JUDGMENT G. Kumara Pillai, J. 1. This second appeal arises out of a suit for partition of a maru-makkathayam tarwad consisting of the plaintiff, defendants 1 to 48, 84 to 86 and 90. Defendant 1 is the present karnavan. One Kelappan Nambiar, who is now dead, was the karnavan before him, and defendant 80 is the widow of the said Kelappan Nambiar and defendants 49, 81 and 82 are his children by her. The other defendants in the suit were the wives and children of two other deceased members of the tarwad and persons who have obtained alienation of certain tarwad properties which are sought to be cancelled or avoided in the suit. As all the parties to the suit except defendants 49 and 80 to 82 have acquiesced in the preliminary decree for partition passed by the court of first instance and confirmed in appeal by the lower appellate court and defendants 49 and 80 to 82 alone have filed this second appeal, it will be enough to refer here only to the contentions of defendants 49 and 80 to 82. 2. Their contentions were two, namely, (1) that before his death Kelappan Nambiar had effected a severance of joint status and attained a Status of division from the other members of the tarwad by declaring his intention to get separated and he also was therefore entitled to get a share of the tarwad properties in partition and his rights had devolved after his death on defendants 49 and 80 to 82 and they were therefore entitled to get the share Kelappan Nambiar was entitled to, and (2) that they were entitled to a reservation of a special right in plaint B schedule items 4 and 47 on account of two leases, Exts. A 6 and All dated 26-10-1945 and 7-11-1945 respectively, executed by defendant 1, after he became the karnavan in favour of defendant 49. A 6 and All dated 26-10-1945 and 7-11-1945 respectively, executed by defendant 1, after he became the karnavan in favour of defendant 49. Both these contentions have been concurrently found against by the courts below; and after negativing them the court of first instance has passed preliminary decree for partition directing a division of the partiable properties into 52 shares and awarding one share each to the plaintiff and defendants 1 to 4, 18 shares to defendants 5 to 10, 18to 28 and 85 jointly 25 shares to defendants 11 to 16,29 to 45,84, 86 and 90 jointly, and 4 shares to defendants 17 and 46 to 48 jointly and the lower appellate court has confirmed that decree dismissing the appeal which defendants 49 and 80 to 82 filed as regards the rejection of their claims. The preliminary decree proceeds on the basis that defendant 90 who was bom subsequent to the institution of the suit has to be left out of account in reckoning the number of sharers. Against the dismissal of their appeal by the lower appellate court defendants 49 and 80 to 82 have filed the present second appeal. 3. Two circumstances were relied upon by the appellants in the lower court in support of their case that Kelappan Nambiar had attained divided status before his death. According to them, in 1937 another member of the tarwad, Raman Nambiar who also is now dead, claimed partition of his share and in consequence of that claim all the members of the tarwad including Kelappan Nambiar agreed to a partition and dw. 1 and another person were appointed as mediators for effecting the actual division of the properties by metes and bounds.This mediation, however, proved futile, and no partition was effected in pursuance of it. Again, in 1943, defendant 3 sent a notice to Kelappan Nambiar demanding partition, and to that notice Kelappan Nambiar sent a reply, Ext. B 13 dated 18-3-1943. In that reply notice also Kelappan Nambiar expressed his desire and readiness to effect a partition. These two circumstances were relied upon by the appellants in the courts below as evidencing an unequivocal declaration on the part of Kelappan Nambiar of his intention to become separate from his tarwad and as effecting a severance of his joint status. Dw. In that reply notice also Kelappan Nambiar expressed his desire and readiness to effect a partition. These two circumstances were relied upon by the appellants in the courts below as evidencing an unequivocal declaration on the part of Kelappan Nambiar of his intention to become separate from his tarwad and as effecting a severance of his joint status. Dw. 1 gave evidence in support of the appellants' case that the members of the tarwad had agreed to a partition in 1937 and appointed him and another person as mediators to effect the division. According to him, a schedule of properties was also actually drawn up during the course of the mediation in the hand writing of dw. 14 who is the husband of defendant 11 - Plaintiff and other members of the tarwad denied that there was any mediation as alleged by dw. 1, and dw. 14 also denied it and deposed