Narayanan Krishnan Namboori vs K. Ravi Varma and Others

Joseph Vithayathil, J.—Third Defendant is the Appellant. He is the son of one Easwaran Nambudiri of Analikkatt Illom. Defendants 1 and 2 are the brothers of Easwaran Nambudiri. He had three other brothers who are dead, viz., Narayanan Nambudiri, Subramonian Nambudiri and Madhavan Nambudiri. Subramonian Nambudiri died is (sic) less. The third Defendant is the son of Narayanan Nambudiri. There was a partition in the illom in the year 1115 under which Defendants 3 to 9 took share as one branch and Defendants l and 2, Easwaran Nambudiri and Madhavan Nambudiri'' took separate share.

Plaint A schedule properties were allotted to the share of Madhavan Nambudiri. B schedule properties were subsequently acquired by him. He died intestate in Karkatagom 1122. He had a Nair wife and children by that wife. Under the Nair Act they were entitled to one-fourth share in his properties. Their right was subsequently purchased by the third Defendant. According to the Plaintiff, the remaining three-fourth share devolved in equal shares on the three brothers of Madhavan Nambudiri, namely, Easwaran Nambudiri and Defendant''s 1 and 2.

Easwaran Nambudiri gifted his share to the Plaintiff under Ex. A dated 16-1-1124. It is alleged that the third Defendant was entrusted with the management of the properties and that he is in possession of the same. Plaintiff sued for partition of his one-fourth share in the properties with mesne profits past and future.

The first Defendant contended that on the death of Madhavan Nambudiri one-fourth of his properties went to his Nair wife and children and the remaining three-fourth devolved on all the members of the illom in equal shares, that there were eleven members at the time of his death, that the Plaintiff''s father was entitled to only 1/11th share, that subsequently Anr. child was born to the first Defendant and that, therefore, the Plaintiff could claim only 1/l2th share in the properties.

The third Defendant contended that three-fourth share in the properties of Madhavan Nambudiri devolved on his illom and because the joint family properties of the illom. It was therefore contended that the Plaintiff was not entitled to any separate share in the properties and that the suit for partition was not maintainable.

The Plaintiff filed a replication traversing the contentions of Defendants 1 and 3.

The Plaintiff''s case is that succession to the separate and self-acquired property of a Malayala Brahmin is governed by the Hindu Mitakshara Law except to the extent expressly provided for in the Travancore Malayala Brahmin Act, III of 1106, and that according to that law the three brothers of Madhavan Nambudiriv viz., Defendants 1 and 2 and Easwaran Nambudiri, are his heirs.

The first defer font''s case is that succession to the separate and self-acquired property of a Malayala Brahmin male is provided for in Sections 15 and 16 of Act III of 1106 and that In. the absence of caste widows and sons and daughters by caste wives three-fourth of the properties will devolve on the members of his illom. According to the third Defendant also Section 13 of Act III of 1106 governs the case, but the properties will devolve on the illom and will be joint family properties while according to the first Defendant the members of the illom will take the properties as tenants-in-common.

According to the Defendants, inheritance and intestate succession relating to self acquired and separate properties of Malayala Brahmins are governed solely by the provisions of Chapter IV of Act III of 1106 and there is no scope for the application of the rules of Hindu Mithakshara Law.

The Plaintiff''s case is that Chapter IV of the Act has only a limited application, that it only declares the rights of certain specified classes of heirs and that except in the case of those heirs inheritance and interstate succession as regards the separate and self-acquired properties of Malayala Brahmins arc governed by the Hindu Mithakshara Law. The court below accepted the Plaintiff''s case and held that the heirs of Madhavan Nambudiri as regards the three-fourth share of his separate properties were his brothers, Defendants 1 and 2 and Easwaran Nambudiri.

It was therefore, held that the Plaintiff was entitled to one-fourth share in the plaint properties. Plaintiff was accordingly given a decree for partition of his one-fourth share with proportionate mesne profits. It was also held that Defendants 1 and 2 were each entitled to one-fourth share in the properties.

The short question for decision in. the appeal is whether the three-fourth share in the separate properties of Madhavan Nambudiri devolved on his brothers or on all the members his illom or on the Illom itself. It is not disputed by the Appellant that if it is the Hindu Mithtakshara Law that applies to the ease, it is the brothers of Madhavan Nambudiri, viz., Defendants 1 and 2 and Easwaran Nambudiri, who will inherit the properties.

