JUDGMENT V.P. Gopalan Nambiyar, J. 1. This appeal raises an interesting question as to whether the plaintiff-appellant is a 'Nayar' under the Travancore Nayar Act of 1100, entitled to claim partition thereunder. It was ruled by the court below that she was not. She has preferred this appeal. 2. The appellant is the youngest child of her parents, one Narayanan Ayyappan who died in 1951, and his wife Paru who died in 1964. Defendants 1 to 4 are her brothers, and defendants 5 and 6, her sisters. Defendants 7 to 10 were impleaded as persons in possession of some of the properties. After the death of Ayyappan in 1951, the plaintiff, defendants 2 to 6, and their mother executed a power of attorney (Ext. A-1, dated 9th May 1963) to the 1st defendant. On the strength of the said document, a sum of Rs. 10,685.00 due as compensation under certain land acquisition proceedings in respect of properties to which the parties were entitled, was withdrawn by the 1st defendant. Defendants 1 to 4 obtained two release-deeds Ext. A-3, dated 5th June 1965 from the 6th defendant, and Ext. A-2, dated 10th June 1965 from the 5th defendant, for Rs. 4,000 each. It was alleged that the consideration for these release-deeds came from the land acquisition amounts obtained by the 1st defendant in pursuance of Ext. A-1, and that therefore the rights obtained under these release-deeds, should enure for the benefit of the plaintiff as well. On this basis, she claimed partition of a one-fifth share in the properties. She also sought an account of the profits from the properties from the 1st defendant. The suit was filed on 5th May 1970. The main defence to the suit was that the parties belonged to the sect or caste known as 'Pranopakaris' following Mithakshara Law as modified by custom; and that according to the custom of the community, the daughters have to be provided sthreedhanam at the time of their marriage and are not entitled to inherit the estate of their deceased father in the presence of the sons. The plaintiff, it was said had been provided Sthreedhanam at the time of her marriage, as also defendants 5 and 6; and therefore it was contended that none of them were entitled to rights in the properties of Narayanan Ayyappan, which were the properties sought to be partitioned in the suit. The plaintiff, it was said had been provided Sthreedhanam at the time of her marriage, as also defendants 5 and 6; and therefore it was contended that none of them were entitled to rights in the properties of Narayanan Ayyappan, which were the properties sought to be partitioned in the suit. This plea of the defendants was accepted by the court below, and the plaintiff's suit was dismissed. On the merits, the court below on Issue 9 entered a finding that the release-deeds Exts. A-2 and A-3 will enure for the benefit of the estate of the deceased Ayyappan. In view of the finding that the plaintiff is not entitled to seek partition under the Nayar Act, the court below held on Issue 5 that the defendants are not liable to account, and, that, if necessary, the accounting will be done at the final decree stage. 3. The question that was elaborately argued before us in this appeal, was whether the plaintiff was entitled to claim partition under the Travancore Nayar Act, 1100. Counsel for the contesting respondents argued that the issue framed in the case had not sufficiently highlighted this aspect, and therefore it would be unfair to consider the question whether the plaintiff is a Nayar governed by the provisions of the Travancore Nayar Act. Issues 1 and 2 are: "1. What is the customary law governing the parties? 2. Is the plaintiff entitled to any share?". In proceedings to discuss these issues, the court below in paragraph 6 stated thus: "6. Issue Nos. 1 and 2. The basic matter to be decided in this case is the law governing the parties. For that, the caste and personal law, if any, of the parties have first to be ascertained. The plaintiff's plea regarding this matter is contained in para 1 of the plaint which reads as follows: 'The plaintiff and defendants 1 to 6 are the children of deceased Narayanan Ayyappan and Paru and are Vilakkathala Nairs governed by Travancore Nair Act (Act 11 of 1100 M.E.)'. This has been denied in para 3 of the written statement filed by defendants 1 to 4. Para 3 of the written statement reads as follows: 'The relationship of the parties stated in para 1 of the plaint is admitted. But the averments that the parties are Vilakkathala Nairs governed by the Travancore Nair Act, 1100 is denied. This has been denied in para 3 of the written statement filed by defendants 1 to 4. Para 3 of the written statement reads as follows: 'The relationship of the parties stated in para 1 of the plaint is admitted. But the averments that the parties are Vilakkathala Nairs governed by the Travancore Nair Act, 1100 is denied. The plaintiff and defendants 1 to 6 belong to a community known as 'Pranopakari', a section of the barber community. The members of the said community had domiciled in Travancore from Tamilnad and formerly they were following purely tamil customs in all their ceremonies. They follow Hindu Mithakshara Law as their customary personal law by which daughters are not entitled to a share as of right in the assets of the father'. It would be found from the pleadings that the plaintiff's case is that the parties are governed by the Travancore Nair Act whereas the defence case is that the parties are governed by Hindu Mithakshara Law as modified by custom". There can be little doubt that attention had been sufficiently focussed on the aspect argued in appeal. The complaint to the contrary is groundless. Counsel for the respondents referred to the replication filed by the plaintiffs, in paragraph 2 of which it was stated: "In the family and in the place where the plaintiff and defendants 1 to 6 are born and brought up the Vilakkathala Nayars who are also known as Pranopakaris followed the customary personal law, followed by the Nayar community as modified by the Travancore Nayar Act of 1100". We do not understand the above paragraph as giving up the case raised in the plaint that the parties are governed by the Nayar Act, and setting up a case of custom, as contended by counsel for the respondents. 