1. In this appeal filed by the plaintiffs in O. S. 22 of 1974 on the file of the Subordinate Judge's Court. Ottappalam, the short question for consideration is whether Ext. B11 dated 10-11-1962 is actually ;t partition or only an arrangement for maintenance. Both sides agreed that if it is treated as an outright partition, the appellants are out of court; otherwise the suit for partition will have to be allowed.
2. Admittedly such of the plaintiffs and defendants who were in existence on the date of Ext. B11 wore members of an undivided Namboodiri Illom. The properties sought to be partitioned are B, B1 and C schedule items in the plaint. Plaint A schedule is the genealogy table. D schedule items are debts to be discharged by the Illom. B schedule items are properties in the direct possession of the Illom and Bl schedule items are outstanding with tenants. C schedule items are movables.
3. On 10-11-1962 the then existing members of the Illom entered into Ext. B11, naming it an agreement for partition. Plaintiffs say that this document was intended only as a temporary arrangement for maintenance, since the members felt that execution of an outright partition in order to divide the properties by metes and bounds may lake some time. According to them an outright partition, if necessary, disturbing the arrangement under Ext. B11 was in contemplation and Ext. B11 was intended only as a temporary arrangement till such a partition deed is executed and hence even after execution of Ext. B11 the Illom remained undivided. But the defence version is that Ext. B11 evidences an outright partition and hence the suit for partition is not at all maintainable, since there is no undivided family after the date of Ext. B11.
4. On issues 2 to b the trial court found that under Ext. B11 the parties attained a status of division which has been accepted and acted upon even by the first plaintiff who was the only member of the illom among the plaintiffs at the time of Ext. B11. On the date of Ext. B11 the first plaintiff was a bachelor. It was only subsequently that he married the 2nd plaintiff. The trial court held that the other plaintiffs were not members of the illom on the date of Ext. B11. On the admission of the first plaintiff as PW. 1 it was further found that C schedule movables were already partitioned and hence not available for partition. B schedule, item No. 15, covered by Ext. B38, was found to be the only item of property left in common under Ext. B 11 and now available for partition. Regarding that item, the trial Court passed the preliminary decree for partition directing it to be divided into 25 shares. 25 shares were calculated on the basis of the number of members existing on the date of Ext. B11. The first plaintiff was allowed 1/25 share.
5. We heard both sides at length and perused the oral and documentary evidence anxiously. After considering the entire evidence we are of the opinion that the trial Court was perfectly correct in its various findings referred to above. True that as alleged by the appellants, there are some provisions in Ext. B11 which may indicate that the parties intended it only as a temporary arrangement till a final division is arrived at. But in interpreting Ext. B11 the Court is bound to gather the intention of the parties, taking into account the cumulative effect of all the provisions taken together as well as the conduct of the parties subsequent to Ext. B11. The subsequent conduct will enable the Court to evaluate as to how the various provisions of the document were understood and acted upon by the parties.
6. The fact that some of the items included in Ext. B11 were actually not measured and demarcated before allotting to individuals or tavazhies, is no ground to deprive the document of its position as an outright partition. In the decision reported in AIR 1967 SC 1124 (Girijanandini v. Bijendra Narain). their Lordships had occasion to state as follows :--
'Partition consists in defining the shares of the coparceners in the joint property, actual division of the property by metes and bounds is not necessary to constitute partition. Once the shares are defined, whether by agreement between the parties or otherwise, partition is complete. The parties may thereafter choose to divide the properly by metes and bounds, or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property. Partition may ordinarily be effected by institution of a suit, by submitting the dispute as to division of the properties to arbitrators, by a demand for a share in the properties, or by conduct which evinces an intention to sever the joint family: it may also be effected by agreement to divide the property. But in each case the conduct must evidence unequivocally intention to sever the joint family status. Merely because one member of a family severs his relation, there is no presumption that there is severance between the other members, the question whether there is severance between the other members is one of fact to be determined on a review of all the attendant circumstances. Where there is severance between different branches of a joint family, severance between the members of the branches inter se may not in absence of expression of an unequivocal intention be inferred.'
7. No separate formality is required to attain status of division and get the joint status disrupted. What is relevant, as already stated is only the intention of the parties galherable from the various provisions of the document as well as their subsequent conduct which indicate as to how they understood and acted upon the provisions. In the decision reported in AIR 1961 SC 1077 (Kashinatha v. Narsinga) their Lordships held thus : --
'The agreement between the memebrs of the joint Hindu family to appoint arbitrators for dividing the family properties amounts to severance of the joint family status from the date of agreement. Once reference is made joint family status is severed and it is not postponed until the division of the property by metes and bounds. If the consent, of the parties was not procured by fraud, misrepresentation or any other ground which may vitiate a partition under the general law, the division made by the arbitrators and accepted by the parties would be binding upon them. By the reference to the arbitrators, the parties cease to be members of the joint Hindu family. If thereafter the assets of the family are divided and that division is accepted by the parties, the properties reduced by the parties to their possession must be deemed to be of the individual ownership of the parties to whom they are allotted, and the remaining properties as of their tenancy-in-common.'
8. By Ext. B11 some of the members got individual shares and some others took shares in tavazhies. That aspect has absolutely no relevance in considering the factum of severance of status as evidenced by Ext. B11. Even when individual members sever themselves from the family, others could continue to remain joint. So far as Ext. B11 is concerned the ultimate question is only whether it evidences the intention of the parties to effect a severance in status in order to indicate that the undivided status of the illom has been disrupted. The answer must definitely be in the affirmative.
