JUDGMENT : V. Balakrishna Eradi, J. 1. The 1st plaintiff in O.S. No. 883 of 1961 of the Munsiff's Court, Trivandrum, is the appellant in this second appeal. The suit was instituted by the plaintiffs, 16 in number, seeking a declaration that the sale deed, Ext. P-4 dated 19th April 1961 executed by defendants 1 and 2 in respect of the western half of the plaint schedule property is not binding on the 16/20 shares of the plaintiffs and praying for a partition of the plaint schedule property ignoring the said transaction and separate allotment to the plaintiffs of their 16/20 shares in the equity of redemption of the plaint schedule property. Plaintiffs Nos. 2 to 16 have been impleaded as respondents Nos. 17 to 31 in this second appeal. 2. The plaintiffs' case is that the suit property which originally belonged to one Easwara Pillai was gifted by him in favour of the makkathayam tavazhi consisting of his wife and children as per a deed of gift evidenced by Ext. P-1 dated 25th Medam 1050 and that pursuant thereto the property was being enjoyed by the members of the said sub-tarwad with the incidence of tarwad property. While so, all the members of the sub-tarwad including the minor children entered into an udampadi evidenced by Ext. P-2 dated 4th Chingom 1095 whereunder the western half was allotted to the branch of Lakshmi Pillai and her children by way of maintenance arrangement and a corresponding allotment was made in favour of the other branch in respect of the eastern half of the plaint schedule property. It was definitely stipulated in the said udampadi that neither branch was competent to encumber the property for an amount exceeding 400 Sircar rupees. Notwithstanding this stipulation defendants 1 and 2 belonging to Lakshmi Pillai purported to sell their 2/3rd share in the western half of the plaint schedule property in favour of the 14th defendant under the impugned deed of transfer evidenced by Ext. P-4 dated 19th April 1961. The plaintiffs contend that this transaction is unauthorised and illegal and will not bind their 16/20 shares in the plaint schedule property. On this basis they brought the suit seeking the relief aforesaid and claiming a partition of their 16/20 shares in the entirety of the property. 3. P-4 dated 19th April 1961. The plaintiffs contend that this transaction is unauthorised and illegal and will not bind their 16/20 shares in the plaint schedule property. On this basis they brought the suit seeking the relief aforesaid and claiming a partition of their 16/20 shares in the entirety of the property. 3. Defendants contended that the gift by Easwara Pillai was not in favour of the sub-tarward, but only to the two named individuals mentioned in the document Ext. P-1, namely, Bhagavathi Pillai and Lakshmi Pillai and that the plaintiffs' contention that the donees took the property as a sub-tarwad property is incorrect and untenable. According to the defendants the plaint schedule property became vested in Bhgavathy Pillai and Lakshmi Pillai as tenants-in-common, each being entitled to a specific moiety. Those two donees along with their children subsequently entered into the transaction evidenced by Ext. P-2 whereby the property was divided into two halves and allotted absolutely to the two branches, consisting of Bhagavathy Pillai and her children forming one group and Lakshmi Pillai and her children forming the second group. The defendants contend that Ext. P-2 was a partition and not a mere maintenance arrangement and no question of any maintenance arrangement could also arise because the property was not sub-tarwad property but was only the co-ownership property of Bhagavathy Pillai and Lakshmi Pillai. On this basis the defendants pleaded that by virtue of the allotment made under Ext. P-2 Lakshmi Pillai and her children became absolutely entitled to the western half of the plaint schedule consisting of 39 cents including a building standing thereon and the plaintiffs have absolutely no right, title or interest over the said western half so as to entitle them to call in question the subsequent dealings with the property by defendants 1 and 2 or to claim a partition of the entire plaint schedule property on the basis that it continues to be the joint property of the two branches. 4. The trial court upheld the contention of the plaintiffs and decreed the suit for partition after declaring that the sale deed Ext. P-4 is not valid and binding on the plaintiffs or their 16/20 shares in the plaint schedule property. The 14th defendant filed an appeal before the Subordinate Judge's Court, Trivandrum. 