4. The Nayar Act, by section 1 (2), provides that it shall apply to all Nayars domiciled in Travancore, and to some others, not relevant to notice for the purposes of this case. Section 2 (1) of the Act defines 'Nayar' as follows: "Nayar includes Kiriyam, Illom, Svarupam, Madamangalam and others known or recognised as such". The Act proceeds to provide for marriage and dissolution among the Nayars, for maintenance, and guardianship, for testamentary and intestate succession, for management of tarwad property, for partition, etc. Section 2 (1) of the Act defines 'Nayar' as follows: "Nayar includes Kiriyam, Illom, Svarupam, Madamangalam and others known or recognised as such". The Act proceeds to provide for marriage and dissolution among the Nayars, for maintenance, and guardianship, for testamentary and intestate succession, for management of tarwad property, for partition, etc. According to section 11 of the Act, on death of a Nayar, leaving him surviving, a widow or mother or both, and also children, they shall take the whole of the self-acquired and separate property left undisposed of by him, at his death. Under section 17 on the death of a Nayar female, leaving her children, the latter are to take the whole of their separate or self-acquired property left undisposed of. In view of these provisions, if the Act applies there is little doubt that the claim for partition is well-founded. 5. But it was contended that "Pranopakaris" are not Nayars 'known or recognised as such' within the meaning of the Nayar Act. The appellant would contend that she did not belong to the community known as 'Pranopakaris'; but only to the one known as 'Vilakkathalavans' or 'Vilakkathala Nairs'. It was further contended that 'Pranopakaris' and 'Vilakkathalavans' are the different names for the community of barbers designated by reference to their occupation, 'Pranopakaris' being those who shave the heads of Brahmins, and 'Vilakkathalavans', those who do so for the Sudras, especially Nayars. With the change and evolution of the times, it was said that 'Vilakkathalavans' had become the generic name to signify the community which followed the occupation of shaving heads. 'Vilakkathalavans', it was argued, were 'known or recognised' as Nayars within the meaning of the Nayar Act. 6. We shall assume that the parties are 'Pranopakaris' as contended by the defendants. Ext. B-12 the partition of the year 1115 between the plaintiff's father Ayyappan, and his brothers and sisters, refers to the parties as 'Pranopakaris'. Ext. B-7 partition in the family of D.W. 4, who married the wife's sister of the plaintiff's paternal uncle, again refers to the parties as 'Pranopakaris'. In view of these, it will not be possible to contend that no such community as 'Pranopakaris' existed or continues to exist. In the well-known work: Thurston's 'Castes and Tribes of Southern India', Vol.I, while dealing with 'Ambattans'. (a generic name for barbers) occurs the following passages: P. 32. In view of these, it will not be possible to contend that no such community as 'Pranopakaris' existed or continues to exist. In the well-known work: Thurston's 'Castes and Tribes of Southern India', Vol.I, while dealing with 'Ambattans'. (a generic name for barbers) occurs the following passages: P. 32. "The Ambattan corresponds to the Mangala of the Telugu country, the Vilakkathalavan of Malabar, the Kshauraka of the Canarese Brahmins and the Najan of Muhammadans". P. 41. A curious name given for the caste throughout Travancore is 'Pranopakari' or one who helps souls connecting their priestly functions in the ceremonies of various castes. A contraction of this name is found in the earlier settlement records as 'Pranu'." In Vol. VI of the same book at page 323 Pranopakari is described as follows: "Pranopakari (one who helps souls) A name for barbers in Travancore. In the early settlement records, Pranu occurs as a corruption thereof". And in Vol. VII, 'Vilakkathalavan' is dealt with at page 336. It is there stated that the name signifies chieftains among barbers, that in South Malabar the caste shaves Nayars and higher castes, that in North Malabar they mostly follow the Nayar system of inheritance, and in South Malabar, generally, discent in the male line. In the 'Travancore States Manual' by Nagam Aiya (1906-Vol.II) the discussion on the Nayar Caste starts at page 345. At pages 348 to 350, the subdivisions of the caste are noticed. After noticing the four principal subdivisions, mentioned in the definition of 'Nayar' in the Nayar Act, there occurs the following passage: "Besides the above, the following sub-divisions based on their traditional occupations are also included under the general head Nayars. They are: (1) the Idacherry or herdsmen, (2) the Marans who correspond to the Occhans of the other caste and who play on the Pani (a kind of drum) and other musical instruments during temple service, (3) the Chembukottis or makers of copper vessels, (4) the Odathu Nayars or tile-makers, (5) the Kalamkottis or potters, (6) the Vattakkadans or Chekkalas, dealers in oil, (7) the Pallichans or palankeen bearers, (8) the