Judgment :- 1. In this appeal arising out of a suit for partition the main question for decision is whether the tarawad sought to be partitioned was an undivided tarawad on the date of the suit or whether a partition had been effected in that tarawad long before the suit. The lower court decided this question against the plaintiff and dismissed the suit, and so he has filed the appeal. 2. According to the plaint allegations, plaintiff and defendants 1 to 9 belong to an undivided Nair tarawad which itself was a branch of a bigger tarawad which had become divided into four separate branches under a partition deed Exhibit B, executed on 4-11-1088. Of the four separate branches into which the main tarawad became divided under Ext. B, one was known as the Trivandrum Branch and another was the Quilon Branch Plaintiff and defendants 1 to 9 belong to the Trivandrum Branch and the plaint properties are the properties which that Branch got under Ext. B. Plaintiff's case is that on the execution of Ext. B the Trivandrum Branch became a separate tarawad by itself & that the said tarawad was undivided on the date of suit & he is entitled to get 1/10 of the properties belonging to it as his share in the tarawad properties. 3. There are four tavazhis in this tarawad, i. e. the Trivandrum Branch. Plaintiff and defendants 5 to 9 belong to one tavazhi, and another consists of defendants 1 and 2. Defendant 3 is the sole member of the third thavazhi and defendant 4 is the sole member of the fourth tavazhi. It was said in the plaint that there was a maintenance allotment in the tarawad, i. e. the Trivandrum Branch, after Ext. B partition and that under the maintenance allotment the different tavazhis were in separate possession and enjoyment of the tarawad properties. The various properties in the possession of the different branches were also specified in Para.6 of the plaint. Plaintiff claimed that he was entitled to get Rs. 152 per year on account of his share in the mesne profits of the tarawad properties, and he prayed that from the said amount the income of the I properties in his possession might be deducted and he might be allowed to recover the balance amount on account of mesne profits. Defendant 10 is a mortgagee under defendant 2. 152 per year on account of his share in the mesne profits of the tarawad properties, and he prayed that from the said amount the income of the I properties in his possession might be deducted and he might be allowed to recover the balance amount on account of mesne profits. Defendant 10 is a mortgagee under defendant 2. Plaintiff impugned his mortgage as lacking in consideration and necessity binding on the tarawad and also sought to set it aside. 4. Defendant 4 was the main contesting defendant. He contended that the tarawad, i. e. the Trivandrum Branch, ad effected an oral partition soon after the execution of Ext. B and the various properties specified in the plaint as in the possession and enjoyment of the different thavazhis were in the possession of the respective tavazhis under this oral partition, that what was stated in the plaint to be a maintenance allotment, was really an oral partition and not a maintenance allotment and that the present suit for partition of the tarawad which had thus become divided was not maintainable. 5. One of the branches which had become divided under Ext. B filed a suit in 1106 for partition of the main tarawad on the basis that Ext. B itself was not a partition but only a maintenance allotment. That suit, O.S. 39 of 1106 of the Trivandrum District Court, was dismissed with the finding that Ext. B was an outright partition and that the Branches had become divided thereunder from each other and had formed into separate tarawads. On the dismissal of that suit the Quilon Branch filed another suit, O. S.156 of 1123 of the Trivandrum District Court, for setting aside the decree therein and for partition of the main tarawad, and it was while O. S.156 of 1123 was pending that the plaintiff filed the present suit. Defendant 1 filed a written statement stating that the present suit was premature on account of the pendency of O.S. 156 of 1123, that there was an oral partition in the Trivandrum Branch soon after the execution of Ext. Defendant 1 filed a written statement stating that the present suit was premature on account of the pendency of O.S. 156 of 1123, that there was an oral partition in the Trivandrum Branch soon after the execution of Ext. B, that if the court took the view that there was no such partition and there was only a maintenance allotment, he had no objection to a fresh partition being made, and that in that case he too might be given a decree for partition and recovery of possession of his share. Defendant 2 supported the plaintiff's case and claimed his share, and defendant 10 contended that his mortgage was valid and not liable to be set aside. The guardian of some of the minor defendants also filed a written statement supporting the plaintiff's case. Defendants had other contentions also such as that some of them had special rights over certain properties etc. Those contentions have been dealt with only in a very perfunctory manner in the judgment of the lower court, probably because of its finding on the main contention that there was no undivided tarawad consisting of the plaintiff and defendants 1 to 9 and the suit had to be dismissed as a result of that finding. We do not therefore propose to deal with those contentions in this judgment, and consider that in the interests of justice they should be left open to be considered and decided afresh by the lower court if our decision on the main question is different from the lower court's finding. 