The main legal point established in the judgment is the recognition and legal force of the custom of Pathnibhagom division among the misradayi Ezhavas, and the harmonisation of S.15 and S.32 of the Ezhava Act to avoid conflict or inconsistency.

1. This appeal is directed against the preliminary decree passed by the lower court in O.S. No. 247 of 1122 on its file. It is a suit for partition of the plaint properties which are claimed to be the assets left by one Velayudhan Kesavan at the time of his death which was subsequent to the coming into force of the Travancore Ezhava Act (Act III of 1100). He had two wives of whom the first died prior to the institution of the present suit. The children born to her by Velayudhan Kesavan are defendants 1 to 3. The second wife is the 8th plaintiff and the children born to her by Velayudhan Kesavan are plaintiffs 1 to 7. Defendants 4 to 35 are the seshakkars of the said Kesavan. It is agreed on all hands that Velayudhan Kesavan was a misradayi Ezahva and that he had got himself exempted from the operation of the provisions of Part IV of the Ezhava Act. The result was that in the matter of intestate succession he was governed by the misradayam or mixed system of inheritance which was in force at the time of passing of the Ezhava Act. Under that system one-half of the assets left by a misradayi Ezhava would devolve on his wife and children, while the other half would devolve on his seshakkars or marumakkathayam heirs. That a half-share in the plaint properties should go to defendants 4 to 35 as the Marumakkathayam heirs of Velayudhan Kesavan, is not disputed. The controversy is only about the manner in which the remaining portion is to be shared by the Makkathayam heirs who are plaintiffs 1 to 8 and defendants 1 to 3.

2. According to the plaintiffs the division of this half-share should be on a per capita basis and that the plaintiffs are entitled to get 8/11 share of the half-share due to the Makkathayam heirs. The position taken up by defendants 1 to 3 is that as per the special custom that prevailed among misradayis each of the wives of a deceased misradayi Ezhava, along with the children born to her from him, will get an equal share in the half-share of his assets. The lower court found that there existed such a custom having the force of law, and thus upheld the contention put forward by defendants 1 to 3. Accordingly, a preliminary decree was passed, directing a partition of the suit properties and allotting one-half share to the group of defendants 4 to 35, one-fourth share to the group represented by plaintiffs 1 to 8 and the remaining one-fourth share to the group represented by defendants 1 to 3. Not satisfied with such a decree, the plaintiffs have preferred this appeal, re-iterating their claim that they are entitled to get 8/11 shares out of the half-share due to the Makkathayam heirs of Velayudhan Kesavan.

3. The Division Bench before which this case came up for hearing, passed the following order referring the case to a Full Bench:-

"The appeal raises interesting questions relating to the interpretation of certain sections of the Ezhava Act. The decision will have far-reaching effects on the line of devolution of certain types of properties left behind by an Ezhava who followed the mixed system of inheritance. The case is, therefore, referred for decision by a Full Bench."

4. At the final hearing of the appeal the two points urged on behalf of the appellants were (1) that there is no satisfactory proof about the special custom pleaded by defendants 1 to 3 and the same cannot be judicially recognised and given effect to, and (2) that even if such a custom existed, its legal effect must be taken to have been abrogated by S.32 of the Ezhava Act and hence partition has to be ordered as per the terms of that section.

5. That the custom as pleaded by defendants 1 to 3 did exist among the misradayai Ezhavas in the Trivandrum District, was judicially recognised as early as in the year 1067 by the Travancore High Court, as is evident from the ruling in Aratha Mathevi v. Kumaran Mathevan (9 T.L.R. 104). Just as in the present suit, the dispute in Aratha Mathevi v. Kumaran Mathevan was also between the children of the two