Asthikkurichis or undertakers, (9) the Chettis or traders, (10) the Chaliyans or weavers, (11) the Veluthadans or washermen and (12) the Vilakkittalavans or barbers. All these castes are of course inferior to the genuine Nayars in the social scale, their traditional occupations themselves being the cause of their degradation". All these castes are of course inferior to the genuine Nayars in the social scale, their traditional occupations themselves being the cause of their degradation". (Underlining ours). In the Cochin Tribes and Castes, Vol. II (1912), by Sri L. K. Ananthakrishna Iyer, at page 114 under the heading 'Velakkathalavans' there occurs the following: "The Velakkathalavans. They are the professional village barbers, and shave Nayars and all castes above them. Their customs with regard to marriages, inheritance, and religion, are similar to those of the Nayars; their birth and death pollutions last for ten days. The Nambuthiris give them 'punnyaham' or holy water for purification. The enangan ties the tali for a girl, and he or somebody else may unite himself in sambandham to her either before or after she comes of age, but the tali-tying ceremony must be performed before she reaches puberty; or she will lose her caste. In the last Census they numbered 2,761; of these, 1,309 were males and 1,452 females. A few families of these people are to be found in every village, and their services are employed for all ceremonies and other occasions. They are allowed to enter the outer enclosure of temples as far as the bali kallu (sacrificial stone). They too, like the Kadupattans, are a backward community; but unlike them are at present making no efforts to rise in the social scale". (Underlining onus). 'The book does not make any mention of 'Pranapokari'. In: The History of Kerala', Vol. III, (1933) by Sri K.P.P. Menon the discussion on Nayars starts at page 161. At page 191, the subdivisions of Nayars are discussed. The following, is of interest. "Subdivisions: There have been, and there, are an ever increasing number of subdivisions in the Nayar community. The Nayars, it has been observed, are more a tribe than a caste. Bhattacharya reckons them as such in his work on Hindu Castes and Sects. The Nayar community is an elastic and expansive body. At the same time, within the community as already pointed out, there is a tendency to split into smaller sections with new caste pretentions. The Nayars, it has been observed, are more a tribe than a caste. Bhattacharya reckons them as such in his work on Hindu Castes and Sects. The Nayar community is an elastic and expansive body. At the same time, within the community as already pointed out, there is a tendency to split into smaller sections with new caste pretentions. It is somewhat difficult to define who a Nayar is, but it may be said generally that a Malayali who attaches, or is entitled to attach, any one of the titles already enumerated to his own name, who follows the Marumakkathayam law of succession and may enter the temples of Kerala where Brahmans and Nambutiris officiate as priests, without polluting them, belongs to one of that class of Malayalis now known by the name of Nayar." (Underlining ours). The author then refers to 18 sections or subdivisions of Nayars, according to 'Jathi Nirnaya', a work attributed to Sree Sankara, but the authenticity of which was held to be not established, in Rama Marar v. Paru Marassyar, 24 Cochin 423 to which we shall refer later. Subdivision 18 of that work is described thus by Sri K.P.P. Menon at page 195 of his book: "Velakkathalavan or Kshavurakkaran They are barbers who work for the higher classes of Brahmans and Nayars. The last four classes, though classed as Nayars, are yet not allowed to touch them, and are considered to belong to the polluting class. It is, however, curious that the cloths washed and handled by the Veluttetan are not prohibited as polluting, though his touch would be. These cloths are received in pagodas for the use of the idols and are worn by even the highest Nambuthiri Brahmans. The first 14 subdivisions form the class of high caste Nayars, who have in course of time split themselves into a large number of sub-sections, and the process of division, as already observed, is still going on. From the schedules of the Travancore Census Report, we see that in that State there are over a hundred and thirty such sub-sections. The Census Report for Malabar (1881) also shows 138 subdivisions of the Nayar caste. Who knows that this tendency to divide and subdivide is not a device to secure a certain degree of division of labour, technical training and development of aptitude for particular crafts. 7. The Census Report for Malabar (1881) also shows 138 subdivisions of the Nayar caste. Who knows that this tendency to divide and subdivide is not a device to secure a certain degree of division of labour, technical training and development of aptitude for particular crafts. 7. The passages from the Manuals and Treatises above referred to show that the subdivisions of Nayars are based on traditional occupation; and that Velakkathalavans are one such subdivision, regarded as synonymous with barbers or Kshourakkarans. Etymologically, the expression 'Velakkathalavan' signifies the traditional occupation as barbers. 8. In the 1884 Census Report for Travancore, by Nagam Aiya, under the generic heading: 'Kshourakkar' (Barbers) we get several subdivisons, among which are 'Pranopakaris', 'Ambattans' and 'Vilakkathalavans'. This classification and subdivision is followed in the Census Reports for Travancore for the years 1911 and 1921. In the Census Report from 1931 onwards, we see that 'Vilakkathalavans' replaced the generic term 'barbers'. From the 1901 Census Report for Travancore (see 270 and 271), we see that among Ambattans (barbers) there were both Makkathayees and Marumakkathayees. But once the status of the caste or community is fixed, this, as we will show, is a matter of little consequence. 