1. Appellants are the four plaintiffs, who claim to be one branch of a large Nambudiri Illam called Manipuzha Illam and to be governed by the Madras Nambudiri Act, Act 21 of 1933, They sued on this footing for a partition of their 4/25th share in about 500 acres of land. The suit was strenuously opposed by Madhavan Nambudiri, defendant 1, as karnavan and manager of his illam, on the ground inter alia' that the family were Embrandiris, who were governed by Mitakshara law.
He filed along with his written statement three schedules of property, (1) 'A' schedule listing the original ancestral property of the Illam, (2) 'B' schedule, which he claimed to belong to him exclusively, and (3) 'G' schedule, which he admitted to belong to all the 25 defendants, who sprang from two branches of one Krishnan Nambudiri, who was a defendant in a suit O.S. No. 25 of 1869 brought against him by his two brothers Sankaran and Govindan.
Plaintiffs represent the family of Sankaran, defendant 1, defendant 2, his wife, and his son, defendant 3, aged 6, bora subsequent to suit represent one branch which sprang from Krishnan Nambudiri the other branch being represented by the remaining defendants, who were twenty five in number. Defendants 23 and 25 were born after the suit and defendant 24 is said to have married into the family subsequent to suit.
The learned Subordinate Judge found that the family were Nambudiris governed by Act 21 of 1933 and gave the plaintiffs a decree for partition of their 4/25th share only in A schedule to the written statement the original ancestral property of the Illam as it stood in 1869. In other respects the suit was dismissed except as regards some arrears of maintenance claimed by the first plaintiff under the razinama decree, Ex. A. 1, by which O.S. No. 25 of 1869 was compromised in the Sadar Amin's Court, Tellicherry.
2. Ex. A. 1 undoubtedly constitutes the main evidence in the suit. O.S. No. 25 of '1869 .was filed by the two brothers Sankaran, whose branch is represented by the plaintiffs and Govindan with whose branch we are not now concerned, against their eldest brother Krishnan as sole defendant. That was a suit for maintenance. It was compromised by a decree, which provided for future maintenance to be paid by Krishnan and his descendants to Sankarn's branch of 1700 edangalis or seers of paddy per annum.
Ex. A. 1 specifically reciles that this maintenance had to be paid to Sankaran, his children andhis children's children and also grandchildren Saswatham (permanently) and for ever and ever. Ex.A. 1 also specifically recites that there was separateself acquired property by the defendant Krishnan towhich his brothers had no right at all. In that suitall the parties described themselves as Embrandiris.It is common ground they described themselves assuch till 1918 in a suit O.S. No. 531 of 1918 filedby the present plaintiffs for 11 years' arrears ofmaintenance under Ex. A. 1.
During the pendency of that suit the entire family described in the pleadings as Embrandiris appear to have agreed to call themselves Nambudiris and we find this description of them in the compromise petition Ex. B. 3 dated 10-3-1929.
3. The suit presents a further complication in that, while defendant 1 contends that, though he has described himself as a Nambudiri from 1918 and actually described himself in this way even in his present written statement, he is not governed by the Nambudiri Act but that the family are Embrandiris governed by Mitakshara law, the other 21 defendants excluding the immediate Illam of the first, defendant support the plaintiffs by claiming to be governed by the Nambudiri Act contending that the entire Illam have become Nambudiris.
There is a pending suit O.S. No. 13 of 1952 on the file of the Subordinate Judge of Tellicherry, in which this latter branch seeks as against the present defendant 1 a partition on the basis that the family are Nambudiris, defendant 1 contending in that suit vigorously that the family are Embrandiris.
4. It makes of course a substantial difference in partition whether the parties are Embrandiris, who are governed by Mitakshara law, or are Nambudiris entitled to partition under the Nambudiri Act of 1933. Prior to this latter Act there was no right of partition amongst Nambudiris except by consent of all members of the illam. In this Act, which was a progressive measure as stated in the objects and reasons for the advancement of Nambudiris, who were actually described there as a backward class in many respects, members of an Illam were allowed individual partition with equal shares for males and females.
If the parties are Embrandiris governed by Mitakshara Jaw they will not get their shares per capita but per stirpes. The result will be that as Embrandiris the plaintiffs will get one half, defendant 1 one-fourth & the remaining one-fourth of the original ancestral property will come to the branch of the other defendants. As Nambudiris plaintiffs will get 4/23th, defendant 1 for his immediate Illam of three members will get only 3/25th, & the other defendants each l/25th. The difference therefore is substantial.
5. Before determining the personal law, which governed this family, we may first dispose of the plaintiffs' claim to a share in B and C schedules, to defendant 1's written statement. Defendant 1 has filed three admitted pattas of ancestral property Ex. B. 20 of the year 1884, Ex. B. 21 of the year 1888, and Ex. B. 22 of the year 1890. Ex. B, 22 shows a total extent of Ac. 47-15-113/7. Schedule A to the written statement discloses only items, which give a total extent of 35.13 acres.
