G. Sasidharan, J.

The plaintiffs in O.S. No. 94 of 1981 on the file of the Munsiff's Court, Punalur are the appellants. The appellants filed the above suit for partition claiming that they have 8/11 share in the plaint schedule property. The case of the appellants is that the plaint schedule property belonged to the sub-tarwad since that property was allotted to the first respondent and her mother Narayani under Ext. Al settlement deed executed in their favour by Govindan, the father and Nangeli, the mother of Narayani. Appellants 3 to 8 are the children of the first appellant, appellants 1 and 2 are respondents 2 and 3 are the children of the first respondent and respondents 4 and 5 are strangers. Alleging that the plaint schedule property belonged to the sub-tarwad and that there are 11 members in that Sub-tarwad, the appellants claim 8/11 share in the plaint schedule property.

2. Respondents 1 to 5 raised the contention that the plaint schedule property was acquired by the deceased Govindan in the name of his wife Nangeli. It is the case of the respondents that Nangeli was only a name lender and that the property exclusively belonged to Govindan. Nangeli and Govindan jointly executed settlement deed No. 587 of 1103 M.E. which is marked in this case as Ext. Al under the provisions of which the plaint schedule property was given to the first respondent and her mother Narayani. The definite contention raised by respondents 1 to 5 is that there was no sub-tarwad as alleged by the appellants and that on the death of Narayani, the first respondent got absolute right over the plaint schedule property. The allegation of the appellants that they were Marumakkathayam Ezhavas is disputed by the respondents. It is also contended that the appellants did not get any right in the plaint schedule property.

3. The' trial court on finding that the appellants did not prove that they were governed by Marumakkathayam Law came to the conclusion that they are not entitled to any share in the plaint schedule property. It was also observed by the trial court that Ext. Al settlement deed under the provisions of which the appellants claim share in the plaint schedule property does not show that the parties were Marumakkathayee Ezhavas governed by Marumakkathayam Law. The suit was thus dismissed by the trial court.

4. The present appellants filed A.S. No. 8 of 1984. The appellate court also found that the appellants failed to establish that they are Ezhavas who were following Marumakkathayam system of inheritance. The appellate court while dismissing the appeal held that there can be no presumption that Ezhavas residing in Travancore area are followers of Marumakkathayam system of inheritance. There is a statement in the judgment of the appellate Court that since the appellants failed to show that there is a presumption that Ezhavas domiciled in Travancore area were invariably governed by Marumakkathayam system of inheritance, partition cannot be granted.

5. Five witnesses are examined on the side of the appellants. The trial court as well as the first appellate court mentioned about the evidence available on record and it was after going through the evidence that the courts below found that there is nothing to show that the parties to the suit were governed by Marumakkathayam Law. The following substantial questions of law were formulated for consideration:

(i) Is the finding of the court below that plaintiffs and defendants 1 to 3 are not Marumakkathayee Ezhavas correct in law?

(ii) Are not plaintiffs and defendants 1 to 3 governed by the Travancore Ezhava Act, 1100 M.E. since their ancestors belonged to the Pathanapuram Taluk of the erst while Travancore State?

(iii) Is not plaint schedule property Makkathayam property divisible as per the provisions of S.32 of

the Travancore Ezhava Act, 1100 M.E.?

6. Learned counsel appearing for the appellants would argue that even in the absence of evidence to prove that the parties are governed by Marumakkat