JUDGMENT :- S.A. No. 765 of 1980 : This appeal is by the plaintiffs. The suit was one for partition. Plaintiffs claim 3/12 share. The contesting defendants resist the claim. They say that the plaintiffs are not entitled to any share. This defence is based on a will Ext.B13. The trial court upheld the contention of the defendants. It dismissed the suit as against the plaintiffs; nevertheless it passed a preliminary decree decreeing shares to second defendant and defendants 3 to 5. The defeated plaintiffs filed an appeal. The appellate court dismised the appeal and confirmed the judgment and decree of the trial court. Now the plaintiffs appeal. S.A. No. 638 of 1980 :

2. This appeal is by defendants 1 and 3 to 5. In this appeal, the appellant maintains that the second defendant is not entitled to the share now given, namely 3/9 share in the property. This contention of defendants 1 and 3 to 5 was not accepted by the trial court. The appellate court also agreed with the findings of the trial court on this aspect. Hence defendants 1 and 3 to 5 appeal.

3. Facts are these :- The properties in dispute originally belonged to a tevazhi of the Lakshmikutty Amma. She died in 1964 leaving three children - two sons and one daughter. The sons are Velayudha Menon, the second defendant and Appa alias Sankara Menon. Malukutty is the only daughter. Sankara Menon died as an insane person in 1969. Malukutty died in 1970.

4. Malukutty had two sons, Raghava Menon and the first defendant Narayana Menon. Raghava Menon died in 1969. Plaintiffs are the wife and children of Raghava Menon. First plaintiff is the wife, second plaintiff, the daughter and the third plaintiff is the son. First defendant is the son of Malukutty, the second defendant is the son of Lakshmikutty Amma, third defendant is the wife of the first defendant, defendants 4 and 5 are the son and daughter of first and third defendants.

5. Now about will Ext. B13, which formed the stereobate of the defence: This will was executed by three persons - Appa alias Sankara Menon, Malukutty and Narayana Menon - the first defendant. Sankara Menon being an insane person was represented by. his sister Malukutty. The tenor of the will indicates plainly and clearly that it is a joint will.

5A. The courts below found that the will is operative and effective in regard to the properties of Malukutty and the first defendant Narayana Menon. I may incidentally say that the first defendant also died pending the suit. By the will, the properties have been bequeathed to defendants 3 to 5 and they claim the properties of Malukutty, Narayana Menon and Sankara Menon. The plaintiffs contended that the whole will is bad and invalid. The courts below held that the will in respect of the properties of Sankara Menon can not be given effect to and to that extent the will be bad.

6. The learned counsel for the appellants in S.A. No. 765 of 1980 submits that the courts below ought to have held that the entire will is inoperative and invalid. The counsel raised three points before me to shore his submission. He submits that :

(a) execution of a joint will in respect of thavazhi properties is not permissible in law ;

(b) No surgery even if it is a radical surgery to remove the malignant part of the will (the bequest in respect of the properties of Sankara Menon) can prevent the ultimate infraction of the will. He says that the malignancy was inoperable; it infracts the whole will. The will in its entirety is morbid, void and invalid;

(c) The will has not been proved properly.

7. In order to substantiate his first point, the counsel submitted that Sankara Menon, Malukutty and Narayana Menon formed a truncated tavazhi. He says so because the other members of the tavazhi got separated by a decree in a suit, O.S. 797/61 and Raghava Menon by Ext. A1 partition deed. I have no doubt that the severance of jointness of one or more members of a marumakkathayam tarwad does not ipso facto bring about a complete disruption of the tarwad. It is

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