 3 in 1977. Thereafter item No. 1 was sold to the 4th defendant in 1981.

4. Plaint item No. 3 belonged to the father of the first plaintiff and on his death his right over the same devolved on the wife and children including the first plaintiff. In that property other plaintiffs have no manner of right. Defendants 2 and 3 have every right to alienate the property obtained from the first defendant. 5th defendant is a mortgagee of those items.

5. The fourth defendant filed written statement in tune with the contentions raised by defendants 1 to 3.

6. The evidence consists of the oral testimony of P.W.1 and P.W.2 and of documentary evidence Exts. A1 and B1 to B6 (a).

7. The dispute is with regard to items 1 and 2 shown in the plaint schedule. According to the plaintiffs items 1 and 2 were allotted to Pachi Amma as per Ext.B4 partition deed and since parties were governed by the provisions of Travancore Nair Act, the property obtained by Pachi Amma should be treated as the sub tarwad properties of plaintiffs and defendants 1 to 3 and thus the plaintiffs are entitled to get 4/7 shares and defendants 1 to 3 are entitled to 1/7 share each. Though a suit as O.S. 306/1983 was filed against defendants 1 to 3 and another person that suit was dismissed for default.

8. The trial Court after considering the pleadings and evidence found that the plaint schedule property is liable to be partitioned as stated in the plaint and so a preliminary decree was passed.

9. The lower appellate Court had a re-appreciation of the evidence. Following the Full Bench decision reported in Mary v. Bhasura Devi - 1967 KLT 430 it was found that plaint items 1 and 2 are the properties of the sub tarwad consisting of Pachi Amma, her children and grandchildren and so the plaintiffs are entitled to get 4/7 share in the said property. It was further held that the gift deed executed by the first defendant in favour of defendants 2 and 3 would be valid only to the extent of the share which the first defendant had in those items. The third item was directed to be divided into 4 equal shares and the first plaintiff was allotted one such share. Defendants 1 to 3 are allotted one such share each. There is no dispute regarding division of item No. 3.

10. The learned counsel for the appellants submits: The finding of the court below that plaint it