Lakshmi Amma v. Sreedevi Amma — 1957 DIGILAW 352 (KER)

JUDGMENT C.A. Vaidialingam, J. 1. This is an appeal by defendants 40 to 43 against the decree and judgment of the learned Subordinate Judge, North Malabar at Tellicherry, granting a decree for partition and separate possession to the plaintiffs in OS 102/49. 2. The main question that arose in the suit and that which arises also in this appeal, is as to the nature of the document dated 5-1-1927, Ext. B1. According to the plaintiffs, it was only a maintenance arrangement; while according to the contesting defendants, the said document evidences a complete partition in the main Thavazhi and that the plaintiffs cannot be granted any further relief in the suit. 3. There is a geneological tree given in paragraph 26 of the judgment of the lower court which gives very useful information as to the relationship of the several executants of the document Ext. B1 and also among the several parties to the suit. One Kunhathi Amma had 4 children, 2 sons and 2 daughters. Kannan Nambiar, executant No. 1 in the document was the eldest son and the 1st defendant in the suit who was executant No. 2 was the youngest. She had also 2 daughters, Sreedevi Amma who was the 8th executant of the document and Unnanga Amma who appears to have died much earlier. 4. The plaintiffs, as also defendants 1 to 69 and 73 and 74 are the descendants of the said Kunhathi Amma who formed a separate Tavazhi in the main Tarwad, called Pazhavathil Mavila Pathazhapura Veedu. This Tavazhi is also called Vadakke Pathazhapura Tavazhi. Unnanga Amma, the 2nd daughter and 3rd child of Kunhathi Amma, as stated earlier, was already dead and she left her descendants Kunhikannan Nambiar, 3rd defendant, 40th defendant and her children defendants 41 to 43. The daughter of Unnanga Amma, Lakshmi Amma who is the 40th defendant, and her three children defendants 41 to 43 are the appellants in this appeal. The 40th defendant and her brother, the 3rd defendant, J and defendants 41 and 42 were also parties to Ext. B1. The 40th defendant along with her two brothers and her children formed one group. Sreedevi Amma and her descendants among whom are the plaintiffs, formed the other group. 5. The array of parties, as mentioned already, is very clearly shown in the geneology referred to above. 6. B1. The 40th defendant along with her two brothers and her children formed one group. Sreedevi Amma and her descendants among whom are the plaintiffs, formed the other group. 5. The array of parties, as mentioned already, is very clearly shown in the geneology referred to above. 6. There is no dispute that these two groups were separate in mess and residence for sometime. It is also common ground that Kannan Nambiar and the 1st defendant, the brothers of Sreedevi Amma and Unnanga Amma, acquired properties by their own efforts and with the assistance of the two sisters. The Tavazhi also recognised the right of Kannan Nambiar to be its karnavan, at any rate, till the date of Ext. B1. On 5-1-1927 38 members of this Tavazhi, including several minors represented by their respective guardians executed a document called. The details of the said document, and the several clauses therein will be dealt with at the appropriate places later in this judgment. The main Tavazhi had two sub Tavazhis. The 1st sub Tavazhi was composed of executants 4, 6 to 11, 13 to 27, and 30 to 38. The 2nd Sub Tavazhi was composed of executants 3, 5, 12, 28 and 29. Kannan Nambiar, the then karnavan, and the 1st defendant herein were executants Nos. 1 and 2 respectively of the said document. 7. The plaintiffs who are 14 in number, are the granddaughter and great grant children of Sreedevi Amma, the eldest daughter of Kunhathi Amma, and who was executant No. 8 in Ext. B1. Plaintiffs 1 to 4 were also executants Nos. 14 and 34 to 36 respectively in Ext. B1. The mothers of plaintiffs 7 to 10 and 11 to 13 were also executants Nos. 32 and 33 respectively in Ext. B1. 8. The case of the plaintiffs was, that they and defendants 1 to 69 are the entire members of the Tavazhi known as Mavila Pathazhapura Tavazhi constituted by the children and descendants of the original ancestress Kunhathi Amma, also known as Vadakke Pathazhapura Tavazhi. It is their case that the immovable properties shown in the Schedule B to the plaint and the movable properties shown in Schedule C belong exclusively to the said main Tavazhi. It is their case that the immovable properties shown in the Schedule B to the plaint and the movable properties shown in Schedule C belong exclusively to the said main Tavazhi. After asserting certain rights in respect of certain properties exclusively owned by the plaintiffs' sub Tavazhi, the plaint proceeds to state that on 5th January 1927 a settlement deed was executed by all the then members of the Mavila Pathazhapura Tavazhi in the nature of a maintenance arrangement for the convenient enjoyment of the properties in view of the fact that Kannan Nambiar who was the then Karnavan of the Tavazhi was unable to manage all the properties due to old age. 9. After giving some particulars about the nature of the maintenance arrangements incorporated in the said settlement deed, the plaint further proceeds to state that as it was only a maintenance arrangement that was contemplated and actually carried into effect, the said document cannot constitute or effect an out and out partition as between the several parties to the same. According to the plaintiffs, defendants 1, 2 and 3 are doing improvident acts against the interests of the Tavazhi and acting also detrimental to its interest and as such, they made a demand upon the 1st defendant and defendants 2 and 3 who are the managers of Tavazhis No. 1 and 