Judgment :- 1. Defendants 1 to 8 in O.S. 142 of 1976 of the Sub Court, Parur have filed this appeal. Pending appeal first appellant died and her legal representatives have been impleaded as respondents 13 to 17. 2. Plaintiffs filed the suit for partition alleging chat they along with defendants 1 to 8 belonging to Warriar community are members of a tavazhi tarwad governed by Mitakshara Law and plaint A schedule properties were allotted to the tavazhi tarwad under Ext. Al partition deed dated 15-12-1959 and the plaintiffs are entitled to separation of 8/16 share therein, that plaint B schedule properties belonged to Padmanabhan Namboodiri, the husband of the first defendant and father of first plaintiff and defendants 2 to 5 devolved on them on his death and the first plaintiff is entitled to separation of 1/6th share with mesne profits. On the death of the fourth defendant, defendants 9 to 14 were impleaded as his legal representatives. Plaintiffs also challenged various alienations in favour of defendants 15 to 18. Defendants 1, 2, 3, 5 and 9 to 14 filed joint written statement contending that plaint A schedule properties belong exclusively to the first defendant and are not tavazhi tarwad properties and hence not partible, that the first defendant had executed settlement deed in favour of her children including the first plaintiff, first plaintiff has only 1/7 share in plaint B schedule properties and the second defendant is not liable to account mesne profits. Defendants 15 to 18 claimed to be in possession of portions of plaint B schedule property by various alienations and sought to support the same and alternatively contended that these properties should be allotted to the share of alienors in case of partition. The trial court held that plaint A schedule properties belong to tavazhi tarwad and not to the first defendant exclusively, that the plaintiffs are entitled to 8/16 share therein, that the first plaintiff is entitled to 1/7share in plaint B schedule properties, that the question of accountability and liability for profits and the claim for improvements of defendants 15 to 18 will be determined in the final decree proceedings and accordingly passed a preliminary decree for partition. This decree is now challenged. 3. According to learned counsel for the appellants, the allotment under Ext. Al is only in favour of the first defendant and not to the tavazhi. This decree is now challenged. 3. According to learned counsel for the appellants, the allotment under Ext. Al is only in favour of the first defendant and not to the tavazhi. The common ancestress of plaintiffs and defendants 1 to 8 was Madhavi Warassiar. She had one son and five daughters. First defendant is one of her daughters. First plaintiff and defendants 2 to 5 are the children of the first defendant. Defendants 6 and 7 are the children of the fifth defendant. Plaintiffs 2 and 3 are the children of the first plaintiff and the other plaintiffs are the children of third plaintiff. Defendants 9 to 14 are the legal representatives of the fourth defendant. Ext. Al dated 15-12-1959 evidences partition deed entered into between the defendants of Madhavi Warassiar. No doubt, the document states that many of the properties were acquired in the name of Madhavi Warassiar, though some of them were acquired in the name of herself and the names of two children. But the document clearly states that the intention behind the acquisitions was that the same will go to Madhavi Warassiar and her children. Ext. Al further states that parties entered into the partition deed so as to ensure that they enjoy the properties. Under the partition deed, properties described as C schedule therein were specifically allotted to the share of the third group of sharers. Plaint A schedule properties are included in the C schedule and the third group represents first defendant and her descendants. There can therefore be no doubt that the allotment was to the tavazhi of the first defendant and not to the first defendant exclusively. Therefore plaintiffs have share in the properties as one of upatavazhis. 4. Learned counsel for the appellants contended that the parties belong to Warrier community in the erstwhile Travancore State, that there is no statute governing Warrier tarwads or partition in such tarwads and parties are governed by the pristine Marumakkathayam Law as it existed in the erstwhile Travancore State and as per that law, partition should be by stirpes and not per capita and the court below erred in allotting shares per capita. This contention was not raised in the court below. However, since it involves a pure question of law, we allowed the appellants to raise the question. 5. This contention was not raised in the court below. However, since it involves a pure question of law, we allowed the appellants to raise the question. 5. It is well known that in tarwads governed by Marumakkathayam Law no member or tavazhi could in the earlier days claim partition as a matter of right. This was so in the erstwhile Malabar area as also in the erstwhile Travancore State. The law in Malabar was statutorily changed by the Madras 'Marumakkathayam' Act, 1933. In Travancore-Cochin various statutes were enacted relating to Nair and other communities. But no such statute was enacted in regard to persons belonging to Warriar community. In "A Treatise on Malabar and Aliyasanthana Law" by P.R. Sundara Aiyar it is stated at page 11 that: "It has been for a long time now established both in the Native States of Travancore and Cochin and in the British Courts that no member of a Marumakkathayam tarwad can claim division as a matter of right and every member can resist partition if he does not like it. In other words the unanimous vote of all the members is necessary to effect a partition." Dealing with mode of division, learned author has stated at page 10 that: "Dr. Pandalai in his monograph on Succession and Partition at page 147 refers to a case in Travancore in which the point directly arose and was so decided. A number of other rulings are also referred to by him in which stirpital division was recognised as the rule. In a recent Privy Council case (1916) 32 MLJ. (P.C.) stirpital division is taken as the normal mode of division." 