1. The last two members of a Nambudri Illom, known as the Kotakkat Illom, were Kesavan, and Nangeli. In 1849 one of them, Kesavan, mortgaged the property in dispute by Exhibit B to the Tarwad of defendants Nos. 1 to 12. He died after 1852. In 1855 the only surviving member Nangeli appointed one Narayana Moosad as the heir to the properties of the Tarwad. In 1856 she appointed Damodaram during the lifetime of Narayana. In 1858 Narayana brought a suit to redeem the Kanom executed by Kesavan in 1849. Damodara intervened and disputed Narayana's title. There was a compromise (Exhibit E) in 1859 by which Damodara's right was recognised by Narayana and the suit was dismissed. There was a Kanom by Damodara in 1859, which is Exhibit A, to the Tarwad of defendants Nos. 1 to 12. Damodara died in 1896. Damodara prior to his being appointed heir belonged to a Tarwad known as Thiyyath Tarwad. Damodara died issueless and the present suit is by his natural brother to redeem Exhibit A. The two Courts below have found that Damodara was legally and validly appointed heir by Nangeli. They have also found that Exhibit A is genuine.
2. The question which was strenuously argued before as was whether the present plaintiff is the heir of the deceased Damodara. The District Munsif was inclined to the view that the members of Thiyyath and Kotakkat Illoms were related to each other as Dayadees. The Subordinate Judge has expressed no opinion on that question. It was suggested by Mr. Madhavan Nair, who appeared for the respondents, that paragraph 30 of the lower Court's judgment must be regarded as a finding on the question of relationship. In that paragraph the Subordinate Judge refers to his having found that the plaintiff was recognised as the legal representative of Damodara in a number of transactions and concludes by saying: 'I find the issue for the plaintiff.' In paragraph 25 wherein he discusses this recognition there is not a word about the relationship between the two Tarwads. There is considerable body of evidence on the question and, therefore, we cannot regard that the Subordinate Judge applied his mind to the consideration of the facts bearing on it.
3. It wan then argued by the learned Counsel for the respondents that under Exhibit D, which was executed by Nangeli to Damodara on the occasion of his appointment as heir, not only Damodara but all his relations were taken into the Kotakkat Illom. The expression on which great reliance was placed is Ananthira Avaksham', Neither in the Munsif's Court nor before the Subordinate Judge was any reliance placed upon these words as constituting the plaintiff as the heir to Damodara.
4. There is no definition of the word 'Ananthira Avakasham' in any of the treatises on Malabar Law or in any of the judgments of Courts. There are observations in Vasudevan v. Secretary of State 11 M.K 157 which rather suggest that this expression is synonymous with heirs. However, we do not desire to express any definite opinion on the question. If there is any evidence on record upon which a finding can be given regarding the meaning of this expression, we may ask the lower Appellate Court to consider the evidence and to submit a finding. We are not inclined to allow fresh evidence to be taken on the question, because if the plaintiff relied upon this expression in Exhibit D as constituting him the heir to the Tarwad, he ought to have examined witnesses in that behalf.
5. There can be no doubt that in a large number of proceedings to which the defendant was not a party but which were instituted by the plaintiff he has been recognised by Courts and by the parties to those proceedings as the heir to Damodara. There is also the fact that the Government, which contemplated at one time a claim to the property as escheated to the Crown, recognised the plaintiff as the heir. These various proceedings tend to show that according to the customary law of Malabar the relations of the natural family from which an heir is constituted are entitled to succeed to that heir if he dies issueleSections There is also the fact which is well recognised in Malabar that the appointment of an heir is very different from adoption. The very fact that Nangeli, an unmarried woman, was considered to have properly appointed Damodara as heir to the property of the Tarwad to which she belonged, shows that there is a difference between adoption and the appointment of an heir. Therefore, it is possible that although Damodara was regarded as an adopted son and his natural relations of the Tarwad from which he came may not be his heirs, his appointment as heir from the Tarwad would not preclude such relations from succeeding to his property. That is again a matter upon which the Subordinate Judge has expressed no definite opinion.
