The central legal point established in the judgment is the rule of division according to thavazhies and not per capita in the Marumakkathayam community.

1. The 1st defendant in O.S. No. 138 of 1122 of the District Court of Quilon, a suit for partition, is the appellant before us. The 1st plaintiff is the widow of the deceased Krishna Warriar who had married her in the kutiveppu form and the 2nd plaintiff is their daughter. The 1st defendant is the son of the late Madhava Warrier (the brother of Krishna Warrier) and the 5th defendant whom he had married in kutiveppu form. Defendants 2,3 and 4 are his brothers, 6 and 7, his sisters and 8 and 9, the children of the 6th defendant.

2. It is agreed that the marriages of the first plaintiff and the 5th defendant were in the kutiveppu form, that the plaintiffs and the defendants are members of the same Warriar tarwad and that they are entitled to share in the properties of that tarwad. The dispute is as to the mode of division that should be adopted; whether it should be per stirpes or per capita? The lower court has taken the view that the division should be per stirpes or per capita, the widow and daughter of Krishna Warriar getting one half of the property and the widow, children and grand-children of Madhava Warrier, defendants 1 to 9, getting the other half and the only question raised in this appeal is about the correctness of that conclusion.

3. In VI T.L.T. 59, a Full Bench of the High Court of Travancore after referring to two decisions of the Sadr Court of Travancore and the evidence and arguments advanced in that particular case observed that the custom obtaining in the community can best be summed up in the words of the following extract from the Madras Census Report of 1891 (p. 270):

"The system of marriage and inheritance obtaining among Variyans is very complicated and interesting. Generally speaking, the caste may be said to follow the descent in the female line, but, in some places, there is a combination of inheritance through both males and females. The former is not different from that prevailing among Nayars, but the latter requires a short notice. The system of inheritance to be followed depends upon the nature of the sambhandom ceremony. This may be of two kinds, i.e., the ordinary sambhandhom or the same ceremony accompanied by'Kudivekkal' (settling in one's family). If there is a kutivekkal, (the woman is taken to the husband's house, and she thereafter becomes a member of the husband' family and her children inherit the property of that family. If there is no 'kutivekkal' the woman is not taken to the husband's house, and neither she nor her children have any right to his property. Again, in a case of Kutivekkal if after the woman is taken to her husband's house she becomes a widow, she may remarry, and her children by the second husband also inherit the property of the first husband's family. If a brother marries and brings and 'settles' the wife in his family, but his married sister is not taken and settled in her husband's house but left in her own and there visited by her husband, the children of both the brother and the sister inherit the same property in equal shares; the brother's children can claim nobody else's property, and the sister's children cannot claim their father's property".

4. The difference in the legal incidents of a marriage in the kutiveppu form and on ordinary sambhandham are clearly borne out by the admissions in this case itself. It is common ground that the plaintiff and the 5th defendant became members of the family of their husbands on their marriage in the kutiveppu form and that the 6th defendant still continues to be a member of her original family because her marriage was not in the kutiveppu form. The observations regarding the custom in Nagam Aiya's Travancore State Manual, Volume II, p. 338, Velu Pillai's Travancore State Manual, Volume I, p. 836, Ananthakrishna Iyer's Cochin Tribes and Castes, Volume II, p. 137, Thurston's Castes and Tribes of Southern India, Volume II, p. 322, Padmanabha Menon's History of Kerala Volume III, p. 153 and Joseph's Principles of Maru