1. This appeal is against the decree of the Subordinate Judge of Palghat in a suit brought by the plaintiffs to recover possession of four items of immovable properties mentioned in Schedule A to the plaint and certain moveables mentioned in Schedule B from Defendants Nos. 1 to 5. The other defendants are representatives of certain tavazhis which the plaintiffs allege are the branches of their main Neithalath tarwad.
2. Defendants Nos. 1 to 5 claim the properties under a Will executed by one Raman Kutti Menon the last surviving member of Odavazhiveetu tavazhi. It is a registered Will which includes all the suit properties and being registered its genuineness is not disputed.
3. The plaintiffs contend that the Will is not valid as Raman Kutti Menon was not competent to will away the suit properties as he was a member of the Neithalath tarwad which had a right over those properties. They contend that the plaint mentioned items are joint properties and the tarwad had the right, therefore, of succession to them and that such a right would override any power of disposition by Will of Raman Kutti Menon.
4. The Neithalath tarwad had four tavazhis, namely:
(2) Kishakke or Vadekkeveit,
(3) Thekkevit and
5. Raman Kutti Menon was the last member of the Odavazhiveit tavazhi now extinct. These 4 tavazhis were holding separate properties for themselves. We find in 1836 a karar entered into between the four branches: Ex. XXIII. It may be mentioned here that a karar A which the plaintiffs produced as the true karar is found by the Subordinate Judge to be a forgery. That finding has not been contested before us, so that we may ignore Ex. A and deal with Ex. XXIII as the real karar. It is mentioned in Ex. XXIII that each of the four branches could not contract debts or mortgage the properties allotted to it under it. It was also recognized in it that each branch had its own separate properties over which the tarwad had no rights. The Subordinate Judge says that Ex. XXIII amounts to a permanent allotment for maintenance, liable to be set aside by the consent of all the members. There is a provision at the end of the document as follows:
The members of all the houses referred to herein have private properties. They will not be included in the tarwad properties. Those properties and debts therein shall vest in the members who acquired them and in the members of the house to which they belong.
6. There was a considerable amount of litigation between the parties subsequent to the date of Ex. XXIII. The history of this tarwad is largely a history of litigation. I need,not refer to all the cases as the Subordinate Judge, in a very careful and lengthy judgment, considered all the material documents in the case and has made our task easier. I am in full agreement with him in his various findings in the case.
7. As a result of the long and continuous litigation, the last of which was in 1868, the four houses of Neithalath tarwad were held to have community of property with one another and the arrangement as to maintenance fell through. Nevertheless it was held that the provisions at the end of Ex. XXIII that all the four houses were to keep their private properties themselves which were not to be included in the tarwad, and that the main tarwad would have no right to those properties', remained in full force. That appears from the judgment of the High Court in Ex. LV. This arrangement as to the self-acquisitions of a member of the tavazhi being taken by the tavazhi on the death of such member was in accordance with a previous custom in the family, by which the separate properties of the members of the tavazhi passed to it alone on their deaths and the tarwad got no right. On this view of the effect of Ex. XXIII it is clear that the suit properites Items Nos. 2, 3 and 4--I shall deal with Item No. 1 about which there is a special case set up--belonged to Odavazhiveit tavazhi alone and were capable of being alienated or dealt with by that tavazhi as its own exclusive property. Those properties therefore belonged to Raman Kutti Menon who, as the last surviving member of that tavazhi, was entitled to deal with them as he chose. That he could have alienated the properties inter vivos is hardly disputed before us.
8. But it is suggested that Raman Kutti Menon was somehow barred from disposing them off by Will. It is difficult to see how such a contention can be supported. If the properties were alienable inter vivos by him as they necessarily were as the separate property of his tavazhi of which he was the last surviving member, there is no doubt whatsoever that under the Malabar Law he was entitled to will them away also. If the properties had been left undisposed of by Raman Kutti Menon then the tarwad may succeed as Attalaladakkam heir againt the Crown claiming escheat. They were, however, disposed of by Raman Kutti Menon by his Will which is, in my opinion, clearly valid. On this short point alone this appeal can be disposed of.