6. The case set out by defendant 1 in Para.11 to 14 of his written statement is that, immediately after the execution of Ext. B, Govinda Kurup who was the karanavan of the Trivandrum Branch, divided the properties which that Branch got under Ext. B between the four tavazhies in the Branch and he also took a share in the properties, and that all the tavazhis have treated this division by the karanavan as an outright partition and have been conducting their affairs on that basis. In Para.15 of the written statement he further stated that after Govinda Kurup's death the properties taken by him as his share were also divided between the four tavazhis. In Para.15 of the written statement he further stated that after Govinda Kurup's death the properties taken by him as his share were also divided between the four tavazhis. Defendant 4 stated in Para.7 of his written statement that the properties obtained under Exhibit B have been partitioned between the plaintiff and the defendants and each of them is now in separate possession and enjoyment of the properties with full and independent rights. In Para.8 and 10 of the written statement he contended that the plaintiff was not entitled to ask for a fresh partition of the properties so divided, that the division was effected not as a mere maintenance allotment but with the intention that it should be an outright partition, and that the parties have so agreed and have been conducting their affairs on that basis. In Para.10 of the written statement he said that the division of the properties obtained by the Trivandrum Branch between the four tavazhis was effected by Govinda Kurup, that Govinda Kurup also took a share in those properties for himself, and that it was following this arrangement for separate possession and enjoyment that Ext. B was executed in 1038. It would therefore appear from Para.9 of defendant 4's written statement that the separate allotment of properties to the four tavazhis of the Trivandrum Branch (i. e. the allotment which defendants 1 and 4 say was the partition effected by Govinda Kurup in that Branch) was even before the execution of Ext. B. The case that the allotment by Govinda Kurup was made even before the execution of Ext. B is belied by Ext B itself and was not persisted in by defendant 4 himself. There is no mention in Ext. B of any previous oral arrangement for the separate enjoyment of properties by the four tavazhis of the Trivandrum Branch while there is an express statement in it that the four Branches of the common tarwad were in separate enjoyment of the properties under an oral arrangement. This tends to show that there was no arrangement for separate enjoyment of the properties by the tavazhis of the Trivandrum Branch before Ext. B. At the time of his examination as Dw. This tends to show that there was no arrangement for separate enjoyment of the properties by the tavazhis of the Trivandrum Branch before Ext. B. At the time of his examination as Dw. 2 defendant 4 stated that the partition effected by Govinda Kurup was also in 1088 and that it was the properties which the Trivandrum Branch got under the Udampady of 4111088 (i. e. Ext. B) that he partitioned between the tavazhis. The case which was put forward in the lower court on behalf of defendant 4 at the time of the hearing and accepted by that court was also that the allotment by Govinda Kurup to the four tavazhis was after the execution of Ext. B. In Para.10 of its judgment the lower court says, "Sometime after 1088 Govinda Kurup the Karanavan divided the properties he got under the Udampady into four shares and each sister was given one such share to be enjoyed for ever by her and the members of her tavazhi." This division by Govinda Kurup, which according to the plaintiff was only a maintenance allotment and which according to defendants 1 and 4 was an outright partition, the lower court found to be an outright partition; and the lower court arrived at that finding on the strength of certain admissions alleged to have been made by the plaintiff at the time of his examination as Pw. 4 and on the strength of Exts. I to VII which it thought evidenced a course of conduct on the part of defendant 1 indicating that the four tavazhis of the Trivandrum Branch had become divided from each other. 