The central legal principle established in the judgment is the application of established usage and customary law in determining property rights under Marumakkatayam law, particularly regarding the devolution of properties and entitlement based on the branch from which the extinct tavazhi last separated.

Madhavan Nair, J.

1. The plaintiffs are the appellants. This second appeal arises out of a suit instituted by the plaintiffs for a partition of the plaint-mentioned properties and for delivery of plaintiffs share to them, together with future mesne profits. The plaintiffs and the defendants, together with Paru Amma and her sons separated from their main tar wad and formed a branch in 1901. In that year, it was proposed to divide this branch into eight sub-tavazhis, the plaintiffs forming the first two sub-tavazhis, Paru Amma and her sons the third sub-tavazhi and the defendants forming the sub-tavazhis 4, 5, 6, 7 and

8. But before the document was fair-copied (see paragraph 24 of Ex. A) the sub-tavazhis 3 (composed of Paru Anama and her sons) 6 and 7 agreed to remain joint; so also sub-tavazhis 4 and 8; and provision was made in the karar that, if these tavazhis found it inconvenient to remain joint, they might also separate, in accordance with the provision of the karar.

2. Paru Ammas tavazhi (No. 3) has now become, extinct and the plaintiffs sue for partition of the property, which belonged to that branch. The case of the plaintiffs is that paragraph 24 of Ex. A was not acted upon, by the parties to it - (see paragraph 4 of the plaint). This was contested by the defendants, who are members, of the 6th and 7th tavazhis. On this question, after examining the evidence, the District Munsif expressed his opinion thus:

In the absence of extremely cogent evidence, Which is wanting in this case, it cannot be believed that the provisions of paragraph 24 were not acted upon, or given effect to. The sub-tavazhis marked 3, 6 and 7 have therefore to be regarded as one tavazhi. If they have remained as one tavazhi, till Narayanan Nairs death, then under the provisions of Ex. A the tavazhis marked 1, 2, 4, 5 and 8 have no right to the plaint properties.

3. This finding was enough for him, the District Munsif, to dispose of the plaintiffs case; but he also examined the rights of the plaintiffs, on the hypothetical case that the tavazhis 3, 6 and 7 remained joint, as one tavazhi, for some time after the date of Ex. A and separated at or about 1906. I do not think that the issue raises thiB case, in view of the specific statement of the District Munsif himself, that, It is not the case for plaintiffs that the sub-tavazhis, marked as Nos. 3, 6 and 7 remained joint for some time, after the date of Ex. A and that thereafter they divided;

4. There was no need for him to have considered the rights of the parties from this new stand-point. However, he decided against the plaintiffs on the ground that:

The devolution of these properties must be regulated by the ordinary custom according to which the properties lapse to other sub-tavazhis, nearer excluding the more remote, nearness being determined not by the degree of propinquity alone, but also by nearness of the date of the separation.

5. Applying this test, the District Munisf held that the plaintiffs are not entitled to the plaint properties, they having separated from the extinct tavazhi in 1901, while defendants 7 to 9 and 10 to 13, (6th and 7th tavazhis) separated from it, if at all, only afterwards.

6. On appeal, the District Judge has confirmed the judgment of the District Munsif. No doubt, in paragraph 5 of the narrative portion of his judgment, in mentioning the finding of the District Munaif, he refers to the hypothetical case, as if it formed the real basis of the Munsifs judgment; but in the argumentative portion of his judgment, he correctly states the case for the appellants in paragraph 6 to be this, namely:

The case for the appellant is that the three sub-tavazhis were divided in 1901, at the time of the execution of the document.

7. On this question, which really was the only question in the case, he was of opinion that tavazhis 3, 6 and 7 always remained joint and in that view, the plaintiffs appeal was dismissed. He also stated in paragraph 8 that this was the only issue contested