Skip to content


Amayur Alias Attupurath Mangampalli Agnithrathan Nambudri Vs. Kotimadhathil Itticheri and the Secretary of State for India - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in(1896)6MLJ319
AppellantAmayur Alias Attupurath Mangampalli Agnithrathan Nambudri
RespondentKotimadhathil Itticheri and the Secretary of State for India
Cases ReferredVasudevan v. The Secretary of State
Excerpt:
.....and there seems no reason to suppose that the appointed daughter mentioned in sloka 135 is not a daughter appointed to bear a son. the inference seems strong that the same estate is intended and that the father's death is presupposed in the next sloka. but it must be admitted that the last member of the illam, though a female, has some estate, and the question under discussion is not whether she can alienate it, as for instance, in the manner unsuccessfully claimed for the nambudri widow in vydhinada v. i am referred' to no decided case bearing precisely on this point and it appears to arise for decision in this court for the first time. it receives, further, strong corroboration from the fact that though the appellant attempted to prove a usage among nambudries in support of his..........and the text of manu now relied upon was not cited, reference was made to a case in which the illam property had been taken by a husband occupying the position held by the present plaintiff.11. on the whole i am of opinion that the decrees of the courts below ought to be reversed and that the suit ought to be remanded for disposal on the other issues.muthusami aiyar, j.12. (his lordship after stating the facts proceeded as follows): the question which i have to consider is whether the husband is the lawful heir of his childless wife if he1 marries her according to the sarvasiuadanam form. i am referred' to no decided case bearing precisely on this point and it appears to arise for decision in this court for the first time. both the courts below have found that no special usage has.....
Judgment:

Parker, J.

1. It is found that the plaintiff was not appointed as heir of the Mangampalli Illam. He was merely married to the last surviving female in Sarvaswadanam form in order, to raise up issue for the continuance of the Illam.. No issue was born and the plaintiff's wife is dead. The claim of the plaintiff has been made to rest entirely upon the applicability of the text of Manu, Ch. IX, sloka 135 and the District Judge held that that text applied only to the woman's peculiar property.

2. It has already been held by this Court in Vasudevan v. Secretary of State for lndia I.L.R. (1884) M. 157 that Nambudri Brahmins are governed by Hindu Law except so far as it has been modified by special custom adopted by them since their [305] settlement in Malabar. There can be no doubt that the Code of Manu is applicable to Nambudries, and indeed as far as this particular form of marriage is concerned the Nambudries of the West Coast have continued to follow Manu though on the Bast Coast this form of marriage has become obsolete.

3. The sole question before us is, whether the words ' her property' in sloka 135 refer to the same property dealt with in sloka 131, i. e., the esate of the appointed daughter's father. It was urged that there were two kinds of appointment, [1] when the daughter herself is appointed as a son, and [2] when the daughter is appointed to beget a son. It appears to me however that it is the second kind of appointment only which is dealt with by Manu in Ch. IX, slokas 127--140. Slokas 131, 132 and 136 make it clear that it is the son (to be born) of the appointed daughter who is the heir of the grand-father, not the daughter herself, and this is the view taken by this Court in Vasudevan v. Secretary of State for India I.L.R. (1884) 11 M. 157. So long as there is the prospect of a son being born, the appointed daughter and her husband hold the property in the event of her parent's death in trust for the heir in expectation. The property does not vest in her, and if she become a widow and the prospect of issue then fails, her legal position is that of a widow in her father's instead of in her husband's family.

4. It is not at all clear to me that sloka 135 contemplates necessarily' the death of an appointed daughter after the death of her father. The preceding sloka (134) contemplates the case of a son being begotten by the father himself after having appointed a daughter to produce a son. This supposes that the father is alive, and as a Sarvaswadanam marriage does not imply a gift of the father's property to the girl, it would seem to follow that all a husband could inherit in such case would be his wife's peculiar property. She objection that a woman's peculiar property is elsewhere dealt with (sloka 195) does '? not seem to me to be of any force, for sloka, 195 contemplates the existence of children. Here there are no children and 'sloka 196 makes the peculiar property of a woman, if she die without issue, go to her husband. It may well be that a similar provision would, find place among the slokas providing for the very peculiar form of Putriha Karanam marriage where the wife remains in her own family instead of passing to that of her husband.