9. The 1st defendant as D.W. 1 stated (see page 5 of his deposition) that 'Pranopakaris' were originally barbers to Brahmins only, implying thereby, that now they do not restrict their trade to Brahmins alone. We also know from the, passage in L. K. Ananthakrishna Iyer's book, which we have extracted, that Vilakkathalavans are barbers, that they shave for Nayars and all castes above them. These indicate that the distinction, if any, between Pranopakaris and Vilakkathalavans regarding the caste they serve, had got obliterated. We think there is sufficient indication of this, in the evidence given even on the side of the defendants. Ext. A-3 dated 8th Edavam 1120 is an extract from the admission register, of the plaintiff to the 1st standard in a Government school. Her caste is shown as 'Vilakkathala Nayar'. Ext. A-10 dated 31st May 1957 is an extract from the admission register to Class X, of the 4th defendant where his caste is again shown as 'Vilakkathala Nayar'. For the defendants, it is claimed that the effect of Ext. Her caste is shown as 'Vilakkathala Nayar'. Ext. A-10 dated 31st May 1957 is an extract from the admission register to Class X, of the 4th defendant where his caste is again shown as 'Vilakkathala Nayar'. For the defendants, it is claimed that the effect of Ext. A-8 has been offset by the later entry in the Secondary School Leaving Certificate of the plaintiff, which shows her caste as 'Pandithar' under which name Pranopakaris are said to have become known after the formation of a representative organisation for them, known as Panditha Mahasabha (vide the evidence of D. W. 6, the maternal uncle of the plaintiff and defendants 1 to 6). D. W. 2, the cousin of the plaintiff's husband's mother, who styled himself as a Pranopakari admitted that Vilakkathalavans also used to be called Pranopakaris. D. W. 4, who has married the wife's sister of D. W. 6 admitted that in schools children are admitted as Vilakkathala Nayars and so did D.Ws. 5 and 6. (The latter would not at first answer the question whether his daughter Rugmini who passed S. S. L. C. was not shown as Vilakkathalavan; and when pressed, said he did not remember). The caste description in the school registers as 'Pranopakaris' or 'Vilakkathalavans' may not be conclusive either of any cleavage between the two communities, or of the obliteration of the difference, if any, between them; but it is a circumstance to be taken note of, to judge if such transformation had taken place. We cannot readily accept the explanation that the descriptions in the admission registers were self serving, to secure the educational concessions provided for "Other Backward Classes". For, we see that among the list of 'Other Backward Classes' in the Kerala State and Subordinate Service Rules, (which is followed for these concessions), that item 53, is 'Pandithar', item 74 is 'Veluthedathu Nayar' and item 75 is 'Vilakka-thala Nayars'. Nor can the characterisation of these castes or communities as "Other Backward Classes" afford any indication that they are not Nayars. It was ruled by the Supreme Court in Balaji's case, A.I.R. 1963 S.C. 649" and the decisions that followed in its wake, that caste cannot generally be the sole, or dominant, criterion for deciding a socially and educationally backward class. It was ruled by the Supreme Court in Balaji's case, A.I.R. 1963 S.C. 649" and the decisions that followed in its wake, that caste cannot generally be the sole, or dominant, criterion for deciding a socially and educationally backward class. Following these decisions, a Full Bench of this Court observed that there can well be socially and educationally backward classes even among the so-called forward communities. [See Hariharan Pillai v. State of Kerala, 1967 K.L.T. 266]. In the light of the considerations, we have adverted to, we think that there has been a wearing down of the social barrier, if ever there was one, that divided Pranopakaris and Vilakkathalavans. This aspect, we think, is emphasised by a set of documents produced on the plaintiff's side in respect of a family of Pranopakaris hailing from Quilon. P.W. 9 examined on the side of the plaintiff has given evidence of these documents as relating to his father's family. Ext. A-27 dated 27th Karkatakom 1059 M.E., shows that the family styled itself as 'Pranopakari'. In Ext. A-28 of 1095 M.E. and Ext. A-29 of 1092 M.E., the parties described themselves as 'Vilakkathalavans'; and in Ext. A-30 of 1103, they divided their properties per capita under the provisions of Travancore Nayar Act of 1088 M.E. then in force. We are not very much impressed by the argument that this was in respect of a family from Quilon, whereas the parties before us hailed from a different place. Assimilation and division are inevitable processes in the social evolution of castes and communities. We are not inclined either to shudder, or to shed a tear, with counsel for the respondents, at our conclusion. These are for the aggrieved community and for the legislature. 