6. In Madhava Warrier Eswara Warrier v. Krishna Warrier Parukutty Warassiar (1955 KLT. 495) a Division Bench of the Travancore-Cochin High Court relying on the decision of a Full Bench of Travancore High Court dealt with the case of Warrier tarwad in the erstwhile Travancore State and held that partition should be according to tavazhis and not per capita. This decision was followed by a learned single judge of this court in Mohammed Abdulkadar v. Appi (1962 KLT. 340) and by a Division Bench of this court in Balakrishna Warrier v. Sreedhara Warrier (1964 KLT. 911). It is thus clear that division according to pristine Marumakkathayam law was by stirpes and not per capita. 7. This decision was followed by a learned single judge of this court in Mohammed Abdulkadar v. Appi (1962 KLT. 340) and by a Division Bench of this court in Balakrishna Warrier v. Sreedhara Warrier (1964 KLT. 911). It is thus clear that division according to pristine Marumakkathayam law was by stirpes and not per capita. 7. Though learned counsel for the appellants was permitted to raise only the question relating mode of division, in the course of bis arguments it was suggested that since no member of the tarwad had right to enforce partition and since defendants 1 to 8 did not agree to partition, plaintiff's suit should have been dismissed. We do not think at this stage such a contention should be countenanced. According to learned counsel for the contesting respondents, the law has undergone a change subsequent to the filing of the suit and this court should take notice of the same in the interest of justice. Change in law is said to be on account of the enactment of the Kerala Joint Hindu Family System (Abolition) Act. 1975 (for short'the Abolition Act'). The preamble of the Abolition Act states that it is expedient to abolish joint family system among Hindus in the State of Kerala. S.3 of the Act abolishes the right by birth, in the property of an ancestor. S 4 replaces joint tenancy by tenancy in common. Sub-section (I) relates to undivided Hindu families and sub-section (2) relates to other Hindu families. It states that all members of the family holding any joint family property on the day the Act comes into force shall with effect from that date hold it as tenants in common as if a partition of such property per capita had taken place among all the members of the family living on the day aforesaid, whether such members are entitled to claim such partition or not under the law applicable to them and as if each one of the members is holding his or her share separately as full owner. The Act came into force on 1-12-1976. With the coming into force of the Act it would be open to the plaintiffs to sue for partition claiming share on per capita basis. Partition suit was filed originally claiming indigency in 1975. It was registered as a suit in 1976, some time prior to the coming into force of the Abolition Act. With the coming into force of the Act it would be open to the plaintiffs to sue for partition claiming share on per capita basis. Partition suit was filed originally claiming indigency in 1975. It was registered as a suit in 1976, some time prior to the coming into force of the Abolition Act. It is apparent that had the suit been filed on or after 1-12-1976 it would have been maintainable and the plaintiffs would be entitled to claim share on per capita basis. That is because the Act confers right of compulsory partition on every member of the family. It appears to us that the court has to take notice of this subsequent change in law and sustain the decree already passed by the court below. 8. Learned counsel for the appellants contended that by virtue of Ext. A2 settlement deed and in any event by virtue of the partition suit it must be taken that there has been severance of status and therefore the condition requisite under S.4(2), "all members of a joint Hindu family, other than an undivided Hindu family, holding any joint family property on the day this Act came into force" is not satisfied in the instant case and plaintiffs cannot invoke the benefit of S.4(2) of the Act. Ext. A2 is a settlement deed executed by the first defendant in favour of the children in regard to plaint A schedule properties. It proceeded on the basis that the properties belong exclusively to the first defendant and she was compulsorily transferring various portions to her children. It did not purport to effect severance in status in the tavazhi; nor did it purport to affect partition by metes and bounds of tavazhi tarwad property. Therefore Ext. A2 cannot be said to have brought about severance in status in the tavazhi tarwad. It is no doubt true that the plaintiffs filed the suit for partition in 1975. At the time when they filed the suit they had no right of compulsory partition. Partition could be effected only by consensus of all members of the family. Such consensus were absent. The members of the family among the defendants who filed written statement did not agree to a partition; on the other hand they resisted partition raising various contentions and prayed that the suit may be dismissed. Partition could be effected only by consensus of all members of the family. Such consensus were absent. The members of the family among the defendants who filed written statement did not agree to a partition; on the other hand they resisted partition raising various contentions and prayed that the suit may be dismissed. In these circumstances it cannot be said that the mere filing of the partition suit created severance in status. We must proceed on the basis that prior to the coming into force of the Abolition Act members of the family were holding joint family properties. Therefore there is a statutory severance of status created by S.4(2) of the Act and plaintiffs are entitled to claim per capita share. 9. We find no ground to interfere and accordingly dismiss the appeal with costs. Dismissed.