Judgment :- 1. This appeal arises out of a suit for partition O. S. No. 18 of 1958 Sub Court, Trichur. The parties are Ezhavas and it is common ground that the law applicable to them is essentially customary law, and that in the absence of any rule of custom the presumption is that they are governed by the Hindu Mithakshara Law. 2. One Karappan had two wives Nani and Ponni. By Nani, he had four sons who are defendants 1 and 2 and the deceased Raman and Madhavan. Raman's widow is the plaintiff and Madhavan's widow is the third defendant. Defendants 4 and 5 are the children of the 3rd defendant. By his second wife Ponni, Karappan had a son Kesavan. The 6th defendant is the wife of the 1st defendant. Defendants 7 to 16 are their children. This completes the array of parties. 3. Karappan executed a registered will Ex. P-1, dated 25-1-1910 by which he made certain dispositions of properties, which have been described in the will as his ancestral properties and also his self-acquired properties. The will recites that the properties in the A and B schedules of the document, are of the total value of Rs. 8,000/- and the properties in the C Schedule are of the value of Rs. 200/-. The document purports to describe the course of enjoyment in respect of the properties after the lifetime of Karappan. It provided that during his life-time the testator was to have full powers of disposition over the properties. After his death his four sons were to get Rs. 1,300/- worth of properties each. His first wife Nani was to get Rs. 300/-, his second wife Rs. 1,000/-and his father's second wife, Rs. 200/-. On the above basis Rs. 5,700/-worth of properties were scheduled in the A schedule to Ex. P-1, to be taken by the "first tavazhi purushasanthanangal", his first wife, and his father's 2nd wife. The "2nd tavazhi" was to have the properties worth Rs. 1,300/- comprised of items 1 to 4 and 6 to 12 of B schedule to the document, the value being inclusive of an owelty of Rs. 227.85 payable by the first tavazhi. Item No. 5 of the B schedule worth Rs. 1000/-was to be taken by the testator's second wife Ponni. The document recited that after Karappan's death, the properties were to be enjoyed by the respective "tavazhi people". 227.85 payable by the first tavazhi. Item No. 5 of the B schedule worth Rs. 1000/-was to be taken by the testator's second wife Ponni. The document recited that after Karappan's death, the properties were to be enjoyed by the respective "tavazhi people". It was provided that in the C schedule properties, which had not been then divided, all the sons are equally entitled to rights on his death. It seems unnecessary to refer to the other provisions of the will. 4. The A schedule properties in the suit are the A schedule properties to Ex. P-1. The B schedule properties in the suit are items alleged to have been acquired with the income of the A schedule properties and with the joint labour of the parties. The C schedule properties are properties acquired in the name of the 6th defendant. 5. The ground on which the trial court dismissed the suit was that the A schedule properties were taken by the plaintiff's husband, and his three brothers namely the 1st defendant, the 2nd defendant and the deceased Madhavan as joint family properties of the Sakha, and that the plaintiff was therefore not entitled to a share in the same. It found against the case of the plaintiff regarding the B and C Schedule properties. 6. In this appeal, on behalf of the appellant, it was urged that on a construction of Ex. P-1, the properties were held by the four brothers as tenants in common; that in law they could only take as tenants in common; and that even assuming they were held as joint tenants, according to custom governing the parties, the plaintiff was a preferential heir on the death of her husband. 7. On the terms of Ex. P-1, we entertain no doubt, that the bequest was to the four sons by the first wife Nani and the one son by the 2nd wife Ponni, as distinct "tavazhies" or branches. The use of the term "tavazhies" in relation to the parties may be inappropriate, but appears to us to be inconsequential. Counsel for appellant, contended that there had been a delineation of the separate interests of the parties by demarcating properties worth Rs. 1,300/- to each of them, and a specification of the parties individually by reference to them as "tavazhikkar" in Ex. P-1. Counsel for appellant, contended that there had been a delineation of the separate interests of the parties by demarcating properties worth Rs. 1,300/- to each of them, and a specification of the parties individually by reference to them as "tavazhikkar" in Ex. P-1. These, according to counsel, were clear indications that there had been a division inter se as between the four sons by the first