2 for partition and separate allotment of the properties to them and that has not been complied with. The plaintiffs themselves claim to constitute a Tavazhi entitled to claim partition under the marumakkathayam system of law. They pray for partition of the plaint B and C Schedule properties into 83 equal shares, and for allotment of 14 shares to them together with mesne profits. They also state that some of the gift deeds and the other transactions entered into by some of these defendants are not binding on the plaintiffs. Such of those defendants who formed the sub Tavazhi represented by Sreedevi Amma supported the plaintiffs' case; whereas the other defendants representing Unnanga Amma's sub Tavazhi contested the claim of the plaintiffs. The appellants and the other such contesting defendants, pleaded that the document dated 5-1-'27 is not a maintenance arrangement pure and simple but effected a division in status among the two sub Tavazhis represented by Sreedevi Amma and Unnanga Amma. The appellants and the other such contesting defendants, pleaded that the document dated 5-1-'27 is not a maintenance arrangement pure and simple but effected a division in status among the two sub Tavazhis represented by Sreedevi Amma and Unnanga Amma. Among the appellants, defendants 40 and 41 filed a joint written statement and defendants 42 and 43 filed separate written statements. But they all set up the same plea as to the nature of the suit document, Ext. B1. They all contended that the properties had been already partitioned on the basis of the shares mentioned in Ext. B1, and that the parties have been conducting themselves accordingly ever since the date of that document. They also took some special pleas regarding certain individual items. In the end they all disputed the right of the plaintiff to reopen the whole arrangement and prayed for the dismissal of their suit for partition and separate possession. 10. At this stage, it is desirable to have a general idea of the document Ext. B1. The particular clauses on which the plaintiffs and the contesting defendants rely upon in support of their contentions one way or other, will be dealt with in greater detail later on. 11. The document starts by describing itself as a there are 38 executants to the document including several minors represented by their respective guardians. After reciting that all the parties formed one Tavazhi in the Mavila Pathazhapura Veedu, it states that the said Tavazhi consists of 2 sub Tavazhis represented by executants Nos. 4, 6 to 11, 13 to 27 and 30 to 38 forming one sub Tavazhi and executants Nos. 3, 5, 12, 28 and 29 forming the second sub- Tavazhi. It further states that executants Nos. 1 and 2 are the brothers of the 8th executant and they are the Karnavans of the remaining executants. 12. Clause 2 refers to the 1st executant leaving the main Tarwad in about 1874-1875 and taking up separate residence along with his mother and brothers and sisters. The 1st and 2nd executants along with the active help and assistance of their brothers and sisters have improved the properties in their possession and acquired also fresh properties and all the said properties have been treated as exclusively belonging to their Tavazhi. 13. Clause 3 gives the necessity for the execution of Ext. B1. The 1st and 2nd executants along with the active help and assistance of their brothers and sisters have improved the properties in their possession and acquired also fresh properties and all the said properties have been treated as exclusively belonging to their Tavazhi. 13. Clause 3 gives the necessity for the execution of Ext. B1. It refers to the oldage of Kannan Nambiar, the 1st executant, and says that it is the wish of everybody that they should all prosper and progress more and more without any dispute regarding the properties and that it has been considered necessary to execute a and in furtherance of this desire this document is executed. 14. Clause 4 states that all the immovable properties belonging to the Tavazhi have been listed as Schedules A and B, and excluding those moveables which are already used separately by the two Thavazhis, the remaining movables are grouped under schedule C in the said document. 15. Clause 5 refers to the nature of the items in Schedules A and B. 16. Clause 6 makes provision for the enjoyment of certain items by the 1st and 2nd executants during their life-time and to appropriate the annual income for their. It further provides that the 3rd and 4th executants as head of the 2nd and 1st Tavazhis respectively shall be in possession on behalf of the said Tavazhis of the remaining properties in the B and A Schedules and after paying the Government assessment etc., they are to meet of the Tavazhis having due regard to the income accrued. The said clause also makes some provisions as to the devolution of the properties after the death of the 1st and 2nd executants and it finally says that the managers of the respective Tavazhis shall hold in undisputed possession these properties along with other properties, and after meeting the assessment etc., shall use the balance income towards the protection and upkeep of the Tavazhis. 17. Clause 7 makes provision for the payment of the assessments on the properties. 17. Clause 7 makes provision for the payment of the assessments on the properties. It further states that on the death of the 2nd executant, the persons who are in possession of the respective properties are to pay the assessments on the properties and that if any person does not pay the assessment and thereby causes loss to any other person, then such defaulter shall always be liable for all those losses both personally and by their properties. 