Judgment :- 1. The following genealogical table will be helpful in understanding this case. Table:#1 2. The two plaintiffs and defendants 1 to 56, Eazhavas governed by Travancore Act 3 of 1100 are admittedly descendants in the female line of Aratha who heads this table, and, at the time of the suit, the 1st defendant (since dead) was the seniormost male member of this group. The question is whether when the suit was brought, these persons were members of an undivided joint family as claimed by the plaintiffs who asked for partition and separate possession of their 2/58th share of the 12 items of property in suit, or whether, as contended by the contesting defendants (defendants 1 to 13 and 15 to 39) they had divided long ago into the two branches of the two daughters of Aratha, Kali and Parvathi, each branch being in separate enjoyment of its half share in the properties. The first court found that there was no such division as set up by the defendants. But the lower appellate court found otherwise, and it remanded the suit to the first court for the purpose of effecting a partition within Parvathi's branch giving the plaintiffs their share in the half share of that branch. The plaintiffs have come up in second appeal. 3. Admittedly there was no partition deed; nor did the contesting defendants set up a specific case of an oral partition. They depended on a long course of conduct to prove the division set up by them, and it is to be remarked that even this division, as is clear from the evidence, is not a division of the property by metes and bounds, but only a severance of status as between the two branches resulting in each branch getting an undivided half share in the properties enjoyed in udukur. (The courts below have referred to the partition set up by the contesting defendants as partition by long course of conduct, phraseology not adopted by the defendants themselves who, in their written statements, spoke only of a division from along time ago. And although there would appear to be a number of decisions beginning from Authitchan Easwaran v. Easwaran Narayanan (24 T.L.R. 187) which speak of partition by long course of conduct I would prefer to call it a partition proved by long course of conduct. And although there would appear to be a number of decisions beginning from Authitchan Easwaran v. Easwaran Narayanan (24 T.L.R. 187) which speak of partition by long course of conduct I would prefer to call it a partition proved by long course of conduct. The disruption of a Marumakkathayam family (before the statutes giving a right of partition to individual members or groups of members) could only be effected by a consensus of intention, in other words by agreement express or implied, and it is this consensus of intention, which may be inferred from a long course of conduct, and not the course of conduct that effects the severance. Where division is proved by a long course of conduct as, something which can be inferred from that conduct, it seems to me that the division must be regarded as having taken place some time prior to the commencement of the course of conduct and not at the close of the course of conduct which would be the case if it had been the conduct that effected the division). 4. The defendants relied upon a number of documents in proof of the long course of conduct set up by them. I shall deal with them in chronological order. The first Ext. XIV dated 13-7-1064 M. E. (23-2-1889 A.D.) is an Otti executed by Palpan Madan and Mathi, both of Kali's branch, in favour of a stranger. The property comprised in this Otti was an undivided half of items 1 and 11 of the Suit properties. By Ext. XII dated 30-7-1066 M.E. (12-3-1891 A.D.) there was an assignment of this mortgage and by Ext. XIII dated 14-10-1084 M.E. (27-5-1909 A.D.) the assignee mortgagee released the property in favour of the 1st defendant who is of Kali's branch. By Ext. X of the same date the 1st defendant had executed a simple mortgage over the same property in order to raise the money necessary for the redemption. Ext. XVI dated 4-8-1085 M.E. (17-3-1910 A.D.) is a release deed in respect of a possessory mortgage of 1061 M.E. (1885-1886) and puravaipa of 1062 M.E. (1856-1887 A.D.) over item 3. The mortgagee was the sister-in-law of the 1st defendant and the release was in favour of Chakki of Kali's branch and Devayani (mother of the plaintiffs) and her sister's daughter Chinna of Parvathi's branch. The mortgagee was the sister-in-law of the 1st defendant and the release was in favour of Chakki of Kali's branch and Devayani (mother of the plaintiffs) and her sister's daughter Chinna of Parvathi's branch. This deed recites that Chakki of Kali's branch on the one hand and Devayani and Chinna of Parvathi's branch on the other, paid the mortgage money in separate halves to obtain redemption. Ext. XI dated 11-4-1091 M.E. (26-11-1915 A.D.) is an Otti by the 1st defendant, of Kali's branch, in favour of his own wife, of an undivided half of items 1 and 11. Ext. XV dated 25-6-1091 M.E. (7-2-1916 A.D.) shows that the plaintiffs' mother obtained from their father a surrender of a lease granted by Parvathi over