JUDGMENT : 41, Rule 1 CPC. Pending this appeal, the 2nd appellant (Visalakshi Amma) died and her legal representatives already on the party array were recorded as such. The 3rd appellant (Kunhilakshmi Amma) also died and her legal representatives were impleaded as additional appellants 4 to 7. 2. The aforementioned suit was one for partition and separate possession of the plaintiffs' 5/40 shares over 10 items of immovable properties described in the plaint B schedule. The Plaintiffs' Case 3. The case of the plaintiffs can be summarised as follows: The plaintiffs and defendants are Marumakkathayees belonging to the Hindu Nair community following the Hindu Succession Act, 1956. The plaint B schedule properties were acquired by plaintiffs' paternal grandmother Kunhi Amma as per registered documents of the years 1908, 1922 and 1936 respectively. Those properties were purchased by Kunhi Amma the common ancestress, with her own funds and were the self acquired properties of Kunhi Amma. She died in the year 1940. Plaint A schedule is the genealogy showing the relationship between the parties and their ancestors. On the death of Kunhi Amma her children namely, Lakshmi Amma, Achutha Menon, Balagangadhara Menon, Madhava Menon and Purushothama Menon were each having 8/40 shares over the plaint B schedule properties. The five plaintiffs and the 4th defendant are the children of Achutha Menon referred to above. Achutha Menon had also a daughter by name Kamalam and a son by name Gangadhara Menon both of whom died in the years 1994 and 1976 respectively. The first defendant is the widow of the said Gangadhara Menon and defendants 2 and 3 are the children of the said Kamalam. Plaintiffs are together entitled to 5/40 shares. The first defendant representing late Gangadhara Menon is entitled to 1/40 shares. Defendants 2 and 3 together representing late Kamalam are entitled to 1/40 shares and the 4th defendant is entitled to 1/40 shares. Defendants 5 to 7 together representing Balagangadhara Menon who was unheard of since 1945 and, therefore, presumed to be dead in the year 1952, are entitled to 8/40 shares. Defendants 8 to 17 together representing late Madhava Menon are entitled to 8/40 shares. Defendants 18 to 21 together representing late Purushothama Menon are entitled to 8/40 shares. Defendants 22 to 47 together representing late Lakshmi Amma are also entitled to 8/40 shares. The plaint B schedule properties will fetch an annual income of Rs. 18,000/-. Defendants 8 to 17 together representing late Madhava Menon are entitled to 8/40 shares. Defendants 18 to 21 together representing late Purushothama Menon are entitled to 8/40 shares. Defendants 22 to 47 together representing late Lakshmi Amma are also entitled to 8/40 shares. The plaint B schedule properties will fetch an annual income of Rs. 18,000/-. Till three years back defendant No. 22 (Janaki Amma) was giving the plaintiffs their share of income from the plaint B schedule properties. Defendants 22, 38, 39 and 47 are collecting the rent of the buildings situated in the plaint B schedule properties. They are not showing the accounts regarding the income and expenditure to the plaintiffs. The aforesaid defendants are attempting to alienate the plaint B schedule properties. Even though the plaintiffs demanded the aforesaid defendants to partition the plaint B schedule properties and allot the share of the plaintiffs to them, they did not yield to the same. Hence the suit. The plaint B schedule properties may therefore be partitioned and the plaintiffs may be allotted 5/40 shares therefrom with mesne profits. 4. The 22nd defendant died pending suit and defendants 48 to 52 were impleaded as her legal representatives. Defendants 1, 23 to 37, 42 to 46 and 48 to 52 remained ex parte. Defendants 2, 3, 5, 6, 7, 8 and 9 to 20 filed written statements supporting the suit claim and demanded their share over the plaint B schedule properties. The Defence 5. The suit was resisted by defendants 22, 38, 39 and 47 who are the four daughters of late Lakshmi Amma who had altogether nine children. Opposition by the Contesting Defendants 6. Defendants 22, 38, 39 & 47 filed a joint written statement contending inter alia as follows: The plaint B schedule properties were acquired by Kunhi Amma and her unmarried sister who was residing along with her. Kunhi Amma and her unmarried sister found it difficult to eke out their livelihood with the properties obtained by them in partition. Kunhi Amma and her sister were residing in the old thatched hut which was there formerly in the place of the tarwad house. Kunhi Amma and her sister were toiling by rearing cows and selling milk and cultivating the paddy fields obtained on lease from jenmies like Midhunappilly Namboodiri. Kunhi Amma and her sister were residing in the old thatched hut which was there formerly in the place of the tarwad house. Kunhi Amma and her sister were toiling by rearing cows and selling milk and cultivating the paddy fields obtained on lease from jenmies like Midhunappilly Namboodiri. It was with the income derived by such hard work and joint labour that Kunhi Amma and her sister purchased some of the properties in the years 1088, 1097 and 1111 ME. The properties were purchased for and on behalf of the tavazhi but in the name of Kunhi Amma who was the eldest female in the tavazhi which included Kunhi Amma and her sister. Both before the acquisition or at the time of acquisition or any time thereafter, it was never intended by Kunhi Amma or any member of her family that the properties are the self acquisitions of Kunhi Amma. Since the properties were acquired by Kunhi Amma and her daughter Lakshmi Amma and her brothers with their own earnings but on behalf of the tavazhi and the properties were always treated as tavazhi properties, the members of the tavazhi alone are entitled to the properties. Those tavazhi members are Kunhi Amma's daughter deceased Lakshmi Amma, her children namely defendants 22, 38, 39 and 47, deceased Sivasankara Menon, Raghava Menon, Damodara Menon, Venugopala Menon, Prabhakara Menon and Lakshmi Amma's brothers namely deceased Achutha Menon, Balagangadhara Menon, Madhava Menon and Purushothama Menon. The properties are to be divided on that basis and not according to the Shares claimed in the plaint. The income from the properties as stated in the plaint is highly excessive. It is true that the plaintiffs had demanded partition. But no partition could be effected due to the recalcitrant attitude of the plaintiffs. Hence, the suit may be disposed of in accordance with and upholding the contentions of these defendants in their written statement. The Trial 7. The Court below framed 5 issues for trial. No oral evidence was adduced on either side. On the side of the plaintiffs Exts. A1 to A8 and on the side of the contesting defendants Exts. B1 to B3, B4 series, B5 series and B6 series were marked on consent. 