Judgment :- 1. Defendants 1, 3 and 4 are the appellants. The 1st defendant-appellant died and the 3rd defendant-appellant has been recorded as his legal representative. The plaintiff and the other defendants are the respondents. The parties are "Plappallies" who are a caste peculiar to Travancore (There are only one or two families). They do not enjoy any of the privileges of the Ampalavasie. The males are invested with the sacred thread in the sixteenth year. Formerly the Ilayathus officiated as their priests, but now the service is performed by Namputhiris or Pottis. The girls have the thalikettu celebrated, the thali being tied by the Aryapattar. The women marry Brahmins. The Plappallies are marumakkathayis. (Page 834, Travancore State Manual, Vol. I). 2. The family name of the parties is Kiliyat. It had three sakhas having several houses in each. In the first sakha there are three houses called "Pozhisseril", "Pathiyil" and "Vadakamparampu". In the second sakha, there are four houses namely, "Muringanat", "Vadakke Kiliyat", "Kiliyat" and "Madathilparampu". In the third sakha there are three houses called "Plappally Matom", 'Kaithakat" and "Thaikkattusseri". 3. It is the common case of both the parties that "Kiliyat" was an undivided tarwad whose members resided in the aforesaid ten houses. It is also admitted that the tarwad had properties in the shape of parambas and paddy plots. In the ozuku of the year 1012 the registry of those properties was in the name of the common karnavan. The ayacut of the year 1014 followed the ozhuku registry. 4. The plaintiff and defendants 11 to 19 are members of the Pozhisseri house, while defendants 1 to 10 are members of the Pathiyil house, both of which belonged to the first sakha aforesaid. 5. The suit out of which this appeal arises was for setting aside the decree in O.S. 63 of 1105 of the Alleppey District Court, wherein Pozhisseri and Pathiyil houses were the contending parties. Ext. P is the judgment of the District Judge and Ext. XV is the judgment of the erstwhile Travancore High Court which confirmed it. Soon after the judgment of the High Court, the parties entered into an Udampadi, Ext. XXVIII, whereunder specific properties were allotted for the maintenance of the various branches as shown in that document. All the major members of both Pozhisseril and Pathiyil houses were parties to Ext. XXVIII. The judgments Exts. Soon after the judgment of the High Court, the parties entered into an Udampadi, Ext. XXVIII, whereunder specific properties were allotted for the maintenance of the various branches as shown in that document. All the major members of both Pozhisseril and Pathiyil houses were parties to Ext. XXVIII. The judgments Exts. P and XXV declared, upholding the plea of the Pathiyil house, that these two houses were undivided, all the members thereof having community of property. The Udampadi, Ext. XXVIII, proceeded upon this basis. That was in the year 1109. 6. In Medom 1114, the members of the Pathiyil house divided the properties allotted to them under Ext. XXVIII as also other properties (See Ext. R). The present suit was filed in Mithunam 1114 seeking to set aside the judgments, Ext. P and XXV as also Ext. XXVIII. Ext. R was also sought to be set aside in so far as it related to the properties comprised in the plaint. 7. The plaint alleged that there was a partition between the ten houses comprised in the original tarwad, many generations ago. The aforesaid judgments to which the plaintiff was not a party eo nomine, were condemned as having been obtained by fraud and collusion. The subsequent udampadi and partition, Exts. XXVIII and R were also condemned for similar reasons. The averments in the plaint were vague, general and devoid of particulars. 8. The defendants resisted the claim contending inter alia that the Pathiyil house always was and continued to be undivided from the Pozhisseril house. Possession of properties by the Pozhisseril house was ascribed to an arrangement for maintenance. The allegation of fraud and collusion was repudiated. A plea of limitation was also raised along with some other minor pleas. 9. The court below framed as many as ten issues in the case none of which, however, serves the purpose for which issues are directed to be settled. The issues must relate to the main questions in the suit and must be calculated to direct the attention of the parties to those questions. They must be sufficiently specific and should be confined to material facts. Subsidiary matters of fact on which the parties might be at variance ought not to be made the subject matter of an issue as that would be embarrassing. It is no doubt the duty of the court to frame issues. They must be sufficiently specific and should be confined to material facts. Subsidiary matters of fact on which the parties might be at variance ought not to be made the subject matter of an issue as that would be embarrassing. It is no doubt the duty of the court to frame issues. Should, however, proper issues be not framed, it is up to the parties to move the court to get proper issues framed. If parties omit to attend to this matter, their default may lead to consequences over