Judgment :- 1. The plaintiffs whose suit for partition was concurrently dismissed by the courts below are the appellants. The plaint schedule properties excepting item 7 are the acquisitions of Kumaran Narayanan while plaint item 7 is the acquisition standing in the name of Krishnan Parameswaran. The case of the Plaintiffs is that they along with defendants 1 to 7 are the members of a Nair Marumakkathayam undivided tarwad called Pavoothekkethil and the plaint items belonged to the tarwad and there are two sakhas in the tarwad, plaintiffs being members of one sakha and defendants 1 to 7 being members of another sakha. The contesting defendants raised the contention that though at some time the plaintiffs and defendants 1 to 7 were members of a common tarwad the two branches became separated by course of conduct several years ago and the plaint properties belong to the branch of defendants 1 to 7 and the plaintiff's branch has no right to the same. The learned Munsiff was of the view that the branch of the plaintiffs and that of defendants 1 to 7 became divided by course of conduct long ago and that the plaint properties are not the common tarwad properties but belong to the sakha of defendants 1 to 7 and the plaintiffs' branch has no right to the same. In this view the suit was dismissed by the learned Munsiff. The appellate judge agreed with the learned judge in holding that the two sakhas attained a status of division by long course of conduct and that the plaintiff's branch has no manner of right over the plaint schedule properties obviously meaning that these properties were taken by the defendants' branch as a right of the division. The learned judge also entered a finding that item 7 is an acquisition in the name of Krishnan Parameswaran and the remaining items are the properties belonging to Kumaran Narayanan. No express finding was entered by the learned judge to the effect that the plaint properties belonged to the common tarwad at any time. Even on the question as to whether the two sakhas attained a status of division by course of conduct the learned judge did not consider the question on the basis of the principles enunciated by this Court in Neelakanta Kurup v. Sivarama Kurup 1958 KLT. 99, Balakrishnan Nair v. Parameswaran Pillai 1961 KLT. Even on the question as to whether the two sakhas attained a status of division by course of conduct the learned judge did not consider the question on the basis of the principles enunciated by this Court in Neelakanta Kurup v. Sivarama Kurup 1958 KLT. 99, Balakrishnan Nair v. Parameswaran Pillai 1961 KLT. 77 and by the Travancore-Cochin High Court in Kunjuraman v. Kunjamma 1957 KLT. 694. T. K. Joseph, J. held in Balakrisnnan Nair v. Parameswaran Pillai 1961 KLT. 77 that for the purpose of inferring a division by course Of conduit there should be some definite act or transaction on the part of the representatives of the different branches to indicate beyond doubt their settled intention to conduct themselves as members of divided branches. The mere execution of documents by some 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 thereof. 2. In the absence of clear proof of a partition the presumption is that a marumakkathayam tarwad continues undivided. In arriving at the question of partition by course of conduct the learned judge has not kept the above principles in view. The execution of several documents however large they may be by members of one of the branches of the tarwad alone which were not accepted or acquiesced in by the members of the other branch cannot give rise to an inference of division by course of conduct. It is necessary therefore that the plea of division by course of conduct set up in the case has to be re-examined in the light of the principles enunciated above. 3. The learned judge as stated by me already did not enter any finding as to whether the plaint properties belonged to the common tarwad. If the plaint items are the separate properties belonging to the sakha of defendants 1 to 7 the question of division by course of conduct between the two branches is immaterial. It is agreed that the plaint properties are acquisitions of Kumaran Narayanan and Krishnan Parameswaran. It is also stated that they are the members of the branch of defendants 1 to 7. It is agreed that the plaint properties are acquisitions of Kumaran Narayanan and Krishnan Parameswaran. It is also stated that they are the members of the branch of defendants 1 to 7. If so, after their death the properties can devolve only on the members of the defendants' branch. It is therefore necessary that the appellate judge should consider the question about the ownership of the plaint schedule items also. I therefore set aside the decree and judgment of the lower appellate court and remand the case to that court for fresh disposal in the light of the observations made above. The parties will bear their costs in this Court. The institution fee paid on the appeal memorandum will be refunded to the appellants' advocate. Allowed.