8. The Trial 7. The Court below framed 5 issues for trial. No oral evidence was adduced on either side. On the side of the plaintiffs Exts. A1 to A8 and on the side of the contesting defendants Exts. B1 to B3, B4 series, B5 series and B6 series were marked on consent. 8. The Court below after trial, as per preliminary judgment and decree dated 09/11/2001 passed a preliminary decree as claimed in the plaint after rejecting the arguments of the contesting defendants. Hence, this appeal. This Appeal 9. We heard Advocate Sri. P.C. Chacko, the learned counsel appearing for the appellants and Advocate Sri. Mangot Krishna Kumar, the learned counsel appearing for the contesting respondents/plaintiffs. The Point 10. The only point which arises for consideration in this appeal is as to whether the Judgment and decree passed by the Court below are wrong and unsustainable. Appellants' Arguments 11. Adv. Sri. P.C. Chacko, the learned counsel appearing for the appellants made the following submissions before us in support of the appeal: The appellants had pleaded in their written statement that the plaint B schedule properties were acquired by the hard work and joint labour by Kunhi Amma and her sister for and on behalf of the tavazhi but in the name of Kunihi Amma who was the eldest female in the tavazhi. The expression "karanavan" has been defined under Section 3 of the Cochin Nair Act, 1113 ME as follows: ""Karanavan" means the senior major male member of a tarwad and, in the absence of such male member, the senior major female member thereof, unless there is a family usage by which the senior major female member is recognised as Karanavan." Going by the pleadings of the appellants Kunhi Amma could be called the Karanavan of the tavazhi even though the word Karanavan was not expressly mentioned by the appellants in their written statement. The Court below was taking a hyper-technical view regarding the pleadings of the appellants. The object and purpose of pleadings is to enable the adverse party to know the case it has to meet. For a fair trial it is imperative that the party should state the essential material facts so that the other party may not be taken by surprise. At the same time pleadings should receive a liberal construction and no pedantic approach should be adopted so as to defeat justice on hair-splitting technicalities. For a fair trial it is imperative that the party should state the essential material facts so that the other party may not be taken by surprise. At the same time pleadings should receive a liberal construction and no pedantic approach should be adopted so as to defeat justice on hair-splitting technicalities. The Court must find out whether in substance, the parties knew their respective case and the issues upon which they went to trial. Once it is found that in spite of the deficiency in the pleadings, the parties knew the case which arose for resolution and they proceeded to trial on those issues and adduced evidence in support of their respective versions, it would not be open to a party to question the absence of pleadings (Vide - Kedar Lal v. Hari Lal, 1952 KHC 297 : AIR 1952 SC 47 : 1952 SCR 179 : 1952 (1) MLJ 431 ; Bhagawati Prasad v. Shri. Chandramauli, 1966 KHC 493 : AIR 1966 SC 735 : 1966 (2) SCR 286 : 1966 ALJ 799 : 1967 BLJR 158 : ILR 1966 (1) All 796; Ram Sarup Gupta v. Bishun Narain Inter College, 1987 KHC 965 : AIR 1987 SC 1242 : 1987 (2) SCC 555 .; Smt. Rajbir Kaur v. M/s.. S. Chokosiri and Co., 1989 KHC 1032 : AIR 1988 SC 1845 : 1989 (1) SCC 19 . and Para 15 of Prasanth v. Kalyani, 2007 (2) KHC 451 : 2007 (2) KLT 992 : ILR 2007 (2) Ker. 164 : 2007 (1) KLJ 910. A Division Bench of the Madras High Court in Soopiadath Ahmad v. Manha Mammad, AIR 1926 Mad. 643 . has held that there is a very strong presumption that property standing in the name of a Karanavan of a Malabar tarwad belongs to the tarwad but a similar presumption does not arise in the case of an "anandravan". A Division Bench of the Madras High Court in Soopiadath Ahmad v. Manha Mammad, AIR 1926 Mad. 643 . has held that there is a very strong presumption that property standing in the name of a Karanavan of a Malabar tarwad belongs to the tarwad but a similar presumption does not arise in the case of an "anandravan". In Eravipillai Parameswaran Pillai v. Mathevan Pillai Ramakrishna Pillai, 1954 KHC 237: 1954 KLT 862 : AIR 1955 TC 55 , a Full Bench of the Travancore Cochin High Court has held that property obtained by a Nair female towards her share under an outright partition in her tarwad will be her separate property but retains the character of a tarwad property and becomes the property of her tavazhi on the birth of a child to her so as to destroy her absolute powers of disposal in respect of such property. To the same effect is the decision of a Full Bench of the Kerala High Court in Mary v. Bhasura Devi,1967 KHC 172 : 1967 KLT 430 : 1967 KLJ 529 : ILR 1967 (1) Ker. 506 : AIR 1968 Kerala 82 : 1967 KLR 659. In Ayyan Pappu v. Kochucherukkan Sekharan, 1955 KHC 38 : 1955 KLT 181 (DB). it has been held that when there is proof of a nucleus which could have provided the funds for the acquisitions by the Karanavan, even if he had other sources of income, the Karanavan is presumed to have acted for the benefit for the tarwad whose interest he is under a duty to protect rather than he acted for his own benefit and that the acquisitions will be presumed to be tarwad properties. To the same effect is the ruling in Bhargavi v. Chakki., 1956 KLT SN 9. A Full Bench of the Travancore-Cochin High Court in Pathumma Amina Beevi v. Vasu Vasudevan, 1956 KHC 29 : 1956 KLT 117 : ILR 1956 TC 47 : AIR 1956 TC 177 . has held that in the case of a gift by a Marumakkathayee Ezhava mother (of Alleppey) to her daughter or an acquisition by the mother in the name of the daughter before the coming into force of the Travancore Nair Act or the Ezhava Act, as the case may be, the presumption would be that it enured to the benefit of the sub-tarwad of the donee. In Karthiyani Amma v. Parukutty Amma, 1957 KHC 41 : 1957 KLT 243 : 1957 KLJ 229 : AIR 1957 Kerala 27 (DB). it has been held that under the Hindu Law as also under the Marumakkathayam Law the presumption is that in the absence of evidence of an intention to the contrary, the acquisitions by the