18. Clause 8 refers to some properties being held jointly by this Tavazhi and another Tarwad. 19. Clause 9 refers to the improvement effected to a house in Thak No. 4 of item No. 8 of A schedule by executants 1 and 2 and the members of the 1st Tavazhi being given right to reside therein. Similarly, the members of the 2nd Tavazhi are giving a right to reside in the house and tenants constructed by the 3rd executant in Thak No. 1 of item 4 of B schedule. Executants 1 and 2 are given a right to reside with any of the Tavazhis they like. 20. Clause 10 makes provision for the celebration of the Kalivatta festival and also states that the Swajana Sangom festival shall be celebrated by both Tavazhis together. 21. Clause 11 states that the assessment Jama in respect of Jenmam properties shall be in the names of the 1st, 2nd, 3rd and 4th executants in succession one after the other, during their life-time, and after that in the name of the then seniormost member in both the Tavazhis. 22. Clause 12 states that when the Tavazhi gets separately the properties in which other parties are also jointly interested then in such properties 2/3rd share shall be given to the 1st Tavazhi and 1/3rd to the 2nd Tavazhi. 23. Clause 13 provides for equal rights in both the Tavazhis in the tank in certain items. 24. Clause 14 provides for the distribution of the Kanom amount on the various items. 25. Clause 15 states that the Tavazhi has no doubts so far. It also states: xxx xxx xxx It further states that if any of the members of the Tavazhi either individually or by a majority borrow any debt, then such bebt shall be binding only on those persons and their self acquired properties. 25. Clause 15 states that the Tavazhi has no doubts so far. It also states: xxx xxx xxx It further states that if any of the members of the Tavazhi either individually or by a majority borrow any debt, then such bebt shall be binding only on those persons and their self acquired properties. Apart from this, no other debts shall be binding either on the remaining members of the Tavazhi or on the Tavazhi properties or their income. It also provides for the contingency of some members not wilfully joining in the borrowing of a debt which is necessary and essential for the purpose of the Tavazhi. 26. Clause 16 further provides that in the case of Kanom, Kuzhikanom Chamayams to be recovered by eviction, executants 1 and 2 during their lifetime, and the managers of the respective Tavazhis, should jointly recover the same and the property so obtained shall be added to the properties mentioned in the schedule and they are also to be held and enjoyed as per the stipulations in Ext. B1. 27. Clause 17 provides for the obsequies of the 1st and 2nd executants and for the ultimate enjoyment of the properties by the 4th executant of those properties. 28. Clause 18 deals with the movable properties mentioned in the C Schedule. It states that those properties shall in the C schedule. It states that those properties shall be in the possession and safe custody of executants 2, 3 and 4 during their lifetime and thereafter in the possession and safe custody of the seniormost male member at the respective times of both the Tavazhis and a right is given to the members of both the Tavazhis to use them whenever necessary. It also provides for the person who creates any difficulties in the matter of such user being liable for the loss sustained by the others thereby. 29. Clause 19 deals with certain self acquisitions of the 3rd defendant and of the other parties and affirms their individual rights in respect of such properties. Ultimately it also says that if any properties belonging jointly to the two sub Tavazhis are found to have been omitted from the arrangement covered by this document, such properties are to belong to both the Tavazhis in equal right. 30. Ultimately it also says that if any properties belonging jointly to the two sub Tavazhis are found to have been omitted from the arrangement covered by this document, such properties are to belong to both the Tavazhis in equal right. 30. Clause 20 provides for devolutions in equal shares regarding some of the items of executants 1 and 2 and for the devolution of the rest of the items on the two Tavazhis in the proportion of 2/3rd and 1/3rd. 31. Clause 21 provides for the management of the properties belonging to these Tavazhis by the seniormost male member of the said Tavazhi who may succeed executants 3 and 4. 32. Clause 22 refers to the disappearance of one Narayanan Nambiar the younger brother of the sixth executant and it also says that excluding him all the other members of the Tavazhi have joined in the document. 33. Clause 23 runs as follows : xxx xxx xxx� 34. Clause 24 provides for the custody of the documents in respect of the properties covered by Schedules A, B and C to be in the possession of the 2nd executant during his lifetime. After his death it provides for the custody of some of the documents to be with the 3rd executant and some others in thecustody of the 4th executant and each party is given a right to look into the documents in the possession of the other and further makes liable for losses any party who is in default. 35. The above recital exhaust the several clauses in Ext. B1. 36. The learned Subordinate Judge has gone into every one of these clauses and come to the conclusion that the dominant intention in the mind of the parties was only to make a maintenance arrangement by virtue of Ext. B1 and not to bring about an out and out partition. After giving certain other incidental directions, the learned Judge granted a decree in favour of the plaintiffs for partition in respect of such of those items in the three schedules as were held to be Tavazhi properties. 