Judgment :- 1. This second appeal arises from a suit for partition of a Nair tarwad. The main question for decision is whether the two branches of the tarwad become divided by course of conduct. The courts below have held that they, have become divided and the plaintiff was given a decree for partition only in respect of the properties obtained by his branch under Ext. A of the year 1064. The plaintiff has therefore preferred this second appeal. 2. In 1064 the tarwad consisted of the descendants of two sisters, Kunjipennu and Pappi. The descendants of the former are referred to as Kodakkattu branch and those of the latter as Kanjirakkattu branch. Their brother Madhavan Narayanan was the karnavan at that time. They executed a deed Ext. A on 23-11-1064 which according to the plaintiff was only a maintenance arrangement while the defendants contended that the same was an outright partition. The defence case on this paint was concurrently found against by the courts below, and on the construction of Ext. A no other conclusion is possible. The defendants had a further contention that even if Ext. A was only a maintenance arrangement, the two branches had become divided by course of conduct. The concurrent finding of the courts below on this point is against the plaintiff, and that is the question arising for decision now. 3. The plaintiff and defendants 1 to 36 are members of Kodakkattu branch and defendants 37 to 45, of Kanjirakkattu branch. The other defendants are persons in possession of the property. On 2-4-1107 Kanjirakkattu branch entered into a partition deed. Ext. K dividing the properties obtained by that branch under Ext. A. Kodakkattu branch also executed a deed Ext. XXVIII on 16-4-1094 but this is only a maintenance arrangement and not a deed of partition. It may also be mentioned that Kodakkattu branch has not alienated any property allotted to them under Ext. A unlike the Kanjirakkattu branch which alienated properties both before and after the date of Ext. A. The alienations after the date of Ext. A are also sought to be set aside in this suit. 4. Before considering the evidence relied on by the courts below it may be observed that Kodakkattu branch was not a party to any of the alienations made by the Kanjirakkattu branch. The documents relied on by the courts below are Exts. A are also sought to be set aside in this suit. 4. Before considering the evidence relied on by the courts below it may be observed that Kodakkattu branch was not a party to any of the alienations made by the Kanjirakkattu branch. The documents relied on by the courts below are Exts. AA, G and H, Ext. AA is the assignment of a mortgage right executed by Pappi Amma on 32-11-1067. The tarwad had obtained a property on usufructuary mortgage and this was allotted under Ext. A to Pappi Amma's branch which was directed to discharge certain debts including a simple mortgage debt charged on the usufructuary mortgage right. The creditor to whom money was due under the simple mortgage was Pappi Amma's husband. Ext. AA states that Pappi Amma discharged the debt and obtained a release. It was after obtaining such release that Pappi Amma assigned the mortgage right under Ext. AA. The deed of assignment was attested by the karnavan Madhavan Narayanan and Pappi Amma's son Kunjan Neelakantan. Ext. AA shows that Pappi Amma's attitude was that she had special rights on the property as the simple mortgage debt was discharged by her. This is evident from the fact that under Marumakkathayam Law it was her son and not Pappi Amma who should have assigned the mortgage right even if the same had belonged solely to that branch, as he was the karnavan of that branch. He figured in Ext. AA only as an attestor. 5. The next document is a mortgage deed Ext. G executed by defendants 37 and 38 on 26-3-1096. Defendants 37 and 38 gave their separate property also as security. It is seen that defendants 37 and 38 set up special rights on the property on the strength of the release obtained by them of a debt charged on the property. Ext. H is the deed of sale by which the equity of redemption of the property included in Ext. G was sold by defendants 37 and 38 on 29-1-1100. 6. Kanjirakkattu Branch contended that the above alienations were not questioned by the other branch and that such passive conduct evidenced their acquiescence from which a divided status of the two branches should be inferred. There is nothing to show that Kodakattu branch was aware of these transactions. G was sold by defendants 37 and 38 on 29-1-1100. 6. Kanjirakkattu Branch contended that the above alienations were not questioned by the other branch and that such passive conduct evidenced their acquiescence from which a divided status of the two branches should be inferred. There is nothing to show that Kodakattu branch was aware of these transactions. On the other hand there is evidence to show that Kanjirakkattu branch did not obtain separate patta for the properties allotted to them under Ext. A. At the time of the Revenue Settlement in the State when pattas were issued or at any time thereafter they did not claim mutation of names in revenue records. They were also paying tax on the properties in the common name of the tarwad. Such conduct is inconsistent with a case of divided status. 7. The question has to be decided in the light of decided cases on the point. Before considering the same it may be observed that partition by course of conduct is based on the consent of the dividing branches, such consent being inferred from transactions which show that the branches agreed to become divided. In Kavarial D'costa v. Kochu Pillai [28 T. L. J. 59] it was held that separate enjoyment of property or separate payment of tax by different branches of a marumakkathayam tarwad will not perse be sufficient to lead to the conclusion that the branches intended to remain separate in interest from each other & that there should be some definite act or transaction on the part of the representatives of the different branches which would indicate beyond doubt their settled intention to conduct themselves as members of divided branches. In Mathevan v. Damodaran (29 T.L.J. 1304) it was held that a unilateral transaction by one branch alone would not suffice to establish a divided status and that in order that the transaction may sustain the inference of division it must have been participated in by all the branches or recognised heads thereof or must have been approved of by the other branches. The Travancore-Cochin High Court also adopted the same view in Janardhanan Plappalli v. Janardhanan Plappalli [1952 KLT. 668). I had occasion to consider this question in Kunjuraman v. Kunjamma [1957 KLT. 694) and I followed the following dictum in Kumaran Nadar v. Kesavan (1954 9 DLR. The Travancore-Cochin High Court also adopted the same view in Janardhanan Plappalli v. Janardhanan