joint labour of persons constituting the members of a joint family living in commensality, are the joint family properties of such family and that the existence of an original nucleus is not essential and that all that is necessary is that the persons acquiring jointly stand in the relation of the members of an undivided tarwad. In Mallesappa v. Mallappa, 1961 KHC 675 : AIR 1961 SC 1268 : 1961 (3) SCR 779 : 1962 (2) MLJ (SC) 154, a three Judge Bench of the Apex Court has held that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. It was also held that the onus of proof must in such a case be placed on the manager and not his co-parceners. The above principle of Hindu Law equally applies to the Marumakkathayam law as well. The question was specifically dealt with by the Apex Court in Achuthan Nair v. Chinnammu Ammau, 1966 KHC 440: AIR 1966 SC 411 : 1966 (1) SCR 454 : 1966 (1) MLJ (SC) 85 where it was held that when it is proved or admitted that a family possessed sufficient nucleus with the aid of which the junior member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of such nucleus. It has been further held that such a presumption is still stronger in the case of acquisition of property in the name of the Karanavan. It has been further held that such a presumption is still stronger in the case of acquisition of property in the name of the Karanavan. If so, the acquisitions in the case on had in the name of Kunhi Amma who was in the position of a Karanavan, can only be held to be the tavazhi property of Kunhi Amma and her children and their children in the female line. Consequently, plaintiffs 1 to 5 and defendants 1 to 4 who are the descendants of Achutha Menon, could jointly inherit only 1/14 shares over the plaint B schedule properties and not 8/40 shares as claimed by them and upheld by the Court below in the impugned preliminary decree. Judicial Resolution 12. We are afraid that we find ourselves unable to accept the above submissions made on behalf of the appellants. There is no dispute that the parties are members of a Marumakkathayam Nair family called Pulippara in Viyyur Village of Thrissur District which was part of the erstwhile Cochin area. Before the coming into force of the States Reorganization Act, 1956 and the formation of the State of Kerala with effect from 01/11/1956 by the unification of the Part B States, the State territory was comprised of the erstwhile Malabar area, the Cochin State and the Travancore State. The Malabar area was within the dominion of the Madras Province and was amenable to the Legislature of Madras (presently Tamil Nadu). The statutes for the erstwhile Cochin area were passed by his Highness the Maharaja of Cochin and for the Travancore area were passed by His Highness the Maharaja of Travancore. In this litigation we are concerned about the personal law of the parties, i.e. the Marumakkathayam Law as applied to the Nairs in Thrissur Taluk where succession opened in the year 1940 which is admittedly the year in which Kunhi Amma the common ancestress of the parties died. For a better comprehension of the rival contentions of the disputing parties it is necessary to have an idea regarding their genealogy. The plaint A schedule is the genealogy to which neither side has raised any dispute so far. The said genealogy is as under: Kunhi Amma died in the year 1940 leaving behind one daughter Lakshmi Amma and four sons Achutha Menon, Balagangadhara Menon, Madhava Menon and Purushothama Menon. The plaint A schedule is the genealogy to which neither side has raised any dispute so far. The said genealogy is as under: Kunhi Amma died in the year 1940 leaving behind one daughter Lakshmi Amma and four sons Achutha Menon, Balagangadhara Menon, Madhava Menon and Purushothama Menon. Lakshmi Amma died in the year 1986, Achutha Menon in the year 1965, Balagangadhara Menon was missing since 1945 and presumed to be dead in the year 1952, Madhava Menon died in the year 1965 and Purushothama Menon died in the year 1973. Lakshmi Amma had four daughters Janaki Amma (D22) Leela Amma (D38), Visalakshi Amma (D39) and Kunhi Lakshmi Amma (D47) and five sons Sivasankara Menon, Raghava Menon, Damodara Menon, Venugopala Menon and Prabhakara Menon all of whom died prior to the suit. Defendants 23 to 28 are the children of Sivasankara Menon referred to above. Defendant No. 29 is the widow of Raghava Menon and defendants 30 to 32 are their children. Defendant No. 33 is the widow of Damodara Menon referred to above and defendants 34 to 37 are their children. Defendant No. 40 is the widow of Venugopala Menon referred to above and defendants 41 to 43 are their children. Defendant No. 44 and defendants 45 and 46 are the widow and children of Prabhakara Menon referred to above. Defendant Nos. 23 to 28 are the children of Sivasankara Menon, S/o. Lakshmi Amma. Defendants 29 to 32 are the widow and children of Raghava Menon S/o. Lakshmi Amma. Defendants 33 to 37 are the widow and children of Damodara Menon, S/o. Lakshmi Amma. Defendants 40 to 43 are the widow and children of Venugopala Menon, S/o. Lakshmi Amma. Defendants 44 to 46 are the widow and children of Prabhakara Menon, S/o. Lakshmi Amma. Achutha Menon, the son of Kunhi Amma had three sons and five daughters. One Gangadhara Menon who died in the year 1976 and the first plaintiff and the fourth defendant are the three sons and one Kamalam who died in the year 1994 and plaintiffs 2 to 5 are the five daughters of Achutha Menon. Defendants 2 and 3 are the children of the said Kamalam. The first defendant is the widow of Gangadhara Menon referred to above. Defendants 5 to 7 are the widow and children of Balagangadhara Menon, the son of Kunhi Amma. Defendants 2 and 3 are the children of the said Kamalam. The first defendant is the widow of Gangadhara Menon referred to above. Defendants 5 to 7 are the widow and children of Balagangadhara Menon, the son of Kunhi Amma. The 8th defendant is the widow and one Viswanathan who died prior to the suit and defendants 12 to 17 are the children of Madhava Menon, S/o. Kunhi Amma. Defendants 9 to 11 are the widow and children of the said Viswanathan. Defendants 18 to 21 are the widow and children of Purushothama Menon, S/o. Kunhi Amma. A Peep into the Pristine Personal Law 13. Eventhough the State of Kerala is very small in its territorial extent, one could find a peculiar feature of a miscellaneous collection of communities with varied customs and usages in their family relations. This feature presented complicated problems also in the application of personal laws in the administration of justice. The Hindu community as a whole was not governed by the Mitakshara School of Hindu Law as was followed by the rest of the Hindus in South India. Even though one section in Kerala namely the Brahmins had adopted the pure Hindu Mitakshara Law, several communities among Hindus were having their own systems of personal law. The vast majority of Hindus were the followers of customary laws like the Marumakkathayam Law, the Nambudiri Law or the Aliyasanthana law. Most of the above systems were subsequently codified in the form of statutes passed by the respective legislatures at various stages and were applied to the respective communities and castes until those statutes were still later abolished in Kerala with effect from 01/12/1976 by the Kerala Joint Hindu Family System (Abolition) Act, 1975. 