37. Mr. K. Kuttikrishna Menon, learned counsel for the appellants, very strenously contended that the construction placed upon the document by the learned Judge is not correct. He contended that the document is nothing but a deed of partition and not a maintenance arrangement, pure and simple. 37. Mr. K. Kuttikrishna Menon, learned counsel for the appellants, very strenously contended that the construction placed upon the document by the learned Judge is not correct. He contended that the document is nothing but a deed of partition and not a maintenance arrangement, pure and simple. He relied upon certain clauses in particular in support of his contentions. 38. On the other hand Mr. V. P. Gopalan Nambiar, learned counsel for the plaintiffs respondents very vehemently supported the reasoning of the Trial Court and contended that Ext. B1 is only in the nature of a maintenance arrangement. In his turn, he also relied upon certain clauses in the document in support of his contention. 39. Before dealing with the several clauses relied upon by both the learned counsel and their contentions based on those clauses, it is desirable to state at the outset some of the established principles in construing documents similar to the one before us. 40. After all, the document has to be construed by the court by the terms of the language expressed in the said document. To quote a decision of a Full Bench of the Travancore High Court reported in Achuthan v. Mathevan (23 TLJ 1031 at 1034) "It may not be profitable to rely upon other documents which themselves ambiguous in their nature, had become the subject matter of judicial decisions, though the legal principles enunciated in such pronouncements may be of utility for purposes of guidance. However that be, the intention of the parties to a document must be gathered from the words therein employed and when such words are definite and unambiguous the courts should not travel outside the words." It has also been held "the nomenclature of a document may not by itself afford a safe or decisive indication as to whether the arrangement under it is an outright partition or is only a maintenance allotment; for a proper construction of the document all the provisions in it must be read as a whole and the intention of the parties to the document has to be gathered primarily from the document itself ; where the expressions used in the document are definite and unambiguous and are such as would clearly indicate the intentions of the parties, court should not travel outside such expressions in construing that document" see the judgment of Mr. Justice Sankaran, in Krishnan v. Narayanan AIR 1952 Travancore - Cochin 227 at p. 281. It has also been held "the true juristic nature of a transaction evidenced by a document, was to be determined not by the name given in the document, but by the intention of the parties as gathered from its various provisions. To use the language of the decision itself the true nature of a document was to be determined not by the name given to it, but by the operative and substantial portions thereof" see the judgment of Mr. Justice Koshi (as he then was) in Krishnan v. Narayanan (AIR 1952 Travancore - Cochin 227 at 284). In the said decision, there was a difference of opinion between Mr. Justice Sankaran and Mr. Justice Govinda Pillai regarding the construction of the document before them. Mr. Justice Sankaran held that the suit document there was a deed of partition while on the other hand Mr. Justice Govinda Pillai held that the document evidenced only a maintenance arrangement. On such difference of opinion, the matter came before the third learned Judge, Mr. Justice Koshi (as he then was) and the learned Judge agreed with the view of Mr. Justice Sankaran. Both the learned Judges lay down certain principles from decided cases for construing such documents and with respect, I entirely agree with those observations. Again Mr. Justice Somayya of the Madras High Court in Ammalu Amma v. Vasu Menon ( AIR 1944 Mad. 108 at 109) observes as follows: "A few principles have been laid down by all the decisions and they may be referred to The first is that the whole document must be read and construed. The Courts must have regard to the declared object of the document which is often contained in the preamble, whether the arrangement was brought about to ensure the maintenance of the members or to bring about a division. Ordinarily, maintenance arrangements are revokable and are not, except in some extraordinary cases, permanent ............... Where a document is styled a partition deed or a deed of maintenance, and the other terms of the document are not inconsistent with treating the document as such, the Court will not hesitate to construe it in that way. In other cases, all the clauses will have to be read together and the real intention of the parties has to be gathered." 41. In other cases, all the clauses will have to be read together and the real intention of the parties has to be gathered." 41. It may also be stated that Mr. K. Kuttikrishna Menon attacks this judgment of Mr. Justice Somayya. In that case, the nature of the document that the learned Judge had to deal with was or a deed of family management". The learned Judge after considering the several clauses held that the document before him was only a maintenance arrangement. Similarly, it may also be stated that in Achuthan v. Mathevan (23 TLJ 1031 at 1034 F. B.) the learned Judges of the Full Bench had to consider the nature of a document styled as and the learned Judges held that the employment of the nomenclature is a consideration in favour of the view that the document is a maintenance allotment and not a partition. 