K. Sadasivan, J.
1. Defendants 2 and 4 to 6 are the appellants. The plaintiffs sued for partition of their 7/9 share in the A schedule properties and B schedule movables and for recovery of shares with mesne profits. The 1st plaintiff is the mother of plaintiffs 2 to 5 and additional plaintiffs 6 and 7 were bora to the 1st plaintiff subsequent to the institution of the suit. 1st plaintiff and the second defendant are sister and brother and the 1st defendant is their mother. The parties are Variyars by caste. The 4th defendant is the wife and defendants 5 and 6 are the children of the 2nd defendant. Third defendant is the lessee of the plaint A schedule properties from the 2nd defendant. Plaintiffs and defendants 1 and 2 constituted a Variyar Tarwad. A schedule properties Were obtained by the tarwad under partition of the family properties on the 5th of Maka-ram 1106. Besides plaintiffs 2 to 7, the 1st plaintiff had two other children, Baby and Babu (twins) who died in 1960. With the death of Baby and Babu their 2/9th share devolved on the 1st plaintiff. Thus the plaintiffs are entitled to 7/9 share. On 18-2-59, the 1st defendant executed a gift deed in favour of the 2nd defendant. This document is void as she was not competent to execute such a document. On the date of the gift deed the 1st plaintiff was carrying, and the twins were born in May 1959. They were thus entitled to definite shares in the property. Even if the gift deed is valid and binding, it is valid only to the extent of 1/9 share of the 1st defendant and not the l/6th as stated in the gift deed. The lease deed executed by the 2nd defendant in favour of the 3rd defendant is not a bona fide transaction and is not binding on the plaintiff and their share of the properties. They are, therefore, entitled to a declaration that the document is invalid and not binding on them. No possession was obtained by the third defendant. The plaintiffs have applied for an injunction to restrain the defendants from entering upon the properties.
2. The second defendant contended that he is the Karnavan and manager of the tavazhi and that the tarwad has not attained the status of division as alleged in the plaint. The 1st plaintiff married a Nair and went out of the tarwad. In 4th defendant Amhika Devi was married to the 2nd defendant in the Kudivaippu form on the 10th Medom 1134 and from that date Ambika Devi had become a member of his tarwad. The children born to them are also members of the tarwad. The sub tarwad became partible only after the Kudivaippu. Even though the plaintiff can claim partition, she cannot claim per capita partition. The 2nd defendant and his wife and children constitute one Sakha and are entitled to one half of the properties and the other members are entitled to the other half. He has no objection to the plaint properties being divided and one half allotted to himself and his children, A schedule Item No. 3 belongs exclusively to the 1st defendant and she was competent to execute the gift in his favour. The debts cleared by him should be made a charge on the properties. The 1st plaintiff is not competent to question the validity of the gift deed. The 3rd defendant has been put in possession of the properties under the lease. The 1st plaintiff is not entitled to claim maintenance as she has married out of caste and is living elsewhere. The second defendant's wife and children are necessary parties to the suit.
3. The 1st defendant supported the 2nd defendant in all his contentions. She has staled further that the 2nd defendant performed the Kudivaippu with Amhika Devi and the ceremony had her concurrence. The plaintiff in her replication reiterated her contentions and stated further that even if Kudivaippu was performed, the ceremony never had the concurrence of the other members of the tarward and as such it is not valid and binding.
4. The suit was once dismissed; but on appeal the dismissal was set aside and the case was remanded for disposal afresh. Ambika Devi and her children were directed to be impleaded without prejudice to the contentions of the plaintiffs. Thus after remand they were impleaded and the plaint was also amended. Plaintiffs 6 and 7 who were born subsequent to the first plaint, were also impleaded. Additional witnesses were examined after remand and the trial Court has held that there is no evidence that Kudivaippu was performed as alleged by the 2nd defendant. The Court has held that the tarwad has not attained the status of division, and so the gift deed executed by the 1st defendant in favour of the 2nd defendant is invalid. The 2nd defendant conceded that the lease deed did not take effect and so the declaration made in respect of the lease deed was allowed. The Court further held that in respect of the 2/9 share to which Baby and Babu were entitled, the tarwad had attained the status of division, since they had died after the coming into force of the Hindu Succession Act. So the 2/9 share was allowed to be partitioned and given over to the plaintiffs. A preliminary decree was accordingly allowed to be drawn on those lines.