14. Among the various systems prevalent in the State, the Marumakkathayam system was of primary importance. The word "Marumakkathayam" means the system of inheritance through nephews and nieces. The prestine Marumakkathayam Law had undergone considerable change under the impact of the social revolution taking place in the State and in the country. This system found recognition principally among the Nair community which formed one of the prominent communities of the Hindus in the State. Besides Nairs, there were innumerable other communities which had adopted the Marumakkathayam system of inheritance. The matrilineal line of descent is the essence of the Marumakkathayam system as also the Aliyasanthana system. This system found recognition principally among the Nair community which formed one of the prominent communities of the Hindus in the State. Besides Nairs, there were innumerable other communities which had adopted the Marumakkathayam system of inheritance. The matrilineal line of descent is the essence of the Marumakkathayam system as also the Aliyasanthana system. The Aliyasanthana system is confined in its application to the erstwhile South Canara district a portion of which falls in the northern part of the present Kannur district (formerly called Cannanore district). The followers of this system are mainly Hindus. Certain Jains domiciled in those areas had also adopted the Aliyasanthana System. While the concept of a family elsewhere in the world was and continued to be patriarchal in character, the Marumakkathayam and Alyasanthana systems were following the matrilineal line of descent in the place of "tarwad", "tavazhi" and "Karanavan" under the Marumakkathayam Law, the Aliyasanthana law has the "Kutumba" "Kavaru" and "Ejaman". The Position Under the Hindu Mitakshara Law 15. A Joint Hindu Family governed by Mitakshara Law consists of all members descended lineally from a common male ancestor and includes their wives and unmarried daughters. They are bound together by the fundamental principle of sapindaship or family relationship which is the essence and distinguishing feature of the Mitakshara joint family. Such a joint Hindu family is a creature of law and cannot be created by act of parties except by adoption or marriage. All the members of such a joint family do not possess equal rights in the joint family property. The female members of the joint family such as wives and daughters have no share in such property. Joint family status being the result of birth, marriage or adoption, the possession of joint family property is only an adjunct of the joint family and it is not necessary for its constitution. This is why the Supreme Court in Mudigowda v. Ramachandra, 1969 KHC 765: AIR 1969 SC 1076 : 1969(1) SCC 386 , held that there is no presumption that merely because a Hindu family is a joint Hindu family, it possesses any joint family property. But a coparcenary under the Hindu Mitakshara school is a narrower body than the joint family. But a coparcenary under the Hindu Mitakshara school is a narrower body than the joint family. The coparcenary consists of only those persons who take by birth an interest in the property of the holder, for the time being, and who can enforce a partition whenever they want. A coparcenary starts with a common male ancestor and it includes only those males in the male line who are not removed from him by more than three degrees. A son, grandson or a great grandson is a coparcener with the holder of the property. But a great-great grandson cannot be a coparcener. The reason why coparcenarship is so limited is in view of the peculiar tenet of the Hindu religion that only descendants upto three degrees can offer pinda to an ancestor. Females are excluded from the coparcenary because the test of coparcenership is the right to enforce a partition and no female has that right. Although the property known as joint family property is synonymous with coparcenary property, it is different from ancestral property. "Ancestral property" as understood in the Mitakshara school of Hind Law is having a special meaning. It includes only such property as is inherited by a male from his father, father's father and father's father's father. Ancestral property does not include property inherited from others, male or female. The son of such inheritor of ancestral property, or son's son or son's son's son gets an interest in such property by birth and can interdict improper alienations by the inheritor. In other words, in the ancestral or grandfather's property in the hands of the father, the son has an equal right with that of the father. Joint family property may also comprise of property acquired by the members of a Mitakshara joint family by their joint labour, or by a gift or grant made to them as a joint family. When members of a joint family by their joint labour and exertion acquire properties with the intention of owning them as joint family property, such property will belong to the coparcenary of the acquirers and their male issues will acquire a right by birth in such property if the joint family continues to be in existence at the time of birth of such male issues. In Manoharlal Ganeriwal v. Bhuri Bai, 1973 KHC 696 : 1973 (3) SCC 432 : AIR 1972 SC 1369 , it has been held by a Three-Judge Bench of the Apex Court that even the property obtained by the sole surviving coparcener in a family does not become his separate property as long as there is a woman in the family who can bring into existence a new coparcener by adoption. The ancestral as well soon-ancestral property comprising of the joint family property can constitute the nucleus of the joint family property. Dr. Herman Gundert, a German Protestant missionary is remembered by the Malayalees for his achievements as a lexicographer, linguist, educationist, folklorist, journalist