9. The fact that one or more items were left in common, as was done under Ext. B11, while effecting partition, is no reason to find that the parties intended the undivided status to be maintained. In order to effect severances it is not at all necessary that all the available items should be included and divided. So far as this case is concerned, the illom compound was the only item left in common under Ext. B11. It was so done only for the purpose of maintaining the illom and temple belonging to it. That aspect is not at all indicative of the intention of the parties to retain the jointness of the illom. If Ext. B11 could be taken us expressing the intention of the parties to effect a severance in status, then it must be found that the joint family status is definitely put an end to. In such a case, in respect of the properties which remained undivided, the position of the members will only be as tenants-in-common.
10. The first plaintiff as PW. 1 admitted that shortly after the death of his father, ill-feelings arose between the members and some of the members began to express their intention to separate. He further admitted that subsequently steps were taken through the family lawyer for partition. The Manager of the illom Devaswom was deputed to assist the lawyer for this purpose. Particulars of properties were collected. Exts. B2 to B10, B17 and B28 show that details of the properties in the actual possession of the illom as well as those outstanding with tenants were collected for the purpose of effecting partition. Though the defence contention that there was a partition as early as 1958 and that Ext. B11 was only an affirmation of that partition, was definitely denied by the plaintiffs, as PW. 1 the first plaintiff admitted that, even according to his knowledge, steps for effecting partition started as early as 1958. Ext B4 is a list of properties prepared by the family lawyer in 1958 for the purpose of effecting partition. Ext. B5 list, which was also prepared for that purpose in 1958, was in the handwriting of PW. 1 himself. Ext B6 is the final list for partition prepared in 1958 by the Surveyor. It included properties in the direct possession of the illom. Ext B7 letter written by the family lawyer in 1958 also indicates that parties were making arrangements for a partition.
11. Ext. B11 unequivocally expressed the intention to separate. Of course, there is a statement that the arrangement was intended only as a temporary measure till a final partition is effected within 6 months. But that statement by itself cannot take away the otherwise conclusive effect of Ext. B11 which could be gathered from the various provisions and subsequent conduct.
12. The properties were divided under Ext. B11 into 26 shares. Out of these one share was kept in common for the maintenance of the illom and its temple. Out of the remaining 25 shares some were allotted to individuals and some were given to certain groups as tavazhy and it is provided that the properties left out should be included and divided in the prospective partition deed. Mistakes, if any, in the descriptions were also directed to be corrected under the partition deed that was intended to be executed in future. Provisions for separate enjoyment by the respective sharers were also incorporated. Alienable rights were given to the sharers. It is further provided that the sharers will have to enjoy the items as owners. The rubber estate belonging to the illom was given to parties 3, 12, 17, 23, 24 and 25 as their separate shares. They were directed to pay the excess amounts to other sharers. The sharers were authorised to collect the income and discharge the debts of the illom in proportion to the shares. Not only the properties included in the shares of members, but even items left in common were allowed to be alienated by the members even before the execution of the outright partition deed that was intended to be executed later. Of course there is a provision that while executing such documents all the members of the illom should join. That is an unnecessary provision which might have been included due to lack of the knowledge of the legal provisions. In the face of the other clear provisions incorporated in Ext. B11, this particular unnecessary provision looses much of its importance in coming to the conclusion that Ext. B11 is not an outright partition. Each member was made proportionately liable, in proportion to their shares, for the arrears of agricultural income-tax due from the illom. It is also seen that the accounts of the illom were ascertained and settled. 13. The various provisions enumerated above unequivocally indicate that the parties definitely intended Ext. B11 as a severance in status. We have already staled that only one item was left in common and all other items were divided. Even though the document says that it was intended only as a temporary arrangement, there is the further provision that the partition arrangement included in Ext. B11 was never intended to he disturbed even while executing the outright partition deed mentioned therein. That shows that the arrangement under Ext. B11 was intended by the parties as an outright one which is not liable to be disturbed at any future point of time, though it is provided that a partition deed was actually to be executed. Probably such a provision must have been included only for the purpose of rectifying the mistakes and omissions that might have crept in the document.
14. The various sharers were treating the properties obtained under Ext. B11 as their own separate properties. They have made alienations also. Those alienations were not challenged by anybody. Admittedly even the first plaintiff dealt with the properties allotted to him under Ext. B11 as his own and alienated them. He has also given 'J' forms regarding properties in the possession of tenants allotted to him. All these indicate that Ext. B11 was definitely an outright partition and it was intended by the parties only in that manner and acted upon as such. The above discussion clearly indicates that the findings of the trial Courl are perfectly correct. The trial Court found that only one item of property was left in common. That was allowed to be partitioned among the members who were in existence on the date of Ext. B11. That finding is also correct. Therefore, we are of the opinion that no interference is required with the decree and judgment of the trial court.
15. There is absolutely no reason to depart from the principle that cost must follow the event. The plaintiffs must definitely have been aware of the fact that Ext. B11 was an outright partition and that they are not entitled to sue for partition of the entire properties. The facts and circumstances show that this was intended only as a test suit. Therefore the appellants are liable for the costs of the contesting respondents.
In the result, the decree and judgment of the trial Court are confirmed and the appeal is dismissed with costs.