Sankaran Nair, J.
1. The plaintiff sues to recover a debt contracted by the deceased Parameswaran Nambudri, a junior member of an Illom of which the 1st defendant is the head. His wife and child are also defendants.
2. Parameswaran Nambudri was in possession of a piece of land belonging to the family and it is found that he built thereon a house worth Rs. 1,000 out of his own funds and also planted pepper vines on the land. It was conceded in the lower Courts that the house, which was built by the deceased out of his own funds though on land belonging to the family, was his self-acquisition and the point is not raised by the memorandum of second appeal. We accordingly accept that finding.
3. As to the utensils &c;, worth Rs. 500, they are in the house left by the deceased and were admittedly the property of the deceased. The first question is whether the self-acquisition of Parameswarau devolved on the family to which he belonged or on his son, the 4th defendant.
4. All the previous decisions were reviewed in Chemmantha Attekunnath Lakshmi Amma v. Palakuzhu Thuppan Nambudri I.L.R. (1902) M. 662 and the learned Judges therein arrived at the conclusion that the question is not concluded by authority and that there is no definite ruling of the High Court on the point.
5. As to the law applicable to the Nambudris, it has been held in a case, in which evidence was taken about their usage, that ' Nambudris are governed by the Hindu Law, except so far as it is shown to have been modified by usage or custom having the force of law, the probable origin of the special usage being either some doctrine of Hindu law as it stood at the date of 'their settlement ' in Malabar ' though now obsolete ' or some Marumakkathayatn usage'-Vasudevan v. The Secretary of State for India I.L.R. (1888) M. 157.
6. The Hindu law is, generally speaking, the law laid down by the author of the Mitakshara. Under that law, though the interest of an undivided member in family property passes by survivorship to the other members of the family, his separate property devolves exclusively on his own heirs. The 4th defendant, the son of the deceased, takes the property of the latter under the Hindu Law to the exclusion of the other members of the family.
7. It is true, that under the Marts makkathayam law, we have decided that the self-acquisition of a male in Malabar lapses to his tarwad, but it has also been decided that in the case of a female, her children succeed to the exclusion of the tarwad, while in Canara, under the same law but with another name, where the theory is more strictly carried out in practice, the self-acquisitions of a male also descend to his own heirs. It may be noted that in the earliest case - Kanara v. Ryrappa I.L.R. (1880) M 313 of which there is any report, it is stated to be a very prevalent belief that the immediate juniors and not the tarwad are those entitled to the self-acquisitions and that not one of the decisions, including that of the Full Bench in Govindan Nait v. Sankaran Nair I.L.R. (1909) M. 353, is based upon usage but, on the other hand, the majority of the Judges acted on the maxim ' stare decisis.'
8. In these circumstances we cannot take it that any 'Marumakkathayam usage' would have influenced the family law of the Nambudris in this respect. Nor have we been referred to any doctrine of ancient Hindu Law which denied to the son the right of succession to the separate property of his father, which may have served as a basis for the existence, if any, of a different rule of law among the Nambudris.
9. Under the old Hindu law, when self-acquisition was not recognised, no question could arise as to succession. When separate or self-acquisition was recognised, the law of succession followed the nature of the property. The foundation of the right to take by survivorship is common interest and common possession during the lifetime of the deceased. It is possible there may have been a stage in the growth of Hindu Law when a man who acquired any property had only the use of it, in which case his undivided family may have taken it on his death. But when after his complete dominion (with right of alienation) over self-acquisition was recognised, it is difficult to conceive a different line of descent for it from property that may have been obtained by partition which would undoubtedly be made to descend to natural heirs to the exclusion of those from whom he may have divided. The foundation of common interest in the property failing survivorship goes with it and the nature of the property determines the rule of succession. A Nambudri, like any other Hindu, has the right to alienate his self-acquisition in his lifetime without regard to any necessity or to the wishes of the other members of his family. He may devise it to strangers.
10. If the deceased had been a divided member, there is no doubt his son would have succeeded to the property obtained on partition and, in my opinion, the self-acquisition will follow the same course of descent. The 4th defendant is, therefore, entitled to the house and utensils and not the 1st defendant. The decree against the 1st defendant as representative is therefore reversed, but in the circumstances without costs. The suit was dismissed against the 4th defendant and there is no appeal.
Krishnaswami Aiyar, J.
11. I agree in the judgment of Mr. Justice Sankaran Nair. As regards the pepper vines we must treat them as the property of the Illom. They were grown by the deceased Parameswaran Nambudri on Illom property. They cannot be held to be his self-acquisitions. The 1st defendant, as the Karnavan, is not liable for the debts contracted by Parameswaran so far as this property is concerned. No question has been raised in second appeal that the house and vessels were not the self-acquisitions of Parameswaran. The house is in the occupation of defendants Nos. 2 to 4, the mother, widow and son of Parameswaran, and the vessels too are in their possession. No decree can be given in this case against the 1st defendant on the ground that he is in possession of Parameswaran's property. But it is contended for the respondent that the Illom succeeds to the self-acquisition of every member and that the 1st defendant, as Karnavan, is properly liable for Parameswaran's debts. This question has been left undetermined by the District Judge. In Chemmantha Attekunnath Lakshmi Anuma v Palakuzhu Thuppan Nambudri I.L.R. (1902) M. 662 the question was left open whether under the customarv law governing the Nambudris of Malabar the self-acquisitions of a Nambudri pass at his death to the immediate heirs of the acquirer or to the Illom. The observation in Vasu-devan v. The Secretary of State for India I.L.R. (1888) M. 157 that self-acquired property merges, on the death of the person acquiring it, with family property, as is the case among Nairs, is not a binding decision. There is no course of decisions, as is the case amongst Marumkkathayam families, that the self-acquisitions of a member of a Nambudri Illom lapse to the Illom. The recent decision of the majority of the Full Bench in Govindan Nair v. Sankaram Nair I.L.R. (1909) 32 M. 351, which is solely rested on the current of judical authority as regards the descent of the self-acquisition of a Marumakkathayam Hindu, does not, therefore, apply to the case of Nambudris. Unfettered by authority there can be no question as to what is the rule of law we should apply to the descent of a Nambudri's self-acquisition. It is capable of gift inter vivos. It can be willed away at the pleasure of the acquirer. Unless the notion of heritable rights in the son, widow and daughter is foreign to the Nambudri, we are bound to apply the ordinary Hindu law of succession to the Nambudris' self-acquisitions. If we go back to the archaic Hindu law and repudiate the idea of self-acquisition itself, then, of course, the property acquired must lapse to the tarwad. But in that case even in the acquirer's life time he would have no right over it. But this being recognized even to the extent of validating a posthumous disposition by will, I do not see how we are entitled to refuse succession to the natural heirs of the acquirer. If an Illom became divided into individual units with the consent of all, each individual will pass his separate property to his own heirs and not to his divided brethren in a gronp. This was the analogy accepted by the Privy Council in the Shivagunga case (Katama Nachiar v. The Rajah of Shivagunga (1863) 9 M. I. A. 953) for the succession of self-acquisitions. The same holds good in the case of the self-acquisition of a Nambudri. The Numbudri is governed by the Smritis. He is even more orthodox than the Brahmin of the rest of the country, He owes allegiance to the Vedas, the Smritis and the Puranas. Except in so far as recognized custom has made any inroad into the law of the Smritis, he is governed by that law. The 4th defendant, as the son of Parameswaran, is entitled to the house and utensils. No decree has been passed against him and there is no appeal by the plaintiff to make him liable. We must, therefore; allow the appeal by the 1st defendant and dismiss the plaintiff's suit, but in the circumstances without costs.