Chapter IV of Act III of 1106 containing Sections 15 to 19 relates to succession to the self-acquired and separate properties of a Malayala Brahmin. Sections 15 and 16 relate to properties of a male while Sections 17 to 19 relate to properties of a female. The relevant sections so far as this case is concerned, are Sections 15 and 16. Section 15 provides:

On the death of a Malayala Brahmin male leaving him surviving caste widows and sons and daughters by caste wives they shall, subject to the provisions of Section 21 of the Nayar Regulation, II of 1100, take the whole of the self-acquired and separate properties left undisposed of by him at his death in equal shares:

Provided that if a son or daughter shall have predeceased the intestate, the lineal descendants of such son or daughter shall take the share which such son or daughter would have taken had he or she survived the Intestate.

Section 16 reads:

On the death of a Malayala Brahmin male leaving him surviving none of the heirs mentioned in the preceding section, the self-acquired and separate properties left undisposed of by him at his death shall, subject to the provisions of Section 21 of the Nayar Regulation II of 1100, devolve on the members of his Illom.

Since Madhavan Nambudiri had no caste widows and sons and daughters by caste wives it is Section 16 that applies to the case.

The decision of the case will depend upon'' the interpretation of the words shall devolve on the members of his illom. The word ''illom'' is defined thus in Section 2, Sub-section (2):

Illom means and includes all the members of a Malayala Brahmin joint family with community of property.

If that definition is adopted in full, the word ''illom'' as used in Section 16 will not fit in with the preceding words ''the members of. The sentence would read: shall devolve on the members of ''members of his joint family with community property''.

Again, if that definition is adopted there will be no ''members'' in the illom of Madhavan Nambudiri after the partition of 1115. Madhavan Nambudiri got himself separated from the other members of the illom by the partition. There could, therefore, be no ''members'' of his joint family with community of property. In that case, the whole property would devolve on the Nair wife and children u/s 21(2) of the Nair Act, which provides:

On the death of a non-Nair male whose marriage with a Nair female is subsisting on the date of the commencement of this Regulation leaving him surviving by such marriage a widow or children or the lineal descendants or deceased children or all, they shall, if the deceased has also left heirs according to the law by which he is governed, after deducting the reasonable expenses of his funeral, be entitled to one-fourth of the self acquired and separate property left undisposed of by him at his death, and in the absence of heirs-according to the law by which he is governed, such widow or children the lineal descendants of deceased children or all shall be entitled to the whole of such property.

It is nobody''s case that the whole property of Madhavan Nambudiri devolved on his Nair wife and children. The word ''illom'' as used in Section 16 has therefore, to be Interpreted in its natural sense, viz., the illom to which he belonged - Analikkatt Illom - irrespective of the question whether the members of the illom have community of property.

Then again, the words ''members of his illom'' if literally interpreted would include all the members of the illom including those who may have got separated from his branch long ago, and there will be no justification for limiting the applicability of the term to members of the branch to which the intestate belonged. Further, the section does not say in what order of succession the properties will devolve on the members of the Illom. It does not also say in what proportion the members of the illom will take shares.

It is significant that it is expressly provided in Sections 15, 17 and 10 that the heirs mentioned in these sections will take the properties in equal shares. It is thus clear that the section does not purport to be a complete statutory provision relating to succession to self-acquired and separate properties of a Malayala Brahmin. The fact is that Act III of 1106 is not a comprehensive legislation dealing with all phases of law governing Malayala Brahmins.

The purpose of enacting the provisions of Chapter IV of the Act relating to inheritance and intestate succession seems to be only to declare the rights of certain specified classes of heirs, viz., widow, son daughter and husband, in respect of the self-acquired and separate properties of a Malayala Brahmin. Section 23 of the Act makes this clear. It provides:

Nothing in this Regulation shall affect the existing rules of law, custom or usage except to the extent hereinbefore expressly provided for.

When Section 16 is read along with Section 23 the reasonable interpretation of the words ''shall... devolve on the members of his illom'' will be:

Shall... devolve on the members of his illom according to the existing rules of law, custom or usage.

The further question for consideration is what is the law, custom or usage governing Malayala Brahmins in the matter of succession to separate or self-acquired property. The parties have no case that there is any special custom or usage governing the community in this matter. There is also no evidence of any such custom. We have, therefore, to see by what law Malayala Brahmins are governed in this matter.

It is now well settled that Malayala Branhmins are governed by Hindu Mithakshara Law as modified by local custom. It was so ''held by Collins, C.J., and Muthuswamy Ayyar, J., in ''Vasudevaa v. Secy. of State'' 11 Mad 157 (A) which is the leading case on the point. The same view was taken by Sankaran Nair and Krishnaswamy Ayyar, JJ., in - ''Vishnu Nambudiri v. Akkamma'', ''34 Mad 496 (B). It was held in that case that the self-acquisition of a Nambudiri Brahmin would, on his death, pass to his heirs under ilia Mithakshara Law and not to his illom. It was also held that Marumakkattayam usage has not influenced the Nambudiries in this respect. The provisions of the Madras Nambudiri Act, 21 of 1933, relating to succession to separate property are based on the principles of Hindu Mithakshara Law.

