Imbichi Kandan and Others vs Imbichi Pennu and Others

The District Munsif clearly found that plaintiff''s were divided from the late Changaran and had no community of interest with him. This finding

was not questioned in the grounds of appeal to the lower Appellate Court, and the Subordinate Judge was, therefore, right in laying down that the

question was whether, according to the law and custom followed by Makkatayam Tiyans of Calicut, the property of a deceased person goes to his

father''s brothers who are not joint in interest with him rather than to his mother, widow and daughter.

The decision of the Subordinate Judge is entirely in accordance with the principles laid down in Rarichan v. Perachi ILR 15 Mad. 281 and

Raman Menon v. Chathunni ILR 17 Mad. 184. It has been decided that the rule of impartibility applies to Makkatayam Tiyans of Calicut and in

Rarichan v. Perachi ILR 15 Mad. 281 following the principle that self-acquired property lapses to the tarwad, it was held that the undivided

brother succeeded in preference to the widow. But the case is quite different when the brothers are divided and have no community of interest as

in this case. Here it is found that the only property in which plaintiffs and Kelukutti ever had a common interest is in the family burying place, which

will certainly not constitute them an undivided tarwad. That being so, the mother, wife, and daughter of Changaran who certainly belong to his

tarwad are preferential heirs to his uncles who did not belong to his tarwad at all and had no community of interest with him.

We think the decision of the Subordinate Judge is correct and dismiss the second appeal with costs.