5. As far as Manu is concerned any sonless father might appoint a daughter to beget a son for him, even though he had brothers and collateral relations. In Malabar these Sarvasivadanam marriages appear in practice to take place only when the whole family is about to become extinct. But if there were collateral relations or reversioners, I think there is no doubt that they would under Hindu law inherit the estate of the father of the appointed daughter in the event of the appointed daughter's death without issue. If this be so, the husband could under sloka 135 take only his wife's peculiar property. This view reconciles sloka 130 with sloka 135, for in any case the daughter's estate, when she takes any vested interest, is merely interposed between that of the last male holder and the nearest reversioner. It is only an appointed daughter who is recognized by Manu as an heir at all. (See Mayne last Edition, Section 478.)

6. None of the witnesses in the Court below could mention a single instance in which a man married in the Sarvaswadanam form had inherited the property of his wife's Illam. The case referred to by the 4th witness was not proved, while in those mentioned by the 8th and 10th witnesses deeds had been executed.

7. Upon the whole I am of opinion that the decision of the Court below was right and that in the absence of reversionary heirs in the Illam of plaintiff's wife, the property will escheat to the Crown. The right of the Crown to succeed by escheat to the property of a Brahmin has been already decided. (The Collector of Masulipatam v. Cavaly Vencata Narrainapah (1860) 8 M.I.A. 500.

8. I would dismiss the Second Appeal with costs.

Shepard, J.

9. The question in this case is whether the plaintiff by reason of' his Sarvasivadanam marriage with a member of the Mangampalli Illam is entitled to property belonging to that Illam as against Government who claim by right of escheats It seems to be admitted that but for the plaintiff the Illam is extinct and there is no other person entitled to its property. The plaintiff's suit has been dismissed both by the District Munsif and the District Judge on appeal. Before both Courts the case was rested chiefly on a text of Manu declaring that on the death of a daughter appointed* to raise up a son for her father, the husband may in the absence of [307] issue by his wife possess himself of her property. The question is whether by virtue of that text plaintiff is entitled to succeed, his wife having died without leaving issue. That she was an appointed daughter within the meaning of the text cited is a matter placed beyond doubt by the decision in Vydinada v. Nagammal I.L.R. (1884) M. 260 where it is held that the Sarvasivadanam marriage is referable to the ancient Hindu law which authorised the appointment of a daughter or her male child as the legitimate son of her father for the purpose of funeral obsequies. The distinction between the appointment of a daughter as a son and the appointment of a daughter to bear a son is not clearly marked in Manu, One formula only is prescribed in sloka 127, and there seems no reason to suppose that the appointed daughter mentioned in sloka 135 is not a daughter appointed to bear a son. The District Judge considered that it was doubtful whether Manu had any force as an authority among Nambudries and was of opinion that even if they were governed by the law as enunciated by Manu, the particular text cited was inapplicable to the present case. In my opinion there can be no doubt that Nambudries are governed by the law of Manu in the same sense as other Hindus are so governed, that is to say, so far as that law has not been modified by local customer otherwise. There is great uncertainty as to the date assigned to Manu arid the date of the Nambudri settlement in Malabar can only be stated approximately. But there is no doubt that the latter must have been long after the Code of Manu had come into existence. The rules therein enunciated must therefore be taken to have been among the rules which the Nambudries would have imported with them into Malabar.

10. Assuming then that the rules of Manu have to be applied and that the deceased wife of the plaintiff was such an appointed daughter as is referred to in sloka 135, I have to consider what is meant by the property there mentioned. The view taken by the District Judge is that the property there mentioned is the peculiar property of the wife and not property of the family of which she was a member. This construction appears to me erroneous. As was pointed out in argument and indeed is mentioned by' the Judge himself, provision is made for the peculiar property of women in slokas in a different connection. By sloka 195 it is provided that what is given to a woman, by an affectionate husband shall go to her offspring if she dies in the life-time of her offspring (see sloka [308] 200. That the estate mentioned in sloka 135 is not this peculiar property of women, is shown by the fact that in the preceding sloka provision is made for the case of a father having an only son born after his daughter had been appointed. The estate there referred to must be the estate of the father and the supposed division must take place after the father's death. The inference seems strong that the same estate is intended and that the father's death is presupposed in the next sloka. Again in sloka 131 reference is made to the same estate and the peculiar property of the daughter is not mentioned in this connection. It may be objected that such estate as a daughter in a Nambudri Illam has, although she be the sole surviving member of it, is not an absolute estate, and that accord ing to the general Hindu Law, the person' to take on her death would be the heir of the last male holder. But it must be admitted that the last member of the Illam, though a female, has some estate, and the question under discussion is not whether she can alienate it, as for instance, in the manner unsuccessfully claimed for the Nambudri widow in Vydhinada v. Nagammal I.L.R. (1884) M. 260 but whether inheritance can in a certain case be traced from her. It is not necessary for the plaintiff's case to contend that the effect of the Sarvaswadanam marriage was to take him out of his natural Illam into the Illam of his wife or to show that as a consequence of his marriage he thereupon became invested with the rights of a member of his wife's Illam. A decision in his favour in the present case does not therefore involve the proposition that the express gift which frequently accompanies the Sarvaswadanam marriage is a useless formality. By means of such gift or by means of such adoption as was in question in Vydhinada v. Nagamma I.L.R. (1884) M. 260 the donee or an adopted person may become presently invested with the rights of property in another Illam. What is here claimed by force of the text on which the plaintiff relies is only that the husband may in certain events be an heir of his wife's property in the Illam. As has been observed, the case for the plaintiff is rested and must depend entirely upon the text cited from Manu. It appears to me that the wife of the plaintiff was a daughter such as is there referred to and that the estate sought to be recovered was her estate within the meaning of that sloka. It does not ap pear that any evidence of custom inconsistent with this rule of inheritance was adduced. The District Judge [3091 refers to a book,' Exhibit IX, which, he says, is admittedly an authority. I understand that it is a text book of Customary law written in the year 1882 in the State of Travancore. I do not think such a book ought to be referred to as an authority. I may mention that although the attention of the witnesses examined in Vydhinadavi Nagammal 1 was not specially directed to the present question and the text of Manu now relied upon was not cited, reference was made to a case in which the Illam property had been taken by a husband occupying the position held by the present plaintiff.