that he had not drawn up any schedule. The first court disbelieved the evidence of dw. 1 on the grounds that being related to the husband of defendant 82 he was interested in the appellants and that there were several improbabilities in his evidence, and believing the evidence of dw. 14, it found that the alleged mediation "was nothing but a figment of imagination of dw. 1". Regarding the notice, Ext. B 13, the first court's finding was that it did not contain an unequivocal expression of Kelappan Nambiar's intention to get separated from the tarwad and that even if it was assumed that it contains such an expression the notice was insufficient to confer a divided status on him as it was addressed only to defendant 3 and not to the other members of the tarwad. Relying on the opinion of Viswanatha Sastri, J, in Katheesumma v Beechu (A. I. R. 1951 Mad. 561) which was referred to him in consequence of a difference of opinion between Sathyanarayana Rao and Pancha-pakesa Sastri, J J., who first heard that case, the lower appellate court held that to confer a divided status it was not necessary that the expression of the intention of the member making the unilateral declaration should be communicated to all the members of the tarwad, but on the questions whether there was an actual mediation and whether Ext. B 13 contained an unequivocal declaration of Kelappan Nambiar's intention to effect a severance of status it agreed with the findings of the first court. It is urged by the respondent's counsel that these findings relate to pure questions of fact and cannot be disturbed in second appeal. 4. From the judgment of the courts below it is clear that they have misconceived the case of defendants 49 and 80 to 82. No doubt, those defendants have referred to the mediation of 1937 by dw. 1 in their written statement, but their case is not that Kelappan Nambiar attained a divided status on account of the mediation but that the proceedings leading to the mediation evidence an unequivocal declaration on his part of his intention to effect a severance of status. Of course, if the case of mediation itself is absolutely false then the case that there were proceedings leading to a mediation and the said proceedings would evidence a declaration on the part of Kelappan Nambiar of his intention to become divided must be viewed with extreme suspicion. Although the finding that there was no mediation at all is a concurrent finding on a question of fact, I am unable to accept it as both the courts below arrived at that finding without considering a very important piece of evidence. The question whether there was a mediation or not in 1937 was considered by the Court of first instance in paragraphs 38 and 39 of its judgment, and the finding that the alleged mediation is "nothing but a figment of imagination of dw. 1" was recorded at the end of paragraph 39. In neither of those paragraphs has it considered Ext. B13 which, as I shall show presently, furnishes proof positive of the fact of mediation. All that the court of first instance has done in paragraphs 38 and 39 of its judgment is to discuss the evidence of Dws. 1 and 14 pointing out certain discrepancies in dw. 1's evidence and his relationship to the husband of defendant 82 and also the improbability appearing from his evidence of any one competent to represent all the members of the thavazhi of the mother of dw. 14's wife having agreed to the mediation. 1 and 14 pointing out certain discrepancies in dw. 1's evidence and his relationship to the husband of defendant 82 and also the improbability appearing from his evidence of any one competent to represent all the members of the thavazhi of the mother of dw. 14's wife having agreed to the mediation. The lower appellate court considered the question whether there was a mediation or not in paragraphs 5 and 6 of its judgment, and in the penultimate sentence of paragraph 5 that court recorded its finding : "I agree with the lower court in its conclusion that the alleged mediation is not true." In neither of those paragraphs also is there any reference to Ext. B13. As in the case of the court of first instance the lower appellate court also confined its attention to the evidence of Dws. 1 and 14 and the circumstances alleged to be appearing from their evidence in considering the question whether there was a mediation or not. Now, it is not disputed that Ext. B13 is the reply which Kelappan Nambiar sent to defendant 3 when he made a demand for partition in 1943. That reply concludes with a passage of which the following is a translation : "You know that for the purpose of partitioning our tarwad properties all the members of the tarwad including yourself had before now talked through mediators (or conferred through mediators)' and that I was agreeable to that course. Even now I am agreeable to that course." In the light of this statement in Ext. B13 it cannot be doubted that mediators were actually appointed in 1937 for effecting a division of the tarwad properties. It my be that the appointment of the mediators was not legal or binding on ail the members of the tarwad in the sense that some of them had not agreed to the appointment or that the person or persons who purported to make the agreement on behalf of the thavazhi of dw. 14's mother-in-law had no authority or competency to make the agreement on behalf of all the members of that thavazhi. 