and a writer. He was a path-finder in modern academic research in Malayalam language. Dr. Herman Gundert has given the following list of castes who follow the Makkathayam System of Inheritance (i.e. system of inheritance through sons): (1) Nambutiri (14) Poduval (2) Pattar (15) Vilakkattaravan (3) Embran (16) Irankolli (4) Moosad (17) Mutta Chettiyan (5) llayath (18) Kammalar (6) Tangal (19) Thandan (7) Nambidi (20) llavar (8) Kommatti (21) Cherumar (9) Veishyan (22) Chaliyar (10) Nambiachan (23) Jedar (11) Chakyar (24) Kaikolar (12) Adigal (25) Kaniyan (13) Pidaran (26) Tiyar in Kadathanad and Travancore. Sri. K. Sreedhara Variar in "Marumakkathayam and Allied Systems of Law" has added the following communities: (27) Tamil Brahmins (35) Pulluvans (28) Muttans (36) Pulayas (29) Valluvars (37) Malesans (30) Besides Kammalas, artisan lasses comprising of Pathinetans, Tolkurups, Vadugans, Kancharans, Vettans or Vettuvans, Vilkurups and Tolvollens (38) Parayas (39) Nayadi (40) Paniyans (41) Tamil and Canares Chetties (42) Goundens (31) Kamsans (43) Velalans (32) Mannans in the South (44) Kuravas (33) Velans except in the extreme north (45) Andis (34) Panans (46) Pandarams The Marumakkathayam Law 16. While in the Mitakshara joint family the members claim descent from a common ancestor (i.e. a male), in the Marumakkathayam family the descent is from a common ancestress (i.e. a female). The name given to the joint family is "tarwad" which consists of males and females who have all descended in the female line from a common ancestress. Every member of a tarwad has equal rights in the property by reason of his or her birth in the tarwad. The name given to the joint family is "tarwad" which consists of males and females who have all descended in the female line from a common ancestress. Every member of a tarwad has equal rights in the property by reason of his or her birth in the tarwad. Until legislative intervention, one or more members of a tarwad could not claim partition and separate possession of his or their share in the tarwad property without the consent or concurrence of all the members of the tarwad (Vide - M. K. Balakrishna Menon v. Assistant Controller of Estate Duty-cum-I.T.O., 1971 KHC 613 : 1971 (2) SCC 909 : AIR 1971 SC 2392 : 1972 (83) ITR 162 .). Marumakkathayam law was found to govern a large section of people inhabiting the West-Coast of South India. The word "Marumakkathayam" literally means descent through sister's children. It was a body of custom and usage which had received judicial recognition. The view that Marumakkathayam System was a separate school of Hindu Law did not gain judicial recognition. The joint family in a Marumakkathayam tarwad consists of a mother and her male and female children and the children of those female children and so on. The issue of the male children do not belong to the tarwad but belong to the tarwad of the consorts of such male members. The property belonging to the tarwad is the property of all the males and females who compose of it. Its affairs are administered by one of those persons usually the eldest male member called the "Karanavan". The rights of the junior members are- (i) if males, to succeed to management in their turn (ii) to be maintained at the family house (iii) to object to an improper alienation or administration of the family property (iv) to see that the property is duly conserved (v) to bar an adoption; and (vi) to get a share at any partition that may take place Every member is a proprietor having equal rights (vide - Kavalappara Kottarathil Kochunnii @ Mooppil Nayarv. States of Madras & Kerala, 1960 KHC 389 : AIR 1960 SC 1080 : 1960 KLT SC 31 : 1960 KLJ 1077 : 1960 (3) SCR 887 . States of Madras & Kerala, 1960 KHC 389 : AIR 1960 SC 1080 : 1960 KLT SC 31 : 1960 KLJ 1077 : 1960 (3) SCR 887 . One of the fundamental differences between the Hindu Law and the Marumakkathayam system is that the former is founded on agnatic family (related on the father's side) whereas the latter is based on matriarchate (related on the mother's side). Similarly, the three degree rule of the Hindu Mitakshara Law founded on religious obligation is not applicable to the Marumakkathayam Law. All the children of the female progeny traced through the female line of descent are members of the tarwad howlowsoever. The matrilenial line of descent is the essence of Marumakkathayam System. The concept of family elsewhere in the world is patriarchal in character. While female members born in the patriarchal family (pertaining to the rule by the father) cease to be members thereof on marriage and wives of the male members acquire membership in the joint family, the marriage of a girl in the Marumakkathayam system never operates as severence of her membership in the family of her birth; nor does such marriage create any membership in her husband's family. Mutual rights of inheritance between the spouses do not find recognition under the Marumakkathayam law. (Vide-III Edition (1905) of Malabar Law and Custom by Lewis Moore (who was a member of the Indian Civil Service and a Judge of the High Court of Judicature, Madras), the 1922 Edition of a Treatise on Malabar and Aliyasanthana Law by P. R. Sundara Aiyar (who was a Judge of the High Court of Judicature, Madras) and the 1969 Edition of Marumakkathayam and Allied Systems of Law in the Kerala State by K. Sreedhara Variar). William Logan who is the author of the famous Logan's Malabar Manual was a Scottish Civil Servant and was the Acting District and Sessions Judge of North Malabar at Tellicherry (presently Thalassery) and later on of South Malabar at Calicut (presently Kozhikode) during the period from 1873-1875. Thereafter he was the Collector and Magistrate of Malabar with a few breaks. William Logan who is the author of the famous Logan's Malabar Manual was a Scottish Civil Servant and was the Acting District and Sessions Judge of North Malabar at Tellicherry (presently Thalassery) and later on of South Malabar at Calicut (presently Kozhikode) during the period from 1873-1875. Thereafter he was the Collector and Magistrate of Malabar with a few breaks. William Logan has described the mechanics of the Marumakkathayam Law of Inheritance thus: "This law of inheritance, usually styled Marumakkathayam (literally, sister's son's inheritance), may be shortly described thus: A Malayali taravad corresponds pretty closely to what the Romans called a gens, with this important distinction, however, that whereas in Rome all members of the gens traced their descent in the male line from a common ancestor, in Malabar the members