(1.) This second appeal is in a suit for partition of a Marumakkathayam Ezhava tarwad, the last members of which were three brothers Kandan, Iypi and Raman. There was a karar or family arrangement in the tarwad by Ext. P. 1 in the year 1082, under which, according to the plaintiff - appellant, each of the brothers took an equal share in its properties, descendable on his death to his heirs. The plaintiff is the daughter of Raman, defendants 1 to 4 are the lineal descendants of Kandan and defendants 5 to 7 are the children of Iypi. The plaintiff was born after the date of Ext. P. 1. The suit was contested by defendants 1 and 2 the children of Kandan, and by defendants 9 to 11 the mortgagees of a part of the tarwad properties. According to them, Raman had no separate interest in the properties of the tarwad which continued to be joint and so the plaintiff is not entitled to sue for partition. This contention though negatived by the first court, was accepted on appeal by the District Judge.
(2.) In second appeal, the main question for decision is whether the plaintiff is entitled to a share in the tarwad properties. That share is claimed through her father Raman. Before me, learned counsel put the case on two grounds, first on the construction of Ext. P. 1, and second on the terms of S.35 read with S.25 of the Cochin Thiyya Act (Act VIII of 1107). The latter ground has not been taken in either of the courts below, but being a legal point and an obvious one for that matter, cannot be dismissed from consideration. That Act applied to all Thiyyas domiciled in Cochin, other than those who follow Makkathayam & under S.35 "the property of a Marumakkathayam tarwad will be considered to have been the property of the nearest common ancestress and to have descended according to the rules of succession contained in Chap.4 and to be partible among the persons so entitled." Raman died in the year 1100, Iypi in the year 1112 and Kandan in the year 1131. According to the above provision, the properties of the tarwad of the three brothers must be deemed to have been the properties of their mother and to have descended from her according to the rules of succession contained in Chap.4. The relevant rule is enacted in S.25, which reads:
(3.) Learned counsel for defendants 1 and 2 contended, that Raman having died before the Act came into force, the plaintiff claiming through Raman, is not entitled to rely on the Act. The terms of S.25 including the proviso to it, and of S.35, leave me in no doubt whatever, that they have retrospective operation. The point is covered by the decision of a Full Bench of the Travancore Cochin High Court in Narayanan v. Raman ( 1953 KLT 216 ) In this view the plaintiff is entitled to the share which Raman would have inherited from his mother, had he survived her.