14's mother-in-law had no authority or competency to make the agreement on behalf of all the members of that thavazhi. That there was an actual appointment of mediators, whether valid or not, for effecting the partition and that the said appointment was made by at least the majority of the members of the tarwad including the deceased Kelappan Nambiar and defendant 3, however, admits of no doubt in view of the passage in Ext. B13 extracted above. If in considering the evidence relating to the fact of mediation the lower courts had only adverted to this passage in Ext. B13 they could not but have come to a different conclusion so far as the fact of the appointment of the mediators was concerned, although it is quite possible that they might still have held that the appointment, though a fact, was not valid as it had not been agreed to by all the members. On the question as to whether mediators were in fact appointed and they had done some work at least in pursuance of their appointment I have absolutely no doubt in view of Ext. B13, and in view of that notice, I also consider that the courts below were wrong in totally disbelieving the evidence of dw. 1. 5. Now, the question for decision in this case is not whether the mediation as such was legal and binding on all the members of the tarwad and whether the mediation has brought about a severance in status but whether the proceedings leading to the appointment of the mediators evidence a, declaration on the part of Kelappan Nambiar to effect a severance of the joint status and become divided from the other members of his tarwad. Since Kelappan Nambiar was agreeable to a partition of the entire tarwad including himself and he had also participated in the appointment of the mediators who were appointed "for the purposes of partitioning our tarwad properties", the irresistible inference from the appointment of the mediators is that by participating in the appointment and agreeing to the partition he had made it plain to the other members of the tarwad that he wanted to effect a severance of his joint status and become divided from them. As has been stated at page 551 of Mayne's Hindu Law, 1953 Edition, the intention to separate may be evidenced in different ways, either by explicit declaration or by conduct, the result being the same in either case, and if the inference is derived from conduct it will be for the court to decide whether it was unequivocal and explicit. The participation in the appointment of mediators to effect a partition is itself the result of an intention to get divided and undoubtedly amounts to a declaration of that intention. I am, therefore, satisfied, and I find, that the proceedings leading to, and resulting in, the appointment of the mediators in 1937 constituted an unequivocal declaration on the part of Kelappan Nambiar to effect a severance of his joint status and become divided from the other members of his tarwad. 6. There is no substance in the contention of the respondents' learned counsel that the findings of the courts below regarding this matter are concurrent. What the courts below have considered is only whether there was an actual mediation and even in considering that question they have omitted to advert to the most important piece of evidence in the case which is a document admitted to be genuine by all the parties. A finding arrived at without considering material evidence which was on record cannot be accepted as a valid finding, and the question whether there has been omission to consider material evidence is not a question of fact but a question of law. 7. As has been stated already in paragraph 3 above, the case of defendants 49 and 80 to 82 regarding Kelappan Nambiar's severance of status was two-fold. They contended firstly that Kelappan Nambiar had effected a severance of status by the declaration of his intention to become divided evidenced by the proceedings leading to the mediation in 1937 and secondly that, even if those proceedings did not constitute a severance of status, Ext. B13 would effect a severance of status. In dealing with the second contention the courts below have considered Ext. B13, but they dealt with the two questions separately, in water-tight compartments as it were, and the passage extracted in