ESWARA WARRIER Vs. PARUKUTTY WARASIARU

JUDGEMENT

(1.) The 1st defendant in O.S. No. 138 of 1122 of the District Court of Quilon, a suit for partition, is the appellant before us. The 1st plaintiff is the widow of the deceased Krishna Warriar who had married her in the kutiveppu form and the 2nd plaintiff is their daughter. The 1st defendant is the son of the late Madhava Warrier (the brother of Krishna Warrier) and the 5th defendant whom he had married in kutiveppu form. Defendants 2, 3 and 4 are his brothers, 6 and 7, his sisters and 8 and 9, the children of the 6th defendant.

(2.) It is agreed that the marriages of the first plaintiff and the 5th defendant were in the kutiveppu form, that the plaintiffs and the defendants are members of the same Warriar tarwad and that they are entitled to share in the properties of that tarwad. The dispute is as to the mode of division that should be adopted; whether it should be per stirpes or per capita The lower court has taken the view that the division should be per stirpes or per capita, the widow and daughter of Krishna Warriar getting one half of the property and the widow, children and grandchildren of Madhava Warrier, defendants 1 to 9, getting the other half and the only question raised in this appeal is about the correctness of that conclusion.

(3.) In VI TLT 59, a Full Bench of the High Court of Travancore after referring to two decisions of the Sadr Court of Travancore and the evidence and arguments advanced in that particular case observed that the custom obtaining in the community can best be summed up in the words of the following extract from the Madras Census Report of 1891 (p. 270):