11. On the whole I am of opinion that the decrees of the Courts below ought to be reversed and that the suit ought to be remanded for disposal on the other issues.

Muthusami Aiyar, J.

12. (His Lordship after stating the facts proceeded as follows): The question which I have to consider is whether the husband is the lawful heir of his childless wife if he1 marries her according to the Sarvasiuadanam form. I am referred' to no decided case bearing precisely on this point and it appears to arise for decision in this Court for the first time. Both the Courts below have found that no special usage has been proved in support of the appellant's claim and the decision must rest on Hindu law by which Nambudries are governed though subject to any usage which they adopted subsequent to their settlement on the West Coast, Sarvasivadanam marriage is obsolete according to the Mitakshara law as now administered on this coast and no rule of decision is to be found in it. It is conceded, however, that a Nambudri girl who is given in Sarvaswadanam marriage continues even after marriage to be a member of her father's Illam and does not pass into her husband's family as in the case of other marriages. According to the jMitakshara, property inherited by a daughter from her father devolves upon her: death without issue on her father's kinsmen in preference to her husband whose right of succession is restricted to her stridhanam when,? she dies childless and when he has married her in one of the approved forms. Judging by analogy to this branch of modern Hindu law, I am. unable to say that the appeal can be supported. Again, the formula used in Sarvastvadanam marriage and which is not used in other marriages, is the text of Vasishta which is to the same effect as that of Manu, Ch. XI, 127. Manu says, he [310] who has no son may appoint his daughter in this manner to raise up a son for him saying, 'the male child who shall be born from he/in wedlock shall be mine for the purpose of performing my obsequies.' Its legal import appears to be nothing more than the adoption of her son as his son by anticipation at the time of her marriage, coupled with the condition that she shall retain the status of a member of her father's family and shall not become a member of her husband's family notwithstanding her marriage. Hemadri explains the ancient Hindu law as applied to an appointed daughter and her son and it is cited in a note to Ch. I, S. XI of the Mitakshara (see Stoke's Hindu Law Books, page 411). Referring to the four descriptions of Putrika Putra, he says, the third description of son of an appointed daughter is the child born of a daughter who was given in marriage with an express stipulation in this form. ' The child who shall be born of her shall be mine for the purpose of performing my obsequies. He appertains to his maternal grandfather as an adopted son,' Sarvaswadatjam marriage operates therefore as the adoption of the son of a daughter when one is born and as an exception to the ordinary incident of marriage, vis., that the wife takes the gotra or passes into the family of the husband for purposes of inheritance. The inference to be drawn is that when a son is born, he becomes the heir to the Mam by virtue of adoption, that neither his mother nor father acquires any right, because the adoption is contingent on his birth, and that in case no son is born, the daughter has the same right as the unmarried daughter of a Nambudri Illam in spite of her marriage by reason of her retention in it as its member. The result is that the relation of affinity by marriage is ignored as a jural relation for purposes of inheritance in connection with the property of her Illam. Baudhayana says, ' the son of an appointed daughter should offer the first ball of meat (Pinda) at the funeral obsequies, to his mother the second to her father and the third to his father's father.' Thus the father is omitted and the maternal grandfather is substituted for. him (West and Buhler's Baudhayana, page 536).