an undivided half of items 1, 2, 4, 5, 6, 8,10 and 11. Ext. IV dated 21-8-1103 M. E. (3-4-1928 A.D.) is the decree in O.S. 1023 of 1103 obtained by a jenmi for arrears of michavarom in respect of property which is not among the suit properties against member of both the branches, defendants 1, 2, 9 and 13 and Kochu of Kali's branches and the 1st plaintiff and defendants 15 and 30 "of Parvathi's branch. The decree shows that the suit was first decreed ex parte, as against all the defendants therein but that on an application by the present 1st defendant alone the ex parte decree was set aside and a fresh decree passed, still ex parte so far as the others were concerned, apportioning the michavaram in two equal shares as between the defendants therein belonging to Kali's branch and those belonging to Parvathi's branch without however affecting the right of the landlord to recover the michavaram from the entire property. Ext. IX dated 4-7-1106 M E. (16-12-1931 A.D.) is a chitty hypothecation bond executed by the 1st defendant (joined by his Son who was the chitty subscriber over an undivided 1/3rd of one half of item 6 of the suit properties. Ext: VI dated 3-4-1120 M.E. (18-11-1944 A.D.) is an Otti by defendants 2,3 and 13 of Kali's branch of an undivided 2/3rd of one half of item 1,1/3rd as belonging to defendants 2 and 3 and the remaining 1/3rd as belonging to the 13th defendant. Ext. VII dated 22 4-1120 M.E.(7-12-1944 A.D.) is an Otti by the 1st defendant of an undivided 1/3rd of one half of item 1 and Ext. Ext. VII dated 22 4-1120 M.E.(7-12-1944 A.D.) is an Otti by the 1st defendant of an undivided 1/3rd of one half of item 1 and Ext. V dated 5-12-1120 M.E. (20-7-1945 A.D.) is a partition deed between the 1st Defendant and others of Kali's branch, the subject matter of the partition deed being an undivided one half of all the suit items. 5. One remarkable feature is that none of these documents refers to any division as having taken place between the two branches and all that they show is that the members of Kali's branch leaving out of account for the time being Exts. IV, XV and XVI) either jointly or severally or in groups purported to deal with an undivided half of the suit properties or fractions of such a half. To none of these documents is any member of Parvathi's branch a party; nor has it been brought out in evidence that the members of that branch were all aware of the transactions or that possession at any time passed to strangers under any of them so as to put the members of that branch on notice. With regard to earlier transactions it would appear that the members of Kali's branch who effected them were the senior members of the family so that the transactions might well have been on behalf of the whole family; and the later transactions, Exts. IX, VI and VII, show that members of Kali's branch were dealing with fractional shares of an undivided one half in certain items of property even before the partition in that branch under Ext. V, in other words at a time when they were joint. The dealings by the members of Kali's branch do not therefore seem inconsistent with the two branches being joint in status. Ext. XVI at best serves to show that the two branches paid the mortgage money in separate moieties, a circumstance not necessarily inconsistent with joint status, but, what is significant with regard to it is that it has not been shown that Devayani and Chinna, who are the members of Parvathi's branch named in that document had anything to do with it. The document was in their favour, but it was resented for registration only by Chakki of Kali's branch. The document was in their favour, but it was resented for registration only by Chakki of Kali's branch. There is nothing therefore to make the recitals in that document in any way binding on the members of Parvathi's branch, and I might add that the 15th defendant and the first plaintiff both of Parvathi's branch, the senior most male members of that branch were adults at the time so that if anybody were to be joined in the document as representing Parvathi's branch it should have been these persons and not two female members. Ext. XV is consistent with a mere maintenance allotment to Parvathi's branch and, so far as Ext. IV is concerned the circumstance that the 1st defendant got a decree from court apportioning arrears of michavaram between the two branches in the absence of the members of the other branch can only amount to a unilateral assertion by him of several liability and cannot prove that, in fact, the two branches were severally liable even if that circumstance were to be regarded as a sufficient indication of division. 