of a taravad trace their descent, in the female only, from a common ancestress. All tarwads of influence set apart property for the common use, and indeed it seems to have been for purposes of thrift that this system of inheritance was at first devised. So long as that common property exists any number of families may hang together and form one taravad. To explain what is here meant by a "family" as distinguished from a taravad; take the following example: X, Y and Z are A's sons, and, as such, are members of A's taravad, but however many children may be born to them, those children never come into A's taravad nor stand in any recognised legal relation either to their fathers, or to the property of their fathers' taravad. But the daughters B and D have each a family, and their daughters may in turn have further families, and so on. The word "family" was used in the sense of the issue (both male and female) of any female descendant in the female line only of A. Every member, whether male or female, and whether of age or not, has an equal interest in the common stock of the taravad; but no member can claim his share of it. The taravad, however, as a body, can of course make any division it pleases of the common stock, and among the more influential families it is customary to set aside certain portions of it, for the life enjoyment only, of members who attain to Sthanams or dignities hereditary in the family. The taravad, however, as a body, can of course make any division it pleases of the common stock, and among the more influential families it is customary to set aside certain portions of it, for the life enjoyment only, of members who attain to Sthanams or dignities hereditary in the family. The portions so set apart are intended to help them in maintaining the dignity of their positions, and in respect to them they are to a great extent in the position of trustees. When a partition of the whole stock takes place, the taravad becomes disintegrated, and dissolves into so many fresh taravads as the members may have settled to form among themselves. This process of disintegration goes on continually except among the highest classes, who pride themselves on maintaining a large common stock. But even among them the taravad gets split up into subordinate divisions known as a tavazhi or branches. One way in which this occurs is, that a member with perhaps some assistance from the common stock, but more usually with the assistance obtained from his father (who, as already said, stands in no recognised legal relation to his son), sets out from his taravad house and lives apart, taking with him one or more female relatives (usually a sister or sisters) and thus founds a separate branch (tavazhi) of the taravad. Or, more usually still now-a-days, a female of the taravad leaves the taravad house to live with the husband of her choice in a separate house prepared on purpose for her by her husband. This house is usually conveyed to her in free gift by her husband, and there she settles down to rear her family, who constitute a tavazhi of their taravad. The property acquired by such a tavazhi has been usually regarded as the separate property of the members who compose the tavazhi, and not as part of the common stock of the taravad, even when there has been no formal deed declaring what is, and what is not, common property; but the High Court has of recent years held otherwise and the tendency of the Courts is now to regard all the property as common property until a formal division thereof has taken place." Dr. Gundert had enumerated the following castes who follow the Marumakkathayam System of Inheritance: (1) Seventeen Brahman Illams in Payyannur and Chirakkal taluks (14) Nambi (15) Teyambadi (2) Kshathriyan (16) Marar (3) Thirumulppad (17) Poduval (4) Nayar (18) Kuttunambi (5) Urali (19) Attikurichi (6) Andor (20) Unnitiri (7) Pallichan (21) Eradi (8) Kushavan (22) Vallodi (9) Vyabari (23) Nedungadi (10) Kolayan (24) Veluttedan (11) Chembotti (25) Chaliyan (12) Pisharodi (26) Tiyan in North and in Travancore (13) Variyar Mappilas (Muslims) of North Malabar also follow the Marumakkathayam law as was held by a Full Bench of the Madras High Court in Chakkara Kannan v. Kunhi Pokkar, 1915(29) MLJ 481. What is a "tavazhi"? 17. A "tavazhi" is a branch of a tarwad which has separated more or less from the parent stock. "Tavazhi" literally means "tayar"-mother, "vazhi"-line, that is, mother's line. A tarwad, no doubt, is said to consist of so many tavazhis. But the term tavazhi is ordinarily used to denote one of the component parts of a tarwad consisting of a mother and her descendents. (Vide-Chakkara Kannan v. Kunhi Pokker (supra)). The word "tavazhi" is not employed in connection with a branch unless it owns some property also. One way in which a tavazhi comes to own, property is by division of tarwad property for convenience of enjoyment. Another way in which a tavazhi comes to hold property is by inheritance. A third way is by gifts and other kinds of acquisition. The last kind of property acquisition of when the donor or testator is the husband is known as the "puthravakasom property" consisting of his Marumakkathayee wife and all children born to him in such wife. In Travancore area such property used to be called "makkathayam property". (Vide - Sundara Aiyar's Treatise (supra)). The Position of a "karanavan" 18. "Karanavan" in a Malabar family was in law understood to be the senior most male member and as such he was the natural guardian of every member within the family. He alone could sue or be sued as the representative of the family. (Vide - Sundara Aiyar's Treatise (supra)). The Position of a "karanavan" 18. "Karanavan" in a Malabar family was in law understood to be the senior most male member and as such he was the natural guardian of every member within the family. He alone could sue or be sued as the representative of the family. When the karanavan of a Malabar tarwad had not been impleaded as such in a suit and there was nothing on the face of the proceedings to show that it was intended to implead him in his representative character, tarwad property could not be attached and sold in execution of a decree even if it was proved that the decree was for a debt binding on the tarwad. Conversely, the decree in a suit in which the Karanavan of the tarwad was in his representative capacity joined as a defendant and which he honestly defended, was binding on the other members of the tarvad not actually made parties to such suit. (Vide - Chapter IV of Malabar Law and Custom by Lewis Moore (supra)). The unenviable