paragraph 4 above was not referred to at all in connection with the consideration of the first question. B13 would effect a severance of status. In dealing with the second contention the courts below have considered Ext. B13, but they dealt with the two questions separately, in water-tight compartments as it were, and the passage extracted in paragraph 4 above was not referred to at all in connection with the consideration of the first question. So far as the second question was concerned, both the courts below took the view that Ext. B13 does not contain an unequivocal declaration and amounts at the most only to a sub-mission of a demand for partition by another member of the tarwad. In my view Ext. B13 referred to above contains an unequivocal declaration of Kelappan Nambiar's intention to become divided. No doubt, the demand for partition did not come in the first instance from Kelappan Nambiar, and it came in the first instance from another member, and both at the time of the mediation and in Ext. B13 Kelappan Nambiar was only submitting to the demand by another member. But in submitting to the demand for partition by the other member, he was not submitting to a proposal to effect the partition of the other member's share alone but agreeing to a general partition of the shares of all the members including the share of himself, and that agreement was therefore an unequivocal declaration of his intention to become divided from the other members of the tarwad. Therefore, even though the proposal for partition did not originally come from Kelappan Nambiar and he only submitted to a proposal made by another member for partition, since what he submitted to was a general partition of the shares of all the members including himself and not merely a partition of the share of the members who made the proposal, I have no hesitation in holding that Ext. Bl3 constitutes a second declaration on the part of Kelappan Nambiar to effect a severance in status from the other members of the tarwad. 8. It was contended by the respondents' counsel that subsequent to 1937 and even subsequent to Ext. Bl3 constitutes a second declaration on the part of Kelappan Nambiar to effect a severance in status from the other members of the tarwad. 8. It was contended by the respondents' counsel that subsequent to 1937 and even subsequent to Ext. B13 Kelappan Nambiar had executed some documents in respect of tarwad properties describing himself as the karnavan and manager of the tarwad and that his conduct in executing those documents would show that there was no intention on his part to get divided from the tarwad either at the time of the appointment of the mediators or at the time of Ext. B13. In an exactly similar case, Balakrishnan v Ramakrishnan (ILR 53 All. 300), wherein the question arose whether the conduct of a kartha of a joint family in describing himself as kartha of the family and acting as such in transactions connected with the family business after a clear and unequivocal declaration of his intention to become separated would nullify the effect of that declaration or show that there was no real intention to separate, the Privy Council has held that such conduct would in no way affect the legal consequences of the declaration or show that there was no real intention to separate. Their Lordships have observed in that case : "The separation of 1907 (i.e., when the intimation of the intention to separate was given) was only a separation in interest; there was no separation in full or apparently in worship; there was no actual division of assets, and the subsequent conduct of the parties may well be ascribed to Lal Man's (the person who made the declaration and who was the kartha) position in the family and his continuing interest in its property and affairs". These observations apply with equal force in the present case. At the time of the separation of interest in this case also there was no actual division of the properties and some one had to be in possession of and manage the properties until they were actually divided and each sharer was given actual possession of his share. In those circumstances, it was only natural and proper for the karnavan to continue to be in possession of the properties and manage them until the actual division by metes and bounds. Therefore the execution of documents by Kelappan Nambiar subsequent to 1937 and subsequent to Ext. In those circumstances, it was only natural and proper for the karnavan to continue to be in possession of the properties and manage them until the actual division by metes and bounds. Therefore the execution of documents by Kelappan Nambiar subsequent to 1937 and subsequent to Ext. B13 describing himself as the karnavan and manager of the tarwad does cot in any manner affect the legal consequences of the declaration of Kelappan Nambiar's intention to divide evidenced by the appointment of mediators in 1937 by himself and other members of the tarwad. 