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Judgment
Venkatasubba Rao, J.—The respondent, a Nambudri Brahmin, applied to the lower Court for leave to file the suit in question in forma
pauperis, the object of the suit being the removal of the karnavan of his illom. The leave having been granted, the lower Court''s order is attacked
by the first defendant, the karnavan. The plaintiff (the respondent) is not represented in this Court, but at my request Mr. B. Sitarama Rao has
argued the case as amicus curiae and I am indebted to him for his lucid and careful argument.
The karnavan objects that the plaint does not disclose a cause of action and that therefore under Order 33, Rule 5 of the CPC the lower Court
ought not to have permitted the plaintiff to sue as a pauper. His learned Counsel''s contention is that the right to demand partition, which a
Nambudri Brahmin possesses in virtue of the recent Madras Nambudri Act (Act No. XXI of 1933), is inconsistent with the continued existence of
a right to bring a suit for the removal of a karnavan. He rests his argument on the well-known maxim, "" The reason of the law ceasing, the law also
ceases"". True, the right to demand the removal of a karnavan was consequent upon, and resulted from, the incident of impartibility, which attached
to the property of a Nambudri illom. Says Mr. Justice Sundara Aiyar in his Treatise on the Malabar and Aliyasantana Law, page 104:
At the same time it ought not to be forgotten that the junior members not being entitled to partition or even to call upon the karnavan to account, it
is but right they should be entitled at least to see that the tarwad affairs are managed by a proper person. Courts should not hesitate to exercise
their jurisdiction, when it is clear that the interests of the tarwad require the removal of the karnavan.
But the question depends not upon any abstract principles but on the definite provisions of the Nambudri Act, which make it clear beyond doubt
that except where the law has been expressly altered, the previous law applies. First, the preamble shows that only "" in certain respects "" the law
has been amended, and it makes mention of the five topics with ""which the Act deals, namely : (1) family management, (2) marriage, (3)
guardianship, (4) intestate succession and (5) partition; it is in regard to each of these matters that the preamble says that the law has been denned
and amended "" in certain respects "" only.
Secondly, Section 26, provides:
Nothing contained in this Act shall be deemed to affect any law, custom or usage applicable to Nambudri Brahmins except to the extent expressly
laid down in this Act.
Under the law previous to the enactment, the right to demand partition was non-existent, but there existed a right to sue for the removal of a
karnavan, there thus being a deviation in both these respects from the Mitakshara law. The argument that because the new Act restores one
incident of the Mitakshara law, therefore it should follow that law should be applied in its entirety, ignores the express provisions of the Statute and
must be rejected. A perusal of the Act will show that the Legislature, far from applying bodily the Mitakshara law to the Nambudris, has preserved
the many peculiar incidents of the Nambudri system in the case of each of the topics referred to above and dealt with by the Act. The very
conception of an illom as consisting of both males and females, each of whom is entitled to a share in the family property, is repugnant to the notion
of a joint family under the Mitakshara system. Each chapter abounds in instances where the law under the Act is a deviation from the ordinary
Mitakshara law and it is unnecessary to refer to them in any detail. I must therefore hold that in the absence of an express provision abrogating the
rule of "" law, custom or usage "" (by whatever name it may be called) which enabled Nambudri Brahmins to sue for the removal of a karnavan, that
right exists in spite of the Act and that the lower Court''s order is right.
In the result, the Civil Revision Petition is dismissed.