position of the Karanavan was beautifully described by Mr. Holloway as the District Judge of Tellicherry (now Thalassery) in AS No. 120 of 1862 as follows: "A Malabar family speaks through its head in Court of Justice; except in antagonism to that head, can speak in no other way." Mr. Holloway later became a Judge of the High Court of Judicature, Madras. The "Karanavan' has two capacities, a temporal and a spiritual one. In the former, he is the manager of the family properties, maintains the junior members, represents the tarwad in transactions with strangers etc. In the latter capacity, he presides at the religious ceremonies and performs all the religious duties which are incumbent on the tarwad. (Vide - Krishnan v. Raman, 1915 ILR 39 Mad. 918). He is the guardian of the minor members of the family and to him the other members look for protection, education and maintenance. Analysis of the Appellants' arguments 19. The legal propositions laid down in the judicial pronouncements relied upon by the learned counsel for the appellants, are indeed well settled and no exception can be taken to the same. But the real question is as to what exactly is the nature of the acquisitions in respect of the plaint B schedule properties. Analysis of the Appellants' arguments 19. The legal propositions laid down in the judicial pronouncements relied upon by the learned counsel for the appellants, are indeed well settled and no exception can be taken to the same. But the real question is as to what exactly is the nature of the acquisitions in respect of the plaint B schedule properties. All the 10 items of immovable properties described in the plaint B schedule were admittedly acquired in the name of Kunhi Amma, the common ancestress. In paragraph 10 of the plaint the plaintiffs had alleged that they are not in possession of the original documents of acquisition. Ext. A1 copy of sale deed dated 26/12/1097 ME (corresponding to the year 1922) pertains to item No.1 of the plaint - B schedule. Ext. A2 copy of the sale deed dated 30/09/1111 ME (corresponding to 1936) pertains to items 2 to 5. Ext. B1 is the copy of sale deed dated 27/07/1104 ME (corresponding to 1929) pertaining to item No. 6. Ext. B2 is the original sale deed dated 19/01/1115 ME (corresponding to the year 1940) pertaining to item No. 7. There is no document of acquisition produced on either side with regard to items 8 to 10. Except showing that the suit properties were acquired in the name of Kunhi Amma, the documents of acquisition do not throw any light as to the nature of the funds which proceeded from Kunhi Amma or as to her status in the family. It was not disputed both before the trial Judge as well as before this Court that all the ten items were purchased in the name of Kunhi Amma whose calling is described in the documents of acquisition as "own affairs" (Vernacular Matter). Kunhi Amma is not described in any of the documents either as the manager of the Karanavan or the Karanavathi or even as the eldest female member of the family looking after the affairs of the Pulippara Tarwad or any tavazhi. None of the documents recites that the properties are acquired for and on behalf of the tavazhi. Kunhi Amma is not described in any of the documents either as the manager of the Karanavan or the Karanavathi or even as the eldest female member of the family looking after the affairs of the Pulippara Tarwad or any tavazhi. None of the documents recites that the properties are acquired for and on behalf of the tavazhi. The question of raising a presumption that the properties were acquired by Kunhi Amma for the benefit of the tavazhi can arise only if Kunhi Amma was possessed of sufficient nucleus with the aid of which the acquisitions could have been made or only if Kunhi Amma at the time when she made the acquisitions was in the position of a "Karanavan". The written statement filed by the appellants itself admits that with the properties allotted to Kunhi Amma and her sister in partition they found it difficult to make both ends meet and they were residing in a thatched hut which was there in the place of the ancestral house. What they would plead is that the properties were acquired by Kunhi Aamma and her sister with their joint labour and exertion but in the documents of acquisition the name of Kunhi Amma alone was shown. The name and other particulars of the so called sister of Kunhi Amma continues to be a myth and the trial Judge had made special mention about this. If there was an earlier partition and Kunhi Amma and her elusive sister were residing in a thatched hut and they found it difficult to pull on with the property said to have been allotted to them in such partition and the suit properties were acquired in the name of Kunhi Amma with the joint labour and exertion by the two sisters, then there could not have been any nucleus with the aid of which Kunhi Amma could have acquired the suit properties. The specific case pleaded in the plaint was that the suit properties were the self acquisitions of Kunhi Amma who purchased them with her own funds. This case is not specifically denied in the written statement of the appellants. Of course, by setting up a case that the suit properties were acquired for and on behalf of the tavazhi, the appellants can be said to have impliedly denied the plaintiffs' case that the said properties were the self acquisitions of Kunhi Amma. This case is not specifically denied in the written statement of the appellants. Of course, by setting up a case that the suit properties were acquired for and on behalf of the tavazhi, the appellants can be said to have impliedly denied the plaintiffs' case that the said properties were the self acquisitions of Kunhi Amma. But the fact remains that there was no specific denial in the written statement with regard to the aforesaid case of the plaintiffs. As for the status of Kunhi Amma in the family at the time of acquisition of the suit properties also there is absolutely no evidence furnished either by the documents themselves or by any independent evidence adduced by the appellants. As a matter of fact, the appellants did not adduce any oral evidence at all. It is pertinent to remember that during the life time of Lakshmi Amma (the mother of the appellants), she never claimed any share over the suit properties on the footing that the properties were tavazhi properties. The said Lakshmi Amma died only in the year 1986. When the plaint allegation that the suit properties were the self acquisitions of Kunhi Amma, was not specifically denied by the appellants who set up a specific case that the