9. It was also contended on behalf of the respondents that the declaration in Ext. B13 was insufficient in as much as it was communicated only to defendant 3 and not to the other members of the tarwad. In this connection, the appellant's counsel relied upon the opinion of Viswanatha Sastri, J., in Katheesumma v Beechu ( AIR 1951 Mad. 561 ) that such a communication to all the members of the family is not essential nor its absence fatal to a severance in status. The respondents' counsel urges that this opinion was contrary to the prior decisions of the Madras High Court and contends that without communication to all members of the tarwad or at least to the heads of the different thavazhis, the declaration on the part of the karnavan of his unilateral intention is insufficient to effect a severance of status. I do not consider it necessary to go into this question in this case, for, the declaration evidenced by the proceedings leading to the mediation was the first declaration in this case of Kelappan Nambiar's intention to become divided from the other members of the tarwad and it is plain from the circumstances of this case and Ext. B13 that all the members of the tarwad must have been aware of that declaration. 10. For the reasons stated above, I hold that Kelappan Nambiar had become divided from the members of his tarwad before his death and was entitled to get a share of the tarwad properties in partition and that the said share has devolved on defendants 49 and 80 to 82 after his death and they are entitled to get in this suit the share he was entitled to. It follows that the properties found to be partible by the lower courts have to be divided into fifty-three shares and not into fifty-two as has been directed by the present preliminary decree and that the partition should be effected on the basis that the deceased Kelappan Nambiar and the plaintiff and defendants 1 to 48 and 84 to 86 were each entitled to a share, the share of Kelappan Nambiar being awarded to defendants 49 and 80 to 82, plaintiff and defendants 1 to 4 being awarded separate shares, defendants 5 to 10, 18 to 28 and 85 being awarded 18 shares jointly, defendants 11 to 16, 29 to 45, 84, 86 and 90 being awarded 25 shares jointly, and defendants 17 and 46 to 48 being awarded 4 shares jointly. 11. The appellants' counsel attacked the findings of the courts below in respect of Ext. A6 and A11 also. The finding of the courts below that they are not supported by consideration and necessity binding on the members of the tarwad and are improvident transactions is a finding on facts and nothing has been made out before me for justifying an interference with the concurrent finding on that question of fact. The appellant's counsel also prayed that the properties comprised in Exts. A6 and All might be allotted to the share of defendants 49 and 80 to 82 if the value of those properties was equal to or less than the value of the share they were entitled to get. This is purely an equitable relief and I can see no harm in allowing it. In view of this, I consider that the most equitable course to adopt so far as mesne profits are concerned would be to deny mesne profits to defendants 49 and 80 to 82 for the share that is now being allowed to them and also to make them not liable to the members of the tarwad for the mesne profits in respect of the properties comprised in Ext. A6 and A11. 12. A6 and A11. 12. In the result, the preliminary decree passed by the court of first instance is modified to the following extent, namely, that (i) the properties found to be partible are to be divided into fifty-three shares and out of them one share each is directed to be allotted to the plaintiff and defendants 1 to 4, eighteen shares to defendants 5 to 10, 18 to 28 and 85 jointly, twenty-five shares to defendants 11 to 16, 29 to 45, 84 86 and 90 jointly, four shares to defendants 17 and 46 to 48 jointly, and one share to defendants 49 and 80 to 82 jointly which share will be taken by defendants 49 and 80 to 82 as tenants-in-common; (ii) as far as possible the properties comprised in Exts. A6 and A11 will be allotted to the share set apart for defendants 49 and 80 to 82; (iii) defendants 49 and 80 to 82 will have no claim for mesne profits in respect of the share awarded to them and shall also be not liable for the mesne profits of the properties comprised in Exts. A6 and A11 ; and (iv) defendants 49 and 80 to 82 will also get their costs from the estate. The second appeal is allowed to the above extent and dismissed in other respects. The appellants will get their costs in this court and in the lower appellate court also from the estate and the respondents will bear their costs in both these courts.