The main legal point established in the judgment is that in the absence of statutory law, the court followed established principles of Marumakkathayam law, holding that partition in Marumakkathayam communities of Travancore should be on a stirpital basis.

1. This second appeal arises out of a suit for partition of thavazhi properties. The parties are Kuravas. There are eight items of immovable property in the schedule attached to the plaint. The courts below have by concurrent decrees dismissed the suit in respect of items 5 to 8 which were gifted to the first defendant by his mother Kanni's sister, Kochayya, on the ground that the.first defendant had perfected title by prescription. As regards item's 1 to 4 which were gifted by Kochayya to all the children of Kanni the plaintiffs wore given a decree for one-sixth share, on a stirpital basis. The plaintiffs have preferred this second appeal from the concurrent deer ees in the suit.

2. Madhavan Nair, J., who heard the second appeal expressed the view that the plaintiffs were not entitled to any relief in respect of items 5 to 8 gifted to the first defendant under Ext. A dated 13 31111. The case was however referred to a Bench for decision as doubt was felt whether partition of items 1 to 4 was to be on a stirpital or per capita basis.

3. We concur with the view expressed by the courts below and Madhavan Nair, J., as regards items 5 to 8 and hold that the suit must fail in respect of these items. The only question which remains is whether partition of the other items should be on a stirpital or per capita basis.

4. We have stated earlier that the parties are Kuravas of Travancore. They follow marumakkathayam law but unlike the major communities following that system, there is no statute governing succession, inheritance, partition, etc., and the case has therefore to be decided on principles of marumakkathayam law.

5. Our attention was not drawn to any decision governing the question of partition in the Kurava community, and we have therefore to follow the law as laid down in the decisions applicable to other communities following the marumakkathayam system of law who are not governed by any statute. In the case of such communities the High Courts of Travancore and Travancore-Cochin have always held the view that partition should be on a stirpital basis, the several thavazhies taking equal shares irrespective of the number of members in each thavazhi. Raman Sankara Wariaru v. Rama Wariaru Rama 'Wariaru and others (6 TLT. 59 FB.) is a decision of the High Court of Travancore. The parties were Variars and one of the questions was whether partition should be on a stirpital or per capita basis. It was held by the Full Bench that it was to be on a stirpital basis and that the properties were to be divided equally between two branches of the tarwad. Reference was made in this decision to a case decided by the Sadr Court of Travancore, Raman Neelacunden v. Raman Raman and others (Govinda Pillai's Select Decisions, page 8). The view taken in 6 T.L.T. 59 was followed in Easwara Warrier v.Parukutty Varassiar (1955 KLT. 495). Recently the question came up for decision in Abdul Kader v. Appu (1962 KLT. 340). The parties were Thandans, another minority community of Travancore. Velu Pillai, J., held that partition was to be per stirpes and not per capita. Reliance was placed on the view expressed by Dr. Krishna Pandalai in his thesis on Succession and Partition in Marumakkathayam Law. Dr. Pandalai has made exhaustive reference to cases decided in Travancore before right of compulsory partition was given to major communities in Travancore and shown that partition per stirpes was the rule.

6. A contrary view has been held in certain decisions of the Madras High Court regarding partition in the Nair community of Malabar. In Sreedevi Nethiar v. Peruvunni (AIR, 1935 Mad. 71) Madhavan Nair and Ananthakrishna Iyer, JJ, held that though partition should be on a stirpital basis, the quantum of share allotted to each thavazhi should depend on the number of members of that thavazhi. The decision of these two eminent judges who were familiar with the system of law applicable to Nairs in Malabar must be given weight. However, with great respect, we