T.C. Raghavan, J.
1. I think the decision of the District Judge reversing the decision of the Mun-sif holding that the decision of the Division Bench of this Court in Bhagavathi Pillai v. Par-vathi Pillai Ammukutty Pillai, 1958 Ker LT 869 (AIR 1958 Kerala 230) applied to the case is correct.
2. There were three sisters belonging to the Kurukkal community to whom the Marumak-kathayam law applied; to be more precise, the Nair Act did not apply to them. One of the sisters was the first plaintiff, another a Sathya-bhama, the mother of a Sarasamma, and the third a Rugmini, under whom the first defendant-respondent claims. Sathyabhama died; and a partition of the properties belonging to thethree sisters was effected by the first plaintiff and Rugmini, whereby Sarasamma, who was then a minor, was given a third share. Sarasamma also died childless subsequently; and the dispute in the second appeal relates to the properties left by her. The respondent, as already stated, represents Rugmini; and the plaintiff-appellants represent the first plaintiff. The appellants' claim was that they were entitled to nine shares out of ten while the respondent was entitled only to one share. In other words, their claim was that on the death of Sarasamma the properties left by her devolved on her grand-monther's tavazhi as her mother was not alive; and that the said tavazhi consisted of ten members, nine of whom belonged to the first plaintiff's branch and one alone belonged to Rugmini's branch. Putting it differently again, the claim was that the properties should be divided per capita among the members of the grandmother's tavazhi and nine such shares should be allotted to the first plaintiff's branch and only one share to the respondent's branch.
3. The trial court agreed with this contention; but the lower appellate court held that since the partition was among the three sisters branch-wise, on the extinction of one branch the properties left by that branch should devolve on the other two branches branch-wise and not on the basis of per capita or on the basis that the grandmothers tavazhi was still in existence. In other words, the lower appellate court held that since the grandmother's tavazhi was no more in existence after the partition, the properties left by Sarasamma could devolve only on the other two branches branch-wise and not on the basis that the two branches originally constituted one tavazhi. In support of this conclusion the lower appellate court relied on the Division Bench ruling already referred to.
4. Though some argument has been advanced by Mr. G. Viswanatha Iyer on behalf of the appellants that the Division Bench ruling does not apply and though he has cited two or three other decisions as well, I do not think it is necessary to consider those decisions. In my opinion the Division Bench ruling relied upon by the lower appellate court applies to the case; and therefore, there is no need for considering any other decision.
5. In the Division Bench ruling a tarwad by name Vazhapalli tarwad became divided into different branches before 1066; and thereafter there were three different branches in the tarwad. One of the branches became extinct; and it was claimed that the properties left by the extinct branch must go to the several members of the other two branches as a thavazhi. This contention was repelled by the Division Bench. I may extract one passage from the Division Bench ruling, which, in my opinion, will conclude the question against the appellants.
'When the properties which originally belonged to Krishnan Parameswaran's branch devolved after the extinction of that branch on the surviving branches, the surviving branches could have taken those properties only as tenants-in-common, (with each branch having separate rights,) and not as an undivided tarwad comprised of all the surviving branches.'
(underlining is mine) (Words underlined in the judgment are put into brackets here. Ed.)
This passage clearly shows that since the tar-wad became partitioned into branches, the properties left by the extinct branch must be taken by the surviving branches as branches and not by all the members thereof as a tavazhi. It is the several branches who are tenants-in-com-mon and not the members of the branches.
6. Mr. Viswanatha Iyer argues that this decision does not lay down that the partition of the properties left by the extinct branch should not be on the basis of per capita among all the members of the remaining branches. According to him the properties left by the extinct branch should be divided per capita on the basis of the total number of members in all the surviving branches together and shares in proportion to the number of members in each branch should be allotted to that branch with the incident of tenancy-in-common among the members in each branch. This is obviously wrong. I reiterate that it is the surviving branches that are tenants-in-common. If there were no partitions in the surviving branches, the properties obtained by them from the extinct branch will be taken by them with the same incident, joint tenancy, as the properties already in their possession. In the case before me, a partition having taken place, the tavazhi of the grandmother was no more in existence; and therefore, after the death of Sarasamma the properties left by her would only go to the two surviving branches equally as tenants-in-common. If there were no partitions in the branches themselves, the branches will take their respective shares in joint tenancy.
7. Mr. Viswanatha Iyer has attempted another argument, which, in my opinion, has no force whatever. The argument is that the definition of tavazhi (for instance, in the Travancore Nair Act) is a group of persons without any reference to community or interest among them whereas tarwad is defined to mean and include all the members of a marumakkathayam family with community of property. Basing on this the argument proceeds that a tavazhi may exist even without community of property; and that a partition is no bar for the continuance of a tavazhi. The argument is attractive, but not worthy of acceptance. A tavazhi exists always in relation to a tarwad; and when a tarwad is partitioned into tavazhies, the tavazhies them-selves become tarwads. Therefore, this contention is only to be rejected.
8. The decision of the lower appellate court is confirmed; and the second appeal is dismissed with costs.