There has been no objection taken in the trial Court to this variation in extent. Mr. Kuttikrishna Menon for defendant 1 has however conceded the readiness of defendant 1 to agree to a partition on the basis of all (he property in Ex. B. 22 being held to be the original illam ancestral property at the time of the razinama decree, Ex. A. 1 in 1869, and is unable to account satisfactorily for the difference in extent.
6. We do not think it necessary to look beyond the razinama decree, Ex. A. 1, for a determination of the plaintiff's claim to a share in any property other thaii that which comprised the ancestral illam land out of which under the compromise the plaintiffs branch were to be paid in perpetuity' 1700 seers of paddy. We arc quite unable to see any legal basis for any claim by plaintiffs to a partition of lands in excess of this.
Ex. A. 1 is a final determination of all rights of the plaintiffs' branch in 1869 against the original illam property. It has specifically declared defendant 1 s right to his then existing self-acquired property, which appears to have been substantial and there is no legal presumption under which the income from the original Illam property can be said to have been utilised in further acquisitions in which the plaintiffs can he entitled to claim a share.
We have no hesitation in affirming the learned Subordinate Judge's finding that all that the plaintiffs are entitled to is their share, whether as Nambudiris or as Embrandiris of the original ancestral property as it stood in 1869. This will be held to he not the reduced extent contained in A schedule to the written statement but to be the full extent of 47-15-11 3/4 acres as detailed in the admitted ancestral patta Ex. B. 22. The learned Subordinate Judge in para 54 of his judgment allowed some reservations claimed by defendant 1 with regard to certain items in A schedule of his written statement leaving them to be determined at the time of the final decree. We can see no legal basis for these reservations, which are disallowed.
7. We come now to the question whether the parties should be governed by Mitakshara law as Embrandiris or by the Nambudiri Act of 1933. Thurston on Castes and Tribes of Southern India, Vol. II, page 209, defined Embrandiris as the 'Malayalam name for Tulu Brahmans settled in Malabar, who spoke both Tulu and Malayalam'. He stated that some of them called themselves even then as Nambudiris but they never intermarried with that class.
It would appear therefore that for several years prior to 1918 some Embrandiris Brahmins called themselves also Nambudiris. So long ago as 1884, Collins C. J. and Muthuswami Aiyar J. held in -- 'Vasudevan v. Secretary of State', 11 Mad 157 (A), that Nambudiri Brabmans were governed by Hindu law as modified by special customs adopted by them sinee their settlement in Malabar.
Since their traditional migration into Malabar they appear to have adopted some of the features of a law of inheritance known as Marumakathayam law, probably previously in existence in Malabar, based on descent through females, such as impartibility at the same time preserving basic features of the Makathayam system of descent through males.
We need not go into the intricacies of their system for the purpose of this appeal except to observe that their customary laws recognised by courts became millstones hampering the development of Nambudiris described by Thurston in Volume V at page 152 as the sociospiritual aris-trocracy of Malabar to such an extent, as to lead to their description in the statement of objectsand reasons in the Nambudiri Act of 1933 as a 'backward class'.
We can find no significance in the mere change of name from Embrandiris into Nambudiri by general agreement of this family during the pending suit of 1918. Mr. Kuttikrishna Menon contends with force that by a mere declaration persons . cannot renounce their personal law, and that there is no evidence in the present suit of any renunciation by the family as a whole of their personal status as Embrandiris or of their acceptance as members by the Nambudiri community as a whole. He has referred us to some interesting decisions.
8. Jn -- 'M.P. Gopal Menon, In re', AIR 1948 Mad 525 (B), an advocate on application was permitted by a learned Bench of this Court to change his name from M. P. Gopal Menon to N. T. Raman Nambudiripad. He had given notice of change of name in the official gazette in amending his certificate to practice. The learned Bench made it quite clear that they were not to be understood to have decided that he was entitled to describe himself as belonging to any particular caste. In -- 'Sarada Prasanna v. Umakanta', AIR 1923 Cal 485 (C), a Bench of the Calcutta High Court held that a person should not he permitted to reverb to the law of his original domicile at his choice, unless he could show that the law that he had adopted had either been superseded by any legislative enactment, or that it had been discontinued in his family for some time. We find ourselves with respect in agreement with their observation that,
'Where a Hindu family migrates from one province to another the presumption is that it carries with it the laws and customs as to succession and family relations prevailing in the province from which it came; but this presumption may be rebutted by proof that the family has adopted the law and usages of the place to which it has migrated.'
In the present case before us there is absolutely no evidence that this family had ever adopted the personal law governing Nanibudiris. This appears to be the first attempt that a substantial section of this family seeks to do so. We fail to see how it is open to us to convert forcibly a section of an Embrandiri family into Nanibudiris against their will at the instance of another section, merely on the basis that the whole family agreed in 1918 to call themselves Nambudiris.
In -- . 'Venkataraman v. Janaki AIR 1939 Mad 595 (D), Venkataramana Rao J. held that the personal law by which a person was governed could only be renounced or changed in one of the modes recognised by law, that one such was a change of religion and the other was by migration from one province to another so far as India is concerned or by going and settling in another country. . In that decision reliance was placed on an observation of Sankaran Nair J. in -- 'Muthuswami Mudaliar v. Masilamani', 33 Mad 342 (E), that it was open to a Hindu who was governed by one law of inheritance to accept another law of inheritance recognised by Hindu law. But that dictum was qualified by Sankaran Nair J. himself by the need for affirmative proof of acceptance of the law of the locality into which he had migrated.
9. Sundara Aiyar on Malabar and Aliyasanthana Law at page 2 emphasised tbe difficulty in Malabar in that it presents a considerable admixture of usages, of those obtaining amongst the communities that originally occupied Malabar and of those that migrated to it from other countries.
He observed at page 3 that the law of the Nambudiris at the time he wrote was as eculiar as Marumakattayam law itself, and in many cases even more difficult of ascertainment and definition. The learned Subordinate Judge based his finding that this family must be deemed to be Nambudiris governed by Act 21 of 1933 on a theory of their fusion and absorption in the Nambudiri community, P.W. 2 gave some rather vague evidence that some Embrandiris do the same karmas as Nambudiris, and that there was no difference between a Nambudiri and Embrandiri.
He further stated that in an Yogakshema, an organisation incidentally referred to in the statement of objects and reasons for Act 21 of 1933, all the Malaya Ice Brahmans from Cape Comorin to Kanbarod Ferry were declared to be Nambudiris. No resolution has been produced, and P.W. 3 merely gave some general evidence that Nambudiris and Embrandiris have intermarried for the past 20 years. There is no positive evidonce even about this. The fact that a contracting party calls himself or herself a Nambudiri may not prove any tiling positive.
10. We are unable to agree with the learned Subordinate Judge that it may be inferred from the oral evidence that, though the parties to the suit were originally Embrandiris, they became Nambudiris by describing themselves as such and adopting their customs and manners. The crucial document in the present suit is the razinama decree, Ex. A. 1 of 1869, which settled the rights of the plaintiffs' branch once for all. They were undoubtedly Embrandiris at the time and called themselves and regarded themselves as such.
It would no doubt be possible for Embrandiri families in Malabar by agreement to effect partitions in accordance with the Nambudiri Act of 1933, nor is it possible to stop them from doing so by mutual consent and by no opposition from anybody. Should they effect a partition on this basis it would be evidence of an unequivocal intention to adopt the Nambudiri law, and such action embodied in a document may help to establish in a court of law in the future their status as Nambudiris legally entitled to the personal incidents of Nambudirilaw.
There is, however, no act by this entire family except in its change of name, which appears to have originated mainly in a desire to achieve a higher social status, to evidence the renunciation of the personal laws which previously governed them.
11. The protagonists of the position that the family are Nambudiris were undoubtedly the majority of the defendants on whose behalf Mr. Gopalan Nambiar has addressed to us an able argument. We have no doubt that defendants 3 to 22 and 24 and 25 have decided to claim to be Nambudiris as against defendant 1's branch namely on the ground that Nambudiri law will give them each an equal share. This branch is prolifie in females there being no less than ten amongst them, who will each' be entitled to a per capita share.
This is also perhaps the reason why the first defendant is putting forward so determined an opposition on the ground that Mitakshara law which governs Embrandiris shall operate to stem an attack on his rights by sheer weight of numbers. So far as the plaintiffs are concerned, they' are of course the gainers, if Mitakshara law applicable to Embrandiris is applied to this case, as they would be entitled to a full half share of the ancestralIllam property.
We have no doubt that they claimed a 4/25th share in the plaint as Nambudiris, because they simply did not have the face to ask for a half share in all the plaint schedule property, that is A schedule, B schedule and C schedule of defendant 1's written statement, comprising about 500 acres. The fact that the plaintiffs have claimed the smaller share as Nambudiris on a per .capita basis does riot prevent our giving them the larger share in the ancestral Illam property to which they are entitled as Embrandiris under Mitakshara law.
12. The result is that the lower court's decree will be modified by a decree for partition in favour of plaintiffs for a half share in 47-15-113/4 acres of lands as detailed in Ex. B. 22 without any reservations at all as directed by the learned Subordinate Judge in para 54 of his judgment, the branch of defendant 1 being entitled to l/4th and the branch of defendant 3 to the remaining l/4th. Any deficiency found in the extent of property contained in Ex. B. 22 at the time of partition will not affect the share of the plaintiffs, but will be debited against the shares of the branches of the defendants. Schedule A of the written statement decreed for partition by the learned Subordinate Judge, as we have pointed out, comprises only 35-13 acres.
In making- the partition the family house in which defendant 1 is residing that is all the property comprised in Ex. B. 24 will be allotted after valuation to the share of defendant 1. We direct the parties in this appeal to bear their own costs. The trial Court's order as to costs will stand. (The rest of the judgment is not material for purpose of this report.--Ed)