The main legal point established in the judgment is the validity of Kudivaippu, the nature of Ext. P-2 as a maintenance arrangement, and the determination of testamentary disposition and inheritance under the Hindu Succession Act.

1. The 1st defendant & the 1st plaintiff are brothers. The 4th defendant is their sister. The 7th defendant is the husband of the 4th defendant; and defendants 2,3 and 5 are their children. The 6th defendant is the daughter of the 5th defendant. They belong to a Variyar tarwad. The community normally follows the Marumakkavazhi system of succession, except when a member marries in the 'Kudivaippu' form, taking the wife to the husband's house to reside there permanently, in which case he will be entitled to claim partition, and succession to him will be under the Makkavazhi system.

2. The plaint includes five Schedules of properties: Schedules A and B enumerate tarwad properties; Schedule E properties that belonged to the tarwad, but have been, subsequent to the date of Ext. P-2, exchanged for properties shown in Schedule D; and Schedule C describes the properties acquired in the name of the defendants, which the plaintiffs claim to have been out of tarwad funds.

3. On 8-3-1125 Ext. P-2 was executed by the tarwad allotting plaint B schedule properties to the 1st plaintiff for his maintenance, with a recital therein:

It provided also for the 1st plaintiffs borrowing Rs. 5000/- on mortgage to put up a house in item 1 thereof and for his residence in the tarwad house with the other members till the house is put up. On 13 1 1126, the 1st plaintiff married the 2nd plaintiff; and on 29 81126 he completed the construction of a building on plaint B Schedule item 1 and celebrated the house-warming and the 'Kudivaippu' of his wife therein, having invited the 1st defendant thereto by Ext. D-4 letter dated 26 8 1126. Plaintiffs 3 and 4 are the children of that marriage.

4. The original claim in this suit is for partition of 1/3 share of the properties in the plaint Schedules A, B, C and D to the plaintiffs. Subsequent to the institution of the suit, the 1st defendant died on 27 11 1959. His heirs, under the Hindu Succession Act, are the 1st plaintiff and the 4th defendant. The plaint has therefore been amended to include a claim for a moiety of the 1st defendant's share in the properties.

5. Defendants 1, 2 and 4 had filed a joint written statement in which they denied the validity of the Kudivaippu of the 2nd plaintiff as she was big with child at the time and had in her possession properties obtained in partition of her natural tarwad, the plaintiffs' right to enforce partition, and the plaint C schedule properties enuring to the tarwad.

When plaint was amended, defendants 2 and 4 raised a further contention that the 1st defendant had, by his Will, Ext. D-40, dated 23 111959, disinherited the 1st plaintiff. The 7th defendant contended Ext. P-2 to be a deed of partition, not of maintenance arrangement.

6. The Subordinate Judge found the 2nd plaintiffs Kudivaippu valid, Ext. P. 2 a deed of partition, and C Schedule properties not to belong to the tarwad and therefore dismissed the suit. A, S. No. 397 is by the plaintiff; and A. S. No. 465 by defendants 2 and 4.

7. Ext. P. 2 recites itself to be an arrangement for maintenance and all the provisions therein are in tune with that recital. It is conceded by counsel for the respondent that but for the clause quoted above, it can be a maintenance arrangement only. Defendants 1, 2 and 4 did not plead Ext. P-2 to be a partition; on the other hand their case is that the Kudivaippu conducted by the 1st plaintiff being invalid he has no more than a right of maintenance in the tarwad. The contention that Ext. P-2 is a deed of partition emanated from the 7th defendant who was no party to Ext. P-2 and is no member of the tarwad. Nonetheless, the Subordinate Judge has found it correct, the only basis therefor being the clause therein quoted above. That clause does not refer to a separation of the 1st plaintiff from the tarwad. All that it says is that, in case the 1st plaintiff marries in the Kudivaippu form, his wife and children should succeed only to the properties allotted to him for maintenance.