9. Some authorities were cited to us which dealt with impartible estates and the rights of succession to them. Annadana Jadaya Gounder v. Konammal A. I. R. 1923 Mad. 402 Lakhshmi Devi v. Dhatrazu Belgaum  20 Mad. 256 and Naraganti Achammagaru v. Venkatachalapati  4 Mad. 250 None of these cases has any bearing upon the present case. They refer to impartible zemindaris and deal with the rights of succession of the senior branch when the junior branch to which the property had passed had become extinct. It was held in those cases that when the junior branch became extinct, the rights of the senior branch revived which was till then in an inchoate state. There is nothing whatsoever in Ex. XXIII to justify the contention that such was the case under it or that though the properties were properties of the tavazhi there was still some inchoate right of the tarwad over them which would revive on the extinction of the tavazhi. The tavazhis had separate properties of their own in which the tarwad had no right as those were the exclusive properties of each of the tavazhis. They had every right to alienate them and no member of the tarwad could get any right to them or interdict alienation.
10. Our attention has been drawn to Ex. XXIV which refers to Items No. 2 and 3 of the plaint schedule A. Exhibit XXIV shows that they were the properties of the above-named 4th tavazhi at the date of Ex. XXIII, though they were acquired by Krishna Kutti Menon and Manchu Menon of the Odavazhiveit in their names. They were really purchased for the tavazhi and belonged to the tavazhi alone. The argument of the learned vakil for the plaintiffs is that these properties were purchased by Krishna Menon and Manchu Menon out of their self-acquistions and that under the Marumakkatayam Law the main tarwad would succeed to them and as such the last surviving member of the tavazhi had no right to will them away. In support of that contention Govindan Nair v. Sankaran Nair  32 Mad. 351 was cited as an authority. There it was held that the separate property of a member of a tavazhi lapsed on his death to the tarwad and not to the tavazhi. It is urged that the right of the tarwad to the property in the present case was in existence but was kept in abeyance till it revived on the death of the last male member of the tavazhi. That contention is not correct. There is no ground for it in the evidence in this case. Items Nos. 2 and 3 were tavazhi properties at the date of Ex. XXIII and they were acquired by Krishna Menon and Manchu Menon for the Odavazhi tavazhi. Item H of the plaint schedule was purchased out of the savings of Items Nos. 2 and 3. They were the properties of the tavazhis at the very commencement and not such as the tavazhi inherited from its deceased members.
11. As regards Item No. 1 it was specially contended that it was the property of the tarwad and that it was given to Odavazhiveit for the purpose of residence and as such it should be treated as on the same footing as the two items mentioned in Ex. XXIII Madathanar and Nelliseri which belonged to the tarwad. Odavazhi tavazhi recognizing the right of the tarwad subsequently gave up possession of the above-mentioned Madathanar and Nelliseri to the tarwad and it is contended that Item No. 1 also should be given to the tarwad in the same manner. We have to see if such a contention is correct. Defendants Nos. 1 to 5 say that the house item No. 1 was built by their tavazhi on land purchased by them in the year 1828-29 under the document Ex. III and that this item never formed part of the tarwad property. In support of Ex. III they produce Ex. IV series pattas granted by the East India Co. The Subordinate Judge has accepted those documents as genuine and I find no reason to differ from him. He has referred to the evidence on the point at great length and has come to the conclusion that the item belongs to the tavazhi and not to the tarwad as alleged by the plaintiffs. I agree with him and find that Item No. 1 belonged to the Odavazhiveit tavazhi alone and that Raman Kutti Menon as the last surviving member was entitled to dispose of it also by Will in the same manner as he did the 2nd, 3rd and 4th items of the plaint schedule A.
