Judgment :- 1. This appeal arises out of a suit for recovery of possession of property with past and future mesne profits. Defendant 9 is the appellant. The suit was brought by two plaintiffs who are father and son plaintiff 1, Kesavan Unnithan, being the father and plaintiff 2 the son Plaintiff 1 had an elder brother, Krishnan Unnithan by name, who died in Kumbhom 1121. Defendants 5 and 8 are Krishnan Unnithan's widows, and defendants 1 to 4, 6, 7 and 9 to 12 are his children. 2. Krishnan Unnithan and plaintiff 1 belonged to an ancient and aristocratic (Matampi) Nair family. The seat of their sub-tarwad house was Valiaveettii purayidom, a compound in Paravoor Pakuthy measuring 1 acre 50 cents and bearing survey No. 3177. In 1106 when these two brothers were the only surviving members of their tarwad, they executed a partition deed, Ex. A, whereby they divided most of their tarwad properties between them each brother taking the properties allotted to his share as his absolute and separate property, and also made certain provisions with respect to the remaining properties. Clause.7 of Ext. A related to Valiaveettil purayidom (Survey No. 3177). It was said in that clause that the said compound was in the joint possession and enjoyment of the two brothers and was not included in the schedules to Ex. A but Krishnan Unnithan had taken for enjoyment the eastern 71 cents in it and the building in the said 71 cents and plaintiff 1 had taken for enjoyment the western 79 cents in accordance with their joint rights and that in future also they would hold the compound as per that arrangement. The clause reads: The suit property is the plot of 71 cents in the eastern portion of Survey No. 3177 Valiaveettil purayidom, and the house mentioned therein in the above clause. Until Krishnan Unnithan's" death he was living in it, in pursuance of the above arrangement, with his wives and children, defendants 1 to 12. About five years after his death Kesavan Unnithan (plaintiff 1) and his son (plaintiff (2) brought the present suit for recovery of possession of the suit property from defendants 1 to 12. Defendants 13 to 18 are persons living in, or in occupation of portions of, the suit property under defendants 1 to 12. 3. According to the plaint allegations, although by Ex. Defendants 13 to 18 are persons living in, or in occupation of portions of, the suit property under defendants 1 to 12. 3. According to the plaint allegations, although by Ex. A Krishnan Unnithan and plaintiff 1 divided most of their tarwad properties and each of them took as his absolute and separate property the properties allotted to his share, it was not executed with the intention of severing their joint status or disrupting the jointness of their tarwad and even after its execution they continued to be joint in status and remained members of a joint tarwad. On account of their mutual love and affection they desired to continue the existence of their tarwad and remain members of it even after the execution of Ex. A, and so, they left the compound in which the tarwad house was situated, survey No. 3177, undivided to be held as their tarwad property. The arrangement made in Clause.7 of Ex. A was only an arrangement for convenient enjoyment of the undivided tarwad property by the two members of the tarwad and was not a partition so far as that property was concerned. On the death of Krishnan Unnithan in 1121, plaintiff I obtained by right of survivorship the whole of Valiaveettil purayidom including the suit property in which Krishnan Unnithan was living, as he was thereafter the only surviving member of the tarwad. He thus became the full owner of Valiaveettil purayidom with absolute powers of disposal over it, and on 20-2-1950 he assigned his rights in respect of it in favour of his son, plaintiff 2, by Ex. D. Being the widows and children of Krishnan Unnithan defendants I to 12 were allowed by plaintiff 1 to live in the suit property for some time even after Krishnan Unnithan's death. As they are not surrendering possession in spite of demands and have let the other defendants also into possession plaintiffs have been obliged to bring the suit. 4. Defendants 8, 9,11 and 15 to 17 contested the suit. But as defendant 9 alone has come up in appeal it is necessary to consider here the contentions of the other defendants. Defendant 9 denied the allegations in the plaint that Ex. 4. Defendants 8, 9,11 and 15 to 17 contested the suit. But as defendant 9 alone has come up in appeal it is necessary to consider here the contentions of the other defendants. Defendant 9 denied the allegations in the plaint that Ex. A was not executed with the intention of severing the joint status of the two brothers and disrupting the jointness of their tarwad and that they continued to be joint in status and remained members of a joint and undivided tarwad even after its execution. She contended that Valiaveettil purayidom also was partitioned by Clause.7 of Ext. 4 and Krishnan Unnithan had obtained the plot of 71 cents and the house therein as his absolute and separate property and the same had devolved after his death on defendants 1 to 12 as his heirs under the Nair Act and that defendants 1 to 8 and 10 to 12 had executed a release in her favour conveying to her all the rights they had in the suit property and she had thus become the full owner thereof. Alternatively, she contended that, even if Valiaveettil purayidom was not actually partitioned by Ex. A, the tarwad had become divided and the brothers had lost their joint status by the partition of their other properties by Ext. A and so, after that partition, they could only have been tenants-in-common in respect of the undivided property, Valiaveettil purayidom, and it could not be deemed to have been held by them as tarwad property. It was urged that in this view also the right which Krishnan Unnithan had got under Clause.7 of Ex. A in respect of Valiaveettil purayidom would have devolved on defendants 1 to 12 after his death and defendant 9 has obtained the whole of that right by the release executed in her favour by defendants 1 to 8 and 10 to 12. These were all the contentions of defendant 9 which were pressed by her counsel at the time of the hearing of the appeal in this court. 5. These were all the contentions of defendant 9 which were pressed by her counsel at the time of the hearing of the appeal in this court. 5. Taking the view that Krishnan Unnithan and plaintiff 1 had not obtained a status of division in respect of the plaint property and had continued to be members of an undivided tarwad so far as that property was concerned, the lower court repelled defendant 9's contentions and decreed the suit with some modifications regarding the claim for mesne profits and subject to the direction that defendants 12 to Hand 18 were at liberty to remove within a specified time certain structures put up by them. Defendant 9 has, therefore, filed this appeal. 6. It was contended by the appellant's counsel in this court that once a partition takes place in a marumakkathayam tarwad the jointness of the tarwad is disrupted and that thereafter the members of the tarwad would only be tenants-in-common of such properties as might have been left out of the partition for any reason. Stated as a rule of presumption liable to be rebutted there can be no exception to this proposition, but it cannot be accepted as an invariable rule of law. There is nothing in law to prevent the members of a marumakkathayam tarwad from executing a partition deed dividing only some of their tarwad properties and the allottees taking their shares as their separate properties, while, at the same time, providing for the continuance of the joint status of their tarwad and for holding the remaining properties as undivided tarwad properties. It is only by the adoption of the principles of Hindu Law that it has been held in cases arising under the marumakkathayam law also that property left out by mistake in division or purposely left in common would belong to the members of the tarwad as tenants-in¬common. In Lekshmi Pillai v. Parameswara Iyer (24 T.L.J. 80) it has been observed: "According to the principles of Hindu Law, where the co-parceners in a joint Hindu family come to partition and divide the joint property with the exception of a portion of it, they are, in the absence of indication to the contrary, tenants-in common with reference to the excepted property (see Dagadu Govind Sukhubai, ILR 47 Bom. 773). 773). As regards property left out by mistake in division, the rule of Hindu Law has been applied to marumakkathayam tarwads (see Kumaran v. Kali, 16 T. L. R.79, Nangeli v. Narayanan, 29 T. L. R.125). The application of divided status in relation to a property purposely left in common was recognised, so much so that if in this case there be nothing else, all the participants in Ex. D by virtue of that instrument could each take 1/5th interest in the plaint property subject to Raman's life estate". 7. The question whether a partition of some alone of the joint family properties can be made while preserving the joint status of the family and providing for continuing to hold the other properties as properties belonging to the joint family, has come up for consideration before the Privy Council in Ramalinga v. Narayana Annavi. AIR 1922 P. C. 201, and the Privy Council has said in that case: "It seems to their Lordships that in the debate before the Board the difference between a complete 'partition' in a joint undivided Hindu family and a partial division of interest in respect of some specific property or part of the joint properties has been overlooked. This distinction has been clearly pointed out in the judgment of Lord Westbury in the well-known case of Appovier v. Rama Subba Iyer, Madras (1866-11 M. I. A. 75) and although the passage has often been cited it is desirable to reproduce it here. But when the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severally, although the property itself has not been actually severed and divided'. It will be thus seen that, under the Hindu Law, it is open to the members of a joint family to make a division and a severance of interest in respect of a part of the joint estate whilst retaining