10. The conduct of the parties, and their dealings with the properties, again afford strong evidence that they were governed by the Nayar Act. Ext. A-1 dated 6th September 1963 is the certified copy of a power of attorney executed by the plaintiff and defendants 2 to 6 and their mother to the first defendant authorising him to receive the land acquisition amount in respect of Sy. No. 846/2, 844/1 A, B, etc. and to do everything necessary by way of initiating or prosecuting legal proceedings or otherwise for the said purpose. No. 846/2, 844/1 A, B, etc. and to do everything necessary by way of initiating or prosecuting legal proceedings or otherwise for the said purpose. The properties acquired are stated to have been acquired by Ayyappan, the deceased father and husband of the parties, and to have devolved on the parties jointly after his death and in their joint possession and enjoyment. The mukthyar, it was recited, was felt necessary for management of the family affairs, and it authorised the first defendant to do all acts of family management. Ext. A-2 dated 10th June 1965 and Ext. A-3 dated 5th June 1965 are two release-deeds executed by defendants 5 and 6 respectively, in favour of defendants 1 to 4, after the death of their mother also, in 1964. After reciting that the properties have been acquired by their father and that subsequent to the death of their mother, they were in joint possession and enjoyment of the properties by right of succession, defendants 5 and 6 released their rights, each, for a consideration of Rs. 4,000. After these release deeds were executed, mutation proceedings in respect of the properties, were started. Defendants 1 to 3 and the plaintiff gave a joint-statement dated 5th August 1965 to the Village Officer, that the properties were acquired by their parents, and, after their death, devolved on their children, the deponents of the statement and defendants 4 to 6, that the 4th defendant was unable to be present as he was in Calcutta in service under the Government of India, and that the Thandapper (patta) may be issued jointly in the names of the five persons, namely the plaintiff and defendants 1 to 4. Ext. A-4 shows that in pursuance of the statement, and the enquiry that followed, the patta was transferred in the names of five persons. Ext. A-5 is the patta. The contesting respondents (defendants 1 to 4) would contend that the recitals in the above documents which follows a succession or devolution on the death of Ayyappan and Paru in accordance with the provisions of sections 11 and 17 of Travancore Nayar Act, were under a mistake of law that the parties were governed by the said Act, and that therefore the same cannot operate as estoppel, or otherwise preclude the parties from proving the truth. The plea found favour with the court below. The plea found favour with the court below. We think that the true position of law in the light of our earlier discussion is that the parties are Nayars "known or recognised as such" and therefore governed by the Nayar Act; and the documents Exts. A-1 to A-5 correctly reflected the true legal position and the consciousness of parties. 11. Strong reliance was placed by counsel for the respondents on a number of documents to show that Pranopakaris were governed by the Mithakshara Law, as modified by custom, as different from the Marumakkathayam Law, and that, according to the custom followed by them, daughters are not entitled to inherit in the presence of the sons and they are generally amply provided for by endowing sthreedhanam at the time of their marriage. The evidence regarding payment of streedhanam to the plaintiff and defendants 5 and 6 is unsatisfactory and unacceptable. It was even said that the consideration for the release deeds Exts. A-2 and A-3 was the sthreedhanam payable to them for their marriage conducted several years back. Assuming that the documents relied on establish the custom thus set up, once the status of the parties has been fixed as Nayars as we think it should be no evidence of any custom at variance with the provisions of the Nayar Act, would be of any avail. See Sankaran Nadar v. Govindan Nair, 1960 K.L.T. 579 paras 5 and 6. We think that the passages in the Manuals and Treatises which we have quoted, bring out sufficiently that a section of the community has been following the Makkathayam system or descent through males. We also think that the documents relied on do not conclusively establish the custom set up. To these documents, we shall now turn. 12. Ext. B-8, dated 24th Chingom 1104 M.E. proved by D. W. 1, is a release-deed of the rights of the two maternal uncles of the plaintiff in favour of a third, all styled 'Pranopakaris'. The document recites that the plaintiff's mother, Paru and her sister Kunchi, had been given in marriage by providing sthreedhanam and that for the balance of sthreedhanam payable, a sum calculated at Rs. 6 for each of the brothers, was reserved out of the consideration payable for the release, for payment to the sisters. Paru and Kunchi are not parties to the document, and the document is proved after Paru's death. 6 for each of the brothers, was reserved out of the consideration payable for the release, for payment to the sisters. Paru and Kunchi are not parties to the document, and the document is proved after Paru's death. We do not know when the two ladies were married; nor, the amount of sthreedhanam fixed. The recital is inadequate to prove the custom set up. Ext. B-13, dated 29th Chingom 1107 is an agreement between D.W. 5 (styled 'Pranopakari') and his deceased brother Padmanabhan's son, and the widow of the said Padmanabhan. It recites that subsequent to Padmanabhan's death, D.W. 5 had two sons, Sreedharan and Krishnan through the 3rd executant (Padmanabhan's wife). The substance of the document is that the self acquisitions of D.W. 5 and the deceased Padmanabhan in joint possession of the three executants, were to be secured after the death of Nos. 1 and 3 to the second executant, and to the two sons Sreedharan and Krishnan, in the manner specified in the document. A suit