4. The trial court upheld the contention of the plaintiffs and decreed the suit for partition after declaring that the sale deed Ext. P-4 is not valid and binding on the plaintiffs or their 16/20 shares in the plaint schedule property. The 14th defendant filed an appeal before the Subordinate Judge's Court, Trivandrum. The learned Subordinate Judge reversed the judgment and decree of the trial court and dismissed the suit holding that Ext. P-2 was a partition deed and not a mere maintenance arrangement and that the plaintiffs are not entitled to call in question the validity of the sale deed Ext. P-4 or to seek a partition of the plaint schedule properties. The lower appellate court has also held that under the gift evidenced by Ext. P-1 Bhagavathy Pillai and Lakshmi Pillai took the property in equal moieties, as tenants-in-common and the said gift was not in favour of the sub-tarwad consisting of the two minor donees and their mother. 5. The 1st plaintiff has brought this second appeal challenging the decision so rendered by the learned Subordinate Judge. 6. The principal question that arises for decision in this case is whether Ext. P-2 evidences a maintenance arrangement or an outright partition. If the finding entered by the lower appellate court that the document evidences an out and out partition is accepted by this Court as correct then the question regarding the nature of the estate taken by the two donees under Ext. P-1 ceases to be of any significance, because whether it be tarwad property or co-ownership property in their hands, the partition under Ext. P-2 would operate to disentitle the members of each branch from claiming any interests in the properties allotted to the other. 7. It is true that Ext. P-2 is styled as Anubhava Udampadi. But this nomenclature is not at all conclusive about the real nature of the transaction. The reason for entering into the document has been stated in Ext. P-2 would operate to disentitle the members of each branch from claiming any interests in the properties allotted to the other. 7. It is true that Ext. P-2 is styled as Anubhava Udampadi. But this nomenclature is not at all conclusive about the real nature of the transaction. The reason for entering into the document has been stated in Ext. P-2 in these terms: Malayalam After stating as above their decision to effect a tavazhi-wise division of the properties the parties have proceeded to allot the eastern half of the property consisting of the land together with all the trees thereon to the members of the first branch inclusive of all the minors thereon and the western portion together with the trees and the building situated therein to the second branch inclusive of the minors belonging thereto. The two branches are authorised to take possession of their respective halves from the date of the document itself and to effect improvements thereon and remit the proportionate Government revenue. Then follows the recital that if the members of the branches find themselves in need of funds all the members of each branch will be competent to encumber the property allotted to the particular branch subject to the condition that the amount of the debt so borrowed should not exceed 400 Sircar rupees and that any borrowing in excess of the said amount can be done only with the common consent of all the executants. It is on the clause last referred to above that the appellant places very strong reliance that Ext. P-2 evidences only a maintenance arrangement and not a partition. I am however of the view that the said clause amounts to no more than an expression of a pious hope that the two branches to whom the properties are allotted should exercise a restraint and prudence in the matter of encumbering the properties. The parties have clearly stated in the portion of the document first extracted above that the very purpose underlying the execution of the document is to put an end to the joint holding of the property which had led to misunderstanding between them. The parties have clearly stated in the portion of the document first extracted above that the very purpose underlying the execution of the document is to put an end to the joint holding of the property which had led to misunderstanding between them. The junction of the minors belonging to the two branches was totally unnecessary if it was a mere maintenance arrangement and the definite statement that a tavazhi-wise division of the property should be effected—Malayalam - show beyond all traces of doubt that the intention of the parties was that they should get split up into tavazhies under the said transaction and that each tavazhi should separately hold and enjoy the properties allotted to its share. Another significant aspect is that the entirety of the property which is subject-matter of the arrangement under Ext. P-2 consists only of seven cents including a building situated on it. It is extremely difficult to think that the parties considered it necessary to effect a division of this small extent of purayidom as a mere maintenance arrangement. And what is more significant, the residential house situated in the property is specifically allotted to one branch, namely, the branch of Lakshmi Pillai, represented by defendants 1 and 2. If it was only a maintenance arrangement that was attempted to be made under Ext. P-2 it is not probable that the residential house in which all the parties