(sic) So far as the Travancore High Court is (sic) there are a series of rulings to the (sic) that Malayala Brahmins are governed by the principals of Hindu Mithakshara Law as modified by local custom. The earliest case is - ''Subramanian Parameswaran Potti v. Idicula Mathan'' 6 Trav. LR 143 (C). Narayana Pillai and Kunjiraman Nair, JJ., held in that case that Malayala Brahmins are governed by Hindu Law as modified by local custom.

The same view was taken by a Full Bench of the Travancore High Court in - ''Paramesweran Narayanaru v. Nangelil Antharjenam'' 10 Trav. LR 151 (D). The decisions in- ''Kandan Vasudevaru v. Narayanan Kandan'' 19 Trav. LR 241 (E) and - ''Narayanan Narayanaru v. Kunjikutty Kutty'' 20 Trav. LR 65 (F) are also to the same effect. The same view was taken in - ''Vishnu Savithri Antharjenam v. Krishnan Vishnu Nambudiri'' 25 Trav. LR 196 (FB) (G) although there was difference of opinion on the question whether it was the Hindu Law as expounded by the authors of Mithakshara, Smrithichandrika and Madhavya that applied to the community or whether it was the ancient Hindu Law.

The question was discussed at length by Raman Thampi and Sesha Ayyar, JJ., in -''Janardhanan Nambudiripad v. Krishnan'' 34 Trav LR 262 (H). The point that arose for consideration in that case was whether the self-acquisitions of a Nambudiri Brahmin would, on his death, go to his sons or to his Illom. Both the learned Judges came to the same conclusion although for different reasons. They held that the self acquisitions of a Nambudiri Brahmin would, on his death, go to his sons and not to his Illom.

Sesha Ayyar, J., held that Nambudiries are governed by the Hindu Law as expounded in the Mithakshara except in so far as it is shown to have been modified by usage or custom having the force of law. Raman Thampi, J., took the view that in respect of intestate succession and in several other matters Nambudiries are governed not by the Hindu Mithakshara Law but by the principles of Marumakkatayam Law. The question again came up for consideration before the Travancore High Court in - ''Narayanan Namburi v. Varker 19 Trav. LJ 441 (I). Venkitarama Ayyar and Boothallaga Ayyar, JJ. accepted the view taken by Sesha Ayyar. J., in ''34 Trav. LR 262 (H).''

The Cochin High Court also has taken the same view. In - ''Parameswaran Bhattathiripad v. Vasudevan Bhattathiripad'', -(405) (J) it was held that except in matters in which Malayala Brahmins have deviated from the strict Hindu Law by which they are primarily governed it should be held that they are governed by the Hindu Mithakshara Law. It was, therefore, held that the rule of Hindu Law that the nearer always excludes the more remote kinsmen from the right of inheritance must apply to Malayala Brahmins.

In - ''Neelakantan Bhattathiripad v. Nambiathan Bhattathiripad''. 11 Cochin 110 (K) the Cochin High Court considered the quest on whether the self-acquired property of a Nambudiri would, on his death, pass to his heirs under the Hindu Mithakshara Law or to his Illom. The High Court held that the property would go to his heirs under the Mithakshara Law and not to his illom.

In - ''Nangeli Brahmani Amma v. Narayanan Nambudiri'' 23 Cochin 745 (L) it was again affirmed that It is settled law that Nambudiris are governed by the Hindu Law as laid down In the Mithakshara except in so far as it is shown to have been modified by usage or custom having the force of law.

The question was considered by this Court in - ''Kunji Amma Narayani Amma v. Dhathri Antharjanam'' AIR 1952 Trav. C 371 (M). It was held in that case that the Malayala Brahmins are governed by the principles of Hindu Mithakshara Law as modified by local custom. It was also held that unless it is shown that they have deviated in any respect from the Hindu Mithakshara Law as expounded in the commentaries they should be held bound by that law.

We are clearly of opinion that it is the Hindu Mithakshara Law that should apply to the devolution of the separate or self-acquired property of a Malayala Brahmin male in the absence of the heirs mentioned in Section 15 of Act III of 1108. The property will, therefore, devolve on the members of his illom according to the order of succession under the Hindu Mithakshara Law.

It is not disputed that under that law the'' heirs of deceased Madhavan Nambudiri are his three brothers, Defendants 1 and 2 and Easwaran Nambudiri, and that they will take the properties in equal shares. It follows that Easwaran Nambudiri was entitled to one-fourth share in the properties and that the Plaintiff has acquired that right under the gift deed, Ex. A. Plaintiff is, therefore, entitled to a decree for partition of his one-fourth share in the properties.

In the result we confirm the judgment and decree of the court below and dismiss the appeal with costs.