1. Mr. Sivarama Menon for the appellant wants to contest the correctness of the decision in Govindan Nair v. Sankaran Nair  32 Mad. 351. That decision was followed by me and Mr. Justice Spencer in Abuvakkar v. Kuhikuttiyali A.I.R. 1923 Mad. 153. I am not prepared at this stage to refer the appeal to a Bench on the ground that the decision in Govindan Nair v. Sankaran Nair  32 Mad. 351 should be reconsidered.
2. There is another point in the appeal which requires consideration. The parties belong to a class of Nambudhis who have adopted to some extent the Marumakkathayam law. The appellant asked the lower Court to take evidence on the question of custom obtaining in the class of Nambudiri families to which the parties belong, of the self-acquisition of a male member devolving upon the thavazhi and not upon the tarwad in case he dies intestate. This point was neither raised in the pleadings nor in the trial Court and the District Judge who heard the appeal did not think it necessary to call for a finding upon the alleged custom. Considering the fact that this class of Nambudiris has adopted to some extent the Marumakkathayam law, the question is whether the whole of the Marumakkathayam law is applicable to them. It is stated that the males in the families contract lawful marriages. Seeing that there is some departure from the ordinary incidents of Marumakkathayam law in the case of these Nambudiris, I think it would be best in the interests not only of the parties to this litigation but in the interests of the whole of this class of Nambudiris to call for a finding on the alleged custom. The appellant will pay the costs of this inquiry in any event to the respondent as he did not raise the point in the trial Court. The District Judge will there record a finding on the following issue:
Is there a custom in the Payyanoor Nambudiri families by which the self-acquisition of a male member dying intestate devolves upon his wife and children and in the absence of wife and children upon the thavazhi and not as in the case of ordinary Marumakkathayam families upon the tarwad.
3. Time for return of findings is two months and seven days for objections.
4. In compliance of the order of this Court calling for a finding upon the issue referred to by this Court for trial, the District Judge of South Kanara submitted the following.
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5. On the whole, I have no hesitation in holding that the plaintiff has not proved that there is a custom among the Payyanoor Gramam Nambudris by which self-acquisition of a male member dying in-testate devolves upon his tavazhi, in the absence of his wife and children. I, there-fore, find the issue remitted in the negative.