their status as a joint family and holding the rest as the properties of a joint undivided family." The principles of Hindu Law on the subject of partial partition are stated as follows at page 433 of Mulla's Hindu Law, 11th edition: "It is open to the members of a joint family to make a division and severance of interest in respect of a part of the joint estate, while retaining their status as a joint family and holding the rest as the properties of a joint and undivided family. But where there is evidence to show that the parties intended to sever, then the joint family status is put an end to, and with regard to any portion of the property which remained undivided the presumption would be that the members of the family would hold it as tenants-in-common unless and until a special agreement to hold as joint tenants is proved. When a partition is admitted or proved, the presumption is that all the property was divided and a person alleging that family property, in the exclusive possession of one of the members after the partition, is joint and is liable to be partitioned, has to prove his case." These principles are, in our opinion, equally applicable to cases arising under the marumakkathayam law also. 8. Reliance was placed by the appellant's counsel on two cases of this court in support of his contention that when a partition has taken place in respect of some of the properties of a tarwad the joint status of the tarwad would be disrupted and that thereafter the members of the tarwad would hold as tenants-in¬common the properties not included in the partition. These cases are Velayudhan Nair v. Janaki (1957 K.L.T. 222) and Bhavani Pillai v. Ammukutti Pillai (1958 K.L.T. 869). But neither of these cases support the broad proposition contended for by the appellant's counsel. What has been held in 1957 K.L.T. 222 is that when once a marumakkathayam tarwad becomes divided there will be no tarwad on behalf of which a divided member can sue and after division it cannot continue to exist for some purposes. But neither of these cases support the broad proposition contended for by the appellant's counsel. What has been held in 1957 K.L.T. 222 is that when once a marumakkathayam tarwad becomes divided there will be no tarwad on behalf of which a divided member can sue and after division it cannot continue to exist for some purposes. In 1958 K.L.T. 869 also all that was held was that after the marumakkathayam tarwad has become divided there is no tarwad on behalf of which a divided member can sue. In both those cases there was an outright partition by the members of a tarwad which admittedly put an end to their joint status and after the partition one or some of the divided members brought a suit on behalf of the tarwad challenging the validity of an alienation made before the partition on the ground that it was not supported by necessity and tarwad consideration. One of the defences in both cases was that the suit was not maintainable on behalf of the tarwad since there was no tarwad after the execution of the partition deed. This contention was upheld in both cases. There was no occasion in either of them to consider the question whether a partition could be effected of some alone of the tarwad properties without disrupting the joint status of the tarwad and providing for continuing to hold the remaining properties as tarwad properties. As the principles of Hindu Law have been expressly recognised to be applicable to marumakkathayam tar-wads as regards property left out by mistake in division, the same principles can very well be applied to cases of partial partition also. As the principles of Hindu Law have been expressly recognised to be applicable to marumakkathayam tar-wads as regards property left out by mistake in division, the same principles can very well be applied to cases of partial partition also. It was urged by the appellant's counsel that when a partition has taken place in a tarwad dividing most of the tarwad properties it would be against the intention of the parties and introducing confusion if it was held that the joint status continued as regards the properties left out of the partition and that both principle and convenience require that a division should be enforced as regards the properties left out also; and in support of this contention he relied upon the passage from 16 T. L. R.79 quoted in 1957 K.L.T. 222 which reads as follows : "We think we should be acting against the intention of the parties and introducing confusion if we assume the fiction of an undivided tarwad merely because one item or even more of common property has been by mistake left out in the division. Both principle and convenience require that division should be enforced with regard to the property so discovered". That also was a case in which there was admittedly a disruption of the joint status of the tarwad and the property claimed as undivided tarwad property was one which was left out of the partition by oversight or omission. Therefore, to hold in that case that the joint status continued as regards the property left out of partition was to go