was brought by the daughters of Padmanabhan for partition of the assets of their father on the ground that they belonged to the barber community governed by Mithakshara Law as modified by the custom, and that according to the custom, they were entitled to a share in their father's assets along with their brothers. The matter was eventually disposed of in second appeal by this court by Ext. B-10 judgment dated 11th October 1959 accepting the finding called for that the custom set up had not been proved. It is enough to observe that Ext. B-13 is unhelpful to prove the custom; and that in the suit which ended in Ext. B-10 judgment, there was no plea that the parties were governed by the Travancore Nayar Act and no decision on the question. The only plea in so far as we are able to gather it from Ext. B-10 was on the basis of the custom set up. Ext. B-12 of the year 1115 M.E. is a partition between the plaintiff's father Ayyappan, and his brother Velayudhan, and three sisters, all styled Pranopakaris. The properties are allotted to each of them separately in Schedules A to E. There is nothing in the document to show that the allotment was unequal or unfair or otherwise than in equal right. Ext. B-12 of the year 1115 M.E. is a partition between the plaintiff's father Ayyappan, and his brother Velayudhan, and three sisters, all styled Pranopakaris. The properties are allotted to each of them separately in Schedules A to E. There is nothing in the document to show that the allotment was unequal or unfair or otherwise than in equal right. But counsel for the respondents attempted by a process of calculation of the extent of the property in each schedule, to show that the females got a far lesser extent than the males. Assuming this was so, we do not know whether the properties were equal in regard to their nature and quality. Then there is a recital in the document that Nos. 3 to 5, the three sisters, were joined out of deference to the expressed wish of their late father; and that if any properties are found to have been omitted, these should belong to executants Nos. 1 and 2, and Nos. 3 to 5 will have no rights in them. The document is proved by D.W. 6, the plaintiff's father's brother. We think that the expressed wish of the father as recited in the document, was in consonance with the correct legal position and that the clause as to the omitted item is not sufficient to prove the custom set up. For the rest, the document is against the custom sought to be proved, as the females are also beneficiaries therein. Ext. B-7, dated 13th Mithunam 1121 M.E. is a partition in the family of D.W. 4. The parties are described as Pranopakaris. The executants are the four sons of one Krishnan and their mother, the wife of Krishnan. Krishnan had another son Neelakantan, who is stated to have been away for five years. The properties dealt with are those acquired by Krishnan in the name of his wife. These are divided in five schedules and allotted to each of the sons. The mother was to be given Rs. 10 from the income from each of the five scheduled properties. There is a recital that Lakshmi, the sister of executants 1 to 4, and the daughter of No. 5, had been paid whatever was due to her, and, out of affection for her, Rs. 30 had been decided to be paid to her. 10 from the income from each of the five scheduled properties. There is a recital that Lakshmi, the sister of executants 1 to 4, and the daughter of No. 5, had been paid whatever was due to her, and, out of affection for her, Rs. 30 had been decided to be paid to her. The recital about obligations to Lakshmi having been discharged, appears rather out of place in a partition-deed executed between the mother and four sons. From that alone, we are unable to draw any inference as to the custom pleaded. Ext. B-11, dated 26th Edavam 1124 is a release-deed in favour of D.W. 2 by his brothers and mother. By itself it proves nothing. The document could well have been left alone. But as D.W. 2 would claim that he had sisters who did not get any rights in their father's property, the plaintiff thought it fit to counter-act the effect of Ext. B-11, and produced Exts. A-25 and A-26. A-25, dated 25th January 1967 is an assignment deed by the wife and children of Raman, the brother of D.W. 2 to D.W. 2 himself. This Raman's whereabouts are stated to be unknown in Ext. B-11. A-25 would show that Raman's daughters are also included in the document, along with the sons. But counsel for the contesting respondents would attempt to neutralise the effect of the document by stating that the date of Raman's death was unknown, and if it was after the Hindu Succession Act, 1956, the junction of the daughters was quite understandable. Ext. A-26, dated 1st May 1957 is a release by the sister of D.W. 2. (This would show that he had a sister). It recites that the same was executed after mediation. The document again is after the Hindu Succession Act. Nothing much turns on these documents, Exts. B-11, A-25 and A-26. Ext. B-6, dated 25th November 1957 is a settlement by D.W. 3's father in favour of his three sons. It recites that the three daughters had been married, and after giving credit to what had already been paid or endowed for them, a sum of Rs. 350 for each of the daughters had to be paid by each of the three brothers within eight years, and receipts obtained. We do not think that the document is of any assistance to the contesting respondents to prove the custom pleaded. 13. 350 for each of the daughters had to be paid by each of the three brothers within eight years, and receipts obtained. We do not think that the document is of any assistance to the contesting respondents to prove the custom pleaded. 