properties were the acquisitions made for and on behalf of the tavazhi, the burden was squarely on the appellants to prove the said case particularly when the documents of acquisitions prima facie indicated that the properties were the self acquisitions of Kunhi Amma. Apart from the fact that none of the appellants or defendant No.22 (who stood with the appellants) mounted the witness box, no oral evidence at all was adduced on the side of the appellants on whom the burden lay to prove that what was apparent under the documents of acquisition was not the real state of affairs. In the absence of anything either in the documents of acquisition or otherwise to show that Kunhi Amma was either the Karanavan or the eldest female member of the tarwad or tavazhi and the acquisitions were made for and on behalf of the tavazhi, the Court below was perfectly justified in holding that the suit properties were the separate properties of Kunhi Amma. We fully endorse the said conclusion reached by the Court below. 20. We fully endorse the said conclusion reached by the Court below. 20. Kunhi Amma admittedly died in the year 1940 i.e. 2 years after the coming into force of the Cochin Nayar Act, 1113 ME (Corresponding to the year 1938). There is no dispute that if the suit properties were the separate properties of Kunhi Amma who died after the commencement of the Cochin Nayar Act, 1113 ME then by virtue of the rules in Sections 35 to 40 thereof the suit properties would devolve on her 5 children and not on her tavazhi as contended by the appellants. If the contention of the appellants that the suit properties on the death of Kunhi Amma would devolve on her tavazhi were to be upheld, then the shares would have to be worked out as follows: Plaintiffs 1 to 5 & Defendants 1 to 4 together representing Achutha Menon 1/14 Defendants 5 to 7 together representing Balagangadhara Menon 1/14 Defendants 8 to 17 together representing Madhava Menon 1/14 Defendants 18 to 21 together representing Purushothama Menon 1/14 Defendants 22 to 47 together representing Lakshmi Amma 10/14 21. But it has already been found that the suit properties were the separate properties of Kunhi Amma and they would, therefore, devolve in accordance with Sections 35 to 40 of the Cochin Nair Act, 1113 ME. The conjoint effect of Section 35 to 40 is as follows. Section 3 of the Act reads as under: "35. Devolution of property left by Nayar female intestate.- On the death intestate of a Nayar female, her property which is self-acquired or separate shall devolve in the order and according to the rules contained in Sections 36 to 40." Section 36 is the most important provision as far as this case is concerned. As per Section 36 where the intestate has left surviving her children or lineal descendants in the female line through deceased daughters or both, the whole of the property shall belong to them. It is further stated that the provisions of Clauses (iii) to (v) of Section 29 and Explanations I and II to that Section shall apply to the distribution of the property among the children and lineal descendants of the intestate. As per Clause (iii) of Section 29, the property shall be distributed to every child (son or daughter) in equal share. As per Clause (iii) of Section 29, the property shall be distributed to every child (son or daughter) in equal share. The proviso to Section 29(iii) states that if a daughter has pre-deceased the intestate, the lineal descendants of such grand daughter in the female line shall be entitled to the share which such grand daughter would have taken had she survived the intestate. Clause (iv) of Section 29 states that grandchildren by the deceased daughter shall be entitled to equal shares to what their mother would have taken had she survived the intestate. The proviso thereto states that if a granddaughter has pre-deceased intestate, the lenial descendants of such grand daughter in the female line shall be entitled to the share which such granddaughter would have taken had she survived the intestate. Clause (v) of Section 29 states that in like manner the property shall go to the surviving lenial descendants of the intestate in the female line where such descendants are in the degree of great grandchildren or in a more remote degree. Explanation I states that the descendants of a daughter, daughter's daughter or other female descendant in the female line shall not be entitled to any share in such property if such daughter, daughter's daughter or other descendant is alive at the time of the death of the intestate. Explanation II states that the descendants of a son who has pre-deceased the intestate shall not be entitled to any share in such property. Kunhi Amma admittedly had five children namely; one daughter and four sons. All of them survived Kunhi Amma. Hence, each of the above five children were, by virtue of Section 36 of the Act, entitled to ? share over the plaint B schedule properties which were the self acquisitions of Kunhi Amma. In that case, the shares of the parties will be as follows: (i) Plaintiffs 1 to 5 and defendants 1 to 4 together representing Achutha Menon 8/40 (a) Plaintiffs 1 to 5 5/40 (b) D1 representing Gangadhara Menon 1/40 (c) D2 and D3 together representing Kamalam 1/40 (d) D4 (brother of the plaintiffs) 1/40 (ii) D5 to D7 together representing Balagangadhara Menon (presumed to be dead in 1952) 8/40 (iii) D8 to D17 together representing late Madhava Menon 8/40 (iv) D18 to D21 together representing late Purushothama Menon 8/40 (v) D22 to D47 together representing late Lakshmi Amma 8/40 22. The Court below has made the appellants and defendant No. 22 who are in possession of the suit properties, liable for mesne profits. The plaint allegation that until three years prior to the institution of the suit, defendant No. 22 (Janaki Amma) had paid to the plaintiffs their share of profits from the suit properties, was not specifically denied in the written statement of the appellants. Similarly, the appellants did not raise any contention that the rights, if any, of the plaintiffs have been lost by adverse possession or ouster. Such being the position, the suit claim was fully justified and the preliminary decree passed in accordance with the suit claim also does not call for any interference. Our Conclusion 23. In the light of the foregoing discussion the preliminary decree passed by the Court below is fully justified. This appeal which is devoid of any merit is, accordingly, dismissed. However, having regard to the fact that the parties are members of the same joint family, we direct them to bear their respective costs.