On appeal the learned District Judge has held that Kudivaippu was, in fact, performed; but it did not have the concurrence of the other members of the tarwad. Hence it had no legal effect. The preliminary decree passed by the trial Court was, therefore, confirmed and it is in these circumstances that the defendants have come up in second appeal.
5. The first and the main point arising for consideration is whether the second defendant's marriage with the 4th defendant was solemnised in the Kudivaippu form; if so, for its validity whether the consent of the other members was necessary. Was such a consent obtained in the present case? The learned Appellate Judge on a review of the evidence on the factum of the Kudivaippu ceremony has held that Kudivai-ppn was, in fact, performed. The evidence is mainly oral. Dws. 2 to 6, besides D. W. 1 the 2nd defendant are the witnesses who have given evidence on this point. The evidence of these witnesses did not weigh with the Trial Court for the reason that D. Ws. 1 to 5 are persons interested in the second defendant, and D. W. 6 did not actually attend the function. Interestedness basing on relationship, I do not think, can strictly be applied in the present case for a proper appreciation of the evidence of D. Ws. 2 to 5. Kudivaippu ceremony is one conducted inside the house attended to mainly by near relations only. It is very seldom that outsiders are invited. In the circumstances persons competent to swear to the ceremony can be expected only from near relations. D. Ws. 2 to 5 have stated in clear terms that they were present for the function. The details of the ceremony are that a 'Nira Nazhi' and a 'Vilakku' are placed inside the room into which the wife is taken and from there some Dakshina would be paid to some of the relatives. D. Ws. 2 to 4 were inside that room at the time while D. W. 5 stood on the veranda. He actually saw the wife being taken inside by the second defendant holding her hand. As his elder brother Raghava Warriar was present inside the room D. W. 5 did not think it necessary to take his seat inside the room. D. W. 5 is an apparently respectable man, a retired Asst. Transport Officer. He is sought to be discredited on the ground that the 2nd defendant is also an employee in the same department. I do not think that he could be discredited on this ground. D. Ws. 2, 4 and 5 are distant relations of the 2nd defendant; but as already stated it would be unfair to discard. their evidence in this particular case on the ground of relationship. D. Ws. 3 and 6, of course, are not related to the 2nd defendant. Still the trial Court has disbelieved them. D. W. 3 is stated to be a priest, who officiated the ceremony. As a matter of fact, the services of a priest are not required and no elaborate ceremonies are performed also. D. W. 6 is a retired headmaster and a respectable member of the community. He speaks in general about the observances and ceremonies obtaining in the community. According to him no particular ceremonies are prescribed in connection with Kudivaippu. On this ground it is possible to discredit D. W. 3; but the fact, as it appears to me, is that he volunteered himself as the priest even though his services were not requisitioned. The circumstance cannot, in my view, reflect against the truth or validity of the function. I have no hesitation to uphold the finding of the learned appellate Judge that Kudivaippu was, in fact, performed. There is no particular stage for performing Kudivaippu. There are instances of Kudivaippu having been resorted to several years after the marriage. In Balakrishna Warrier v. Srecdhara Warrier, 1964 Ker LT 911 the following observations appear.
'Kudivaippu need not be soon after the marriage, but may be years afterwards. P. W. 2, a retired Division Inspector of Schools and a prominent member of the community, has given instances amongst the Variyars of Kudivaippu made after birth of children of the marriage; a prominent instance being that conducted in 1100 by Shri M.R. Madhava Variyar, who was a leading advocate and a prominent journalist.' It, therefore, follows that Kudivaippu may be conducted at any time after the marriage. The contention that in this particular instance Kudivaippu was resorted to with the evil purpose of reducing the shares due to the plaintiff cannot hold water. Kutivaikkal is a recognised ceremony in the community from early times. Nagam Aiya in his Tra-vancore State Manual, Vol. 2 at p. 340 would observe:-- 'The system of inheritance depending upon the nature of the sambandham ceremony. This may be of two kinds:-- (a) the ordinary sambandham, (b) the same ceremony accompanied by what is called Kutivaikkal (settling in life), in which case the woman is taken to the husband's house and she thereafter becomes a member of the husband's family, and her children inherit the family property. If after the woman is taken to her husband's house she becomes a widow, she may remarry and her children by the second husband also inherit the property of the first husband's family. If a brother marries and brings and 'settles' the wife in his family, but his married sister is not taken and 'settled' in her husband's house, but left in her own and there visited by her husband, the children of both the brothers and the sister inherit the same property in equal shares.....................'
