1. The only question that arises for decision in this second appeal is whether Ex. 16 effected a partition between the thavazhi of the plaintiffs on the one hand and that of defendants 1 to 10 on the other. The claim petition filed by the plaintiffs when the suit properties were attached in execution of the decree in O.S. No. 85 of 1918 against the karnavan of the thavazhi of defendants 1 to 10 was dismissed by the District Munsif on the ground that the plaintiffs' thavazhi had become divided from that of defendants 1 to 10 by virtue of Ex. 16, and that the plaintiff had therefore no interest in the properties that were attached. In the suit which the plaintiffs filed under Order 21, Rule 63, Civil P.C., which was heard by another District Munsif he held that Ex. 16 evidenced only a maintenance arrangement and did not amount to a partition. On appeal the Subordinate Judge of Tellicherry came to a different conclusion holding that Ex. 16 worked out a partition between the thavazhis of the plaintiffs and' of defendants 1 to 10. In the present second appeal preferred by the plaintiffs, the question for decision is which of those two views is correct.
2. Exhibit 16 is dated 22nd November 1877. On that date there were eight adult members in the Tarwad No. 1, the karnayan of the tarwad was given some properties for his maintenance; No. 2, the senior Anandravan, was also given some property for his maintenance. Of the remaining 6 numbers, 3 and 7 were the issue of No. 1--Kunhatty--and numbers 4 and 8 were the issue of No. 6--Ummanga,--Kunhatty and Ummanga being the two sisters of No. 1.
3. Some properties were left in the possession of Nos. 1 and 2 respectively, who were to maintain themselves with the income thereof with no power of alienation. Half of the remaining properties was put in the possession of one branch and the other half in the possession of the other branch. Of the two houses belonging to the tarwad one house was put in the possession of one branch and the other house in the possession of the other. A moiety of the debts due by the tarwad was charged on the properties of one branch and the other moiety on the properties of the other branch. A moiety of the revenue payable in respect of the properties of the tarwad was to be payable by one branch and the other moiety by the other. On the death of No. 1, the properties allotted for his maintenance were to be ' partitioned and taken' by the two branches equally. There was also a substantially similar provision with reference to the 'partition' of the property allotted to No. 2 on his death. Each branch was given a right to sue in Courts separately (without reference to the other branch) if litigation should become necessary with reference to the properties in its possession. The personal acquisitions of Nos. 3 and 4 should go to the respective thavazhis of each. After the death of No. 3 or his removal from management, the management of affairs of his thavazhi should be conducted by the members of his thavazhi; similar provision was made with reference to No. 4. It was provided that Nos. 3, 5 and 7 and the members of their family were to form one set,' and Nos. 4, 6 and 8 and the members of their family another 'set,' and that:
all maintenance of the members of each set should be looked after by the members of that set from the annual income of the properties in their respective schedules.
4. The document is styled a 'karar,' and there are no provisions expressly conferring right of alienation by sale, etc., on the members of the two 'sets,' nor any express provision that in future there should be only community of blood relationship but no community of property between the two sets of members. The learned Subordinate Judge having held that the arrangement of 1877 amounted to a partition, the learned advocate for the plaintiffs relied on the circumstances mentioned in para. 4 above as showing that the arrangement should be taken to be only a maintenance arrangement between the members of the tarwad.
