The main legal point established is that acquisitions made in the name of a member with tarwad funds are deemed to be for and on behalf of the tarwad, and thus partible as tarwad properties, under the Marumakkathayam Law and the Travancore Krishnanvaka Marumakkathayee Act.

1. This is an appeal preferred by the plaintiff in O.S. No. 10 of 1121 on the file of the Nagercoil District Court. 16 items of properties are involved in the suit, and according to the plaintiff all these items belong to the tarwad of himself and the 1st defendant. These parties belong to the Krishnan Vaka community governed by Marumakkathayam Law and also by the Travancore Krishnanvaka Marumakkathayee Act (Act VII of 1115). It is by virtue of the right of partition conferred by this Act that the plaintiff has sued for partition and recovery of his half share out of the plaint items. The plaintiff had a sister by name Perumal Pillai and their mother was one Kali Amma who had no other children. Perumal Pillai died in the year 1086 leaving the 1st defendant as her only daughter. The 1st defendant was only two years of age at that time. Kali Amma died in the year 1115 and thereafter the plaintiff and the 1st defendant are the only two members in their tarwad. Regarding these facts there is no dispute between the parties. It is also conceded by the 1st defendant that one-half of items 1 and 2 and the whole of items 12 to 15 as also the equity of redemption of items 7, 8 and 16 of the plaint schedule belong to the tarwad of herself and the plaintiff and are liable to be partitioned as between them. The remaining half share of items 1 and 2 was also acquired in the name of the 1st defendant under Ext. F dated 21.4.1096. Items 3 to 6 were also acquired in her name under Ext. J. dated 10.10.1104. Items 7, 8 and 16 were outstanding on mortgage from the tarwad and this mortgage right had been taken assignment of in the name of the 1st defendant. Similarly item 9 is a mortgage acquisition made in the name of the 1st defendant, while items 10 and 11 are mortgage acquisitions in the joint names of the 1st defendant, and her grand mother Kali Amma. According to the plaintiff these acquisitions in the name of the 1st defendant were for and on behalf of the tarwad of himself and the 1st defendant and with tarwad funds and that the documents were merely taken benami in the name of the 1st defendant. The 1st defendant, on the other hand, contended that the acquisitions standing in her name belong exclusively to her and that the plaintiff is not entitled to claim any share out of those items. Ext. Q is copy of the gift deed executed by her in respect of items 3 to 10 as also in respect of the half share of items 1 and 2, in favour of the 2nd defendant who is her second husband. The plaintiff has sought to set aside this gift deed on the ground that it is invalid and inoperative; while the defendants maintain that the gift is valid. The lower court has upheld the contentions of the 1st defendant and has found that the acquisitions standing in her name are her separate properties. Accordingly the plaintiff's suit for partition and recovery of one-half share in those items has been dismissed and a preliminary decree passed in his favour only in respect of the admitted tarwad properties ie., a half-share of items 1 and 2, the whole of items 12 to 15 and the equity of redemption of items 7, 8 and 16. On the basis of such a preliminary decree a final decree has also been subsequently passed.

2. The plaintiff's appeal is preliminary directed against the finding in the preliminary decree that the items acquired in the name of the 1st defendant are her separate properties in which the plaintiff is not entitled to claim a share. The sustainability of the final decree passed in respect of the remaining items alone has also been questioned by the plaintiff in this appeal. If the plaintiff succeeds in establishing his claim that the properties acquired in the name of the 1st defendant are also tarwad properties liable to be partitioned as between himself and the 1st defendant, the final decree, which has taken into account only a few of the tarwad properties, must necessarily go and a fresh final decree will have to be passed by allotting shares