Govinda Menon, J.-O. S. No. 60 of 1949 in the Court of the Subordinate Judge of South Malabar at Kozhikode was a suit for partition and recovery of possession of the share of the properties which fell to one Govindan Nair set out in schedules B, C and D to the plaint with the liability mentioned in the C schedule in favour of the three plaintiffs and the fifty-seventh defendant. It was alleged that defendants 1 to 47 as well as Govindan Nair and Kunhiraman Nair formed members of Kundumadam tarwad and before his death Govindan Nair and Kunhiraman Nair had issued notices to the tarwad Karnavan as also to the managers of the respective tavazhis claiming partition of their share and consequently a severance in status had been created. Govindan Nair just before his death had executed a will bequeathing his share to the plaintiffs who are his children and the fifty-seventh defendant, his widow. That is how the plaintiffs claim their share of the properties. Govindan Nair died on 25th May, 1945. Kunhiraman Nair and defendants 32 to 38 belong to the first tavazhi and defendants one to twelve and thirty-one belong to the second tavazhi. Minor defendants thirteen to thirty are the children of some of the members among the defendants one to twelve and as such they also belong to the tavazhi of Govindan Nair, that is, to the second tavazhi. It is not quite necessary to detail the separate defences put forward by the respective defendants except to say that the chief of them was to the effect that there was no undivided tarwad which could be the subject of partition. Defendants 31 and 32 who are the appellants in this appeal state that by Exhibits B-1 and B-2 there was an outright division of the tarwad properties in 1928 and as such the plaintiffs’ claim for a fresh division is unsustainable. Some of the defendants also pleaded that the Kundumadam tarwad as such does not exist now. In the lower Court the main issues for consideration were whether the karar B-2, dated 8th June, 1928, operated as a partition or only as a maintenance arrangement and whether the agreement for partition set up by some of the defendants, viz., B-1, dated 20th February, 1948, effected a division in status and if so thereafter whether an undivided tarwad as such existed. The learned Subordinate Judge considered the legal import of Exhibit B-2 after analysing its provisions and came to the conclusion following the decision in Ammalu Amma v. Vasu Menon1, that the document amounted only to a maintenance arrangement and cannot be understood as an outright partition. We may at the very outset state that we have very serious doubts about the correctness of the decision by a single judge in Ammalu Amma v. Vasu Menon1. Though the learned Judge has discussed the document in question in that case in great detail it seems to us that he has not properly appreciated the trend of authority and has not also correctly understood how such documents had been interpreted by learned Malabar lawyers. But, whatever that might be we are not called upon in this case to overrule that decision because in the view we take about Exhibit B-1 the interpretation of Exhibit B-2 would take an absolutely different turn. Under Exhibit B-1 dated 20th February, 1928, all the adult members of the tarwad except the thirty-second defendant have entered into an agreement by which they agreed to partition the tarwad properties into 24 equal shares, out of which two shares were to be allotted to the first executant, Kunhiraman Nair and the remaining 22 shares were to be partitioned equally amongst the remaining 22 members inclusive of the minors who constituted the then members of the tarwad and that a partition deed to that effect should be executed and registered within 15 days from that date. It was further provided that if in consequence of malicious intention, any of the members did not agree to the said stipulations such of those members and also the properties falling proportionately to their shares shall be entrusted as common properties to the members of any of the tavazhis which the karnavan may choose and the karnavan and the remaining members who co-operate in this matter shall have the authority and freedom to execute a partition deed and get the same registered in the regular manner. The reason why the thirty-second defendant did not sign the agreement was that he was not in the locality at that time but he has subsequently affirmed and ratified the agreement. As appellant here and as defendant in the lower Court he has always stood by the Karar, Exhibit B-1 as effecting a division in status. The reason why the thirty-second defendant did not sign the agreement was that he was not in the locality at that time but he has subsequently affirmed and ratified the agreement. As appellant here and as defendant in the lower Court he has always stood by the Karar, Exhibit B-1 as effecting a division in status. D.W. 1, the husband of the thirty-first defendant, who was examined on behalf of defendants thirty-one and thirty-two, has deposed that the thirty-second defendant did not sign the Karar as he was not in the locality at that time. He further deposed that it was in pursuance of the agreement, Exhibit B-1 that Exhibit B-2 came to be executed. Therefore we may take it that all the members of the tarwad had agreed on 20th February, 1928 to have a partition of the entire properties of the tarwad into 24 equal shares. Further this Karar, Exhibit B-1, has also been engrossed on stamp paper. It has to be remembered that this agreement was entered into nearly five years earlier to the enactment of the Madras Marumakkathayam Act when partition in the Marumakkathayam family was permitted only with the consent of all the adult members. Subsequent to the passing of the Act as has been laid down in Karthiyayini Kunchi Amma v. Minakshi Amma1, the change in the law introduced by the enactment of the Madras Marumakkathayam Act XXII of 1933 has made the doctrine of severance of status applicable to tavazhis under the Marumakkathayam law as it is to persons under the Mitakshara law and for precisely the same reason. See also Madhavi Ammal v. Subramaniam Nambudripad2, Madhavi v. Nagappan3 and Madhavi Amma v. Nagappan Nair4. That being the case we have to decide whether by Exhibit B-1 there has been a severance in status between the various members. Though the document states that partition should be effected within 15 days of its coming into existence, it is the case of D.W. 1 that it was in pursuance to Exhibit B-1 that Exhibit B-2 came to be executed. Though the document states that partition should be effected within 15 days of its coming into existence, it is the case of D.W. 1 that it was in pursuance to Exhibit B-1 that Exhibit B-2 