42. Reference may also be made to a recent Bench decision of Mr. Justice Govinda Menon and Mr. Justice Ramaswami of the Madras High Court reported in Kaveri v. Ganga Ratna 1956 (I) MLJ 98 . Though they were dealing with a document executed by an Aliyasanthana family, the learned Judges have laid down certain essential features of a partition document and those of a maintenance arrangement. As the learned Judges say, each document has to be construed on its own merits and not with reference to how similar documents were interpreted or construed under different conditions. The learned Judges have also considered the judgment of Mr. Justice Somayya referred to above and observed that the main foundations of the learned Judge's conclusion were the provisions of the deed in question before him. The learned Judges lay down one crucial test to find out the nature of the document and that is as follows : "The real point, therefore, was whether by that document, community of interest has been extinguished". 43. I may also refer to a decision of a division Bench of the Travancore High Court reported in Karthyayani v. Lekshmi 22 TLJ 1272. The learned Judges had to construe a document called a the learned Judges observe: "The construction of family arrangements called made by members of Marumakkathayam Tarwads presents many difficulties. 43. I may also refer to a decision of a division Bench of the Travancore High Court reported in Karthyayani v. Lekshmi 22 TLJ 1272. The learned Judges had to construe a document called a the learned Judges observe: "The construction of family arrangements called made by members of Marumakkathayam Tarwads presents many difficulties. The provisions of these documents are so varied and dissimilar that no general canon or rule of construction can he laid down applicable to all or to a majority of them". But the learned Judges, after considering the several clauses in the said came to the conclusion that there was a complete severance as between the Tavazhis to whom the properties were allotted and the learned Judges held: "These provisions, in our opinion, effect a complete severance of interest between the several Tavazhis." It will be noted that the emphasis is laid about the document effecting a complete severance of interest between the several Tavazhis. It is not necessary further to multiply instances of documents interpreted in various ways by the courts. Bearing in mind the essential principles that follow from the tests indicated above, we shall consider the nature of Ext. B1. 44. Mr. Kuttikrishna Menon relied very strongly on clauses 4, 6, 9, 17 and 18 of the document in support of his contention of an absolute division and partition between the two sub Tavazhis. Clause 4 states that all the immovable properties belonging to the Tavazhi have been listed in schedules A and B and the remaining movable properties have been listed in Schedule C. According to learned counsel, the entire properties both movable and immovable have been brought within the ambit of the document. Clause 6 makes provision for the maintenance of the 1st and 2nd. executants and for the devolution of the properties subsequent to their death. It also states that the heads of the 1st and 2nd Tavazhis shall have the rest of the properties in their possession and after meeting the Government assessment etc., they shall meet the daily expenses of the respective Tavazhi and it makes also certain other provisions for the upkeep of the Tavazhis by the managers of the two sub Tavazhis. According to Mr. Kuttikrishna Menon, this clause covers the entire immovable properties excepting the houses which are dealt with under clause 9. According to Mr. Kuttikrishna Menon, this clause covers the entire immovable properties excepting the houses which are dealt with under clause 9. Clause 9 deals with the house and the provision for residence of the members of the two Tavazhis. Clause 17 makes provision for the devolution of the properties in the possession of the 1st and 2nd defendants after their death. Clause 18 refers to the C schedule properties to be commonly enjoyed by both the Tavazhis. Mr. Kuttikrishna Menon contends that these movable articles are such that no individual member or group of members would find any daily use and as such, they have been kept in common for use by all the members of the Tavazhi on important occasions. 45. He also relies upon the meticulous provision made in clause 14 about the distribution of the Kanom liability regarding the several properties. Reliance is also placed about the use of the expression XpeymhImiambv in clause 13. Clause 19 has also been relied upon to show that any items not covered by the document and subsequently found to exceed shall belong to both the Tavazhis in equal rights. He also relied upon clause 12 dealing with properties owned by the Tavazhi and third parties, clause 24 providing for custody of documents, clause 16 providing for future properties and clause 23. Very strong reliance has been placed on clause 23 as indicating an unalterable and permanent arrangement which could not be altered at all; and in this connection, the learned counsel relied very strongly on the decision in Krishnan v. Narayanan (AIR 1952 Travancore - Cochin 277) especially the judgment of the third Judge, Mr. Justice Koshi (as he then was). He also relied upon the Travancore decisions quoted therein to the effect that permanency of allotment is a very strong indication in favour of holding a document to be a deed of partition. 