13. Again, Yajnavalkya states in reference to the son of an ap pointed daughter, ' equal to him (Aurasa) is the son of an appointed daughter or the appointed daughter herself.' When the appointed daughter is the son, the father's obsequies are performed by her notwithstanding her sex. Thus by a fiction of law she was treated [311] as if she were a son, and that might also be a reason for ignoring her husband. (Mandlik's Hindu Law or Mayukha. Yajnavalkya, page 49).

14. In this connection I may refer to the observations of this Court in Vasudevan v. The Secretary of State on the nature and effects of the Sarvastvadanam marriage though they were made with reference to the contention that property inherited by a daughter married in the Sarvastvadanam form isher Saudayakani I.L.R. Mad 1634. The view indicated above is in accordance with the opinions expressed by Messrs. Wigram and Ramachandra Aiyar who were formerly the District and Subordinate Judges of Malabar in their Manuals on Malabar Law. It receives, further, strong corroboration from the fact that though the appellant attempted to prove a usage among Nambudries in support of his claim, he was unable to do so. Custom is also of importance as evidence of consciousness in the people that the rule of Hindu Law which is relied on for the appellant is in force among them. Again, the several modes of affiliation in use among Nambudries which are discussed in XI Madras Series are inconsistent with the appellant's contention. The practice of appointing an heir to the Mam, when a person is authorized to beget an issue for the Illam by marrying a girl selected to perpetuate the Illam on the analogy of the SarvaiSivadanam marriage and when be marries a girl born in the Illam in the Sarvasivadanam form implies that when the Sarvaswadanam son-in-law is intended to be made an heir, he is constituted as such by special appointment. As observed in that case the use of Sarvaswadanam marriage as a mode of affiliation followed the obsolete law of inviting a kinsman to beget a son on a woman to whom he was not married, thereby substituting sexual union in wedlock for an irregular intercourse which was reproved by several Smritis as a practice fit only for cattle.' As the person invited to beget male issue on a woman acquired no right' in the property of the Illam to which she belonged, the Sarvaswadanam son-in-law likewise acquired none unless he was expressly appointed heir to the Illam. As for the sloha 135, Manu, Ch. IX, it is no doubt in favor of the appellant if it can be accepted as living law among Nambudries. But I hesitate to accept it as such for several reasons. Having regard to the mode in which Hindu law as now received by the people has attained development since the Institutes of [312] Mami were written, it would be unsafe to treat them as if they were rules of Statute Law which must be taken to be in force unless they are repealed., The Smritis and commentaries are to be regarded as constituting together evidence of the law as received by them and reflected in their usage. Hence it was that the text of the Mitakshara that property, however acquired by a woman is her Stridhanam, was not recognized as a binding rule of law in the Shivaganga case. Nothing is of a higher authority than Sruti or a vedic text and yet the passage in the Taitiriya Veda, viz., that women are incompetent to inherit by reason of. their sex, was practically set aside by the, author of the Mitakshara and held by him and other commentators on the authority of. the Smritis of Katydyana and Brihaspati to be no bar to the succession of widow, daughter and her son to the separate property of a deceased Hindu. Looking at the matter in controversy from this stand-point, it is not enough that there is some passage which apparently supports appellant's contention, but it must also appear to be a link in the chain of Smritis and commentaries illustrating a rule of Law now received by the people as such. In the first place, no text is cited from any, other Smriti or commentary which followed. that of Manu.. It should also be remembered that Manu is a very ancient writer and much of what is to be found in his Institutes is often not to be found except with modification in the usage of the people. This is indicated in a deferential way by a text which says that Manu legislated for the Krita (a former) Yuga or age, Yajnavalkya for Dwapara and Parasara for the KaliYuga. The Judge refers to some evidence in this case to that effect. Apart from absence of corroboration by other Smritis or by. commentaries, the appellant was unable to show by satisfactory evidence that the usage of Nambudries reflects the text. On the other hand, the practice of appointing an heir when a person is invited to beget issue for the Illam and of regarding Sarvasivadanam marriage as a contingent adoption and retaining the daughter as a member of her father's family is inconsistent with the view that the Sarvasivadanam son-in-law is an heir to the Illam after the daughter by reason of the . Sarvasivadanam marriage.

15. I may also refer to the view taken in Varada Raja's Vyava hara Nirnay'a where the text of Manu is taken, as observed by the [313] District Judge, to refer to the husband's right to succeed to the wife's Culka. , (Burnell's Translation, 48).

16. For these reasons I concur in the opinion of Mr. Justice Parker. The result is the Second Appeal fails and it must be dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //