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 tarwad 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 Amma's 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 Nair's 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 in argument on appeal. This makes it dear that the hypothetical case and the question of law arising from it were not argued before him; and this is further substantiated by the fact that the grounds of appeal do not show any reference to the latter aspect of the case, considered by the District Munsif.
8. The finding that tavazhis 3, 6 and 7 remained joint after 1901 is a finding of fact and cannot be questioned in Second Appeal. Accepting that finding, this Second Appeal has to be dismissed with costs; but it is argued by the learned counsel for the appellants that the alternative findings given by the District Munsif, referred to by the District Judge, as his finding in paragraph 5 of the appellate judgment, is the real finding of the District Munsif and the learned District Munsif's opinion that in a case like the present, where sub-tavczhis claim the properties of an extinct tavazhi, nearness of the tavazhi is to be determined not by the degree of the propinquity alone, but also by the nearness of the date of separation is wrong. I have already given-reasons for my opinion tint the real finding of the District Munsif is not one referred to, as such by the learned District Judge, at any rate, it was not so argued in the appellate Court. In this view, no necessity arises to express my opinion, on the question of law that has been argued before me by the learned Counsel. However, since the matter was argued, I would state my view on the question.
9. The exact point is not covered by any authority. In S.A. 1815 of 1911, with reference to Mr. Rozario's argument
That according to Marumakkatayam law when a tarwad becomes extinct, the tarwad from which it last separated is entitled, to succeed to its property.
11. The learned Judges, Benson and Sundara Aiyar, JJ., said it was not necessary to decide the point in that case, but observed that:
The contention is not, in accordance with the opinion of three Judges of this Court Miller and Sankaran Nair, JJ. in Govindan Nair v. Sankaran Nair (1909) 32 Mad. 351 and of Sundara Aiyar, J., in S.A. No. 477 of 1911, (Full Bench) or of early writers on Marumakkatayam law like Mr. Cooke and Justice Strange, who laid down that a Marumakkatayam Male's heirs were his own nearest relations.
12. The point directly arose for decision in A. Section No. 61 of 1919. Their Lordships evidently thought that the decision in Govindan Nair v. Sankaran Nair (1909) 32 Mad. 351 and Krishnan v. Damodaran (1915) 38 Mad. 48 did not really deal with the question raised and as the matter was one of customary law, they asked the lower Court to examine such witnesses, as it may choose and as the parties may wish to examine and to report to them its finding on the question : 'where a tarwad divides itself into two or more separate entities and the members of one of such units partition their properties among themselves and one of those members subsequently dies, on whom does the property of the deceased devolve?' As the matter was compromised between the parties, no finding was submitted to the High Court. In his Articles on Malabar Law, Sundara Aiyar, J., expresses the opinion that preference, on the ground of being the latest to be divided off, from the propositus is a fanciful elaboration, for which there is no analogy whatever in the Hindu Law. The decisions of the Travancore and the Cochin Courts seem to support the view that nearness is to be determined, not by degrees of propinquity along, but also by the circumstance as to who divided off last.
13. It seams to me that Malabar law being essentially customary law, the process of solving questions, as they arise for decision, by extending the operation of a custom by analogy, or by applying 'inferences' from the Hindu Law, unless in the utter absence of evidence, as regards custom, is bound to create a divergence between the Court made law and the customary law, as observed by the people. As pointed out by Sundara Aiyar, J., a principle enunciated with respect to certain circumstances cannot always be carried out to its logical conclusions and applied, to all analogous circumstances; for, in the language of Lord Halsbury, Law, is not always logical: see Krishnan v. Damodaran (1915) 38 Mad. 48. The inferences, which may be drawn from the observations, in Govindan Nair v. Sankaran Nair (1909) 32 Mad. 351 and Krishnan v. Damodaran (1915) 38 Mad. 48 do not, in my view, help jus in solving the present question. In cases of doubt, the proper procedure to be adopted is the one followed by Abdur Rahim and Moore, JJ., in appeal No. 261 i.e., to call for a finding on the question as to the custom.
14. In my opinion, the usage is well established and is in support of the claim of the branch, from which the extinct tavazhi last separated, in preference to that of the plaintiffs. As I have already pointed out, I dismiss this second appeal with costs, as it has been found by both the lower Courts that tavazhis Nos. 6 and 7 always remained joint with the extinct tavazhis after 1901.