46. The decision of Mr. Justice Koshi (as he then was) agreeing with the judgment of Mr. Justice Sankaran, has already been referred to and quoted with approval. But, in our view, the document has to be read as a whole and not in a piece-meal manner. Individual clauses may incline the court to come to a particular conclusion. But what is necessary is a conclusion to be arrived at on reading the document as a whole. Mr. But, in our view, the document has to be read as a whole and not in a piece-meal manner. Individual clauses may incline the court to come to a particular conclusion. But what is necessary is a conclusion to be arrived at on reading the document as a whole. Mr. Kuttikrishna Menon has also relied upon the circumstance that all the then available members of the family Tavazhi including minors are parties to the document and every available property has been brought into transaction. He also contended that if it is only a maintenance allotment, it must have been arranged in such a manner as to have a reasonable proportion to the number of members comprised in the two Tavazhis. The first group consisted of 31 and the second group then consisted of 5 members and separate provision was made for the 1st defendant and Kannan Nambiar. 47. The learned counsel further relied upon the decision of the Madras High Court in Appa v. Kochai Bayyan Kutti AIR 1932 Mad. 639. That was a decision of Mr. Justice Jackson and Mr. Justice Anantakrishna Ayyar interpreting a Karar entered into by the members of a Marumakkathayam family. The learned Judges, construing the particular clause in that document came to the conclusion that it was a deed of partition. We have absolutely no quarrel with the principles laid down by the learned Judges and the decision arrived at by them regarding the particular document. But, we do not see how that decision in any way will help the contentions of Mr. Kuttikrishna Menon. 48. The learned counsel relied upon also the execution by the members of the 2nd Tavazhi on Ext. B71 on 3-9-1943. This is a deed of partition of the members of the family belonging to the branch of the 3rd executant of the document. This is relied upon for the purpose of showing that the subsequent conduct of the parties clearly show that they understood Ext. B1 as a deed of partition. In our view, we cannot call in aid the execution of Ext. B71 to construe the real nature of Ext. B1. 49. Mr. V. P. Gopalan Nambiar, learned counsel for the plaintiffs respondents, relies on clauses 6, 10, 11, 15, 18 and 23. B1 as a deed of partition. In our view, we cannot call in aid the execution of Ext. B71 to construe the real nature of Ext. B1. 49. Mr. V. P. Gopalan Nambiar, learned counsel for the plaintiffs respondents, relies on clauses 6, 10, 11, 15, 18 and 23. He places very great reliance upon the name given to the documents as he contends that the parties know very well the distinctions in law between the two expressions. Though no doubt as laid down by the decisions referred above, the nomenclature of the document by itself is not conclusive, still the decisions in Achuthan v. Mathevan 23 TLJ 1031 (F.B.) and Appa v. Kachai Bayyan Kutti AIR 1932 Mad. 689 clearly lay down that undoubtedly it is also a circumstance to be taken into consideration along with the recitals in the document. Clause 6 of the document provides for keeping of the properties by the managers of the respective Tavazhis. The expressions used are and these expressions are repeated number of times in the said clause. He also relies upon this clause to show that there are no words of disposition of the corpus in favour of the different sub Tavazhis. Reliance is also placed on the fact that a life estate is given two individuals namely, the 1st and 2nd executants for purpose of their maintenance. 50. Clause 10 provides for the celebration by both the Thavazhis together of the Swajana Sangam festival. Clause 11 deals with the Jama assessment being in the name of the 1st defendant, then the 2nd defendant, then the 3rd defendant and so on and ultimately in the name of the then seniormost member in both the Tavazhis. Clause 15 is relied upon very strongly to show that each Tavazhi still retains its interest over the properties taken by the other Tavazhi. It also provides a restriction on alienations of the properties except under very limited circumstances. He also places strong reliance on the provision made in clause 18 for the C schedule movables to, be kept jointly for their common use. Clause 23, according to Mr. V. P. G. Nambiar has to be construed as making it obligatory on the part of the parties to the document to comply with the several rights and liabilities imposed by the other clauses in the document. Clause 23, according to Mr. V. P. G. Nambiar has to be construed as making it obligatory on the part of the parties to the document to comply with the several rights and liabilities imposed by the other clauses in the document. He also points out the provision for an equal distribution of properties, which may be found to be omitted, as per clause 19, in contrast to the provision for division into 2/3 and 1/3 as provided in clause 20 of the remaining properties. 51. He also very strongly relies upon the omission to make any arrangements for the 5th defendant and for the 6th defendant who was admittedly alive at the time of Ext. B1. 52. He also relies upon the decision of Mr. Justice Govinda Menon and Mr. Justice Ramaswami reported in Kaveri v. Ganga Retna 1956 (1) MLJ 98 regarding the clauses relied upon by him as being against the construction of the document as a partition deed. After listening to the very elaborate arguments of both the learned counsel, we have ourselves also very carefully gone through the several clauses in the document and we have come to the conclusion that Ext. B 1 is not a deed of partition, but only a maintenance arrangement entered into by the members of the Thavazhi. 