P. Janaki Amma, J.
1. The appellant is the first defendant in a suit for partition. The plaintiff in the suit got a sale deed executed from defendants 13 to 22 in respect of their share in the properties of the Illom of which they are the members. The 13th defendant is a son of Sankaranarayanan Potti, a brother of the first defendant. The defendants 14 to 19 are the minor children of tine 13th defendant. The 20th defendant is a brother of the 13th defendant. The 21st defendant is the wife of the 13th defendant and 22nd defendant, a major daughter of the 13th defendant. In pursuance of the right conferred under Exhibit P-1, the assignment deed the plaintiff filed a suit for partition alleging that there was an oral partition prior to the assignment in his favour. The first defendant contested the claim and denied that there was any oral partition in the Illom. He, however, put forward a case that Sankaranarayanan Potti, his brother had released his rights in favour of the first defendant in the year 1092, and therefore, defendants 13 to 22 had no rights over the property of the Illom.
2. The trial Court did not accept the case of oral partition. Neither the contention that there was a release of rights by Sankaranarayanan Potti was accepted by the trial Court. The Court, however, held that the assignment of the rights in favour of the plaintiff conveyed only the shares of defendants 13 and 20 to 22 who were the major members of the branch and not of the minors, defendants 14 to 19. A preliminary decree for partition was accordingly passed in respect of 4/22 share in the plaint A schedule property, subject to some reservations.
3. Appeals were filed as A. S. Nos. 93 and 104 of 1968 before the Subordinate Judge, Attingal by the first defendant and the plaintiff respectively. The Subordinate Judge dismissed the appeal filed by the first defendant, allowed the appeal filed by the paintiff in part and held that the plaintiff was entitled to get 10/22 share in the plaint A schedule items inclusive of the minors' interest. The present Second Appeal is preferred by the first defendant against the above decree.
4. On the plea of oral partition the parties are bound by the concurrent finding by the Courts below. The first defendant also has failed to establish that there has been any release by Sankaranarayanan Potti of the rights of his branch. The result is that the family should be considered as joint on the date when Ext. P-1 sale deed was executed.
5. The point for decision is whether by the execution of the sale deed, Ext. P-1 and the rectification deed, Exhibit P-2, the interest of defendants 13 to 22 or any of them passed to the plaintiff. The plaintiffs case appears to be that the defendants 1 to 22 being Namboodiries are governed by Hindu Law as modified by custom and as members of joint Hindu family, defendants 13 to 22 were entitled to assign away their rights in the family properties. This position is disputed by the first defendant. He would contend that Namboodiries are governed by the customary law, though on some matters the customary law followed by them is on a line with Hindu Mithakshara law. Reference is made in this connection to the decision, Omana Pandala v. Kesavaru Sambhuvaru, 1970 Ker LJ 973. That was a case where an attachment of the share of a member of an Illom was challenged on the ground that there was no separate share which could be attached or alienated. Subramanian Poti J. held that the rules underlying the decision of the Full Bench in Ammalu Amma v. Lakshmy Amma, (1966 Ker LT 32 (FB)) are applicable in the case of Namboodiries also. Though a contention was raised on the basis of certain decisions of the Travan-core High Court that the Namboodiries are governed by the Hindu Mithakshara law, the Court did not accept the plea and observed as follows:--
'No doubt, in certain matters, they are governed by the Hindu Mithakshara Law as modified by custom. But, in regard to holding of property by the Illom, Namboodiries are not certainly governed by the principles of Hindu Mithakshara Law. Such property of the Illom was not partible until the right to partition was recognised by the Kerala Namboodiries Act, 1958. A limited right to partition was recognised earlier under the Travancore Malayala Brahmin Act, 1106, in Section 20 and that was a right to partition of the properties among the widows of an Illom when there were only widows surviving as members thereof. Just as in the case of Marumakkathayees governed by the statutory provisions such as Travaneore Nair Act and Travahcore Ezhava Act, in whose case the right to partition was recognised only by statute, in the case of Namboodiries also until such right was recognised by the Kerala Namboodiri Act, 1958, no member of an Illom had a right to demand partition orto separate himself from the Illom and walk away with his share. The incidents of properties of the Illom vis-a-vis the member were more or less akin to that of a Marumakkathayam Tarwadi'
