1. We have heard a very full argument in this case both on the facts and on the law. As regards the facts the evidence is altogether insufficient to show that tile mother of the sisters, Athavi and Kuttiyacha, who is said to have borne the name of Veerayi, was the sister of Mukkilakath Kadirkutti, the last survivor of the tarwad. hey did not, therefore, belong to his tarwad by birth. We think, however, that the evidence shows that they were affiliated to it. See Exhibit A executed by the son of Kadirkutti and the admissions in Exhibits B, C, D and E by Kammukutti, who was the son of Kuttiyacha and the father of defendants Nos. 1 and 2, that the two sisters and their children were members of a tarwad of which he claimed to be the karanavan. As early as 1858 the two sisters in Exhibit H claimed to hold some of the plaint properties as members of a tarwad. There is also oral evidence to the same effect. All these documents show that they considered themselves to belong to the same tarwad as Kadirkutti from whom they derived the properties, and we accept the oral evidence of this affiliation as most in accordance with the established facts of the case with reference to the evidence, showing that these properties have been in possession of the father of defendants Nos. 1 and 2 and of the father of defendants Nos. 7 and 8; we think the admissions already referred to, taken with the oral evidence, show that Kammukutti held possession as karanwvan and that his brother, the father of defendants Nos. 7 and 8, was permitted to manage under him. A question has, however, been raised whether the affiliation of the two sisters to the tarwad is valid, having regard to the fact that the parties are Muhammadans. As pointed out in Bai Machhbai v. Bai Hirbai 10 Ind. Cas. 816, this must depend on usage and before disposing of the case, we have determined to call for a finding whether the usage of affiliation to the tarwad prevailing among-Hindus who follow the Marumakkattayam Law on the west coast, has been accepted by the Muhammadans who follow the same law.
2. The finding should be submitted within two months and seven days will be allowed for filing objections. Fresh evidence may be taken.
3. Incompliance with the above order of this Court the Subordinate Judge of South Malabar at Calicut submitted his finding! on the issue in the affirmative.
4. This appeal and the memorandum of objections filed by respondents Nos. 1 to 6 coming on for final hearing after the return, of the finding of the lower Court upon the issue referred by this Court for trial, the Court delivered the following.
5. We are not satisfied with the evidence of custom, but in view of the recent Full Bench decision in Machikandi Parkum Maramittath Tharuvil Mootha Chettiam Veettil Chakkara Kannan v. Varayalankandi Kunhi Pokker 18 M.L.T. 255, which has removed the doubt cast upon the decision in Kunhacha Umma v. Kutti Mammi Hajee 2 M.L.J. 226, we think there is now no objection to our holding, and we do hold, that the suit properties were taken and enjoyed by the two sisters, being daughters of a common mother, and their children as tarwad property, and on these findings the defendants, who do not belong to the tarwad and have not acquired any title by adverse possession, have no claim, and the appeal must be dismissed with costs.
6. The memorandum of objections is dismissed with costs.