admittedly residing at that time would have been allotted to one group only. The fact that such an allotment was made is clearly indicative that the arrangement was a permanent one by way of an out and out partition between the parties. On the same date as Ext. P-2 both the branches executed documents of mortgage covering the properties respectively allotted to them. Ext. D-1 is the document executed by the plaintiffs' branch and Ext. D-4 is a hypothecation executed by the defendants' branch. In both these documents it is specifically recited that the properties originally belonged to a sub-tarwad of the parties and that they had been allotted under the transaction Ext. P-2 of the same date to the concerned tavazhi. From the recitals in these documents it is clearly seen that the parties to Ext. P-2 had understood the transaction to be one of partition whereunder the sub-tarwad property became converted into tavazhi property. Thus both from the recitals in Ext. P-2 of the same date to the concerned tavazhi. From the recitals in these documents it is clearly seen that the parties to Ext. P-2 had understood the transaction to be one of partition whereunder the sub-tarwad property became converted into tavazhi property. Thus both from the recitals in Ext. P-2 and from the conduct of the parties the only inference possible is that the transaction evidenced by Ext. P-2 is a partition and not a mere maintenance arrangement. The finding entered by the learned Subordinate Judge on the said question is therefore correct and calls for no interference. 8. In the light of my above conclusion regarding the interpretation to be placed on the terms of Ext. P-2 it is really unnecessary for this Court to go into the question as to whether the donees under Ext. P-1 took the property as sub-tarwad property or only as tenants-in-common. Since the point has however been argued before me I think it is only proper to observe that the finding recorded by the lower appellate court on this question is not sustainable. The document Ext. P-1 expressly states in more than one place that the gift is being made in favour of the donees as "makkathayam" property. The said expression had acquired a definite connotation in the erstwhile Travancore area as denoting property obtained by a marumakkathayam group consisting of a lady and her children from the husband or father, which is to be held and enjoyed by them as sub-tarwad property. As pointed out by a Division Bench of the Travancore-Cochin High Court in Padmanabhan Nair v. Kaliyani Amma, 1950 K.L.T. 396, it was established law in Travancore from very early times that property acquired by gift from the father or husband will constitute sub-tarwad property of the donees and of their tavazhi and it did not matter in whose name the gift was made or whether any of the children was in existence on the date of the gift. When once the gift was made it partook of the nature of sub-tarwad property over which the donees acquired no special interest as against the unnamed or unborn persons who constitute the sub-tarwad. Far from there being anything in Ext. When once the gift was made it partook of the nature of sub-tarwad property over which the donees acquired no special interest as against the unnamed or unborn persons who constitute the sub-tarwad. Far from there being anything in Ext. P-1 indicative of a contrary intention on the part of the donor, the repeated use of the expression "makkathayam" property occurring in the document to which reference has already been made by me furnishes a clear point that even though the document of gift was in favour of only the two daughters, namely, Bhagavathy and Lakshmi both of whom were minors on the date of Ext. P-1, the clear intention of the donor was that the property should be taken by them as sub-tarwad property belonging to themselves and the other members of their tavazhi. Bhagavathy and Lakshmi are parties to Ext. D-1 and Ext. D-4 respectively and in those documents they have categorically stated that the properties were acquired by them under the gilt deed as sub-tarwad property. None of these aspects has been adverted to by the learned Subordinate Judge before he proceeded to hold that the donees under Ext. P-1 took the properties only as tenants-in-common. The said finding is manifestly incorrect and will stand set aside. 9. In as much as I have held that there was an out-right division of the properties between the two tavazhies under Ext. P-2, it is clear that the plaintiffs had no subsisting interest whatever in the properties allotted to the branch of Lakshmi Pillai represented by defendants 1 and 2 and that hence they are not entitled to challenge the validity of the sale evidenced by Ext. P-4 or to seek a partition of the plaint schedule properties on the basis that the properties continued to be the sub-tarwad properties of the plaintiffs and defendants 1 and 2, etc. 10. In the result the second appeal fails and it is dismissed with costs. No leave.