came to be executed. Whatever that might be, no one has alleged that time is the essence of the contract in a matter like this and that being the case if by Exhibit B-1 there is a severance in status effected, then the fact that a partition dividing the properties by metes and bounds had not been effected within the period mentioned would not nullify the effect of a division in status. The learned Subordinate Judge took the view that because within 15 days of Exhibit B-1 a partition deed was not executed by which an out and out division would take place, Exhibit B-1 could be ignored. He was also of the opinion that since the minors were not parties the document has not sufficient basic value. Though one of the learned counsel appearing in the lower Court contended that if there was a division in status by Exhibit B-1 unless there was a re-union there cannot be an undivided tarwad, the learned Judge did not think it necessary to go into that question. In our view he is wrong in considering that Exhibit B-1 did not effect a severance in status. We are fortified in our conclusion by an unreported decision in S.A. No. 1739 of 1918 by Sadasiva Aiyar and Spencer, JJ. What happened in that case was that the senior members of an undivided tarwad entered into an agreement, dated 5th May, 1904, by which it was agreed to divide the assets and liabilities of the tarwad into 47 shares out of which three shares were to be allotted to the tavazhi of executant No. 1, fourteen shares to the tavazhi of executant No. 2, seventeen shares to the tavazhi of executant No. 3, nine shares to the tavazhi of executants Nos. 4 to 7, one share each to executants Nos. 8 and 9, one share to the minor who was under the guardianship of the 8th executant and another share to the elder brother of executant No. 9. 4 to 7, one share each to executants Nos. 8 and 9, one share to the minor who was under the guardianship of the 8th executant and another share to the elder brother of executant No. 9. Subsequently when a suit was brought by one of the members of the tavazhi of executant No. 3, claiming maintenance out of the properties of the undivided tarwad, as it stood at the time of the agreement, the contention was that a division in status was effected by this agreement and, therefore, the plaintiff could claim maintenance only from the tavazhi of which he was a member. Paragraph 8 of the agreement also stated that a schedule of debts and assets should be prepared and that a partition deed be immediately drawn up m accordance with the stipulations contained in the agreement but no partition deed was executed on that basis. Construing the document Sadasiva Aiyar and Spencer, JJ., observed as follows:- “The partition agreement effected division of status between the 22nd defendant’s tavazhi (to which the plaintiff belongs) and the other tavazhis. The plaintiffs are, therefore, not entitled to bring a suit for maintenance against a complex undivided tarwad (of several tavazhis) which no longer exists and their claim lay only against the karnavan of their own tavazhi which has become a separate independent tarwad” . It is clear, therefore, from this decision that even before the enactment of the Madras Marumakkathayam Act, if all the adult members representing the tavazhis enter into an agreement to effect a division, that would constitute a division in status. The observations contained in Sundara Aiyar’s ‘Malabar law’ at page 16, also tend to the same view. We are, therefore, of the opinion that Exhibit B-1 has effected a severance in status. The documents filed in the case show that even if Exhibit B-1 did not amount to a partition, Exhibit B-2 in any event effected a partition. Exhibit A-1, dated 14th October, 1943, is a registered notice sent by Govindan Nair to the other members of the tarwad wherein he admits the validity of the partition and states that he has separated in accordance with law giving up the joint family status. Exhibit B-6, dated 14th October, 1943, is another notice containing similar statements. Exhibits A-2, A-3 and A-4 are all notices sent by Govindan Nair. Exhibit B-6, dated 14th October, 1943, is another notice containing similar statements. Exhibits A-2, A-3 and A-4 are all notices sent by Govindan Nair. In all these documents he admits that he is a divided member. How the plaintiffs who are the legal representatives of Govindan Nair can now be heard to say that there was no division of the tarwad properties has not been explained. In Exhibit B-14 which is the written statement filed by the first plaintiff in O.S. No. 195 of 1940 on the file of the District Munsif’s Court, Manjeri, there is an unequivocal admission that Exhibit B-2 has effected a partition and the will, Exhibit A-6, executed by Govindan Nair proceeds on the footing that there has been ‘a partition and he has got his share. Such being the case, it is too late in the day for the plaintiffs to contend that an undivided tarwad exists. We have to take it, therefore, that in accordance with the division in status effected by Exhibit B-1 a partition deed came to be executed under Exhibit B-2, and whatever might be the terms of Exhibit B-2, it cannot be said that it is a maintenance arrangement. When once a division in status is effected, unless there is a re-union among the members, there cannot be an undivided family and nobody thought of suggesting that by Exhibit B-2 there has been a reunion. That being the case, reading Exhibits B-1 and B-2 together, the result comes to this:-In order to effectuate the recitals contained in Exhibit B-1, Exhibit B-2 came to be executed. If that is so, the plaintiffs cannot claim a share on the footing that an undivided tarwad exists. The appeal by defendants 31 and 32, must, therefore, be allowed. But the plaintiffs have put forward an alternative case in paragraph 14 of the plaint that if Exhibit B-2 is to be construed as a partition deed then the tavazhi of Govindan Nair has become partitioned and separated as a separate tavazhi tarwad consisting of defendants one to thirty-two and that the plaintiffs would be entitled to get Govindan Nair’s share from that tavazhi. We think that the suit should not be dismissed thereby driving the plaintiffs to another suit. We think that the suit should not be dismissed thereby driving the plaintiffs to another suit. That being the case, while allowing the appeal, we remand the suit to the trial Court for determining the share of Govindan Nair in accordance with the partition deed, Exhibit B-2 and for passing the final decree on that bask. The appellants are entitled to their costs in this Court from the plaintiffs-respondents. The Court-fee paid in the Appeal memo. will be returned. P.R.N ----- Appeal allowed: Suit remanded.