13. In addition to these documents, reliance was placed before us on Ext. B-4, dated 8th May 1959, a partition between the plaintiff's husband's father, and his brothers, and their father's mother. In the document, the parties are all styled 'Nayars', a circumstance against the defendants. The document contains a provision that the two sisters of the plaintiff's husband are entitled to Rs. 300 each, after deducting what they had been paid, and that this should be paid in equal moities to executants Nos. 1 and 3, and on default, the shares of the brothers were to be a first charge for the amounts. The court below did not place reliance on Ext. B-4 as it came into existence after the Hindu Succession Act. Even if it were to be accepted, we do not think the document advances the case of the defendants. On these documents and evidence, we are unable to hold that the custom set up has been proved. 14. We may next notice the judicial decisions which have considered the status of Vilakkathala Nayars. In Kalu Bhagavathy v.Narayanan Kumaran, 1104 XIX T.L.J. 488 = 3 T.L.J. 1027 a Division Bench of the Travancore High Court ruled that Vilakkathala Nayars are known and recognised as Nayars and are governed by the Travancore Nayar Regulation of 1088, which defined 'Nayar' in the same way as the later Act of 1100. The relevant portion of the judgment reads thus: "The definition of 'Nair' in the Nair Regulation I of 1088 is "Nair includes Kiriyam, Illom, Swaroopam, Padamangalam and others known and recognised as such". No doubt the Vilakkathala Nair does not come within any of the classes enumerated in the definition, and, therefore, the question is whether the Vilakkithala Nair falls within the ambit of the expression 'others known or recognised as such'. It cannot be denied that the Vilakkithala Nairs are known and recognised as Nairs because they are generally known and designated as Vilakkathala Nairs. It cannot be denied that the Vilakkithala Nairs are known and recognised as Nairs because they are generally known and designated as Vilakkathala Nairs. All recognised authorities on the subject, so far as we are aware, have treated them as a subdivision of the Nair community (see Ramachandra Iyer's Manual of Malabar Law, Introduction, pages 17 and 18; Mr. Nagamiah's State Manual, Vol. II, page 350; and the Census Report for 1901, Part I, page 346). 5. This question directly came up for decision before this court in Crl. Proceedings No. 95 of 1094 (Crl. R. P. No. 423 of 1093) where the wife of a member of the Vilakkithala Nair community made an application for maintenance under section 366, Crl.P.C. It was contended on behalf of the husband that the provisions of the Nair Regulation 1 of 1088 did not apply to the community to which the parties belonged. This contention was repelled by this court and maintenance was ordered to be given to the wife by the husband we have, therefore, no hesitation in holding that the Vilakkithala Nairs are governed by the Nair Regulation.� (The definition of Nayar in the Regulation only requires that 'others' should be 'known or recognised as such'; and not 'known and recognised', as stated by the Division Bench in the passage quoted above and in one of the passages preceding the same). The above decision expressly rendered with respect to Vilakkathala Nayar was followed by another Division Bench of the same High Court in Krishnan Narayanan v. Sarkar, 1108-VII-T.L.T.232. The decision states broadly that Barbers are Nayars within the definition of section 25 of the Nayar Regulation of 1088, which enjoins monogamy for the Nayars and ordains that a second marriage contracted during the subsistence of the first, would be void. The facts, as stated in the judgment, do not disclose whether parties were Vilakkathala Nayars or any other section of barbers. In Krishnan v. Govindan, XXI T.L.J. 851 the Travancore High Court ruled that Veluthedathu Nairs are governed by the Travancore Nayar Regulation of 1088. In Krishnan v. Gopalakrishnan Embrandiri, 118-XXXIV-Cochin 350, a Division Bench of the Cochin High Court held that 'Veluthedans' are not governed by the Cochin Nayar Act 13of 1095. Unlike the Travancore Nayar Act, the Cochin Act contained no definition of the term 'Nayar' and this was stressed by the Division Bench. In Krishnan v. Gopalakrishnan Embrandiri, 118-XXXIV-Cochin 350, a Division Bench of the Cochin High Court held that 'Veluthedans' are not governed by the Cochin Nayar Act 13of 1095. Unlike the Travancore Nayar Act, the Cochin Act contained no definition of the term 'Nayar' and this was stressed by the Division Bench. Reference was made to the report of the Cochin Nayar Regulation Committee, of which the late K. P. Padmanabha Menon (the Author of the History of Kerala noticed earlier) was a member. The said report noticed fourteen high caste Nayars and four low caste Nayars. Among the latter are, Vilakkathalavans and Veluthedans, ranked respectively as Nos. 2 and 3. The report of the Committee commented that the Nayar Community does not regard the above mentioned four low caste Nayars as Nayars. After noticing the definition of Nayars in the Travancore Nayar Regulation, the report stated that it was distinctly understood that the draft bill does not contemplate the inclusion of the four low castes among Nayars. The Cochin High Court after noticing the above report, and the two decisions of the Travancore High Court referred to earlier, stated that in none of the documents produced in that case was there any description (as in Krishnan v. Govindan, XXI T.L.J. 851) of the community as Veluthedan Nairs and that even such a description would not avail in view of the express statement in the