The question of law that has been formulated for hearing in this second appeal relates to the consequences that flow from the notional partition contemplated in sub section 1 of section 7 of the Hindu Succession Act.

2. The parties to the suit from which this appeal arises are Nairs who were governed by the marumakkathayam law of inheritance. One Bhavani Amma purchased 57 cents in her name for the benefit of her 'tavazhi' in 1950 by Ext A3 sale deed. The other members of the 'tavazhi' were her four children namely, Vijayan, Radha, Indiramani, and Sathidevi who is the first defendant. Vijayan died unmarried and issueless. Bhavani Amma and others sold 20 cents to the first defendant. The remaining extent of 37 cents was sought to be partitioned in the suit. The plaintiffs are the children of Radha, defendants 2 to 4 the children of the first defendant, Sathidevi, and the fifth defendant the son of Indiramani. These children were born before the Kerala Joint Hindu Family System (Abolition) Act 1975 came into force. By Ext B2 deed Radha and Indiramani released their rights to their mother, Bhavani Amma, and their sister Sathidevi in 1977. Bhavani Amma died on 7.1.2002. She bequeathed her properties to the first defendant by a Will executed on 3.9.1999.

The plaintiffs claimed that the property being 'tavazhi' property and they being members of the 'tavazhi', got a right in it on their birth and the right of each member of the 'tavazhi' got defined on the Kerala Joint Hindu Family System (Abolition) Act 1975 came into force on 1.12.1975. According to them, the members of the 'tavazhi', 10 in number, became equally entitled to the property. Since Radha and Indiramani released their rights to Bhavani Amma and the first defendant, and Bhavani Amma later bequeathed her properties to the first defendant, she (first defendant) is entitled to 4/10 shares; the plaintiffs together are entitled to 2/10 shares and defendants 2 to 5 are entitled to 1/10 share each. The plaintiffs prayed for partition of the property and separate possession of their joint share. In the joint written statement filed by defendants 1 to 4 they contended that on Radha and Indiramani's release of their rights in the property in 1977 in favour of their mother, Bhavani Amma and sister Sathidevi, who is the first defendant, Bhavani Amma and the first defendant became the absolute owners of the property and since Bhavani Amma later bequeathed her property to the first defendant, the latter became the sole owner of the property. The first defendant has transferred 10.750 cents to the second defendant by settlement deed No.2040 of 2002 and 23.750 cents to the third defendant by settlement deed No.2039 of 2002. Defendants 1 to 4 prayed for dismissal of the suit.

3. No oral evidence was adduced by any of the parties. Exts A1 to A4 and B1 and B2 were marked at the trial. The lower court observed that there was no evidence that Bhavani Amma's son, Vijayan, died after the coming into force of the Hindu Succession Act, 1956. It held that on the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, 1975 Bhavani Amma and her three children and six grandchildren became equally entitled to the property, the share of each of them being 1/10. It directed allotment of two shares to the plaintiffs. But it did not declare the shares of the defendants in the property. Accordingly, it passed a preliminary decree. Defendants 1 to 4 challenged it in appeal. The learned Sub Judge who heard the appeal held that the appeal was without merit and dismissed it. Aggrieved by it defendants 1 to 4 have come up in appeal.

4. The appellants, who are defendants 1 to 4 in the suit, contended that Vijayan died after the coming into force of the Hindu Succession Act and under section 7(1) read with section 8 of the Act, his right in the property devolved on his mother, Bhavani Amma, alone. The submission of Sri Babu Karukappadath, learned counsel for the appellants, is that the n