1. The District Munsif clearly found that plaintiff's were divided from the late Changaran and had no community of interest with him. This finding was not questioned in the grounds of appeal to the lower Appellate Court, and the Subordinate Judge was, therefore, right in laying down that the question was whether, according to the law and custom followed by Makkatayam Tiyans of Calicut, the property of a deceased person goes to his father's brothers who are not joint in interest with him rather than to his mother, widow and daughter.
2. The decision of the Subordinate Judge is entirely in accordance with the principles laid down in Rarichan v. Perachi I.L.R. 15 Mad. 281 and Raman Menon v. Chathunni I.L.R. 17 Mad. 184. It has been decided that the rule of impartibility applies to Makkatayam Tiyans of Calicut and in Rarichan v. Perachi I.L.R. 15 Mad. 281 following the principle that self-acquired property lapses to the tarwad, it was held that the undivided brother succeeded in preference to the widow. But the case is quite different when the brothers are divided and have no community of interest as in this case. Here it is found that the only property in which plaintiffs and Kelukutti ever had a common interest is in the family burying place, which will certainly not constitute them an undivided tarwad. That being so, the mother, wife, and daughter of Changaran who certainly belong to his tarwad are preferential heirs to his uncles who did not belong to his tarwad at all and had no community of interest with him.
3. We think the decision of the Subordinate Judge is correct and dismiss the second appeal with costs.