Judgment :- 1. This appeal is by the plaintiff in a suit for declaration of title nd for partition and is concerned with the availability of certain items of properties for purpose of partition between the contending parties. 2. The dispute is between plaintiff and defendants 1, 3 and 4 on the one side and the 2nd defendant on the other, and centres round items 1 to 8 of the plaint A schedule. These disputed properties along with others were the subject of a prior suit for partition in the tarwad of one Easwari Pillai filed as 0.S. No. 77 of 1105 of the Nagercoil District Court. Easwari Pillai was the 7th defendant in that suit and her son Velayudhan Pillai since deceased was the 2nd defendant. Easwari Pillai and Velayudhan Pillai filed their respective written statements in that suit as Exts. VII and VIII on 23.11.1106, each claiming a division by metes and bounds of 1/10 share of the tarwad properties. Velayudhan Pillai died pending suit on 4.9.1107. The parties subsequently compromised their disputes out of court by entering into a partition arrangement evidenced by Ext. XX dated 10.5.1109. This compromise and partition they intimated to court by Ext.IX petition dated 9.6.1109 with the prayer to formally strike off the suit in consequence. We have not got the order on Ext. IX petition but it may be presumed that that petition was allowed and the suit was struck off. Under Ext. XX partition deed, Easwari Pillai was content to take a 1/10 share both in her own capacity and as legal representative of her deceased son just like every other member of the tarwad who participated therein. It is this 1/10 share of Easwari Pillai which comprises plaint schedule items 1 to 8 in dispute herein. The contending parties are the descendants of Easwari Pillai's sister, Velu Pillai, plaintiff and defendants 1 and 2 being the children and defendants 3 and 4 being the children of a deceased daughter. The plaintiff supported by defendants 1, 3 and 4 claims partition of items 1 to 8 as against the 2nd defendant on basis of Ext. A gift made by Easwari Pillai in all their joint favour in certain proportion on 17.11.1107 i.e. before Ext. XX partition arrangement was arrived at in 0.S. No.77 of 1105 as aforesaid. The plaintiff supported by defendants 1, 3 and 4 claims partition of items 1 to 8 as against the 2nd defendant on basis of Ext. A gift made by Easwari Pillai in all their joint favour in certain proportion on 17.11.1107 i.e. before Ext. XX partition arrangement was arrived at in 0.S. No.77 of 1105 as aforesaid. The 2nd defendant on the other hand claims exclusive title under a rival gift to himself alone under Ext. I of later date 15.3.1110 i.e., after Ext. XX date from Easwari Pillai. By Ext. A gift, Easwari Pillai purported to transfer the 2/10 share which was the subject of claim in Exts. VII and VIII written statements besides certain self-acquisitions of Velayudhan Pillai. By Ext. I gift she specifically transferred the items 1 to 8 which had by that time become ascertained as her share of the tarwad properties. It is the plaintiff's case that Ext. A alone could operate as regards these items and Ext. I executed in derogation of Ext. A was totally ineffective. 3. The contention is raised by the 2nd defendant later donee that Ext. A could not operate in law because Easwari Pillai had not attained a division of status by Ext. A date and had accordingly no transferable right to her share at that date. According to 2nd defendant Easwari Pillai obtained her share under and by virtue of Ext. XX and the valid disposition could be Ext. I alone executed thereafter. 4. The court below has accepted the contention of the 2nd defendant and upheld the validity of Ext. I as against Ext. A so far as items 1 to 8 of the A schedule were concerned. 5. The short question that arises for consideration is whether Easwari Pillai had attained divided status in her tarwad by the filing of her written statement claiming the allocation of her share in the partition suit 0.S No. 77 of 1105. Now it is conceded by both sides that the Full Bench decision in Krishna Pillai v. Padmanabha Pillai, 1948 T.L.R. 617 may be taken to settle the question of the status of a defendant who has claimed his share by filing written statement in a partition suit. Now it is conceded by both sides that the Full Bench decision in Krishna Pillai v. Padmanabha Pillai, 1948 T.L.R. 617 may be taken to settle the question of the status of a defendant who has claimed his share by filing written statement in a partition suit. Justice Govinda Pillai at page 637 of the report observed that: "the defendant when he filed the written statement and claimed his share would get an inchoate right to the same and this right would take a full-fledged shape with the passing of the preliminary decree". It is not clear from this observation whether the division of status which without doubt, is attained at the date of the preliminary decree speaks retrospectively as from the date of the written statement. But Padmanabha Kukillaya, C.J., who concurred with Justice Govinda Pillai in that decision, expressed his definite view that the defendant who files a written statement becomes separated in status on the date of the filing of his written statement. After quoting the observations of Krishnaswami Iyer, C.J., in Parameswaran v. Karthyayani Thankachi,1943 T.L.R. 743 that the status of separation starts from the date of the filing of the suit so far as the plaintiff was concerned, the learned Chief Justice went on to say at page 659: "But it appears to me that the principle should be applied to all those cases where a party seeks his share. The legal effect of seeking a share is the same whether it is a plaintiff that seeks, or a defendant who seeks through his written statement. After all in a suit for partition every party who claims a share whether as plaintiff or defendant on the party array can be regarded as a plaintiff in so far as his claim for his share is concerned". The court below takes it that the 1948 T.L.R decision is authority for the position that the defendant in a partition suit becomes separated in status by the filing of the written statement, so much so Easwari Pillai may not have been incompetent to execute Ext. A settlement deed on the date it was executed. But there were, according to it, two subsequent events which rendered Ext. A invalid and inoperative to pass interest to the donees thereunder. 