1. This Second Appeal arises out of a suit for partition instituted by a Nayar widow and two among her three children to recover in their own right and in the right of defendant 7 to the action, the share which one Krishna Pilla' Raman Pillai (hereinafter referred to as Raman Pillai), the husband of plaintiff 1 and the father of plaintiffs 2 and 3 and defendant 7, was entitled to out of his tarwad properties. In O.S. No. 1044 of 1114 on the file of the Kottayam District Munsiffs Court, a brother of the said Raman Pillai had instituted a suit for partition of the tarwad properties and Raman Pillai who was defendant 2 therein, filed a written statement on the first hearing date (19-12-1114) itself claiming his due share (one-seventh) and for a division of the same when the tarwad properties were divided by metes and bounds. However, overlooking that fact and after declaring among other defendants Raman Pillai also ex parte the court passed a preliminary decree in favour of the plaintiff in the suit for the one seventh share claimed by him. The plaintiff thereafter took the necessary steps to have his share divided and got a commission appointed by the court to effect the division. Pending that proceeding for passing the final decree, on 24-6-1120 Raman Pillai applied to the court to get his share also divided. During the course of the hearing of that petition it was that Raman Pillai found out that he had already been declared ex parte. He therefore applied to have the order declaring him ex parte vacated. As that application was made out of time, a petition to condone the delay was also filed, but all three applications were dismissed on 9-12-1121 and thereafter Raman Pillai did not take any steps to obtain his share. Meanwhile the final decree in favour of the plaintiff had been made on 2-7-1120. Raman Pillai died on 1-7-1122 and not long thereafter, the suit giving rise to the second Appeal (O. S. No. 372 of 1122) was instituted (29 9-1122) by the plaintiffs claiming that by the steps he had taken in the prior suit, O. S. No. 1044 of 1114, Raman Pillai had become separated from the remaining members of the tarwad and that on his death his share had devolved on them and defendant 7.

2. There are seven defendants to O. S. No. 372 of 1122. While defendants 1 to 3 and 7 remained ex parte, defendants 4 to 6 contested it, The defence raised was that the preliminary decree in O.S. No. 1044 of 1114 had only provided for a division of the share of the plaintiff thereto and not that of Raman Pillai or of any other member of the tarwad and that by his written statement claiming his share or the subsequent application for division and allotment of his share to him, Raman Pillai had not obtained a divided status from the rest of the tarwad and that he therefore died without having any alienable or heritable share in the tarwad properties. This defence found favour with the learned District Munsiff as also with the learned Additional District Judge, Kottayam who heard the appeal from the Munsiff's decision. Purporting to follow a long line of Full Bench decisions of the Travancore High Court, both the lower courts held that in the absence of a provision for an allotment of a share to him Raman Pillai died possessed of no heritable share in his tarwad properties and that therefore the claim made by the plaintiffs was unsustainable. According to the lower courts neither the filing of the written statement seeking to obtain his share or the subsequent application for division or even their combined effect had given Raman Pillai a divided status in his tarwad. The decisions relied upon are Narayana Pillai v. Parameswaran Pillai (1928) 18 T.L.J. 747, Lekshmi Pillai v. Padmanabha Pillai, (1932) 22 T.L.J. 227, Velayudhan Pillai v. Neelakanta Pillai, (1936) 26 T.L.J.29, Janaki Amma v. Narayananf hampi, (1942) 32 T. L. J, 577, Parameswaran v. Karthiyayani Pillai Thankachi (1943) 33 T. L. J. 419, Narayana Pillai v. Kunji Pilla Amma (1944)