MOHAMMED ABDUL KADIR Vs. APPI

JUDGEMENT

(1.) THIS second appeal arises out of a suit for partition of one item of property. The plaintiffs and defendants 1 to 13 are 'thandans' by caste and are members of a tarwad which is governed by marumakkathayam law, the plaintiffs and defendants 1 to 6 being members of one branch and defendants 7 to 13 being members of the other branch. In their branch, the plaintiffs belong to one sub branch and defendants 1 to 6 belong to the other. The 14th defendant a stranger, has purchased the rights of all the members of the tarwad except the plaintiffs who have filed the suit for partition of their 1/4th share per stirpes. The two courts have repelled the contentions of the 14th defendant and decreed the plaintiffs' claim. Hence this second appeal by the 14th defendant.

(2.) THERE is no substance in the contention of the 14th defendant, that under the marumakkathayam law the plaintiffs cannot compel a partition, the 14th defendant having become the transferee of the shares of all the members of the tarwad, except the plaintiffs. I am also of the view, that the second contention, that the plaintiffs cannot claim their share per stirpes or are entitled only to their share per capita cannot be sustained. The 14th defendant himself had taken the transfer deeds, Exts. II, X and IX from the other members or branches of the tarwad only on the footing that the shares of the transferors and of the plaintiffs are to be reckoned per stirpes. Having done so, it seems to me, that the 14th defendant cannot now claim a larger share in the property. The learned counsel for the 14th defendant also contended, that under the customary marumakkathayam law, division was always per capita and not per stripes. THERE being no compulsory partition under the customary marumakkathayam law, decisions directly bearing on the question are very rare indeed. The only case on the point brought to my notice is Madhava Warrier Eswara Warrier v. Krishna Warrier Purukutty Warasiaru (1955 KLT. 495) which has held, that the mode of division has been per stirpes and not per capita. This case has adopted the view of Dr. K. Krishnan Pandalai, in Chapter VI of his thesis on Succession and Partition in Marumakkathayam Law, where the author has referred to cases decided by the Travancore High Court which have applied the above rule of division. P. B. Sundara Aiyar in his treatise on Malabar & Aliyasanthana Law at page 10 has referred to the various text-writers and to Dr. Pandalai's thesis as supporting the rule of division per stirpes in marumakkathayam law. My attention was however, invited to an article published in 9 MLJ. 135 at 138 where the other rule of per capita division is supported. I adopt the view in Madhava Warrier Eswara Warrier's case and hold that the plaintiffs are entitled to claim their share per stirpes. This appeal is dismissed with costs. Dismissed.