Judgment.- A rather interesting point has been debated by counsel before me in this second appeal, and that is as to the effect of the admitted division by metes and bounds of certain items of the property of the family of the tenth defendant and his deceased brother, upon the status of the family in relation to certain other items admittedly unpartitioned. The suit out of which this appeal arises was instituted by the appellant before me as the assignee of the kanom right of the 10th defendant and his deceased brother. The contesting defendants: 1 to 9 are sub-kanamdars of the property who are resisting the plaintiff’s right to redeem anything more than a half of the kanom right which alone belonged to the tenth defendant at the inception. It is their case that that half interest which so belonged to the tenth defendant did not become enlarged by jus accrescendi on the death of his brother because under Exhibit P-4 the two brothers became divided in status in regard to the suit items and one other item with which we are not concerned here. The learned District Munsif of Bada-gara dismissed the suit altogether. On appeal the learned District Judge of North Malabar has decreed the suit in favour of the plaintiff as the assignee of a half share from the tenth defendant and of defendants 11 to 14 as the heirs of the deceased brother of the tenth defendant. The learned District Judge, however, has not made any direction that the value of the improvements claimed by the contesting defendants 1 to 9 should be reduced by a set-off of the arrears of rent claimed on behalf of the plaintiff and defendants 11 to 14. Nor has the learned District Judge awarded interest on the amount of arrears claimed in the suit. The plaintiff accordingly appeals to this Court. It is not disputed by Mr. Gopalan Nambiar appearing as amicus curia for the respondents, that even if only the half interest of the tenth defendant should be made the subject-matter of the decree for redemption, the plaintiff is entitled to the setoff of the arrears and to the interest as claimed by him to which“reference has just been made. It is not disputed by Mr. Gopalan Nambiar appearing as amicus curia for the respondents, that even if only the half interest of the tenth defendant should be made the subject-matter of the decree for redemption, the plaintiff is entitled to the setoff of the arrears and to the interest as claimed by him to which“reference has just been made. The real and only question for determination, therefore is whether the plaintiff is entitled to have redemption decreed in respect of the entirety of the suit item in his favour on the basis that with the death of the tenth defendant’s brother the tenth defendant became entitled to the whole of the item and entitled, therefore, to make an assignment of it in favour of the plaintiff. That turns upon the construction of Exhibit P-4, the partition deed, as it is called, executed by the tenth defendant and his deceased brother which is as follows:- "In the properties which belonged to our tarwad and which are being enjoyed by us with equal rights as we are the only existing members now, Mooli Nilam has been assigned away this day and the rights over Kotarath paramba and Mingili Nilam have been kept without being partitioned. It has been decided to partition the rest of the properties belonging to us and the details are as follows. Out of the properties described in schedules A and B below the properties in schedule A are allotted to No. 1 and those in schedule B are allotted to No. 2. In future from this day No. 2 has no manner of right or claim to the jenm, kuzhikoor, reclamation, etc., rights in the properties in schedule A and No. 1 has no manner of right or claim to jenm, kuzhikoor, reclamation, etc, rights in the properties in schedule B." It may be mentioned that the Kotarath paramba referred to in the document is the only item with which we are concerned in the present suit. We are not concerned with the Mingli Nilam referred to in the document as also left unpartitioned. Mr. Swaminathan, learned counsel for the appellant, contends that the reference to Kotarath paramba as an item of property”which has been kept without being partitioned" suggests that the undivided status of the brothers continued in respect of it notwithstanding the division of other items belonging to the family. Mr. Swaminathan, learned counsel for the appellant, contends that the reference to Kotarath paramba as an item of property”which has been kept without being partitioned" suggests that the undivided status of the brothers continued in respect of it notwithstanding the division of other items belonging to the family. He also stresses the comparative smallness in value of the items divided as against the items actually left unpartitioned as a circumstance showing the intention of the parties not to get divided in respect of the unpartitioned item. In support of his contention he places reliance on a passage in”Malabar and Aliyasanthana Law" by P.R. Sundara Aiyar, page 19. The learned author there observes as follows:- "It sometimes happens that while some properties are divided, the rest are undivided. In most cases, the properties divided form the bulk of the family properties and the property left undivided is so left merely to maintain a quasistanom or to meet the expenses of the common family ceremonies and charities. But it sometimes happens that the property left undivided is very considerable and difficult questions arise for determination as to the status of the family and the rights inter se of the branches. These problems are not dissimilar to the problems arising in similar circumstances under. the Hindu law. There is no textual authority in the Marumakkattayam law as there is in the Hindu law, viz., ‘Once is a partition made’ which has given rise to the presumption in favour of a complete partition in the absence of proof to the contrary. As such and Having regard to the general prohibition of partition under the former system a presumption of that nature is possibly out of place. " The learned author then proceeds to quote certain observations in a judgment of the High Court in S.A.No. 1815 of 1911 as adequately summing up the position and winds up with the remark made at page 20 which is in these terms: "Where there is substantially the intention to be divided the mere fact that some property is left undivided, would not make the family undivided in status even in respect of the property left undivided. Where the property divided bears an inconsiderable proportion to the family property or where attempt is made to keep up a nominal unity of the family merely to enhance its dignity and whatever property is left undivided is ear-marked solely for that purpose the status of the family is in substance a divided one." I am not satisfied that there is any distinction to be drawn between a joint Hindu family under the Mitakshara law and a Malabar tarwad with reference to the principles governing a situation like the one with which we are concerned here. As pointed out in the headnote in Kunchi Amma v. Minakshi Amma1, which correctly brings out the decision of the Court (Mr. Justice Burn and Mr. Justice K.S. Menon), "The change in the law introduced by the enactment of the Madras Marumakkattayam Act XXII of 1933, has made the doctrine of severance of status applicable to tavazhis under the Marumakkattayam law, as it is to persons under the Mitakshara law and for precisely the same reason. Under the new law, every tavazhi in a joint undivided Marumakkattayam family has an indefeasible right to demand partition of its own share in the joint family property, and all the other tavazhis must submit to it whether they like it or not. Section 38 of the Act indicates that so far as a tavazhi concerned the separation from the tarwad is effected on its claiming to take its share of the properties of the tarwad. There is thus an express provision in the Act itself that severance of status is effected when a tavazhi claims to take its share of the tarwad properties. Such a claim must be deemed to have been made when a notice demanding its share is given, or at least when a suit is filed for that purpose." That being so, the question is, whether under the document before me now, Exhibit P-4 although not one executed by members of a joint Hindu family, the admitted division by metes and bounds of certain items of property would necessarily make the parties divided in status, or keep them still joint in regard to the unpartitioned items. On that my attention has been drawn by learned counsel for the appellant to a ruling of a Divisional Bench of this Court (Sir Alfred Henry Lionel Leach, Chief Justice and Mr. On that my attention has been drawn by learned counsel for the appellant to a ruling of a Divisional Bench of this Court (Sir Alfred Henry Lionel Leach, Chief Justice and Mr. Justice Rajamannar) reported in Appavu v. Manickam Pillai2, which related to a joint Hindu family. What is ruled by the Court in that case is correctly and succinctly brought out in the headnote in the following terms:- "The partition of some of the joint assets does not of itself imply a division in status. In deciding whether a joint family has become divided, the Court must naturally have regard to the terms of any instrument bearing on the question and, if the wording is ambiguous, to the subsequent conduct of the parties. The division of the income of the agricultural lands may not in itself be sufficient to evidence a division in status. Nor is the division of the outstandings or other moveable property a clear indication of a division in status. The fact that the family owned a considerable amount of immoveable property and left that completely undivided is a strong indication that the members did not intend to effect a severance especially when they agree that two of the brothers were to have charge of the future management of the family and that no brother could independently borrow money for a family necessity." In support of the view taken, in that case, the learned Chief Justice delivering the judgment of the Court, refers to the entire case-law on the subject beginning with Sonatun Bysakv. Sreemutty Juggatsoondaree Dossee1 and ending with Ramalinga Annan Narayana Annavi2. Says the learned Chief Justice after the discussion: “There is here ample authority for the statement that the partition of some of the joint assets docs not of itself imply a division in status.....The division of the income of the agricultural lands is not in itself sufficient basis for the defendants’ contention that there is in the agreement of the 30th September, 1925, clear indication of a division in status.....Now, does the fact that the brothers divided the outstandings and other moveable property make any difference? We consider it does not.” The learned Chief Justice thereafter makes reference to the subsequent conduct of the parties as revealed by the evidence in the case, and arrives at the conclusion that the agreement in that case did not effect a division in status because it was one made in order to meet the situation created by the three brothers living in different places and the illness of one of them. I have, on a careful consideration of the law as laid down in this ruling, arrived at the conclusion that it must apply to the construction of the document in the case before me. The document is on the whole, in my opinion, perfectly clear and does indicate the intention that the suit property must remain joint property of the brothers. May be, if the document were ambiguous in its language I should have to determine and give effect to the rule of law laid down in Mulla’s “Principles of Hindu Law”, 10th Edn., p. 417, which crossed my mind during the course of the argument. That principle is this: where there is evidence to show that the parties intended to sever, the joint family status is put an end to and with regard to any portion of the property which remained unpartitioned the presumption would be that the members of the family would hold as tenants-in-common unless and until a special agreement to hold as joint tenants is proved. I do not find anything ambiguous about Exhibit P-4 such as would justify the importation into its construction of the presumption referred to in the passage cited above. Even if the presumption otherwise applied, I should think that a special agreement on the part of the brothers to hold the item in question as joint tenants which would exclude such a presumption may be taken as sufficiently proved in the case. For the reasons indicated in the foregoing I must decree the suit for redemption in respect of the entirety of the suit property with the further directions as to setoff and interest indicated in an early part of this judgment. I feel highly indebted to Mr. Gopalan Nambiar, who as amicus curia has with his usual thoroughness brought before me all the considerations pertaining to the case of the respondents before me. I feel highly indebted to Mr. Gopalan Nambiar, who as amicus curia has with his usual thoroughness brought before me all the considerations pertaining to the case of the respondents before me. Besides drawing my attention the case in Kunchi Ammal v. Minakshi Amma3, above referred to, he has also referred me to a case in Ramanathan Chettiar v. Ramanathan Chettiar4. That case however does not assist the respondents because all that that ruling says is that if a division by metes and bounds of a certain portion only of joint family properties is possible in law it is equally possible in law for members of a joint family to effect a division not by metes and bounds, but merely in status in respect of that portion of the joint family properties only. As I have indicated, that is not the question with which we are concerned here. The question here is, what effect a division by metes and bounds admittedly effected by a partition deed in respect of some items, has upon other items which are kept unpartitioned at the division evidenced by the deed. The decree of the lower appellate Court will accordingly be modified in the manner indicated above. The appellant will have his costs from the respondents 1 to 9 in all the three Courts. Time for redemption will be extended by three months from this date. No leave. V.S. ----- Decree modified.