6. There is also the further question whether the plaintiff has not acquired title to the properties of the Tarwad by adverse possession. That would depend upon how far to the knowledge of the defendants he set up his right. This aspect of the question also has not been considered by the Subordinate Judge. We must, therefore, ask for findings upon the following questions:
(a) Were the members of the Kotakkat Tarwad and those of the Thiyyath Tarwad related to each other? And if 80 how?
(b) Whether under the customary law of Malabar the natural relations of an appointed heir are entitled to succeed to the appointee's properties?
(c) Whether the appointment of a person with Ananthira Avakasham' rights enables his natural relations to succeed to his property?
(d) Whether the plaintiff has acquired title to the property by prescription?
7. The findings must be submitted within two months and 7 days will be allowed for objections. No fresh evidence.
8. In compliance with the above order in the judgment the Temporary Subordinate Judge at Cttapalam submitted the following
FINDINGS --I am asked to submit findings with reference to the evidence on record on the following points:
1. Were the members of the Kotakkat Tarwad and those of the Thiyyath Tarwad related to each other? And if so, how?
2. Whether under the customary law of Malabar the natural relations of an appointed heir are entitled to succeed to the appointee's properties?
3. Whether the appointment of a person with 'Ananthira Avakasham' rights enables his natural relations to succeed to his property?
4. Whether the plaintiff has acquired a title to the property by prescription?
2. 1st Issue.--The evidence relating to the question of relationship between the two Illoms is that furnished by Exhibit XXVIII and the deposition of the present plaintiff in this litigation. Exhibit XXVIII is the record of the evidence of the late Deodorant Moosad in Original Suit No. 03 of 1890 on the file of the District Munsif, Angadipuram. Damodaran Moosad then stated that he had been adopted ink) the Kotakkat Illom and that he had no right to the property of Thiyyath lllom He has amplified these statements by a reference to the question of pollution between the Illoms. According to him he would observe pollution for fen days on the death of any member of the Thiyyath lllom, but that the members of Thiyyath Illom did not observe pollution when Nangeli Manayamma who adopted him died in Andu 1036 (1860-1861). Apparently, his idea was to keep open his connection with his natural Illom for his own purposes while seeking to make out that the converse was not the case.
3. Then there is the evidence of the present plaintiff, which is to the effect that the members of his family are attalatakam heirs of Kotakkat Illom having ten days' death pollution. This definite statement, it may be pointed out, stands uncontradicted, no effort having been made to displace it by any testimony to the contrary.
4. As between Damodaran Moosad and his brother, the plaintiff in this case, I think that the statement made by the latter should be preferred. Any weight that might otherwise be due to the evidence given by Damodaran Moosad is taken away by the fact that in 1891, when he was examined in Original Suit No. 503 of 1890, he was trying to establish his status as adopted heir, He was naturally, therefore, inclined to attribute all the results of a regular orthodox adoption to his case and in consequence he seems to have thought that he would strengthen his position by disclaiming mutual ties of relationship between the two Illoms. Self-interest of another kInd. however, made him careful in safeguarding his own rights in his natural Illom. On this ground I consider that literal effect should not be given to his statements of the year 1891. The plaintiff's -evidence is not vitiated by any such motives and if his assertion were untrue, it is not easy to see why the defendants made no effort at all to establish their present suggestion. Moreover, Damodaran's own evidence shows that the two Illoms were of the same gotram and that he claimed to be attalatakam heir to the Thiyyath Illom only in the character of a member of the Kotakkat Illom. But this could only be on the footing that the members of the two Illoms were dayadis. That his testimony as a whole cannot be accepted at its face value can be judged from his pretended ignorance as to whether the two families had relationship through pollution between each other.
5. I think it is reasonably dear that the members of the Kotakkat and Thiyyath families were related to each other as dayadis, having what is known as ten days' impurity or pollution : or in other words, sapindas of each other, I answer the first question accordingly.