directly against the intention of parties and introduce confusion. But in a case like the one which was before the Privy Council in A I R.1922 P. C. 201, where the intention of the parties was clear that the joint status of the family was to continue even after the partition of some of the family properties and the properties not included in the partition were to be continued to be held as joint properties, it cannot be said that by holding the partition to be a partition of only the properties actually divided thereunder and that the partition would not effect a severance of the joint status of the family, any violence would be done to the intention of the parties or confusion introduced. Where there is an express provision that the joint status of the tarwad should continue and properties not included in the partition should be continued to be held as tarwad properties, or where there is clear proof that such was the intention of the parties, the observations in 16 T. L. R.79 cannot apply, and in such cases effect has to be given to the provisions in the partition deed and the clear intention of the parties. 9. We, therefore, hold that it is open to the members of a marumakkathayam tarwad to effect a partition of some alone of their tarwad properties whilst retaining the jointness of their tarwad and their joint status as members of their tarwad and continuing to hold the remaining properties as tarwad properties. In such cases, if the provision for the continuance of the joint tarwad is not expressly made in the partition deed the ordinary presumption would be that joint status of the tarwad has also been disrupted and that thereafter the members of the tarwad would be entitled to the properties left out of the partition only as tenants-in-common. But this is only a rebuttable presumption, and if from the terms of the partition deed, the evidence adduced by the parties, and other circumstances of the case, it can be seen that the intention of the parties was to divide only some of the properties whilst retaining the joint-ness of the tarwad and their joint status as members of their tarwad, effect has to be given to that intention and the properties not included in the partition deed have to be held to be tarwad properties of the joint tarwad continuing even after the partition. It is in the light of these principles that the terms of Ext. A and the evidence adduced by the parties in this case have to be scanned. 10. At the time of hearing, both sides admitted before us that Survey No. 3177 was the seat of the sub¬tarwad house of Krishnan Unnithan and plaintiff 1; and that fact can also be seen from Ext. A itself wherein the house name of the two brothers is given as Valiaveettil Thazhathu Veedu. The fact that their family was an ancient and aristocratic one is also admitted by both sides and is further evidenced by their description as Matampi in Ext. A. 11. In Clause.1 to 3 of Ex. A itself wherein the house name of the two brothers is given as Valiaveettil Thazhathu Veedu. The fact that their family was an ancient and aristocratic one is also admitted by both sides and is further evidenced by their description as Matampi in Ext. A. 11. In Clause.1 to 3 of Ex. A it was said that the two executants thereof were uterine brothers, that the properties scheduled thereto were their tarwad and sub-tarwad properties and were in their possession, that they were the only surviving members of their tarwad, and that because of their desire (or with the intention) that their tie of affection should subsist throughout their lifetime they had not till then made any settlement in regard to the said properties. Translated into English Clause.4 of Ex. A reads as follows: - "This settlement deed (Utampadi) is being executed with the following conditions as it has been found necessary for the improvement of the properties to divide them into two equal halves without disrupting our unity (jointness)" (underlining ours). Clause.5 and 6 provide for the partition into two equal halves of the properties belonging to the tarwad and the sub-tarwad other than the properties dealt with in Clause.7 and the last clause of the partition deed and the grouping of the divided properties into two schedules, one for Krishnan Unnithan and the other for Kesavan Unnithan. In the last clause some properties are set apart as common properties for the performance of the Shradhas of some of the departed members of the tarwad and of the two executants after their deaths and the performance of certain other ceremonies. It is provided in that clause that during the lifetime of the executants they should take the yield of those properties and get the ceremonies performed and that after their lifetime the two sub-tarwads of their children should, either in common or separately, get the ceremonies performed and take the properties accordingly. Clause.7 deals with Survey No. 3177. Translated into English that clause reads:- "Survey No. 3177 of Paravoor Pakuthy, Valiaveettu Purayidom, which measures 1 acre 50 cents and is also called Elankathil, is in our joint possession and enjoyment and has not been included in the schedules. Clause.7 deals with Survey No. 3177. Translated into English that clause reads:- "Survey No. 3177 of Paravoor Pakuthy, Valiaveettu Purayidom, which measures 1 acre 50 cents and is also called Elankathil, is in our joint possession and enjoyment and has not been included in the schedules. That property has been divided into an eastern and a western plot and the eastern plot measuring 71 cents with the building in it and the western plot measuring 79 cents have been taken by executants 1 and 2 respectively for enjoyment of the joint rights which they have so far as that property is concerned and it will be enjoyed in the future also accordingly". 