The main legal point established in the judgment is that in the absence of an agreement or specific proof of custom to the contrary, the division of tarwad property under the Malabar law must be on per stirpes. However, a bona fide partition arrangement would be upheld, if assented to by all the adult members of the tarwad, whether the scheme of division be per stirpes or per capita. The court also emphasized that the division should be per capita unless all persons interested agree to another mode of division.

Madhavan Nair, J.

1. Plaintiffs are the appellants. The suit out of which this Letters Patent Appeal arises was instituted by the plaintiffs for partition and recovery of their share of the plaint properties, together with mesne profits. The properties belonged to one Kunhu Nethiar who was the last member of a tarwad. The relationship of the parties will appear from the following geneological table found in the Munsifs. judgment.

Chummu Nethiar | |---------------------------------------| Ittiyachi Nethiar Kummini Nethiar | | Kunhu Nethiar | |--------------------------|------------------| Defendant 1 Plaintiff 1 Defendant 2. |---------------------|----------------| | Defendant 3 Defendant 1 Defendant 5 | | | Defendants 6 to 10 | |----------------|-----------------------------|--------------------| Plaintiff 2 Plaintiff 5 Plaintiff 6 Kunhikarru Nethiar | | | Plaintiffs & and 7 to 9 Plaintiffs 14 to 16 Plaintiffs 3 and 10 to 13

2. Plaintiffs and defendants 1 to 10 are the descendants of Kummini Nethiar who was the deceased Kunhu Nethiars mothers sister. Kummini Nethiar died leaving three children, defendant 1 and plaintiff 1, daughters, and defendant 2, a son. Defendant 1s descendants are defendants 3, 4, 5 and 6 to 10. Plaintiff 1s descendants are plaintiffs 2, 5, 6, 4, 7 to 9, 14 to 16, 3, and 10 to 13. The descendants of Kummini Nethiar divided themselves on per capita basis into three branches consisting of the plaintiffs, defendants 1 and 3 to 10 and defendant 2 by a deed of partition. Kummini Nethiar was the last to divide from the branch of the deceased Kunhu Nethiar. It is not now disputed that the heirs to Kunhu Nethiars properties are the three divided tavazhis descended from Kummini Nethiar.

3. The plaintiffs form an undivided group of 16 members. They claimed that the properties of Kunhu Nethiar should be divided into 26 equal shares of which. 16 shares should be allowed to their branch. Defendants 1 and 3 to 10 and: defendant 2 claimed that the properties, should be divided into three equal, shares and that one share should be. given to each of the branches. The contest between the parties relates to the question whether the division of the properties should be per capita, as contended for by the plaintiffs or per stirpes as contended for by the defendants. If the plaintiffs contention is accepted, they will be entitled to a larger share of the properties than they would get according to the defendants contention.

4. The learned District Munsif held that, the division of the properties should be per stirpes and not per capita and passed a decree on that basis. This was set aside by the learned Subordinate Judge who held that the partition should be per capita and not per stirpes.

5. In second appeal the decision of the learned Subordinate Judge was set aside and that of the District Munsif was restored by Curgenven, J. This Letters Patent appeal is against his judgment. The variations of opinion noted above show that the question whether the partition of tarwad property under the Malabar law should be according to the tavazhi (per stirpes) or according to the individuals (per capita) is not quite an easy one to decide. This difficulty arises from the fact that compulsory partition is not allowed under the Malabar law; and so necessarily, there are no decisions directly bearing on the point. Curgenven, J., based his decision on the following observation of the learned Judges in Narayan Kutti Amma v. Achuthankutti Nair 1919 Mad. 573 that the authorities show conclusively that partition per stirpes, or what comes to the same tiling, partition by tavanhies has, to say the least, a greater body of authority in its favour than partition per capita.

6. In that case it was held that members of a Malabar tarwad who were minors when a partition was made with the consent of all the adult members at the time, cannot upset the partition on the ground that the division was per stirpes, namely, by tavazhies, and not per capita. T