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 Nos. 4, 5, 6, 7 and 8. But before the document was fair copied (see para. 24 of Ex. A.), the sub-tavazhi No. 3 (composed of Paru Amma and her sons), six and seven agreed to remain joint; so also sub- tavazhis Nos. 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. Para Amma's tavazhi (No. 3) has now be come extinct and the plaintiffs, sue for partition of the property which belonged to that branch. The case of the plaintiffs is that para. 24 of Ex. A was not acted upon by the parties to it--(see para. 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 para. 24 were not acted upon or given effect to. The sub-tavazhis marked Nos. 3, 6and 7 have, therefore, to be regarded as one tavazhi. If they have remained as one tavazhi till Narayan Nair's death, then under the provision of Ex. A, the tavazhis marked Nos. 1,2,4, 5 and 8 have no right to the plaint properties.' This finding was enough for him the District Munsif to dispose of the plaintiff's case, but he also examined the rights of the plaintiffs on the hypothetical case that the tavazhis Nos. 3, 6 and 7 remained joint as one tavazhi for sometime after the date of Ex. A and separated at or about 1906. I do not think that the issues raise this case, in view of 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 sometimes after the date of Ex. A and that thereafter they divided,' there was no need for him to have considered the rights of the parties from this new standpoint. However, he decides against the plaintiffs on the ground that 'The devolution of these properties must be regulated by the ordinary custom law, according to which the properties lapse to the 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 separation.' Applying this test, the District Munsif held that the plaintiffs are not entitled to the plaint properties, they having separated from the extinct tavazhi in 1901, while defendants Nos. 7 to 9 and 10 to 13 (6th and 7th tavazhis) separated from it, if at all, only afterwards.
3. On the appeal the District Judge has confirmed the judgment of the District Munsif. No doubt, in para. 5 of the narrative portion of his judgment in mentioning the finding of the District Munsif, he refers to the hypothetical case as if it formed the real basis of the Munsif's judgment; but in the argumentative portion of his judgments he correctly states the case for the appellants in para. 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.' On this, question, which really was the only question in the case, he was of opinion that tavazhis Nos. 3, 6 and 7 always remained joint and, in that view, the plaintiff's appeal was dismissed. He also stated in para. 8 that this was the only issue contested in argument on appeal. This makes it clear 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.
4. The finding that tavazhis Nos. 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 para. 5 of the appellate judgment, is the real finding of the District Munsif and that the learned District Munsif's opinion that, in a case like the present, where sub-tavazhis 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 that the real finding of the District Munsif is not the 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.
5. The exact point is not covered by any authority. In 8. A. No. 1815 of 1911 with reference to Mr. Rozario's argument 'That according to Marumakkathayam Law when a tarwad becomes extinct, the tarwad from which it last separated is entitled to succeed to its property,' the learned Judges Benson and Sundara Iyer, 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 2 Ind. Cas. 183 : 6 M.L.T. 106 : 9 M.L.J. 350 and of Sundara Iyer, J., in Krishnan Nair v. Damodaram Nair 17 Ind. Cas. 769 : 13 M.L.T. 166 : 24 M.L.J. 240or of early writers on Marumakkathayam Law like Mr. Cook and Justice Strange who laid down that a Marumakkathayam male's heirs were his own nearest relations.' The point directly arose for decision in A. 8. No. 261 of 1919. Their Lordships evidently thought that the decision in Govinda Nair v. Sankara Nair 2 Ind. Cas. 183 : 6 M.L.T. 106 : 9 M.L.J. 350 and Krishnan Nair v. Damodaram Nair 17 Ind. Cas. 769 : 38 M.P 48 : 13 M.L.T. 166 : 24 M.L.J. 240 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 Article on Malabar Law, Sundara Iyer, 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 decision of the Travancore and the Cochin Courts seems to support the view that 'nearness is to be determined not by degrees of propinquity alone but also by the circumstance as to who divided off last.'
6. It seems to me that Malabar Law being essentially customary law, the process of solving question, 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 Iyer, 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 Nair v. Damodaram Nair 17 Ind. Cas. 769 : 38 M.P 48 : 13 M.L.T. 166 : 24 M.L.J. 240 The inferences which may be drawn from the observations in Govindan Nair v. Sankaran Nair 2 Ind. Cas. 183 : 32 M.P 351 : 6 M.L.T. 106 : 9 M.L.J. 350 and Krishnan Nair v. Damodaram Nair 17 Ind. Cas. 769 : 38 M.P 48 : 13 M.L.T. 166 : 24 M.L.J. 240 do not, in my view, help us 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.
7. 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 tavazhi after 1901.