which they may not feel comfortable. The parties however will not be absolutely concluded by what happens in the trial court as in appropriate cases, the higher court in appeal or even in second appeal can and will amend the existing, or add new, issue or issues and remit the same for consideration and finding by the lower court or remand the entire case for fresh disposal as the facts and circumstances may require. (See Oolagappa Chetty v. Hon. D. Arbuthnot, Law Reports 1 Indian Appeals 268, Balagangadhar Tilak v. Srinivas Pandit XXXIX I.L.R. Bom. 441 at page 467-468 and The West End Watch Company v. The Berna Watch Company I.L.R. XXXV Bom. 425). The court below found that the judgments, Exts. P and XXV were vitiated by fraud and that Ext. XXVIII was also so vitiated and set aside the judgments and the Udampadi. On the question of limitation raised by the defendants, which depended upon the date of birth of the plaintiff, the learned judge did not record any finding but nevertheless found that the claim was not barred by limitation. 10. We had a rather protracted hearing of this appeal as the arguments lasted two days and two hours this morning. The learned judge not having recorded a finding upon the important question of the plaintiff's minority and upon some other vital matters, we considered the question of remanding the case to the court below for recording finding and for fresh disposal. In view, however, of the fact that the suit has been pending for over thirteen years by now, of which the pendency in the High Court is itself about five years, we regarded it proper to deal with the entire evidence in the case ourselves as that procedure appeared to be acceptable to both the parties. In view, however, of the fact that the suit has been pending for over thirteen years by now, of which the pendency in the High Court is itself about five years, we regarded it proper to deal with the entire evidence in the case ourselves as that procedure appeared to be acceptable to both the parties. The evidence in the case is voluminous, covering 176 pages in print in the plaintiff's book and 240 pages in print in the defendant's book. In the course of the long argument that was addressed before us, not even a tenth of this evidence was referred to. In considering the important question of division or non-division upon which the case hinges, the learned judge devoted paragraphs 6 to 14 of his judgment. A scrutiny into the relevant evidence that was made during the course of the argument before this Court revealed that the statements contained in the judgment of the learned judge were erroneous in very many places. Indeed, Mr. Varadaraja Iyengar, learned counsel for the respondent stated in the course of his address that the judgment was not very happy in the way in which it proceeded to deal with the matter, though the conclusion in favour of his client could be supported. We are constrained to remark that far from being a help, the judgment of the learned judge has been an hindrance to us in this case. We take this opportunity of drawing the attention of the subordinate courts to the necessity of their judgments in appealable cases containing an accurate statement of material facts as also to the necessity of recording findings on every issue arising for decision before them. The absence of findings on important issues may lead to protraction of proceedings by occasioning remand by the appellate court. The following passage in the judgment of Turner, L.J., in Tarakant Bannerjee v. Puddomoney Dorsee (10 M.I.A. 476) extracted the judgment of the Federal Court in Rayarappan v. Madhavi Amma (A.I.R.1950 Federal Court 140) may be referred to with advantage. He said: "The cause has not been decided in either court on the principal point whether the lands formed part of the jote tenure or of the Talook. Their Lordships are unfortunately unable to decide this appeal finally by reason of this defect. He said: "The cause has not been decided in either court on the principal point whether the lands formed part of the jote tenure or of the Talook. Their Lordships are unfortunately unable to decide this appeal finally by reason of this defect. The courts below, in appealable cases, by forbearing from deciding on all the issues joined, not infrequently oblige this committee to recommend that a case be remanded which might otherwise be finally decided on appeal. This is certainly a serious evil to the parties litigant, as it may involve the expenses of a second appeal as well as that of another hearing below. It is much to be desired, therefore, that in appealable cases, the courts below should as far as may be practicable pronounce their opinions on all the important points." 11. Whether the status between the members of the Pozhisseril house on the one hand and those of the Pathiyil house on the other is one of division or non-division is the main question arising in the case. A decision thereon would settle the case one way or the other and would render it unnecessary to consider the various interesting questions of law around which the argument at the Bar revolved. As we have heard the case in full with reference to the evidence upon this question, we propose to base our decision upon that issue. 