7. We shall first consider the documentary evidence relied upon by the lower court in support of the defendants' case of an outright partition between the thavazhis. In Para.11 of its judgment the lower court says that Exts. I to V are documents evidencing conduct on the part of defendant 1 indicating that his tavazhi had become separated from the other tavazhis. Referring to these documents the lower court says in that paragraph, "He (i. e. defendant 1) has dealt with his branch properties as if they belong absolutely to his branch. Exts. I to V are the documents evidencing such conduct on his part." This is all that has been said in the lower court's judgment about Exts. I to V. Ext. Exts. I to V are the documents evidencing such conduct on his part." This is all that has been said in the lower court's judgment about Exts. I to V. Ext. I is a release executed in favour of defendant 1 on 5-12-1118 by certain persons having a mortgage interest in some properties allotted to the Trivandrum Branch under Ext. B. The mortgage itself was executed in 1069 when the main tarwad was undivided. There is not a word in Ext.1 to show that defendant 1 was taking this release for and on behalf of his thavazhi alone or that he and the mortgagee had been treating the properties as belonging solely to his tavazhi and not as belonging to the Trivandrum Branch as a whole. It is open to any member of a tarwad to redeem mortgages of tarwad properties, and further defendant 1 was the karanavan of the Trivandrum Branch at the time of Ext. I, for he was the senior most male member in that branch. Exts. II and III are similar releases obtained by defendant 1 and his brothers for other properties in 1095. In those documents also there is nothing to show that defendant 1 and his brothers were claiming the properties comprised therein as belonging to their tavazhi exclusively. On the other hand in Ext. III it is clearly stated that the property comprised therein belongs to the tarawad of the person taking the release. So the reliance placed by the lower court on Exts. I to III as affording evidence of conduct indicating a partition is entirely unjustified. Ext. IV is the copy of the plaint in O. S. No. 156 of 1123. The case of the plaintiffs in that suit was that even the Quilon Branch and the Trivandrum Branch were not divided from each other, that the main tarawad itself was undivided, and that the plaintiffs were therefore entitled to get a decree for partition of the main tarawad. One is entirely at a loss to understand how the lower court came to take this plaint as evidence of conduct on the part of defendant 1 indicating that the thavazhis in the Trivandrum Branch had become divided from each other. Ext. V is a document executed in favour of the plaintiff by defendant 2 in March 1952, long after the institution of this suit. Ext. V is a document executed in favour of the plaintiff by defendant 2 in March 1952, long after the institution of this suit. It was not likely that either the plaintiff or defendant 2 would have permitted any statement to be made in that document tending to belie their case in this suit that the Trivandrum Branch was an undivided tarawad; and as a matter of fact there is nothing in that document showing that the tarawad had been partitioned or that the parties were conducting themselves as if the tarawad had been partitioned. On the other hand it is expressly stated in Ext. V that the property comprised therein belongs to the tarawad. The executant of Ext. V had certain special rights over the tarawad property dealt with in that document, and so far as that property was concerned only those special rights were assigned by him to the plaintiff. Exts.1 to V do not therefore support the inference drawn from them by the lower court; and it is clear from what has been said above that the learned judge below has not even cared to look into those documents. No one who has read them is likely to say that they evidence a course of conduct on the part of defendant 1 indicating a partition of the tarawad or that they show that defendant 1 had been dealing with the tarawad properties as if they belonged to his branch alone. Exts. VI and VII have been relied upon by the lower court as documents evidencing conduct on the part of the plaintiff indicating that the tarawad has been partitioned. Ext. VI is an Anubhava udampady executed by defendants 1 and 2. Three classes of properties are dealt with in that document. One was properties which had been outstanding on mortgages executed by the tarwad and which they had redeemed with their own funds, and another was properties which were acquired by the grand-mother of defendants 1 and 2 and which therefore belong exclusively to their tavazhi. The third class is expressly stated in Ext. VI to be properties which have been allotted to their tavazhi for maintenance. The statement in Ext. VI regarding the third class therefore supports the plaintiff's case, and there is nothing in it helpful to the defendant. The third class is expressly stated in Ext. VI to be properties which have been allotted to their tavazhi for maintenance. The statement in Ext. VI regarding the third class therefore supports the plaintiff's case, and there is nothing in it helpful to the defendant. Ext VII is an assignment taken by the plaintiff of a mortgage in respect of one of the items comprised in Ext. VI. The lower court seems to think that the plaintiff is estopped by Ext. VII from contending that there was no partition in the tarawad. This view was taken because of a statement in Ext. VI that there was an oral partition between the tavazhi of the executants of that document and their collateral tavazhis. That statement occurs in the clause relating to the acquisitions of the grand mother (i. e. class 2 mentioned above) and not in the clause relating to tarawad properties. Exts. VI and VII also do not therefore warrant the conclusion which the lower court has drawn from them. On the other hand, Ext. VI would show that even so late as 1111 defendant 1 was treating the tarawad properties in his possession only as properties obtained under a maintenance allotment and not under an outright partition. 