KOCHUNATAYANA PILLAI Vs. KUMARA PILLAI

JUDGEMENT

(1.) The contesting parties in this Second Appeal are the son and nephew respectively of Raman Chettiar, who belonged to the Pattarian Community following the Marumakkathayam system of inheritance. The suit was filed by the respondent before me, who is the nephew of Raman Chettiar, for recovery of mortgage money and the additional. 3rd defendant in the suit is Raman Chettiars son. There was another suit by the son for the same relief and against the decision in that suit there is no second appeal before me. In the suit, out of which the Second Appeal has arisen, the 3rd defendant son contended that Raman Chettiar being the last surviving member of his tarwad, the son was entitled to the properties left by Raman Chettiar at his death. This plea was accepted by the Trial Court; but on appeal the learned Subordinate Judge reversed the same and decreed the suit holding that the nephew, who was the plaintiff in the suit, was Raman Chettiars heir. It is this decision of the lower appellate court that is being challenged in Second Appeal by the son.

(2.) The suit proceeded in the Trial Court on the basis that Raman Chettiar belonged to a Marumakkathayam family. But before the lower appellate court an attempt appears to have been made by the son to urge that the system of law followed by Raman Chettiar was not Marumakkathayam, but Makkathayam. That attempt was rightly repelled by the lower appellate court, because the pleadings did not warrant such a case. Therefore, the only question for decision is whether the conclusion of the lower appellate court that the nephew was the heir of Raman Chettiar in preference to the son is correct or not, if Raman Chettiar followed the Marumakkathayam system of inheritance.

(3.) In the written statement the 3rd defendant son pleaded that the respondent plaintiff belonged to a divided branch of the same original tarwad to which Raman Chettiar belonged. If that be so, then the question is whether, on the death of the last surviving member of a divided branch of a Marumakkathayam family, it is the son who is entitled to claim the properties left by the last surviving member as heir or whether the members of the other divided branch can claim the properties. On this question there are rulings of the Travancore High Court taking the view that the son is not the heir and the Koottukars and Dayadies are the preferential heirs (vide Lekshmi Narayani v. Pachootty Mathevi 17 T.L.R. 69 and Kanakku Mathevan Pillai Narayana Pillai v. Aiyappan Pothikutty, 18 TLJ 89). This legal position cannot be seriously disputed, nor has it been so disputed before me.