12. Dr. Jolly in his "History of the Hindu Law of Partition, Inheritance, and Adoption" (Tagore Law Lectures, 1883) says as follows:- "As for the signs of partition, the texts which treat of the nature of circumstantial evidence of divided status are of Harada or Katyyana, by which a limitation as to time is introduced into this part of the law, is not quoted anywhere except in the Smritichandrika [XVI.14] and Saraswativilasa. The latter work contains a great deal of unprofitable speculation on the signs of partition [pp. 786-853]. The practical part of its doctrine on this subject may be summed up as follows:- 1. The first and most decisive sort of evidence in the case of a contested partition is written evidence, or the deposition of relatives, connections, respectable neighbours or other witnesses. Such evidence is called Jnapakahetu, 'proof of division' literally 'characteristic cause'. 2. On failure of the characteristic causes, effective causes, Karakahetu, have to be considered. The first and most decisive sort of evidence in the case of a contested partition is written evidence, or the deposition of relatives, connections, respectable neighbours or other witnesses. Such evidence is called Jnapakahetu, 'proof of division' literally 'characteristic cause'. 2. On failure of the characteristic causes, effective causes, Karakahetu, have to be considered. This designation is given to the diverse kinds of circumstantial evidence mentioned in the old texts, because where such circumstances have existed for ten years, they will bring about a division, even where no formal separation had taken place. Ten years is the ordinary period of limitation under the Indian Law. If these sensible rules had been enforced by the Courts they might have saved much litigation." [pp. 141 & 142]. 13. The eleventh edition of Mayne's Hindu Law and Usage, contains the following passage in pages 545, 546 and 547: "Numerous circumstances are set out by the writers as being more or less conclusive of a partition having taken place, such as separate food, dwelling or worship, separate enjoyment of the property; separate income and expenditure; business transactions with each other and the like. The rules laid down by the writers as to evidence of partition are clear and practical and are characterised by shrewd insight But all these circumstances are merely pieces of evidence, and not conclusive of the fact of partition Partition is a new status, and when it is brought about by the consensus of the members of a coparcenery they must intend that their condition as coparceners shall cease. It is not sufficient that they should alter the mode of holding their property. They must alter and intend to alter their title. They must cease to be joint owners, and become separate owners. On the one hand, the mere cesser of commensality and joint worship, the existence of separate transactions, the division of income, or the holding of land in separate portions, or a mere definition of shares in revenue and village papers, do not establish partition, unless such steps were taken with a view to carry out a partition. The question however is one of fact to be decided, with due regard to the cumulative effect of all the circumstances." 14. The question however is one of fact to be decided, with due regard to the cumulative effect of all the circumstances." 14. In Sundra Ayyar's "Malabar and Aliya Santhana Law" the following passage occurs as paragraph 12: "The burden of proving that there has been a partition is, of course, on the persons setting it up. In Korappen Nair v. Chenan Nair [1871] 6 M.H.C.R. 411] Mr. Justice Holloway said that where there are several houses bearing the same original tarwad name but with an addition and there is no evidence of the passing of a member of one house to another there is the strongest possible ground for concluding that a separation has taken place. In one case Mr. Wingram held that separation for the two generations that is for sixty years was good presumptive evidence of partition. [A.S. No. 15 of 1879] [see Moore's Malabar Law page 19]. In A.S. No. 78 of 1878 [North Malabar] the Sub Judge held that forty years' separation was sufficient to raise an inference that there was a partition and his decree was affirmed by the High Court. The exact length of time necessary to raise a presumption is not a question of law. It is essentially a question of fact depending on the circumstances of each case and some assistance may be derived in this matter from analogous cases under the ordinary Hindu Law. But in using those cases it must be borne in mind, however, that division for convenience of enjoyment is not resorted to under the ordinary Hindu Law to the same extent as under the Marumakkatayam Law. In A.S. No. 18 of 1898 the tavazhis bore distinctive names and there was evidence of separate performance of ceremonies. They had also separate enjoyment for forty years. But as none of these circumstances was necessarily inconsistent with a state of non-division [Their Lordships suggest that it might have been the result of an arrangement for maintenance] partition