6. A settlement deed on the date it was executed. But there were, according to it, two subsequent events which rendered Ext. A invalid and inoperative to pass interest to the donees thereunder. 6. The first of these events was that the suit O.S. No.77 of 1105 had ended not in a decree of court but rather in a withdrawal. The partition of the Tarwad properties was effected by Ext. XX out of court and Ext. IX petition though following Ext. XX was only to strike off the suit and that petition had been allowed. The court below relied upon the following passage in Parameswaran v. Karthyayani Thankachi, 1943 T.L.R. 743: "If the plaintiff in a partition suit should withdraw the suit or is found not otherwise entitled to any relief and the suit happens to be dismissed on technical grounds or for other defects the defendants in that suit making a claim for partition of their shares in the written statements cannot have the suit continued for their benefit and a partition made of their shares. It is implicit in a claim made of their shares. It is in a partition action that their claim and their prayer are only conditional on the plaintiff taking a decree. Their demand for a share becomes effective and unconditional, unqualified and absolute only on the date of the preliminary decree." 7. The question of withdrawal of a suit for partition by the plaintiff has come up for consideration in several cases governed by Hindu Law. Speaking generally when a suit for partition is dismissed or is withdrawn there is no division of status and the parties whether plaintiff or defendant, are relegated to their original position viz., that they are to be treated as undivided. But as observed in Mayne's Hindu Law, 11th Edition, at page 552: "Where the institution of the suit is acquiesced in by other co-parceners a later withdrawal of the suit by the plaintiff will not, it is submitted, prevent the disruption of the joint status. So too if the plaintiff withdraws his suit owing to the death of the sole defendant the severance in status effected by the service of the notice of the suit on the defendant cannot be nullified. So too if the plaintiff withdraws his suit owing to the death of the sole defendant the severance in status effected by the service of the notice of the suit on the defendant cannot be nullified. But when a co-parcener sends a notice to the other members demanding a partition and afterwards withdraws the demand with the consent of the other members he cannot be treated as having become divided in status". (The underlining is ours) Mulla's Hindu Law, 11th Edition page 423 says on this subject: "The institution of a suit for partition by a member of a joint Hindu Family is an unequivocal intimation of his intention to separate, and there consequently is a severance of his joint status from the date when it is instituted. A decree may be necessary for working out the results of the severance and for allotting definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate, whether he obtains a consequential judgment or not. And if the plaintiff dies the suit can be continued by the heir. But if the suit is withdrawn before trial, the plaintiff not desiring separation, there is no severance of the joint status. Nor is there any severance if the suit is proved to be a sham transaction resorted to for the purpose of creating evidence of separation. Or if the defendant dies and the suit is withdrawn on that ground there is no separation". (The underlining is ours) We may refer in this connection to a Bench decision of the Madras High Court (Rajamannar, C.J., and Satyanarayana Rao, J.) in Radhakrishna v. Satyanarayana, A.I.R. 1949 Madras 173. Satyanarayana Rao delivering the judgment on behalf of the Bench, exhaustively reviewed the Privy Council and other decisions in the matter and held: "A unilateral declaration by a co-parcener which is unequivocal and which is communicated to the other co-parceners brings about a disruption or division of the status of a family. Where once the communication of the intention is made which has resulted in the severance of the status, it is not open to him to withdraw such intention and nullify its effect so as to restore the family to its original joint status. Where once the communication of the intention is made which has resulted in the severance of the status, it is not open to him to withdraw such intention and nullify its effect so as to restore the family to its original joint status. Were once there is a division whether of status or of property there is no means of avoiding that result except by a re-union for which an agreement, express or implied, is always required. Where in a plaint in a suit for partition the plaintiff co-parcener unequivocally declares his intention to separate and asks for the separation of his share in the assets of the family and all the defendants are duly served with the summonses, the separation takes effect and the division in status is brought about by the plaint in the suit. The plaintiff cannot subsequently by his unilateral act by withdrawing the plaint and the suit restore the joint status of the family". It would appear therefore that the fact of withdrawal of the suit may not by itself destroy altogether the effect of the unequivocal declaration of intention to separate, expressed by the plaintiff by his institution of the suit or by the defendant