12. From the facts referred to in Para.10 above and the clauses in Ex. A it is obvious that Krishnan Unnithan and plaintiff 1 were never desirous of severing their joint status and getting separated from each other and that all that they wanted to do by executing Ex. A was to provide for the wife and children of any brother who might happen to pre-decease the other getting a fair share of the tarwad properties without disrupting their joint status and without putting an end to their ancient and aristocratic tarwad and the continuance of its name and traditions. The statement in Clause.3 that the two executants were the only surviving members of their tarwad and that because of their desire that their tie of affection should subsist throughout their lifetime they had not till then made any settlement in regard to the said properties, and the statement in Clause.4 that they were executing the Udampadi without disrupting their unity, are very significant in this connection. So also is the statement that the division of Survey No. 3177 into an eastern and western plot was for purposes of enjoyment in pursuance of their joint rights so far as that property was concerned. While clear provision has been made in the last clause for holding under a tenancy-in-common the properties which were set apart for the performance of the shradhas and other ceremonies, the provision made in Clause.7 with respect to the seat of the tarwad house is that the different portions are only to be enjoyed by the allottees thereof in pursuance of their joint rights. The reference to Ex. The reference to Ex. A itself in Clause.7 as a settlement deed (Udampady) and not as a partition deed (Bhaga Udampady) and the studied avoidance of the word partition (Bhagam) in that clause are also not without importance in the light of the different kinds of provision made in the document with respect to the tarwad properties, namely, some to be partitioned outright and each brother taking a share therein as his separate property as per the provisions of the Nair Act, some to be held under a tenancy-in-common, and the seat of the tarwad house to be held as joint property belonging to the tarwad, the allottee of each portion taking it only for enjoyment in accordance with the joint rights. Defendant 9 herself admitted in her cross-examination that her father, Krishnan Unnithan, had only a right of enjoyment in the eastern portion. The question put to her in cross-examination and her reply have been extracted in the lower court's judgment and read as follows: 13. The inference arising from the above clauses in Ex. A has not been negatived by any oral evidence adduced by the 9th defendant. We hold that Clause.7 of Ex. A has not effected an outright partition of Survey No. 3177 between Krishnan Unnithan and plaintiff 1 and that Ex. A has not also severed the joint status of their tarwad. We find that Ex. A was not executed with the intention of putting an end to the tarwad, that the intention of the executants of Ex. A was to heep alive and continue the tarwad even after the execution of that document, and that in accordance with the provisions of Ex. A the tarwad continued to exist even after the date of Ex. A till the time of Krishnan Unnithan's death with all the incidents of tarwad property attached to Valiaveettil purayidom which was expressly left out of the partition in order to be kept as joint property. 14. It follows that the suit was rightly dismissed by the lower court. The appeal is accordingly dismissed. 15. Plaintiff 2 has filed a memorandum of objections claiming the costs of the suit which have been denied to the plaintiffs by the lower court. 14. It follows that the suit was rightly dismissed by the lower court. The appeal is accordingly dismissed. 15. Plaintiff 2 has filed a memorandum of objections claiming the costs of the suit which have been denied to the plaintiffs by the lower court. Considering the near relationship of the parties and the fact that the suit arose purely because of the dispute about the construction of a partition deed between one of the executants of the document and the children of the other executant, we do not think that the lower court's refusal of the costs to the plaintiffs can be said to be a wrong exercise of the discretion which it had in the matter. The memorandum of objection also is therefore dismissed. 16. Parties will bear their costs in this court also Dismissed.