1. The question to be considered is whether the revision petitioners and the first respondent have leasehold right in the property or the revision petitioners alone have it. The property originally belonged to the Tarwad of respondents 2 to 8 in Jenm. As per registered marupat deed No. 1506 of 1901 the property was leased to Pottankulathil Ambu. Ambu assigned the property to Thottan Ambu and his sister Mani as per document No. 2208 of 1909. Ambu died and his share in the property devolved on his brother Kannan, Kannan assigned his right in the property to Nambi as per document No. 1852 of 1913. This relates to eastern half of the property. Thottan Ambus sister Mani assigned her right in the property to Bruvadi as per document No. 1060 of 1916 (Ext. P1).

2. It is the case of the revision petitioners that after Nambis death his right in the property devolved on his brother Kadungon, that the latter assigned his right to Kunhipatti by Ext P-2 document on 13-11-1924 and that the revision petitioners who are the legal representatives of Kunhipatti are entitled to the property. Revision Petitioners further contended that after the death of Eruvadi her right in the western half of the property devolved on her daughter Kunhipatti and son Kunhambu, that Kunhipatti alone was exercising acts of possession over the entire property, that she alone had made improvements in the property and that Kunhambus right, if any, was lost by adverse possession and limitation.

3. First respondent contended that the property belonged to Nambi and his wife Eruvadi and after their death it devolved on Kunhipatti and Kunhambu and that by registered Kuzhikkanam assignment deed dated 18-6-1951 Kunhambu had assigned his right in the property to him as per Ext R-l document and hence he is entitled to half property.

4. Contention of the revision petitioners is that as Nambi died before the commencement of Madras Marumakkathayam Act, his right in the property devolved on his brother Kadungon and not to his wife and children and so the first respondent cannot claim any right in the property. Whether the property acquired by Nambi devolved on his wife and children or his brother Kadungon has to be considered. Before the commencement of Madras Marumakkathayam Act the position was that the Marumakkathayam law did not recognise heirship in the wife and children of the Marumakkathayee male even in respect of his separate properties. It is not disputed that Nambi purchased the property from Ambu as per document No. 1852 of 1913. As Nambi, a marumakkathayee died before the commencement of Madras Marumakkathayam Act, the property devolved on Kadungon, his brother who was admittedly alive.

5. In Kallati Kunju Menon v. Palat Ercha Menon, (1864) 2 MH CR 162 the Madras High Court held that "it is unquestionably the law of Malabar that all acquisitions of any member of a family undisposed of at his death form part of the family property, that they do not go to the nephews of the acquirer but fall, as all other property does, to the management of the eldest surviving member". The acquirer could have during his lifetime alienated or encumbered the self acquired property. Self acquired property by a member of a tarwad was considered as his separate property during his lifetime and it was held that after his death it would lapse to the tarwad Of course, when the members accepted the obligations of the acquirer the property could be proceeded against As the Marumakkathayam law prior to the commencement of Madras Marumakkathayam Act did not recognise heirship in the wife and children of marumakkathayee male even in respect of his separate properties, there cannot be any doubt that after the death of Nambi the property devolved on his brother Kadungon. The settled legal position is that before the advent of Madras Marumakkathayam Act, even the separate property held by a marumakkathayee male devolved upon the members of the tarwad and his wife and children or other heirs in the agnatic line could inherit nothing. As Kadungon had assigned his half right in the property to Kunhipatti as per Ext. P2 and the revision petitioners are the legal heirs of Kunhipatti, the first respondent cannot claim any right over the eastern half of the property.

6. The next question to be considered is whether the first respondent is entitled to any right in the western half of the property. It is contended by the revision petitioners that Kunhipatti alone was exercising acts of possession over the entire property and as R.W. 1 has admitted so, the rights if any of the first respondent is lost by adverse possession and limitation. R.W. 1 in cross examination stated that Kunhipatti was taking the income of the property. In re examination he has clarified that Kunhipatti and after her death the revision petitioners were taking the income only from the eastern portion of the property. On going through the entire evidence of RW. 1 it is not possible to hold that Kunhipatti exercised acts of possession hostile to Kunhambu, her brother and prescribed title to the property by adverse possession and limitation. RW. 1 in his evidence has not said a word that Kunhambu or first respondent had lost right in the property because of adverse possession and limitation, As there is no acceptable evidence to hold that Kunhambu had lost right in the property by adverse possession and limitation, it has to be held that the first respondent who obtained the rights under Ext P-1 is entitled to half of the western segment of the property.

7. The judgment of the Appellate Authority holding that revision petitioners and the first respondent have leasehold right in moiety is not sustainable. The judgment of the Appellate Authority confirming the order of the Land Tribunal is set aside. It is hereby held that the first respondent is entitled to half of the western portion of the property scheduled in the original application( i. e. 1/4 of the entire property) and the revision petitioners are only entitled to the remaining property. Making the above position clear the Land Tribunal is directed to issue purchase certificates to the parties.

The Civil Revision Petition is allowed in part There is no order as to costs.

Order accordingly.