by his filing the written statement. The withdrawal of the suit must to have that effect be in pursuance to the desire not to separate and to effectuate the same. Prima facie the withdrawal of a suit for partition may indicate a desire not to sever the joint status but if the circumstances attending the withdrawal make it clear that the idea of the parties concerned is not to fall back into the jointness but to affirm as in this case, that they have already effectively carried out their intention to separate as evidenced by their pleadings, there is no reason why we should ascribe to the fact of the withdrawal an effect in law which in fact it had not. Ext. IX petition in this case mentions specifically the fact that the parties had entered into a partition arrangement after compromising their disputes and that the suit be accordingly allowed to be withdrawn. It was easily possible for the parties to have made Ext. XX partition arrangement an order of court and so in effect to have terminated the suit by a final partition decree. It was easily possible for the parties to have made Ext. XX partition arrangement an order of court and so in effect to have terminated the suit by a final partition decree. It seems to us however that the fact that they failed to do so, did not greatly affect the matter. The effect was equally attained by the grant of the court's sanction to the withdrawal of the suit on basis of the partition arrangement. 8. Learned Counsel for the respondent says that Ext. XX partition arrangement showed that the parties had proceeded as if they were undivided till that date and were ignoring the proceedings in the suit altogether and therefore divided status could be said to be attained by all the parties only with the execution of Ext. XX. It is no doubt true that the parties took into consideration the total number of tarwad members who were alive at date of the compromise for purpose of fixing the respective shares on basis of equality and did not make any distinction between the plaintiff or defendants in the suit. But the fact that the parties compromised their disputes in respect of their share of property by adopting a policy of give and take cannot in our judgment be taken to have in any way whittled down their desire for divided status as expressed in their respective pleadings in the suit. The court below it seems to us rather misled itself in thinking that Ext. XX partition deed clearly expressed that the parties were undivided till that date. We hold therefore that the suit ended in a formal withdrawal by order on Ext. IX petition did not make any difference in the matter of the result in law of the claim in Ext. VII written statement of earlier date. 9. The second event on which the court below relied for its conclusion that Ext. A was inoperative, and that Ext. XX partition deed was in the nature of a family settlement and Ext. A must be taken to have been superseded thereby. The argument is put this way. The plaintiff who was a donee under Ext. A is a party to Ext. XX arrangement and under that arrangement Eswari Pillai is allotted 1/10 share absolutely. This absoluteness in the matter of her share is inconsistent with the provision for a life interest only reserved for her in Ext. The argument is put this way. The plaintiff who was a donee under Ext. A is a party to Ext. XX arrangement and under that arrangement Eswari Pillai is allotted 1/10 share absolutely. This absoluteness in the matter of her share is inconsistent with the provision for a life interest only reserved for her in Ext. A. Ext. XX should therefore be deemed to have impliedly revoked Ext. A. It seems to us that the argument is based upon a total misunderstanding of the scope of Exts. XX and A. Ext. XX arrangement is with respect to more properties than covered by Ext. A and is between more persons than are parties to Ext. A. There is thus no identity of parties or property so far as Ext. A and Ext. XX are concerned. Ext. XX does not also make any reference to Ext. A. Indeed to enable Ext. A to come into operation Eswari Pillai had necessarily to participate in Ext. XX and take her share absolutely so far as all the other co-shares are concerned. Ext. A can no doubt we viewed as a family arrangement bringing peace by adjustment of disputes as between the parties to a litigation but it was not intended to be a settlement of all questions whether subject of dispute or otherwise as between some of the parties to Ext. IX litigation or in respect of matters other than those covered by that litigation. 10. It follows therefore that there is absolutely no impediment in the way of treating Ext. A to be valid and effective. It may be that Ext. A cannot be operative in part to the extent of 1/10 share which Easwari Pillai anticipated she might be getting as her to her deceased son. But the fact that she gave it up under Ext. XX cannot in law detract from the validity of Ext. A as regards 1/10 share at least which she got under Ext. XX. If Ext. A is valid Ext. I will have no subject-matter on which it could operate and Ext. I accordingly counts for nothing. 11. In the result we modify the decree of the court below so as to include in the preliminary decree for partition as granted by it, the plaint A schedule items 1 to 8 also. XX. If Ext. A is valid Ext. I will have no subject-matter on which it could operate and Ext. I accordingly counts for nothing. 11. In the result we modify the decree of the court below so as to include in the preliminary decree for partition as granted by it, the plaint A schedule items 1 to 8 also. The plaintiff will get her 1/4 share of not alone items 9,10 and 11 of plaint A schedule as granted by the court below but also a similar share in A schedule items 1 to 8. The rest of the decree as passed by the court below will stand. The plaintiff-appellant will get her costs of this court from the respondent. Modified.