53. We are free to admit that the document is a fairly difficult one to construe, but keeping in mind the several tests laid down by the various decisions referred to above, we are of the opinion that the dominant intention of the parties was not to effect a partition but only to make a maintenance arrangement. There is much to be said in favour of the argument of Mr. V. P. Gopalan Nambiar about I the name given to the document as we are not able to find from the document any indication to show that community of interest between the two Sub-thavazhis was intended to be extinguished and was so extinguished by Ext. B1. 54. The very significant expressions used in clause 6 as coupled with the absence of any words of disposition of the corpus in favour of the different Thavazhis is, in our view, a very strong indication that the parties did not mean to have a partition or a division in status. B1. 54. The very significant expressions used in clause 6 as coupled with the absence of any words of disposition of the corpus in favour of the different Thavazhis is, in our view, a very strong indication that the parties did not mean to have a partition or a division in status. The whole clause gives us an impression that the dominant intention of the parties was to provide for the maintenance of the 1st and 2nd executants and also to provide for the maintenance arrangement of the members of the two sub Thavazhis If really partition was intended, it would not have been necessary to make a provision that the expenses of the respective Thavazhis are to be done in accordance with the income. If properties are allotted and there is a partition, it will not be the concern of anybody as to the manner the expenses are being met with by the persons to whom the properties have been given. This idea of meeting the expenses is expressed several times in the said clause and it also winds up by saying that the managers of the respective Thavazhis shall have the properties in their possession and after incurring the cultivation and assessment expenses utilise the balance income towards the upkeep of the Thavazhis. 55. Again clause 7 which provides for payment of assessment states that if any persons do not pay the assessment and thereby cause loss to any other person, then such defaulters shall always be liable for all these losses both personally and by their properties. It is not known as to why such a provision should be made if really there has been.an actual partition of the properties. After partition the parties in possession of the properties are bound to pay the assessment due on the properties alloted to them and if not paid, they take the consequence of their act. This clause given us an impression that every member of the whole Thavazhi seem to be interested in the ultimate upkeep of the properties in the possession of every other party to the document and this is only consistent with an arrangement under which all the parties do not loose their interest in the other properties. In other words, though technically and for convenience the properties are put into possession of the two branches, they are still considered to be Thavazhi properties as such. In other words, though technically and for convenience the properties are put into possession of the two branches, they are still considered to be Thavazhi properties as such. 56. Clause 11 which deals with Jama assessment, provides ultimately that they are to stand in the name of the then seniormost member in both the Thavazhis after the death of the executants 1 to 4. This would not be the case if there has been a partition, in such case, the Jama assessment would be in the names of the Karnavan for the time being of the different sub Thavazhis. This again is an indication that the family of the parties is considered a single unit. Again the provisions contained in clause 15 are very significant. It provides that the Thavazhis are to meet their daily and special expenses from the income derived from the properties and by their own efforts and that they shall not borrow even a single pie towards such expenses. Provision is also made for the contingency, as and when it arises, for an urgent borrowing either on the security of the property or the usufruct. In such a case it is provided that the debt shall be borrowed by the 1st and 2nd executants and after their death by all the male members of both the Thavazhis together by executing a document. The said clause makes certain other provisions. But the most important provision is the one extracted above to the effect that a borrowing can be only by all the male members of both the Thavazhis. This would certainly not be the case if really there had been a partition between the two sub Thavazhis. This again shows that all the members of the two Thavazhis are equally interested in the preservation of the properties that have been given in the possession of the two sub Thavazhis for purpose of convenience. Though possession is given, the title to the properties is still retained by the Thavazhi as such. This again is an indication that Ext. B1 cannot be a partition document. 57. Then again clause 16 provides for the Kanom purchases to be added on to the schedule properties and they to be held in accordance with the terms in Ext. B1. 58. This again is an indication that Ext. B1 cannot be a partition document. 57. Then again clause 16 provides for the Kanom purchases to be added on to the schedule properties and they to be held in accordance with the terms in Ext. B1. 58. Clause 18 by itself may not be very significant, either way, because we are satisfied that the items comprised therein are such that no individual member or group of individuals would like to own them as part of their share. 