6. The respondents' learned counsel contended that the above decision requires reconsideration, in view of the earlier decisions of the Travaneore High Court and also the case reported in Narayani Amma v. Dhathri Antherjanam, 1954 Ker LT 155. No doubt, in the last mentioned case, it has been observed that the Travaneore Malayala Brahmins are governed by the principles of Hindu Law as modified by local custom. But the decision was concerned with alienation of family property and has no application to right to enforce partition. It is true thai a Namboodiri family is akin to a Mithakshara family on several respects but as has been observed in the above ruling, Namboodiries are not governed wholly by the Mithakshara law, but by Hindu law as modified, by custom. The customary law relating to partition among the Namboodiries is different from that of Mithakashara law and in line with the rule of Marumakkathayam law. Sundara Iyer, in his Treatise on Malabar and Aliyasanthana Law observes at p. 212--
'The principal difference between aNambudiri family and a Hindu familygoverned by the ordinary Mithaksharalaw is the absence of a right in the members of the family to demand a partitionof the family properties. In this respectthe law of the Nambudiris is the same asthe Marumakkathayam law. It is generally assumed that this is due to the acceptance by the Nambudiris of the law ofnon-partition which they found prevailing amongst their Martrmakkathayambrethren. This is a wholly gratuitous assumption. The rule of impartibility isnot peculiar to the Marumakkathayamlaw. It was the ancient Hindu Law whichprevailed everywhere in India but exceptin Malabar, the Hindu Law in this respectwas subsequently modified and the rightto division of joint property was recognised.'
It admits no doubt, that prior to the coming into force of Nambudiri Act of 1958, Nambudiris of Travancore area were governed by the Malayala Brahmins Act, 3 of 1106. Section 2(1) of the Act reads as follows:--
''Malayala Brahmin' includes Nambudiri, Potti and others known or recognised as Malayala Brahmins but does notinclude those who according to the law governing them are entitled to individual partition before the passing of this Regulation.'
The above provision is also in conformity with the case that Nambudiris were not exercising the right to individual partition before coming into force of the statutes relating to the matter. It follows, therefore, that as regards right to enforce individual partition, Nambudiris are governed by the same law as is applicable in the case of communities following the Marumakkathayam Law. Viewed in this light, the rules laid down in the decision reported in 1966 Ker LT 32 (FB), Ammalu Amma v. Lakshmy Amma, are applicable in the case of Nambudiris also and there is no necessity for reconsidering the decision in Omana Pandala v. Kesavaru Sambhuvaru, 1970 Ker LJ 973.
7. In the instant case, it is not made out that there was any demand for partition prior to the execution of Exhibits P-1 and P-2 and as such what is transferred under those documents is the undivided interest of defendants 13 to 22 in the Illom properties. This interest could neither be attached nor alienated in the light of the Full Bench decision referred to above.
8. There are other reasons also for non-suiting the plaintiff. A scrutiny of Exhibit P-1 and the schedule to the plaint would show that it is a half share in respect of each and every item of the Illom properties that has been assigned and not the share due to the executants' branch. As such, the document should be taken as an assignment or alienation of the half share in individual items of property and not of the share of any particular branch or member. As regards alienation of individual items of properties, the law is contained in Section 5 of the Kerala Nambudiris Act, which reads -- 'No sale or mortgage of any immovable property of an Illom and no lease of any such property shall be valid, unless it is executed by the karnavan for consideration, for Illom necessity or benefit, and with the written consent of the majority of the major members of the Illom'. The conditions are not satisfied in the present case. Ext. P-1 and Ext. P-2 cannot be taken as a valid assignment of the properties referred to therein. Therefore, the plaintiff -respondent did not get any right over the properties of the Illom by virtue of the assignment.
9. For the aforementioned reasons, the appellant has to succeed. The SecondAppeal is, accordingly, allowed with costs. The suit filed by the plaintiff will stand dismissed with-costs.