Plappalli [1952 KLT. 668). I had occasion to consider this question in Kunjuraman v. Kunjamma [1957 KLT. 694) and I followed the following dictum in Kumaran Nadar v. Kesavan (1954 9 DLR. T. C. 112): "The mere execution of documents by such individual members asserting their right to their separate shares in the tarwad properties will not result in a legal and valid division of the tarwad properties or in the several members attaining a divided status, even if such assertion is made by the vast majority of the members of the tarwad" There is yet another decision of the Kerala High Court, Neelakanta Kurup v. Sivarama Kurup (1958 KLT. 99) to which I was a party. It was held: "In the absence of clear proof of a partition the presumption is that a marumakkathayam tarwad remains joint. The partition may be by written instrument or orally or by long course of conduct. But there must be evidence to show that the parties had intended to put an end to the joint ownership and corporal character of the tarwad, and so long as there is no proof of such an intention, it is not permissible to hold that the tarwad has become divided, merely because some members are residing in separate houses or holding tarwad properties separately or even paying tax separately. Since tax is ordinarily paid by the person in enjoyment of the property mere separate payment of the tax cannot be taken as evidence of a partition". Judged in the light of these decisions it is clear that the evidence adduced by the contesting defendants is not sufficient to establish division of the tarwad. Although the finding of the courts below on this question is concurrent, such finding being based on inference contrary to the position established by a series of decisions, interference is called for in second appeal. It must be held that it is not possible to infer a status of division on the evidence adduced by the contesting defendants as there is nothing except the execution of the three documents by one branch in support of the plea of division. It must be held that it is not possible to infer a status of division on the evidence adduced by the contesting defendants as there is nothing except the execution of the three documents by one branch in support of the plea of division. I may in this connection refer to O.S. No. 69 of 1092 of the Alleppey District court, a suit instituted by the two branches together to set aside a gift deed executed by the karnavan Madhavan Narayanan. Ext. B is the judgment in that case. A copy of the plaint in that suit is not available but the fact that the two branches jointly filed the suit is not without significance. The concurrent finding on this point must therefore be set aside. 8. Another point raised by the appellant is that the courts below erred in holing that survey No. 143/9A and B was the separate property of the 34th defendant. The plaintiff's case is that this part of item No. 8. The plaintiff relies on the boundaries in the deed under which item 8 was acquired. The question whether a plot of land lies within or without the boundaries described in a deed is a question of fact. The courts below have considered the evidence on this point and arrived at a finding adverse to the plaintiff. I do not feel justified in interfering with the same, even if it be possible to come to a different conclusion on the point. 9. In view of the finding that Ext. A was only a maintenance arrangement the alienations made by defendants 37 to 45 are not binding on the tarwad and the same must be set aside. 10. The finding on the 11th issue relating to the special rights claimed by the branch of defendants 37 to 45 on account of debts discharged is also questioned by the appellant. The issue was in these terms: "Whether the branch of defendants 37 to 45 has discharged any debts of the tarwad? If so, what relief is the branch entitled to?" The court below found that the question was immaterial in view of the finding that the two branches had become divided. It was also observed that in case the finding on the question of division was not upheld, the branch of defendants 37 to 45 would be entitled to a charge for obtaining the release Ext. XLII. It was also observed that in case the finding on the question of division was not upheld, the branch of defendants 37 to 45 would be entitled to a charge for obtaining the release Ext. XLII. I have already held that the plea of division of the tarwad cannot be upheld, and so the question becomes relevant. Ext. A was a maintenance arrangement under which the branch of Pappi Amma, i. e, defendants 37 to 45, was burdened with the discharge of some debts. There is no provision in Ext. A that the branch would be entitled to any special right on account of this. However it is conceded that the debt discharged was one binding on the tarwad and it is equitable to give credit to the branch of defendants 37 to 45 for the amount paid under Ext. XLII. Funds belonging to the tarwad came into their hands by the assignment of a mortgage right under Ext. AA. They have to account for the same and the two amounts can be set off against each other. 11. The last point urged on behalf of the appellant was that defendants 21, 34, 35 and 36 had surrendered their rights to the plaintiff and members of his branch and that such shares as those defendants were entitled to should be allotted to the plaintiff's branch. This is a question which can properly be considered in a separate suit filed for that purpose, and it is therefore left open. 12. No other point arises in this second appeal. 13. In the result, I set aside the concurrent decrees of the courts below and pass a preliminary decree in the following terms: (i) It is declared that the plaintiff is entitled to 1/46 share in the suit properties other than survey No. 143/9A and B; defendants 1 to 36 are entitled to 36/46 share and defendants 37 to 45 to 9/46 share. (ii) The branch of defendants 37 to 45 is made liab for the amount under Ext. A A and they will get the amount paid under Ext. XLII; the two amounts are allowed to be set off and provision will be made for this in the final decree. (iii) The alienations made by defendants 37 to 45 referred to in the plaint will stand set aside. (iv) The question of mesne profits is left for decision by the final decree. XLII; the two amounts are allowed to be set off and provision will be made for this in the final decree. (iii) The alienations made by defendants 37 to 45 referred to in the plaint will stand set aside. (iv) The question of mesne profits is left for decision by the final decree. (v) Plaintiff will recover costs incurred hitherto from the 36th defendant and the share of defendants 17 to 45 and costs hereafter incurred will be provided for in the final decree The second appeal is allowed as indicated above. The trial court will expedite the final disposal of the suit.