ELAYAT KARTHIYAYINI KUNCHI AMMA Vs. MINAKSHI AMMA

JUDGEMENT

(1.) This is a petition to revise the order of the learned District Munsif of Alatur in I.A. No. 184 of 1934 in O.S. No. 444 of 1933. This is connected with I.A. No. 183 of 1934 in O.S. No. 2 of 1934. The suits were filed by the karnavan of a Malabar Marumakatayam tarwad. The learned District Munsif's order shows that one suit was for a separate share in the tavazhi properties and the other suit is for his share in another tavazhi which is said to be a Puthravakasam tavazhi. The plaintiff sent a registered notice demanding partition and executed a will in favour of his wife and children bequeathing to them his share in both these sets of properties. Then he filed two suits and it is said that he executed another will in favour of his wife and children thereafter. Then he died and his widow and children put in these applications I.A. Nos. 183 and 184 of 1934 to be impleaded as the legal representatives of the deceased plaintiff.

(2.) It was contended on behalf of the defendants that on the death of the plaintiff both the suits abated and therefore no legal representatives can be brought on record. This contention vas based on the peculiarities of the Marumakattayam Law. The suits were filed in pursuance of Section 38 of the Madras Marumakkattayam Act XXII of 1933. Section 50(b) of the same Act provides that: Nothing contained in this Act shall be deemed to affect any rule of Marumakkattayam Law, custom, or usage, except to the extent expressly laid down in this Act

(3.) If the parties had been Hindus governed by the Mitakshara law it is not disputed that the filing of the suits by the plaintiff would have effected a division in status between him and the other members of the joint family and it would have been possible for his legal representatives to be brought on record and to continue the suits. Under the Marumakkattayam law the contention is that this theory of division in status being effected by the filing of a suit for partition is not tenable, and Section 50 of the Marumakkattayam Act is relied upon as indicating that this peculiar feature of the Mitakshara law is not to be imported into the Marumakkattayam law in the absence of an express provision in the Act itself.