1. The plaintiff's case was that, according to the customary law prevailing among the Tiyans, the first defendant was entitled to a definite share in the property. The defendants denied the alleged custom and pleaded that the properties were indivisible. The issue (fifth) on the point was too vague to direct the attention of the parties to the real question which had to be tried, and the evidence adduced was inconclusive. The Subordinate Judge remarks that the witnesses were not asked the real question at issue, but on the authority of two unreported cases has come to the conclusion that the ordinary rule of Marumakatayam against compulsory partition is equally applicable to Tiyans who follow Makkatayam. We do not think that a question of such general importance should have been decided in this way, and we shall, therefore, ask the present Subordinate Judge to return a finding on the following issue: Whether, according to the customary law followed by the parties to this suit, compulsory partition can be effected according to the wish of one member of the tarwad.
2. Fresh evidence may be taken.
3. In compliance with the above order the Subordinate Judge submitted a finding in which, on the authority of Rarichan v. Perachi I.L.R. 15 Mad. 281 he held that there was no presumption that the Hindu law rule of partibility of family property applied to the case of Makkatayam Tiyans, that there was no written evidence forthcoming in support of any such custom, and that the oral evidence was quite unsatisfactory or insufficient to establish any custom followed by the parties to the suit whereby compulsory partition could be effected according to the wish of one member of the tarwad.