wife Nani. We are unable to agree. As pointed out by the Privy Council in Palani Ammal v. Muthuvenkatachala Monjagar (AIR. 1925 P. C. 49): "But the mere fact that the charges of the coparceners have been ascertained does not by itself necessarily lead to an inference that the family had separated. There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be." 8. The reference to the parties individually as "tavazhikkars" appears to us to be inconclusive and has been more than offset by the description of the two units constituted of the sons by the two wives as two distinct "tavazhies". The difference in language used by the testator in regard to the disposition of the C schedule properties in Ex. P1, seems to us to be striking. The provision is clear to the effect that all the sons are equally entitled to rights in the said properties after the death of the testator. Such is not the language used in relation to the A and B schedule properties. On the terms of Ex. P1, therefore we have no hesitation in holding that in regard to the A schedule properties, the sons by Nani were constituted joint tenants or members of a coparcenary. 9. But, it is argued by counsel for the appellant, that a coparcenary comprising only of the four sons of Karappan by his first wife to the exclusion of the only son by his second wife, is not known to Hindu Law, and therefore the disposition of the A schedule properties under Ex. P1 should in law be construed as a grant to the sons as tenants in common. Counsel for the respondents pointed out the difficulty of accepting Ex. P1 as a will, in view of the fact that, on its own recitals, it covered ancestral properties also. In the pleadings and in the course of arguments in the trial court, Ex. P1 should in law be construed as a grant to the sons as tenants in common. Counsel for the respondents pointed out the difficulty of accepting Ex. P1 as a will, in view of the fact that, on its own recitals, it covered ancestral properties also. In the pleadings and in the course of arguments in the trial court, Ex. P1 was put forward as evidence of a family arrangement which had been accepted and acted upon by all the parties concerned. It appears to us, that this case of the respondent is entitled to acceptance. There is sufficient authority to treat a will as evidence of a family arrangement. In Seth Lakshmi Chand v. Mt. Anandi (AIR. 1926 P. C. 54), the judicial Committee observed: "It was held by the Board in Brijraj Singh v. Sheodan Singh (35. All 337) that a Will which did not operate as a Will at all was good evidence of a family arrangement contemporaneously made and acted upon by all the parties. In the present case their Lordships hold that the document of the 5th June 1915, is good evidence of a mutual agreement by Baldeo Sahai and Lakshmi Chand". In Kunwar Brijraj Singh v. Kunwar Sheodan Singh (25 MLJ.188) referring to the document which was described as a will, the Judicial Committee observed: "Their Lordships incline to the view that the term "Will" as applied to this document, was a complete misnomer. It is manifest that it differed from a Will in the crucial characteristic that it was intended to speak from the date at which it was written, and not from a future date, viz., the death of the writer. It was, in fact, and was intended to be viewed, as a record of a family arrangement then and there made and carried into effect partitioning the family estate among those interested." The case was one, where the father effected a division among the members of the family, reserving nothing for himself. 10. Following the principle of the above decisions, we are of the view that Ext. P-1 furnished important evidence of a family arrangement accepted and acted upon by all the parties concerned. There is clear evidence in this case of acceptance of Ext. P-1, and action and conduct in accordance with its provisions. Ext. 10. Following the principle of the above decisions, we are of the view that Ext. P-1 furnished important evidence of a family arrangement accepted and acted upon by all the parties concerned. There is clear evidence in this case of acceptance of Ext. P-1, and action and conduct in accordance with its provisions. Ext. P-5 dated 1131916 is a mortgage executed by all the four sons of Nani, in respect of properties in the A schedule to Ext. P-1, for raising funds for family necessity IpSpw_mhiymA°w . Ext. P-13 dated 27 101927 is a pattom chit executed by one Andi in favour of the 1st defendant and Kesavan the son of the 2nd wife of Karappan. The 1st defendant is described as the "karanavan of the 1st tavazhi", and Kesavan is described as "the 2nd tavazhi". The document further describes that the first tavazhi was entitled to four out of five shares and the 2nd tavazhi to the remaining one share. The fact that the recitals are in regard to the C schedule properties, covered by Ext. P-1 appear to us in no way to detract from the case of acceptance of the scheme of division effected by Ext. P-1. Ext- P-6 dated 17101933 is another mortgage executed by all the four sons of Nani, with the same recitals as to family necessity IpSpw_mhiymA°w as in Ext. P-5. As noticed by the court below, these unmistakably indicate that the fatuity arrangement of which Ext. P-1 affords valuable evidence was accepted and acted upon by all the parties concerned. By the said family arrangement, the four sons by the first wife of Karappan divided as one branch and the one son alone by the 2nd wife separated as a different branch. 