1. In paragraph 3 of his judgment the Subordinate Judge observes that the mortgaged property which forms the subject matter of this second appeal belonged to Sankaran Nambudri under a Sarasvadanom grant and then adds 'His Sarasvadanom wife having died isssueless the property belonged to Sankaran Nambudri exclusively, and on his death it lapsed to his mana.' The correctness of the findings of the Subordinate Judge on the two points of law dealt with in this paragraph has been strongly contested here in second appeal.
2. If the Subordinate Judge intended to lay down as a rule of law that, notwithstanding the death of the wife without issue, the property of her illom vested absolutely in her husband by virtue of his affiliation under his Sarasvadanom marriage, it is very doubtful if his decision could be upheld. In Kisahva. Thavagan v. Rudran Nambudri I.L.R. 5 Mad. 259 the question as to whether the interest of the son-in-law divested by failure of issue of a Sarasvadanom marriage was considered, but not decided and in two more recent decisions Kumaran v. Narayanan and Vasudevan v. The Secretary of State for India I.L.R. 9 Mad. 260in which the nature of a Sarasvadanom marriage was very fully considered, it was not necessary to decide the question now under consideration. In the latest judgment of importance delivered by the High Court relating to marriages of this description Amayur v. Kotimadhathil Itticheri and the Secretary of State for India Second Appeal No. 800 of 18S7 (unreported)] the decision of, the majority of the Judges (Muthuswami Ayyar and Parker, JJ., Shephard, J, dissenting) [is clearly in favour of the contention now advanced on behalf of the appellants. That judgment has, however, not been reported. Under these circumstances it cannot be held that the question now under consideration is concluded by authority. It is, however, not necessary to decide it in the present second appeal inasmuch as the second, third and fourth defendants (appellants) have, in their written statement, clearly admitted that Sankaran Nambudri obtained the properties as a gift from his wife's illom. What is there stated is as follows: (paragraph 6) 'items Nos. 1 to 15 were the jenmam and the remaining items the kanom of the Thiruthiyil illom. Those and other properties together with the rights aforesaid were obtained by Sankaran Nambudri, the senior paternal uncle of the first defendant, as a gift.' In the face of this admission it is impossible for the appellants to contend that, on the death of his Sarasvadanom wife, Sankarau Nambudri lost all his rights over the property of her illom. It may be mentioned that this gift has already come under the consideration of the High Court in Kishava Thavagan v. Budran Nambudri I.L.R. 5 Mad. 259.
3. It is further urged on behalf of the appellants that the Subordinate Judge has wrongly held that on the death of Sankaran Nambudri the property that he had acquired in consequence of his Sarasvadanom marriage lapsed to his mana or illom. It is urged that under the ordinary Hindu Law such property would be inherited by Sankaran's own immediate heirs and that it has never been held by the High Court that in this respect the law governing the Nambudries of Malabar differs from the ordinary Hindu Law prevailing on the Bast Coast. There is much force in this contention. It does not appear to us that this question has ever been clearly and definitely decided by the High Court with reference to Nambudries. The decisions of the local Courts show that for many years there was no uniform custom as to the devolution of the self-acquired property of a member of either a Malabar tarwad or illom. As to this Mr. Justice T. L. Strange, who was employed for many years in Malabar, observes as follows in his 'Manual of Hindu Law' (second edition, Section 399): 'Self-acquired moveable property, namely, that which is obtained by individual exertion and without aid from the family funds, belongs exclusively to the acquirer, and may be disposed of by him at his pleasure. Females may hold it as well as males. On demise, it descends, in the case of males, to their sister's sons, or nearest Anandravans, and, in the case of females, to their issue male and female.' Mr. (afterwards Mr. Justice) Holloway, whose influence, as District Judge of Tellicherry and subsequently as Judge of the High Court, on the development of Malabar Law as set forth in legal decisions can scarcely be overestimated, did not accept this view. As Judge of Tellichery he, in Mayil Manikotha Kamaran v. Manikotha Cheriya Ryru Appeal Suit No. 19 of 1862 observed as follows: 'The truth of the matter is that Kannen (the deceased karnavan) acquired the property and, following the fallacy which is very prevalent, it has been supposed that his immediate juniors are those entitled to inherit it. It is unnecessary to say that this is not the law of Malabar, a law which I deplore as fruitful in mischief, but by which I am bound.' On appeal, this decision was confirmed by the High Court Athalur Variatha Shangara Varier v. Manisherry S.A. 98 of 1862 (unreported), but the Judges in dismissing the appeal wrote no judgment and recorded no reasons for their decision. In so far, however, as Naayrs are concerned the law was clearly laid down in the case of Kallati Kunju Menon v. Palat Erracha Menon 2 M.H.C.R. 162 (per Scotland, C.J., and Holloway, J.) as follows: 'It is unquestionably the law of Malabar that all acquisitions of any member of a family undisposed of at his death form part of the family property, that they do not go to the nephews of the acquirer, but fall, as all other property does, to the management of the eldest surviving male.' This decision, which has been uniformly followed by the Courts, settled the law in so far as Nayar tarwards are concerned. With respect to Nambudries there is, however, no definite ruling of the High Court. In Vasudevan v. The Secretary of State for India I.L.R. 11 Mad. 157 the learned Judges, no doubt, in discussing certain questions regarding the personal law of Nambudries observed that among them 'self-acquired property merges on the death of the person acquiring it with family property as is the case among Nayars,' This observation, however, cannot be looked on as anything more than a mere obiter dictum as no question as to the self-acquisitions of Nambudries was then before the Court. The course of the decisions being as now set forth, we should certainly not be prepared to hold that it is not open to the appellants to , contend that the self-acquisitions of Sankaran Nambudri passed on his death to his own immediate heirs and not to his illom if this contention had been raised either before the Court of First Instance or the lower Appellate Court. From the records however it is clear that this plea was never even suggested till this case came before us on second appeal. Such being the case we must refuse to refer this point, as we have been requested to do, to the lower Courts for enquiry and decision.
4. As regards interest we accept the view of the Subordinate Judge as set forth in paragraph 9 of his judgment.
5. The second appeal is dismissed with costs.