6. 2nd Issue.--The question is whether under the customary law of Malabar the natural relations of an appointed heir are entitled to succeed to the appointee's properties. In Kumaran v. Narayanan 9 M.P 260 it was held that the son of a daughter married in the Sarvaswadanom form may inherit to his father's Illom as an attalatakam heir, although his father would have no right at all in regard to the properties of the wife's Illom. This ruling shows that in ease of an adoption there may be ultimate rights of succession on failure of the ordinary line of heirs. In the present case what happened was that the plaintiff's brother Damodaran Moorad was not regularly, adopted into the Kotakkat Mom by its last representative, Nangeli, but that he was merely appointed heir to the Illom (Vide Exhibit D). In such a case it seems to be clear on the authorities that Damodaran would rot lose the rights possessed by him in his own natural family Mayne's Hindu Law, Section 204; Vasudevan v. Secretary of State 11 M.P 157 .
7. The above proposition was not controverted by Mr. K.P. Raman Menor, but his argument was that although Damodaran might have had rights in his natural lllom, the plaintiff is not possessed of the converse right of succession as heir to Damodaran in regard to the properties of the Kotakkat lllom. The line of argument adopted by Mr. Raman Menon was that Exhibit D evidences an adoption in the kritrima form and that as such all the incidents of such an adoption as stated by Mr. Mayne in regard to the Mithila country should be held to apply to Damodaran's appointment. But the argument overlooks the fact that the affiliation of an heir to a Nambudri lllom by appointment, such as that of Damodaran under Exhibit D, resembles the kritrima adoption of Mithila only in this respect that both are based on purely secular motives and that in both no particular form or ceremony of adoption is a prerequisite to its validity. Beyond this, I do not think it would be safe to push the analogy.
8. The decision in Vasudevan v. Secretary of State 11 M.P 157 continues to be the leading case on the subject of adoption or affiliation among Nambudiris. Mr. Mayne's observations regarding adoptions by Nambudiris are almost wholly rested on the remarks is be found in the judgment of the High Court. That judgment, however, is very cautiously worded with regard to this matter. Their Lordships say: 'It may well be that the power to appoint an heir is equivalent to kritrima...adoption' (the italics are mine), and not, be it noted, that it is an actual kritrima adoption. All that appears from the discussion of the evidence and the observations in the above judgment is that there are three kinds of adoption among Nambudiris, that the first two of them are regular adoptions with some kind of religious ceremony accompanying them, and that the third is a mere affiliation by appointment without any religious ceremony whatever, Exhibit D is an instance of the third claSections But I do not find any warrant anywhere for foisting upon it all the various legal incidents attaching to the kritrima adoption of Mithila.
9. A single illustration will suffice to show the untenable nature of the argument. In Mithila, a kritrima son can be adopted to the mother alone or to the father alone, while both are alive, and will then take only the property of the person adopting. But I do not think that anyone can be found to assert that a Nambudiri wife can make a valid adoption to herself alone in the Mithila sense and without reference to her husband or to the lllom of which they are members. On the other hand, such evidence as there is in this case goes a great way in supporting the plaintiff's contention.
10. In 1892 Damodaran Moosad together with his brother Kesavan Moosad, the present plaintiff, executed the document Exhibit XII in respect of some of the properties belonging to Thiyyath lllom. This is evidence showing that notwithstanding the appointment under Exhibit D, Damodaran was exercising all the rights of a member of his natural lllom, and it also forms a basis for inferring that the properties belonging to Damodaran and his brothers were treated by them as joint so as to be capable of being taken mutually by right of succession.
11. Then there are documents showing public recognition of the usage under consideration. Exhibits P and BB are judgments of the Court of first instance and the Court of Appeal, respectively, in a litigation in which Damodaran Moosad was the plaintiff. He obtained a decree but died before putting it in execution. On his death the present plaintiff's nephew Govindan Moosad applied for and wag granted the succession certificate, Exhibit Q, for realising the decree amount as heir to Damodaran. Exhibit R is the execution petition presented by Govindan Moosad and the present plaintiff jointly. It is noteworthy that no point was then taken that these were not the heirs of I damodaran in regard to the Kotakkat lllom.
12. The next series of documents are Exhibits H, HI, XIII and H2. These relate to a litigation by Narayanan Moosad, who claimed to be the earlier and real appointee of Nangeli, To this litigation the present plaintiff and his nephew Govindan Moosad were impleaded as defendants Nos. 2 and 3.
