1. The first issue raises a question of considerable importance. It runs ' Whether junior members of Nambudri Illoms are prohibited by law or custom from contracting valid msrriages in their own community.' The District Munsif has decided this question in the negative but the Subordinate Judge has taken the opposite view and held that such marriages are prohibited. He bases has decision mainly on two judgments one of Mr. 'Wigram, who was for some years District Judge of South Malabar and the other of Mr. Raman Nayar, a Subordinate Judge employed in Malabar. Mr. Wigram's judgment is dated the 14th December 1876 and was delivered in 5. A. No. 562 of 1876. In it he observes that ' it is difficult to see how the 2nd defendant who ' is the wife of Narayanan Nambudri's younger brother who predeceased him can have any status social or otherwise in a Nambudri family where only the oldest male member may marry.' This no doubt reads as if Mr. Wigram was prepared to hold that the marriage of a junior male in a Nambudri Illom was illegal. At the time that this judgment was pronounced, Mr. Wigram, however, had been only a year in Malabar and when some six years later he published his ' Malabar Law and Custom' he expressed himself, as we believe, more accurately as follows :--' In order to maintain the rule of impartiality among the Brahmins it is customary for the oldest only of several brothers to marry whilst the younger brothers are permitted to form temporary alliances with Sudra women ' (Wigram's Malabar Law and Custom, 1st Edition, page 3). This is, we believe, the correct view to take of this question. There is no law prohibiting these marriages, but a custom has sprung up under which the junior males do not as a rule marry. Mr. Raman Nayar's judgment was passed in 1874 (O.S. No. 35 of 1873). The plaintiffs in that suit contended that a junior male in a Nambudri family could not contract a valid marriage and based their case on Section 383 of Mr. Justice T.L. Strange's Manual of Hindu Law. The defendants produced no evidence on the point and the Subordinate Judge accordingly decided in favour of the plaintiffs. It does not appear to us that much importance can be attached to the decision. The Subordinate Judge quotes Mr. Justice Strange as laying down that ' the law which governs the Nambudri families does not under any circumstances permit a junior Nambudri to contract a valid marriage.' This is a much more positive statement than is to be found in Mr. Justice Strange's Manual. All that he really says is that the origin of Marumak- katnayam is ' conceived to have been thus--.' ' It is alleged that Parasuramer, the first king of Malabar introduced Brahmans into the District and gave them possessions therein and to prevent these properties from being split up decreed that they should vest in the elder brothers whom alone he permitted to contract marriage. The sons of these were to be accounted as sons for the whole family. The junior brothers being without wives were allowed to consort with females of lower castes.' (Strange's Manual of Hindu Law, 2nd Edition pages 94-95). All that this really amounts to is that Mr. Justice Strange points out that in Malabar there is a custom by which the junior males in a Nambudri Illom do not marry and then proceeds to give the mythological explanation of the custom. That Mr. Justice Strange attached the slightest weight to this myth which, it may be remarked, is absolutely without historical foundation, there are no grounds for supposing.
2. It is thus evident that the judgment of Subordinate Judge of Palghat now under consideration is based on very scanty material. The Subordinate Judge observes that he has not been referred to a single decision of the High Court wherein the marriage of an Anandravan in a Nambudri family has been held to be valid and when the argument was advanced that evidence had been produced before the District Munsif of several cases in which) junior male members of Illbm had contracted marriages, met the argument as follows :--'I am of opinion that the law should be administered as it is and not according to any practice amongst Nambudris which must1 have been of recent origin. Be that as it may, there is no legislative or judicial sanction for the marriage of a younger brother in a Nambudri family.' The Subordinate Judge has here, in our opinion, improperly imposed on the plaintiff the onus of proving that the marriage of a junior in an Illom is legal. Brahmins are to be found all over India and everywhere they are in the habit of contracting valid marriages with females of their own caste. Even in Malabar it has never been questioned that the senior males at all events in an Illom can marry. Such being the case, the onus of proving that certain members of certain Brahmin families cannot enter into a legal marriage contract is clearly on the person who advances such a proposition, opposed as it is to the law and custom prevailing among members of the caste all over India. The defendants have certainly not discharged this onus. All that they have shown is that in order to maintain the rule of impartibility prevailing among Nambudris a custom has sprung up under which junior males do not usually marry but the evidence proves that that custom is not invariably followed and we are decidedly of opinion that we should not be justified in holding that such an ancient, continued and uniform custom of junior males in an Illom not marrying has been shown to exist as could be held to deprive them of the right which, as members of the Brahmin caste, they would ordinarily have of contracting a valid marriage with one of their own caste.
3. We accordingly hold on the first issue that junior members of Nambudri Illoms are not prohibited by law or custom from contracting valid marriages in their own community. It must be held that the plaintiff cannot sue to recover the properties mentioned in the plaint on the strength of the demise of 1870 (Exhibit E) as it is shown that that demise has been superseded by a valid demise. granted in 1890 (Exhibit XX) on behalf of and under the authority of Pappi Antarjanam, widow of Narayanan Nambudri, who was then the Karnavati of the Illom. On this ground this second appeal must be dismissed with costs.