59. That there could not have been a partition but only a sort of rough and ready arrangement for maintenance is again clear by the provisions as to devolution made in clause 19 and 20. Clause 19 speaks of devolution in equal rights whereas clause 20 speaks of a devolution of 2/3 and 1/3rd share. If there was a partition, then it must be on a uniform basis not only as regards properties that were in existence but also regarding properties which are found to be left out or which are obtained by the Thavazhis in future. Clause 21, again, by making provision for the management in the two different Thavazhis, leads to the conclusion that the whole family is still a single unit evincing interest in a proper management of the other sub Thavazhi. 60. Clause 23 cannot be cut up and read separately without having regard to the other provisions in the document. If so read, clause 23 is quite consistent with the other clauses as indicating a maintenance arrangement only. In fact, clause 3 itself gives the object of executing the and the intention there also expressed is that they should prosper and progress more and more without any dispute regarding the properties and it also says that in view of the unanimous desire of all the members, has been executed. Clause 23 is only a repetition of the ideas contained in clause 3. When the whole object running through the document is clear, namely, to provide maintenance arrangement only as between the several branches of the Thavazhi, it is very difficult to read clause 23 as indicating something different from what has been stated in the previous clauses of Ext. B1. When the whole object running through the document is clear, namely, to provide maintenance arrangement only as between the several branches of the Thavazhi, it is very difficult to read clause 23 as indicating something different from what has been stated in the previous clauses of Ext. B1. Read consistently with the other clauses, this clause 23 is quite clear and expresses the hope and desire of the executants as indicated already in the other portions of the document. 61. The arguments of Mr. K. Kuttikrishna Menon based upon the rulings of the Travancore - Cochin decisions referred to in Krishnan v. Narayanan (AIR 1952 Travancore - Cochin 277) that the idea of permanency in a document is indicative of its being a partition document, and relying for such an intention of permanency on clause 23,cannot be accepted. Clause 23 cannot be read separately and all by itself. It does not, when taken along with the other clauses indicate any intention of effecting a partition. In any event, the utmost that could be said about that clause is that there is a fond hope expressed by the executants that the arrangement entered into by them will continue for ever in the same manner as they wished. 62. As the document has to be construed only by the language and expressions used therein, no amount of oral evidence can throw any light about the intention of the parties about the nature of the document. In this view, we are not discussing the evidence of the 1st defendant who was also the 2nd executant of Ext. B1. 63. We are in entire agreement with the conclusions arrived at by the learned Subordinate Judge and we hold that Ext. B1 is not a deed of partition but is only a maintenance arrangement and as such, the decreeing of the plaintiffs' suit for partition by the lower court was quite correct. 64. Mr. K. Kuttikrishna Menon raised a further contention that, in any event, the house comprised in item 4 of plaint B schedule should be reserved and allotted to the 2nd sub Thavazhi. This is raised on the basis that the said house was erected at a considerable cost extending to about Rs. 15,000/- by the Karnavan of the 2nd sub Thavazhi, Kunhikannan Nambiar. This is raised on the basis that the said house was erected at a considerable cost extending to about Rs. 15,000/- by the Karnavan of the 2nd sub Thavazhi, Kunhikannan Nambiar. This was also sought to be supported by the evidence of the 1st defendant who was the 2nd executant in Ext. B1. Kunhikannan Nambiar himself was a party to Ext. B1 being the 3rd executant therein and clause 9 specifically stated that the 2nd executant (1st defendant here) shall pay to the said Kunhikannan Nambiar a sum of Rs. 1,500/-towards the expenses incurred by the 3rd executant in constructing the said house and tenements. Therefore, it is clear that even on the date of Ext. B1 the house has been existing and whatever amount was spent by Kunhikannan Nambiar has been amply provided for and directed to be paid by the present 1st defendant. There is no direct evidence that any improvements were effected to the said property after the date of Ext. B1. Even if Kunhikannan Nambiar had spent these large amounts as now pleaded, that will not avail the members of the 2nd Thavazhi because all these have been taken into account at the time of Ext. B1 and Kunhikannan Nambiar himself did not lay any further claims regarding that property. Therefore it is not possible for us to make any special reservation regarding this house. In fact, clause 9 itself provides for several equities to be worked out as between the present 1st defendant and Kunhikannan Nambiar. Therefore, it follows that the finding of the learned Judge on this point is confirmed. 65. In the result, the decree and judgment of the learned Subordinate Judge are confirmed and this appeal is dismissed with costs of the plaintiffs respondents. 66. As far as possible properties in possession of respective branches, will not be disturbed in the allotment to be made so that the improvements effected by either branch will not be lost to them.