13. The next document, Exhibit T, is specially important. It is an order of the Tahsildar of Walluvanad for transferring the Patta for the Kotakkat I Horn properties to the present plaintiff's name as being Damodaran'a heir. The order Bhows that Government desisted from enforcing their right of escheat, as contemplated by them, because on enquiry they were satisfied that the plaintiff succeeded to the Kotakkat properties as attalatakam heir.
14. The foregoing will show the acceptance by Government and other third parties of the rights of the plaintiff as heir to the Kotakkat Illom properties of Damodaran Moosad. Exhibit XI shows that the present contesting defendants were well aware of the rights claimed by the plaintiff in the litigation evidenced by Exhibits X series and XIII. Until now they have never thought of impugning the plaintiff's status as heir and this conduct on their part attracts the importance it deserves.
15. On a general survey of the authorities dealing with the subject of adoption among Nambidir is and the facts disclosed by the evidence in this litigation, I think that the appointment of an heir by the last member of a Nambudiri Illom constitutes the appointee the successor to the Illom properties but without cutting off his rights in his own family. The result would be that while he would take the properties of the Illom into which he is affiliated, he retains his position in his own Illom for purposes of succession and inheritance. In other words, while the form of the affiliation may be compared to the kritrima adoption of the Sanskrit texts, the legal status conferred by the affiliation resembles more nearly that of the dwymushyayana son. In saying so, I wish to guard myself against being supposed to attribute to the affiliation all the incidents of dwymushyayana, adoption any more than all the incidents of a kritrima adoption as now understood in Mithila. The procedure by which an affiliation is effected among Nambudiria and the legal effects flowing from it are entirely matters of special usage as existing among them, and it is only in a (sic) or general sense that the Act by which an heir is constituted can be classified and labeled under one or other of the recognised heads of adoption enumerated in the Hindu Law books.
16. My opinion on the point raised is that on the facts in evidence in this case the natural relations of an appointed heir are entitled under the customary law of Malabar to succeed to the appointee's properties.
17. 3rd Issue.--The question raised by this issue falls under the previous issue. The expression 'Ananthira Avakasham' means nothing more than the right of heirship and no special or technical significance attaches to it. This was conceded by the learned and experienced Nair Vakils on either side that argued the case in this Court. I may also refer to Logan's Manual of the Malabar District (page 245), where the word 'Ananthravar' is rendered as successor' or 'heir'. The expression as occurring in Exhibit D was conceded by the learned Vakils on both sides to mean only that Damodaran was to take the properties as heir to the Illom after Nangeli. I would, therefore, find the issue in the affirmative.
18. 4th Issue.--I think the plaintiff must be considered to have acquired by prescription the right claimed by him, viz, that he is heir to whatever properties Damodaran Moosad left. For this the main piece of evidence is Exhibit XI There was a keen dispute between the present plaintiff and the present contesting defendant No. 1 and Narayanan, Moosad already referred to and a fourth man, with regard to the properties of a Devaswom attached to the Kotakkat Illom. The contest then took the shape of rival claims to registration of name in the Revenue Register. The Special Deputy Collector's order contains the following: 'A civil suit appears to have been instituted by Narayanan Moosad in which the Uraima question may probably be decided and all the four parties express their willingness to have the registration of titles postponed until its disposal.' Although in the result the Deputy Collector ordered registration to be made in the names of all four claimants in respect of push proporties as they were holding individually, the order shows that the fight as regards Damodaran Moosad's properties was considered to lie between Narayanan Moosad on the one hand and the present plaintiff on the other. The other parties, including the present contesting defendant, were content to abide by the result of the civil litigation. Narayanan Moosad's suit ended adversely to him, Thereafter the present plaintiff's claim as heir to Damodaran Moosad was not further challenged by any one. That claim was publicly put forward to the knowledge of the contesting defendants, and it was of a nature which imported all the elements of an exclusive and hostile title. It seems to me that it is too late in the day for the defendants to question the plaintiff's general right to the Kotakkat Illom properties as Damodaran Moosad's heir.
9. This second appeal coming on for final hearing after the receipt of the findings of the lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following
10. On the finding that the plaintiff is the Attalatakam heir which we accept, the second appeal fails and is dismissed with costs. (Separate set to 32nd defendant and the plaintiff.) Time for redemption, three months from this date.