6. Of the documents adduced by the plaintiffs Ext. A dated 30-4-1091 M.E. (15-12-1915 A.D.) is not of much significance so far as the question of division is concerned. It shows that Devayani of Parvathi's branch redeemed a possessory mortgage over a third of item 8 executed in 1056 M. E. (1880-81-A.D.) (at a time when the two branches were undisputedly joint) by the then karanavan of the family. It was put in evidence only to prove the plaintiff's claim for a special right in item 8 by reason of this redemption, a right which was accorded to them by the trial court and which is not in dispute. But it serves fro show that the mortgaging of fractional shares is no safe indication of partition and that such mortgages might have been on behalf of both branches. Ext. B dated 1-3-1080 M.E. (16-10-1904 A.D.) is a partition deed between defendant 1 of Kali's branch, defendant 15 of Parvathi's branch, Chakki of Kali's branch and Devayani of Parvathi's branch (parties 1 to 4 therein) on the one side, and the members of a collateral branch divided from Aratha (parties 5 to 9 therein). Ext. B dated 1-3-1080 M.E. (16-10-1904 A.D.) is a partition deed between defendant 1 of Kali's branch, defendant 15 of Parvathi's branch, Chakki of Kali's branch and Devayani of Parvathi's branch (parties 1 to 4 therein) on the one side, and the members of a collateral branch divided from Aratha (parties 5 to 9 therein). That document recites that parties 5 to 9 claimed to have got portions of items 7 and 11 of the properties now in suit in tarwad partition and applied for patta in the settlement, but that Parvathi and Nachi, the ascendants of parties 1 to 4 claimed that these properties belonged to their common karnavan and succeeded in getting patta in their names. Thereafter there was litigation, and, as a compromise, division was effected by which an undivided 1/3rd of items 7 and 11 was allotted, to parties 5 to 9, namely to the collateral family and the remaining undivided 2/3rds to parties 1 to 4, namely, to Aratha's family. It is argued on behalf of the contesting defendants that this document, shows that Kali's branch and Parvathi's branch of Aratha's family were divided. I do not think it shows anything of the kind. What it does show is that Aratha's branch was divided from. Some other branch of their common tarwad. That in the transaction Aratha's family was represented by the seniormost male and female members of its two branches does not bespeak any division as between them. And since these two branches took their 2/3rd share jointly the document is, if anything, an indication that they were joint at the time of its execution in 1080 M.E. (1904-05 A.D.) If the two branches were divided one would have expected each branch to have taken a 1/3rd instead of both of them together taking a 2/3rd share. 7. Exts. C, D and E, copies of the chitta, show that patta for the suit properties stood registered jointly in the name's of Nachi of Kali's branch and of Parvathi of the other branch. This is no indication one way or the other, for, since there was no division by metes and bounds even according to the defendant's case, patta could only have been a joint patta. This is no indication one way or the other, for, since there was no division by metes and bounds even according to the defendant's case, patta could only have been a joint patta. On the other hand, the fact that patta is in the name of two members of a family is by no means an indication that the two members represent divided branches thereof. 8. Exts. XVII, XVIII, XIX and XIX (a) show that the kist due on the properties was being paid by members of both branches, but this again is no indication whatever of a division. No attempt has been made to show that the kist paid by the members of each branch represents one half of the total kist. 9. There is some evidence to show that members of both branches are in enjoyment of separate portions of the suit property. This is not inconsistent with joint status and is, in any case, of little significance since it is not shown that the members of each branch are in enjoyment of a one half of the properties. 10. It seems to me that the first court was right in holding that the evidence in the case is insufficient to prove a division between the two branches, and I would refer to the decisions in Janardhanan Plappalli v. Janardhanan Plappalli (1952 KLT. 668), Kumaran Nadar v. Kesavan (1954) 9 DLR Travancore-Cochin 122, and Neelakanta Kurup v. Sivarama Kurup (1958 KLT. 99) in support of this conclusion. Even Authichan Easwaran v. Easwaran Narayanan (XXIV TLR 187), the case on which defendants place great reliance, emphasises that if a state of division is to be inferred from a transaction, that transaction must be one in which the branches or the recognised heads of the branches have taken part. Further the transaction must be one that can be taken to be approved by all the adult members of both branches by the surrounding circumstances and by their not having tried to set it aside for a reasonably long period. When these conditions are fulfilled a state of division might safely be found, (see Sadasiva Iyer, C. J.'s judgment at page 189 of the report, Para.7). Neither of these two conditions is satisfied in the present case. 11. When these conditions are fulfilled a state of division might safely be found, (see Sadasiva Iyer, C. J.'s judgment at page 189 of the report, Para.7). Neither of these two conditions is satisfied in the present case. 11. In the result I allow the appeal, set aside the judgment of the lower Appellate Court, and restore that of the trial Court, with costs throughout.