12. There is also another ground on which this appeal may be disposed of. The Subordinate Judge has found that there was community of property between Odavazhiveit and other tavazhis till 1868 or 1869 but after that date the tarward properties held by Odavazhiveetu, namely, Madathanar and Nelliseri were surrendered to the common karnavan. We find in 1870 by Ex. XLVI the senior member of the Odavazhiveit tavazhi giving away the whole of the rest of the tarwad properties in his hands to the common karnavan. The two items mentioned in Ex. XXIII as tarwad properties Madathanar and Nelliseri were sued for and a decree was obtained by the karnavan of the tarwad against Odavazhiveit tavazhi, but in that suit the chamayams or buildings, tanks, wells, etc., were omitted. To avoid all difficulty in the execution of that decree Gopala Menon handed over not only the items sued for but also the chamayams on those properties and he thus got rid of all the tarwad properties from his possession. This is shown by Ex. XLVI. The result of it was that thereafter no item of tarwad property remained in the hands of Gopala Menon. The suggestion that he took such action as a matter of kindness towards his own main tarwad is one which I cannot accept. The circumstances rather show that by Ex. XLVI Gopala Menon handed over properties for which no decree had been obtained against him by the tarwad, because he wanted to be free from any connexion with the tarwad and to separate his tavazhi from the tarwad altogether. This inference is further strengthened by what was done by the other three branches of the tavazhi under Ex. O. Very soon after they divided all the tarwad properties among themselves without leaving anything to the Odavazhiveit tavazhi and the latter never attempted to make any claim for maintenance against the tarwad. We find also subsequently a number of instances where the three branches of the tarwad other than Odavazhiveit tavazhi acting as if they were completely separate from one another and were independent units. Documents have been referred to by the learned vakil for the respondents to show that the three tavazhis treated themselves as separate and independent.
13. There were partition deeds executed among the three tavazhis separately and not merely among the three main branches but also among sub-branches so formed. We find also outright alienations made of properties allotted to each of the tavazhis. Such alienations could have been made if the properties were given for the purpose of maintenance only. In fact there are statements in each of these documents which seem to me to justify the suggestion that three tavazhis considered themselves to have no community of property with one another. Odavazhiveit tavazhi received a payment of an amount of Rs. 30,000 or more in redemption of a mortgage and none of the other tavazhis raised any claim to it. These and other circumstances dealt with at length by the Subordinate Judge clearly show that ever since 1870 the Odavazhiveit has been treated as if it had no community of property with the other three tavazhis and as if it had become a separate tarwad by itself. It is not denied that if this is so and that Odavazhiveit had become a separate tarwad, the last member of it, Raman Kutti Menon was in a position to dispose of all its properties by Will.
14. It is unnecessary to elaborate this point as it has been dealt with very fully by the Subordinate Judge. I accept his findings, as correct. The appeal fails on both these points and is dismissed with costs of Respondents Nos. 1 to 5.
Venkatasubba Rao, J.
15. After carefully considering the arguments advanced in the case, I have come to the conclusion that there is no substance in this appeal. The Subordinate Judge has in an exhaustive and careful judgment clearly set forth the facts and as I agree with his conclusion, I do not think it necessary either to re-state the facts in detail or to give full reasons for my judgment.
16. Raman Kutti Menon executed a Will in 1915 in favour of his wife and children and died in 1919. The properties disposed of are of considerable value and the object of the suit was to get a declaration that the testator had no power to make the Will and that it was inoperative. The original tarwad known as the Neithalath tarwad was divided into four tavazhis or branches. They were:
(2) Kishakke or Vadekkeveit,
(3) Thekkevit, and
17. The deceased Raman Kutti Menon belonged to the Odavazhiveit branch.
18. The first question to be decided is, did the deceased have community of interest in property with the members of the other branches? I may state that Raman Kutti Menon was the last member of his own tavazhi and that the suit has been brought as a representative suit on behalf of the members of the three remaining branches. The very protracted and complicated litigation in which this family indulged, it is unnecessary for me to describe. The facts of this litigation have been carefully analysed by the Subordinate Judge and the conclusion at which I have arrived is this. The four branches entered into an arrangement in the year 1836 by Ex. XXIII. The question that was raised in several suits, was whether it amounted to an out and out partition or whether it was merely an arrangement for the purpose of making provision for maintenance. Whatever doubts there might have been till about the year 1870, an event of great importance occurred at that time. A decree had been obtained by the common karnavan of the tarwad against the Odavazhi branch for possession of certain items of tarwad properties--properties which had been assigned to that branch under Ex. XXIII.