was not inferred. In Nanu v. Puvyyail [1911 [9] I.C. 849] two families were living separately for 100 years. It was admitted that there was community of pollution between them which undoubtedly indicated common descent. The parties were unable to state who the common ancestor was or how long ago the separation took place. In Nanu v. Puvyyail [1911 [9] I.C. 849] two families were living separately for 100 years. It was admitted that there was community of pollution between them which undoubtedly indicated common descent. The parties were unable to state who the common ancestor was or how long ago the separation took place. There was no resumption of joint living after the separation and each house managed its concerns without interference by any of the members of the other house. Each branch was in full enjoyment of different sets of properties as if each formed a separate tarwad and dealt with the properties without reference to other. In these circumstances Their Lordships [Benson and Sundara Iyer, JJ.] held that the onus lay heavily on the plaintiffs to adduce satisfactory evidence that community of interest was maintained between the two houses at the date of the suit. "Mere lapse of time", Their Lordships observe, "does not destroy community of interest but lapse of time without any apparent exercise of proprietory right is a very cogent circumstance against its continued existence, and the presumption against it must tell with increasing pressure according to the length of time that has elapsed." As against the circumstances referred to above, Their Lordships declined to attach any weight to the fact that tali tying ceremonies more than once took place in the same house or to the fact that members of both the houses joined in the funerals of some of the members of the plaintiff's family. As stated in Sulaiman v. Biyathumma [1916 [32] M.L.J. 187 P.C.] separate residence, separate assessment and separate management are the common indicia of partition. As provision for enjoyment without actual disruption of the family is very common and especially as partition is generally difficult when there are minors ordinarily there would be a disinclination to hold in favour of an absolute partition." [pp.16,17 and 18]. 15. The Full Bench decision in Ammunni Panicker v. Sankaran Namburipad (X C.L.R. 475) is a case in point. As provision for enjoyment without actual disruption of the family is very common and especially as partition is generally difficult when there are minors ordinarily there would be a disinclination to hold in favour of an absolute partition." [pp.16,17 and 18]. 15. The Full Bench decision in Ammunni Panicker v. Sankaran Namburipad (X C.L.R. 475) is a case in point. The head-note of that case is as follows: "A female member of a Malabar tarwad left the tarwad house when the tarwad was highly involved in debts and was living away with her husband for nearly 40 years; there was no evidence of an actual division nor possession by the lady of any tarwad properties; but she and her children were separately dealing with their own properties and they described themselves in deeds with an addition to their tarwad name; there was no evidence of any member of their house passing to the tarwad house or vice versa nor was there any evidence of the two houses jointly doing any act. The question being whether from the above facts a division could be inferred. Held, that though a separation with intent to have a divided status would be tantamount to a complete division although as a fact there was no actual division of property, the circumstances of the case were not sufficient to make out a division." [Head note]. A similar view was taken in XXVI T.L.J. 647 and XXIX T.L.J. 1304. 16. Applying the principles deducible from the above to the facts of the present case, we have reached the conclusion that the alleged divided status between the members of the Pozhisseril and Pathiyil houses has not been established. Several pieces of evidence have been relied upon by the plaintiff to sustain the case of partition. Those pieces of evidence may be referred to in groups. The first group relates to acts of the members of the Pozhisseril house. Six documents have been produced on behalf of the plaintiff upon this point. They are in the order of dates, Exts. AJ, A, AK, Z, B and AL. These documents do not contain such description of the properties dealt with thereunder as would enable their being identified with any property possessed by the Kiliyat tarwad nor has oral evidence been adduced to establish a connection between any property possessed by the tarwad and any one of those documents. AJ, A, AK, Z, B and AL. These documents do not contain such description of the properties dealt with thereunder as would enable their being identified with any property possessed by the Kiliyat tarwad nor has oral evidence been adduced to establish a connection between any property possessed by the tarwad and any one of those documents. In the absence of such a connection, these documents serve no purpose at all. Even if these documents have reference to the properties possessed by the tarwad, they would not avail the plaintiff in