Thus the Kutivaikkal ceremony stands on a stable foundation so far as the community is concerned.
6. The legal consequence of a Kudi-vaippu is that a member of a Variyar tar-wad, married in the Kudivaippu form, is entitled to claim partition per stirpes. This position is unassailable, as could be seen from the decision of the Travancore-Cochin High Court in Easwara Warrier v. Parukutty, 1955 Ker LT' 495 and 1955 Ker LT 566. The Kerala High Court in 1964 Ker LT 911 (cited supra), following the previous decisions, observed:-
'The community of Variyars normally follows the Marumakkavazhi system of succession, except when a member marries in the 'Kudivaippu' form, taking the wife to the husband's house to reside there permanently, in which case he will be entitled to claim partition, and succession to him will be under the Makkavazhi system. According to the custom of the community neither the length of interval after the marriage nor pregnancy would affect the validity of a Kudivaippu.'
7. The learned Appellate Judge after finding that Kudivaippu was performed, as alleged by the 2nd defendant, is disinclined to follow it up and give effect to the legal consequences flowing therefrom, on the ground that the Kudivaippu was not approved by the other members of the Tarwad. It is nowhere stated that for the validity of the Kudivaippu the concurrence of the other members of the Tarwad is necessary. I was not referred to any ruling on the point or any text dealing with the custom and practices of the community. The other members of the Tarwad at the time the 2nd defendant took Ambika Devi into the Tarwad by Kudivaippu were the first plaintiff and the 1st defendant. The 1st defendant has stated in her written statement that she had no objection in the Kudivaippu of Ambika Devi, In the case of the 1st plaintiff such a consent could not be thought of as she had already left the Tarwad for good. By marrying a Nair, she had forfeited her right of residence in the Tarwad house. The present 2nd defendant instituted O. S. 60/59 in the Munsiff Court of Attingal for injunction to restrain the present 1st plaintiff from entering the property, as according to him she had forfeited all her rights in the Tarwad by marrying a Nair. That suit was hardly contested by her. But the suit was allowed and it was observed in the judgment that she is not entitled to have joint residence with the plaintiff (present 2nd defendant and his mother the present 1st defendant). That decree was confirmed in appeal and second appeal. She has thus severed all her connections with the Tarwad and the question of getting her concurrence for the Kudivaippu, therefore, does not arise. My conclusion, therefore, is that for the validity of the Kudivaippu, the concurrence of the other members is not necessary and even if necessary, there was such concurrence in the present case.
7. The 1st plaintiff's renunciation of her caste will not stand in the way of her inheriting the property or claiming partition.
'A convert or outcaste from Hindu religion retains his right of inheritance whether the right accrues before or after the conversion to another religion or exclusion from caste.' (AIR 1924 Pat 420, Civil Court Manual 11th Edn. p. 828). The position is secured by the Caste Disabilities Removal Act (Act XXI of 1850). Section 1 of the Act reads:--
'So much of any law or usage now in force within India as inflicts on any person forfeiture of rights of property, or may be held in any way to impair or affect any right of inheritance, by reason of his or hep renouncing, or having been excluded from the communion of, any religion, or being deprived of caste, shall cease to be enforced as law.' Thus there is no bar for the plaintiff to claim her share; but the Tarwad has not attained the status of division. Both the courts have held so and I see no reason to differ; but so far as Baby and Babu are concerned it must be held that they having died on 16-10-60, after the coming into force of the Hindu Succession Act, the plaintiff is entitled to claim their share under Section 17, Clause (2) (a) of that Act. Section 7 read with Sections 15 and 17 of the Act would show that the shares of Baby and Babu would devolve on the 1st plaintiff and as such she is competent to claim their share on per capita basis. She is thus entitled to 2/8th of the one-half of A schedule properties. The preliminary decree, therefore, passed by the learned Subordinate Judge on this basis must be confirmed. The learned Judge's declaration that Exs. P-5 and P-6 are void must also be upheld.
8. In the result, the preliminary decree passed by the Trial Court is confirmed; but the findings of the Trial Court on Kudivaippu of Ambika Devi and that of the Lower Appellate Court that consent of the other members of the tarwad is necessary for the validity of Kudivaippu and there was no such consent, are set aside and it is held that there was a valid Kudivaippu. The second appeal will stand disposed of as above. Parties will bear their costs in this Court.