report of the Nayar Regulation Committee. The decision was rested on these grounds. In Rama Marar v. ParuMarassiar, XXIV-Cochin 423 a Division Bench of the Cochin Chief Court ruled that Marars (ranked as No. 6 among the high caste Nayars by the Committee noticed earlier) were not Nayars. The conclusion was rested on the absence of satisfactory evidence, after noticing that some of the Manuals and Treatises would regard them as Nayars. In Naniamma v. Kochu Govindan Nair, 1962 KLT 979 a learned Judge of this court considered the question whether Veluthedans of Cochin are Nayars, within the definition of the Cochin Nayar Act 1113, which, like its predecessor, and unlike the Travancore Act, contained no definition of the term 'Nayar'. The learned Judge dissented from the decision in Krishnan v. Gopalakrishnan Embrandiri, 1118-XXXIV-Cochin 350 and followed the decision of the Travancore High Court in Krishnan v. Govindan, XXI T.L.J. 851 and held they were Nayars. The learned Judge dissented from the decision in Krishnan v. Gopalakrishnan Embrandiri, 1118-XXXIV-Cochin 350 and followed the decision of the Travancore High Court in Krishnan v. Govindan, XXI T.L.J. 851 and held they were Nayars. We have referred to these decisions only to show that the ranking of the division or subdivisions among the caste may not always afford a conclusive test as to whether the subdivisions have been 'known or recognised as such', within the meaning of the Nayar Act. The attention of Counsel was drawn to Manipuzha Illath Sankaran Nambudiri case, A.I.R. 1955 Madras 279 where the attempt of 'Embrandiris' to evolve themselves into 'Nambudiris', under the Madras Nambudiris Act, based on some proof of execution of documents, spread over a period of time, describing them as having the superior status, was discountenanced by a Division Bench of the Madras High Court. The decision was referred to by this Court in Easwaran Embran v. Krishnan Embran, 1961 KLT 5 . On the facts, and on the provisions of the statute, the decisions are distinguishable. We repeatedly asked Counsel for the respondents whether he would formulate any tests before a section or community could be regarded as known or recognised as Nayars, more or less on the lines on which courts have tackled the question as to who is a Hindu or who is a Muslim, in decided cases. No such approach was made by Counsel. On the plaintiff's side there is strong evidence that the marriage and funeral rites of their community are the same as those of the Nairs; and on the defendant's side, the custom contrary to Marumakkathayam law or usage, which was set up, has not been proved. We are satisfied that on the materials placed before us Pranopakaris and/or, Vilakkathalavans had been 'known or recognised' as Nayars under the Travancore Nayar Act 1100. If so, the decision of the court below dismissing the plaintiff's suit was wrong and has to be set aside, and a preliminary decree for partition passed. 15. The court below found on the merits on issue 9, that the release-deeds Exts. A-2 and A-3 would enure for the benefit of the plaintiff as well, and that she would be entitled to a one-fifth share therein, as claimed. 15. The court below found on the merits on issue 9, that the release-deeds Exts. A-2 and A-3 would enure for the benefit of the plaintiff as well, and that she would be entitled to a one-fifth share therein, as claimed. Counsel for the respondents objected to this finding on the ground that if co-ownership funds are invested in the purchase of property by one of the co-owners, the others are entitled only to their share of the monies invested, but cannot treat the property itself as co-ownership property. For this, reliance was placed on the decision in Mariamma v. Charaghan, 1959 K.L.T. 1050. But the very decision itself recognised that while under section 88 of the Trusts Act, an accounting alone can be had against the defaulting co-owner bound in a fiduciary capacity to protect interest of the others, when the co-owner-fiduciary in management treats the properties themselves as co-ownership properties, the position is different. That seems to be the position here. After the release, mutation of names was applied for, in which the plaintiffs and defendants 1 to 3 (on behalf of the fourth defendant also) stated that they were the owners of the property and prayed for mutation to be effected in their names. It was accordingly so ordered (vide Exts. A-4 and A-5). In view of this, we are of the opinion that the properties comprised in Exts. A-2 and A-3 release-deeds enure for the benefit of the plaintiff as well. 16. On issue 4, the trial court directed that the question of mesne profits, be relegated to the final decree stage. On issue No. 5 the lower court directed that the accounting, if necessary, will be done by the defendants at the final decree stage. There are no grounds to interfere with these findings of the court below. On issue No. 6, the court below found that the defendants are not entitled to get any value of improvements as no evidence was adduced by them to show that they had made any improvements; and even if any had been made the same was only an act of management during the period that they were taking the yield from the properties. We accept the said finding. 17. We accept the said finding. 17. In the result, we allow this appeal, set aside the judgment and decree of the court below and pass a preliminary decree for partition of the plaintiff's one-fifth share in the plaint schedule properties. The matters covered by issues 4 and 5 will be dealt with the final decree stage as directed by the court below. The appellant is entitled to her costs both here and the court below.