any manner in the absence of evidence to the effect that the members of Pathiyil house had notice of those transactions. Such evidence is lacking in this case. 17. In Nanu v. Mundancheri Puyyavil (IX Indian cases 849) Justice Benson and Sundra Aiyar say, at page 852, as follows: "Mr. Rosario is, no doubt, right in his contention that, where community of property is proved to exist, the failure of a branch of a tarwad to object to alienations by another branch cannot destroy or affect that right." Even if, therefore, the Pathiyil people had been aware of these transactions it would be immaterial as the transactions would have no effect upon the community of interest that admittedly existed antecedent thereto between the parties to this case. The Karnavan of the Pozhisseril house for the time being was a party to all those documents. It so happened that the karnavan of the Pozhisseril house for the time being would also have been the common karnavan of the Pozhisseril and Pathiyil houses regarded as one tarwad. This circumstance would render the transaction consistent with the case of the defendants. 18. Another piece of evidence relied upon by the plaintiff consists of certain transactions by the members of the Pathiyil house. The evidence shows that the Pathiyil house had properties of its own obtained by their exertions and or by devolution as Makkathayam heirs. Exts. XXIX and XXX indicate the existence of such properties. It being admitted that the properties dealt with by Pathiyil people are properties which belonged to them exclusively this piece of evidence has really no relevancy to the case. Exts. XXIX and XXX indicate the existence of such properties. It being admitted that the properties dealt with by Pathiyil people are properties which belonged to them exclusively this piece of evidence has really no relevancy to the case. A branch in a family can have properties exclusively belonging to it and can deal with them without reference to the family, while continuing to be undivided, There are some items of property in the possession of the Pathiyil house which originally belonged to the main tarwad but in respect of these items, there has been no transaction except by way of lease by the Pathiyil people. Leasing out of properties of the tarwad by the Pathiyil people is an act of enjoyment and is not inconsistent with their case that those properties were allotted to them for maintenance by the tarwad. xxx xxx xxx xxx xxx xxx xxx xxx (After discussing the other pieces of evidence also their Lordships came to the conclusion that the two houses are undivided). 28. Mr. Varadaraja Iyengar, learned counsel for the plaintiff-respondent also stated in the course of the argument that if our view be that the two houses of Pozhisseril and Pathiyil are undivided, then no other questions would arise for consideration in this case. The judgments, Exts. P and XXV, and Exts. XXVIII and R are not liable to be set aside in the above view. We reverse the judgment of the court below and hold that those judgments and documents are not liable to be set aside because the Pozhisseril and Pathiyil houses are joint and have been joint throughout. The result is that the suit must be dismissed and the appeal allowed with costs here and below. 29. Mr. Varadaraja Iyengar, learned counsel for the respondent-plaintiff stated in the course of his argument that Ext. XXVIII comprises properties which were not the original tarwad properties and that it contains also properties acquired by the members of the Pozhisseril house and which belong to the members of that house alone, notwithstanding the non-division of the Pozhisseril and Pathiyil houses. Mr. Varadaraja Iyengar, learned counsel for the respondent-plaintiff stated in the course of his argument that Ext. XXVIII comprises properties which were not the original tarwad properties and that it contains also properties acquired by the members of the Pozhisseril house and which belong to the members of that house alone, notwithstanding the non-division of the Pozhisseril and Pathiyil houses. Mr. Govindan Nair, learned counsel for the appellants, on the other hand stated that the case of the Pathiyil people is that the properties acquired by Pozhisseril house have been acquired as tarwad properties of Pozhisseril house and Pathiyil who were undivided and that they partake of the character of the original tarwad properties. This dispute does not appear to have been raised in the court below nor does a specific issue appear to have been framed Mr. Varadaraja Iyengar states that it will be comprised in issue No. 6. We do not find our way to accept this contention as we are not able to read issue No. 6 as comprising this controversy. The court below does not appear to have dealt with this question anywhere in the judgment. 30. The suit in the court below having been filed in forma pauperis it is directed that the plaintiff respondent shall pay the requisite court fee to the State. 31. We have in this judgment referred only to the important documents and the salient features of the case, as reference to other documents and other less important matters appears to us to be unnecessary. Allowed.