19. The Odavazhi branch was then represented by Gopala Menon who realised that litigation was ruinous and was prepared to take a reasonable view of the situation. The decree secured to him the properties of the tavazhi and directed that the properties of the main tarwad should be surrendered. The karnavan owing to his own fault was not in a position to effectively reduce into possession the properties awarded to him by the decree. Gopala Menon notwithstanding the advantage that he possessed, surrendered to the karnavan not only the properties which he was directed by the decree to deliver but very valuable chamayams which were in the nature of accessories to those properties. This transaction is evidenced by Ex. XLVI of the year 1870. Soon after this, the other three branches of the tarwad entered into an arrangement by which there was a re-distribution of the tarwad properties among them. The Odavazhi branch was left out and consequently it obtained no allotment of the tarwad properties. This re-distribution was effected by Ex. O of the year 1871.
20. The effect of these two transactions was, that Gopala Menon completely divested himself of all tarwad properties and was content to keep in his possession the properties of his own branch. As the Subordinate Judge points out, in taking this step, Gopala Menon was clearly influenced by the desire to get. rid of all legal connexion with the other three branches of the tarwad. These events happened in or about the year 1870. Gopala Menon by his acts clearly indicated an intention to treat himself as divided and the subsequent conduct of the other three branches shows that they agreed to the severance of interest of the Odavazhi branch. This acquiescence is proved by a long and continuous course of conduct extending over about half a century. The probabilities and the evidence discussed by the Subordinate Judge leaves no room for doubt that the Odavazhi branch ceased to have community of interest in the property with the main tarwad. I agree with the finding of the learned Subordinate Judge in para. 93 of his judgment. On this finding alone the plaintiffs' suit is liable to be dismissed. If there is no community of interest it is not suggested that Raman Kutti Menon would be under a disability regarding the making of a Will (see para. 154 of the Subordinate Judge's judgment). Though in this view it is not necessary to discuss the other questions raised, I shall briefly refer to the plaintiffs' contentions and deal with them.
21. Granting for a moment that there was no division can the plaintiff succeed? The principal contest has been in regard to Items Nos. 2 and 3 of the schedule to the plaint. It is admitted that Item No. 4 was acquired with the income of Items Nos. 2 and 3 and a separate consideration of it is, therefore, not called for. Taking Items Nos. 2 and 3 it is common ground that they were in existence on the date of Ex.XXIII. They were acquired in the names of Krishna Menon and Manchu Menon of the Odavazhi branch. Ex. XXIV shows that although these properties were acquired in their names, they treated them as belonging to their branch and there can be no doubt that those two items were understood to belong to the Odavazhi branch. If thus these items belonged to that branch it is not disputed that either that branch as a body or the last surviving member of that branch could effectively dispose of the item. Raman Kutti Menon was the last surviving member and there was nothing in law to prevent him from disposing of them by Will. As I have said this position has not been disputed.
22. Mr. Alladi Krishnaswami Iyer, the learned vakil for the plaintiffs, has, however, put his case thus. He says that these properties were the self-acquisitions of Krishna Menon and Manchu. Menon, which statement, by the way, as I have shown, is not a correct statement of fact. He then proceeds to say that on the death of those two individuals under the ordinary Marumakkatayam Law, the main tarwad would succeed to these two items and not the tavazhi to which these two individuals belonged. However, by reason of a family custom recognized by the High Court in some previous litigation the tavazhi was allowed to succeed. This is how Mr. Krisnaswami Iyer puts it. The fact that the tavazhi succeeded to the properties, according to the learned vakil did not completely extinguish the right of the tarwad to the properties. The right of the tarwad was inchoate and on the death of the last member of the tavazhi, it fully revived.
23. To sustain his argument it was necessary for the learned vakil to urge that the main tarwad possessed throughout a right to interdict alienation; in other words neither could the tavazhi nor the last member of it alienate these items. The branch was bound to keep the properties intact, could only enjoy the income and on the extinction of the branch, the tarwad would obtain a right to take possession of them. This seems to me to be an utterly untenable proposition. The analogies of the Mitakshara and the Marumakatayam Law, alike fail to show that this contention is well-founded. The learned vakil has not been able to cite any authority to support his argument. I am clearly satisfied that the contention is wrong, but as I have pointed out, this argument proceeds upon certain hypothetical facts which do not exist in the present case. The plaintiff has not shown that the properties belonged exclusively to Krishna Menon and Manchu Menon and that they devolved upon the Odavazhi branch by reason of any family custom.
24. In regard to the first item I accept the finding of the lower Court and I have nothing to add to what my learned brother has said. On every point raised the plaintiff fails. The appeal, therefore, must be dismissed with costs.