8. The so called admissions made by plaintiff as Pw. 4 have been extracted in Para.10 of the lower court's judgment. Those admissions are only to the effect that the four tavazhis have been living separately for about 25 years, that they are paying tax separately, and that there is no common karanavan now functioning for the Trivandrum Branch. These statements by themselves do not amount to an admission of divided status. It is not unusual for different tavazhis in a common tarawad to live in separate houses even though the tarwad is still undivided. The mere fact that on account of the inconvenience of a number of persons residing together in one house, or on account of the separate ownership and possession by one tavazhi of a good residential property, one tavazhi in a common tarawad has elected to reside separately from the other tavazhis cannot, especially in these modern times, be taken as evidence of a partition of the common tarawad or even as evidence of an intention on the part of the tavazhi to become divided from their tarawad. In Kavarial D' Costa v. Kochu Pillai, 28 T. L. J. 59, it was held that separate enjoyment of property or separate payment of tax by different branches of a Marumakkathayam tarawad will not perse be sufficient to lead to the conclusion that the branches intended to remain separate in interest from each other, and that there should be some definite act or transaction on the part of the representatives of the different branches which would indicate beyond doubt their settled intention to conduct themselves as members of divided branch. In the absence of clear proof of a partition the presumption is that a Marumakkathayam tarawad remains joint. The partition may be by written instrument or orally or by long course of conduct. But there must be evidence to show that the parties had intended to put an end to the joint ownership and corporal character of the tarawad, and so long as there is no proof of such an intention it is not permissible to hold that the tarwad has become divided merely because some members are residing in separate houses or holding tarawad properties separately or even paying tax separately. Since tax is ordinarily paid by the person in enjoyment of the property mere separate payment of the tax cannot be taken as evidence of a partition. In this present case it is significant that the tavazhis have not obtained separate pattas for the tarawad properties in their respective possession and that tax is being paid by different tavazhis under the common patta. The evidence of the plaintiff and his witnesses is to the effect that the division by Govinda Kurup was only a maintenance allotment. Because of this maintenance allotment there are now no functions to be ordinarily discharged by a common tarwad. The so called admissions of the plaintiff also are therefore in no way detrimental to his case. 9. As has been referred to already even some of the documents relied upon by the defendant show that there was only a maintenance allotment and no outright partition. There is no document at all in the case showing that the four tavazhis had become separated either by an oral partition or on account of a course of conduct The payment of tax under a common patta tends to support the plaintiff's case. There is no document at all in the case showing that the four tavazhis had become separated either by an oral partition or on account of a course of conduct The payment of tax under a common patta tends to support the plaintiff's case. It is also significant that the division effected by Govinda Kurup was only in respect of the properties in the direct possession of the tarawad (i.e. the Trivandrum Branch) and that he had not included in the division the properties outstanding on mortgages. If the arrangement made by him was not a maintenance allotment but an outright partition the properties outstanding on mortgages would not have been left out of that arrangement. 10. In these circumstances we disbelieve the evidence of defendants 1 & 4. We accept the evidence of the plaintiff and his witnesses and hold that there was no partition in the Trivandrum Branch before the date of the present suit and that the four tavazhis in that branch have not become divided. The findings of the lower court on issues 1, 2,3 and 7 are therefore set aside and those issues are decided in the plaintiff's favour. We hold that the plaintiff and defendants 1 to 9 belong to a common undivided tarwad and that the plaintiff is entitled to get 1/10 of the properties which that tarwad (i. e. the Trivandrum Branch) got under Ext. B partition. We leave open the remaining contentions and issues in the case and remand the suit to the lower court with the direction that the suit should be disposed of afresh in the light of the findings we nave recorded above and after trying and deciding afresh the contentions and issues we have left open. 11. The appeal is allowed to the above extent, and the memoranda of objections filed by the defendants are also allowed to that extent and dismissed in other respects. Parties will bear their costs in both courts. Allowed.