5. No doubt the document is styled a karar' it is not-styled a partition deed; but the name given by the parties to a document is not conclusive as to its real legal nature and effect, though that undoubtedly is a circumstance to be taken into consideration along with the contents of the document. The document is somewhat difficult to construe; but having our best consideration to all the provisions of the document, we have come to the conclusion that the learned Subordinate Judge was right in holding; that the arrangement between the parties was one of partition. The various circumstances mentioned by us in para. 3 of this judgment indicate, in our opinion that the arrangement was not by way of maintenance merely; there is the right of suit given to each 'set' of people independently of the other; the value of the properties allotted to each set is the same,--the number of members in each set being also the same. On the death of No. 1, the properties allotted for his maintenance was to be partitioned and taken' by the two sets equally. The self-acquisitions of No. 3 were to go to his thavazhi and not to the whole tarwad,--the whole tarwad, if there be one, being entitled to the same according to the law applicable to the parties. On the death of No. 3, the affairs of his thavazhi were to be managed by the members thereof without any reference to the members of the other thavazhi. The revenue was to be payable equally by the two branches, because each got a moiety of the tarwad properties. All the properties of the tarwad were dealt with by the document and each set got a moiety thereof. If there was to be a tarwad and a karnavan thereof, then we find that there were no properties which he could be in possession of and manage. A moiety of all the properties being taken by each branch and all the affairs of the branches having to be conducted by the members of the respective brenches, there was prima facie no scope for the exercise by a tarwad karnavan of any of the usual functions of a karnavan.
6. The circumstance that the pattas of |the properties were not at the time transferred to the respective thavazhis is by no means conclusive against this view nor does the non-inclusion, by names, in the document of the minor members in the two thavazhis render it ineffectual to operate as a partition between the two thavazhis. It is open to the adult members of a tarwad to enter into a partition arrangement, and though members who were minors at the time would be entitled to seek appropriate relief on 'specific grounds, it could not be said that a bona fide partition arrangement entered into by the adult members of a tarwad is void and of no effect for the simple reason that the minors were not specifically mentioned as parties to the document. The number of members in each branch happened to be the same in this case, and rights of the minors would ordinarily be only against the properties allotted to their branch when the value of the properties allotted to each branch was the same. In this case, though Ex. 16 is dated 1877, nobody has called in question this arrangement till now. The non mention of minors in Ex: 16 is therefore not fatal to its validity, as a partition arrangement.
7. As already mentioned, Ex. 16 is somewhat ambiguous and difficult to construe. In such oases, the subsequent conduct of the parties to the document could legitimately be taken into account, In this case, the two thavazhis have been all along--since 1877--dealing with the properties allotted to them as if they were full proprietors thereof, and as if there was a partition between the two thavazhis. Some of the parties to Ex. 16 deposed in Courts that the arrangement was one by way of partition, and that each thavazhi was the full owner of the properties allotted to ii. There were alienations made by the different branches of some of the properties allotted to them under Ex. 16 on the footing that they were the absolute owners thereof. In fact, for a period of about 45 years from the date of Ex. 16--from 1877 to 1923,--the conduct of the members of the two branches has been inconsistent with the view now put forward that Ex. 16, evidenced only a maintenance arrangement. While such subsequent conduct is relevant and could be taken into consideration in the case of ambiguous documents, we propose to base our judgment on the considerations mentioned above, derived from the contents of the document--Ex. 16. It goes without saying that non-mention of rights of alienation etc., in a document would not prevent the usual legal incidents from attaching to ownership of property in case it is found that ownership of such property passed to particular persons by virtue of the provisions of a document.
8. On the whole, we have come to the conclusion that the view taken by the Dissrict Munsif in the claim proceedings, and by the learned Subordinate Judge on appeal in the present case, is not shown, to our satisfaction, to be erroneous; whereas we are inclined ourselves to agree with that view. The second appeal is accordingly dismissed with costs. Second Appeal No. 736 of 1921 follows and is dismissed.
9. There was one original suit, against the decree in which in favour of the plaintiffs, two appeals were preferred to the lower appellate Court by two sets of defendants. The result of the appeals was that the suit was dismissed by the lower appellate Court and a decree dismissing the suit was passed. In such circumstances, the plaintiffs need not file two second appeals--it is enough if the plaintiffs file one second appeal: see Sanyasi Lingam v. Gavaramma : (1906)16MLJ411 . In the circumstances, the appellants will pay only one set of pleaders' fee to the respondents in the two second appeals together, which would be shared--a moiety by defendant 11, and the other moiety by the other defendants. The respondents will also get the costs of printing and translation in each second appeal from the appellants.