11. In the above view, we think it unnecessary to deal with the arguments, 'elaborately advanced before us that the power of a father in Hindu Law, to effect a division among his sons which was exercised by Ext. P-1, must be exercised, and can only be exercised, by effecting a division inter se among all the sons; and that If some of the sons are allowed to remain joint and one or others alone are separated, the exercise of such a power is invalid. We express no opinion on the said contention. P-1, must be exercised, and can only be exercised, by effecting a division inter se among all the sons; and that If some of the sons are allowed to remain joint and one or others alone are separated, the exercise of such a power is invalid. We express no opinion on the said contention. Nor do we think it necessary to deal with the argument of counsel for the appellant, that a joint tenancy or a coparcenary cannot be constituted in Hindu Law with some of the sons alone, to the exclusion of one or more of the others. In the view that we have taken, that Ex. P-1 is only evidence of a family arrangement which was accepted and acted on by all the parties concerned, we refrain from pronouncing on this aspect of the question. 12. Counsel for appellant contended that even if the four sons by Nani were joint tenants, as found by us above, still, according to custom of the community the widow was the preferential heir to the properties of a deceased joint tenant, even in respect of joint property. No such custom was pleaded; and Ex. P-16 and Ex. P-17 which were relied on in proof of the custom, seem to us to be inconclusive and inadequate to establish the same. 13. It was argued that the B schedule properties were acquired by joint labour of all the parties and from out of the income of the A schedule properties. The said case is pleaded in Para.7 of the plaint. On our finding above, that the A schedule properties were joint properties of the 1st defendant and his brothers, it is not possible to regard any acquisitions made out of their income as partaking of any other character. Besides, as pointed out by the court below, the 1st defendant acquired a substantial part of these properties in 1908, even before Ex. P-1 (vide Ex. D-11). There is no acceptable evidence that the A schedule properties yielded any sizable income. Nor is there any evidence of joint labour in regard to the acquisition of these items. We hold that the plaintiff has not established any right to partition of the B schedule properties. 14. The C schedule properties consist of items acquired in the name of defendant 6. The claim to these items was rightly not pressed before us. 15. Nor is there any evidence of joint labour in regard to the acquisition of these items. We hold that the plaintiff has not established any right to partition of the B schedule properties. 14. The C schedule properties consist of items acquired in the name of defendant 6. The claim to these items was rightly not pressed before us. 15. The appeal fails and is dismissed with costs. A. S. No. 588 of 1962. This appeal is by the Ist defendant in O. S. No. 17 of 1958 which was a suit for partition of the C schedule properties covered by Ex. P-1. The plaintiff and the 1st defendant are the same as the plaintiff and the 1st defendant in O. S. No. 18 of 1958. It is unnecessary to detail the array of parties. The plaintiff was granted a preliminary decree for partition of 1/5th share in the C schedule properties covered by Ex. P-1. The appeal has been preferred by the 1st defendant. 2. The only point that was feebly argued by counsel for appellant before us, was that item No.1 of the C schedule has been lost by sea erosion, and that the present item No.1 of the plaint was a property in respect of which the 1st defendant obtained a registry from the State. The matter has been considered by the court below in Para.5 of its judgment and the 1st defendant's case was negatived. Little was said to induce us to come to any contrary conclusion. 3. The appeal is dismissed with costs of the plaintiff-respondent. Dismissed.