Madhavan Nair, J.
1. Plaintiffs 1 to 4 and defendants 28 to 43 are the appellants. The second appeal arises out of a suite instituted by the plaintiffs to recover arrears of maintenance.
2. Seetha and Pattu were two members of a tarwad called the Machingal Pottai Veettu tarwad. The second defendant is the son of Pattu. In 1866-67 Valia Parvathi and Kunju Menon (a female and a male), two children of Seetha, were adopted by Pangi Menon Kandi Achan who was the sole remaining member in his tarwad known as Tekkai Veettu tarwad. The plaintiffs in the present suit are the descendants of Valia Parvathi through her daughter Seetha (see the Genealogical tree given in paragraph 9 of the Munsiffs judgment). The suit properties cover 20 items. Of these, items 1 to 12 are Putravakasam properties granted to Seetha, the mother of Valia Parvathi, by her husband Chathu Achan who ultimately became the Palghat Raja, items 14 to 20 belong to the Pottai Veettu tarwad. Admittedly the plaintiffs are members of the Tekkai Veettu tarwad. They, however, claim maintenance from the defendants, who are members of the Pottai Veettu tarwad on the ground that Valia Parvathi, their ancestors, though given in adoption to the Tekkai Veettu tarwad, continued to retain her original status as a member of the Pottai Veettu tarwad. They contended that in spite of the adoption the adoptees still remained members of their original family. They also contended that the adoptees and their descendants acquired, apart from status, right to the properties of Pottai Veettu tarwad on pleas such as estoppel and prescription. This latter contention was raised in issues 11 and 13 which are as follows:
11. Have the adoptees or their descendants acquired apart from status any right to the properties of Pottai Veettu?
13. Can aright to maintenance be acquired by prescription and have the adoptees and their descendants Acquired such a right to the properties of Pottai Veettu?
3. They also raised various other contentions which need not be considered for the purposes of this second appeal.
4. On the first contention which was the subject-matter of issue 9:
What was the result of the adoption on the status of the adoptees with, regard to the membership in Pottai Veettu?
5. The District Munsiff found that the adoptees lost their status as members in Pottai Veettu tarwad as a result of their adoption. On issue 11 the learned District Munsiff recorded the following, finding:
I therefore held that the defendants are now estopped from denying that plaintiff shave, all the rights which the members of Pottai Veettu have over the properties thereof. As Valia Parvathi had for over the statutory period dealt with, the properties of Pottai Veettu as a member would have done, she and her descendants through her have acquired by prescription all the right which they would have had if they had (not?) been adopted. Both by prescription and by estoppel the rights of plaintiffs have been perfected.
6. In view of the findings on issues 11 and 12 no separate finding was recorded on issue 13. As a result of the findings on issues 11, 12 and 13 a decree for maintenance was passed in favour of the plaintiffs. The finding on issue 11 was based on a consideration of the evidence which related, amongst other things, mainly to the dealings of the properties of the Pottai Veettu tarwad by Valia Parvathi after the adoption.
7. In appeal the learned Subordinate Judge agreed with the District Munsiff in his view that Valia Parvathi and Kunju Menon, the adoptees, lost their status as members of the Pottai Veettu tarwad as a result of their adoption by the Tekkai Veettu tarwad. On the second point, that is, the point covered mainly by issues 11 and 13, he differed from the District Munsiff and in the result the Munsiff's decision was set aside and the plaintiff's suit was dismissed. But it must be mentioned that with regard to items 1 to 12 the learned Subordinate Judge held the plaintiffs have a joint right with some of the defendants but that that right cannot be enforced in this suit.
8. In second appeal, Mr. Variar's first argument on behalf of the appellants is that in spite of the adoption of Valia Parvathi and Kunju Menon by the Tekkai Veettu tarwad, they still retained their status as members in their natural family. On this point the main argument is that adoption under the Malabar Law amongst the Nairs, to which community the parties belong, is in the krittrima form, and as according to this form of adoption the adoptee does not lose his rights of, inheritance in his natural family, Valia Parvathi and her descendants are still members of the Pottai Veettu tarwad. According to Moore's Malabar Law there are said to be three kinds of adoption in use in Malabar: (1) adoption by ten hands. This form of adoption is very rarely used except in Brahmin families. It is probably almost identical with the Hindu form of adoption. (2) Adoption by chammata, that is, by burning a pan of sacred grass, (3) Adoption by taking into the family. The last is the form commonly adopted by Brahmin widows and Sudras for the purpose of perpetuating the family when it is in danger of becoming extinguished. The learned, author says:
Whatever religious motive may be attached to the first two modes of adoption the third mode appears to be based on entirely secular motives and to be closely akin to the krittrima form of adoption which is still in force in the Mithila country.
9. To the same effect is the law stated in his Manual of Malabar Law by Mr. Ramachandra Aiyar. Arguments have proceeded on the assumption that the adoption in the present case was of the third type. Both these writers say that this kind of adoption is akin to the krittrima form of adoption, but they do not say, that, in consequence, as in the krittrima form of adoption recognised in the Mithila country, the adoptee in Malabar does not lose her rights in the natural family. It is argued that this conclusion should be accepted by analogy. When they say that this form of adoption is akin to the krittrima form of adoption the two text writers refer to Mayne's Hindu Law. Mr. Ramachandra Aiyar refers to Sections 182 to 187 and Mr. Moore refers to Sections 184: to 190 in the 5th edition. In the latest edition of Mayne, 9th edition, pages 279 to 281 we find the following statement in Section 208:
The systems of adoption in force in Malabar vary according as the adoptive family is governed by the Marumakkathayam or by the Makkathayam rule of inheritance.
10. In Section 209 it is stated that:
Among families which trace descent by sons, three systems of adoption prevail. The first strongly resembled the krittrima.
11. The statement of the law contained in Mayne in the latest edition does not apparently support the statement of the above-mentioned two text writers that the third form of adoption is akin to krittrima form. What the statement of Mayne was in his 5th edition I was not able to gather as that edition is not Available for reference. In the well-known case of Vasudevan v. Secretary of State for India I.L.R.(1887) 11 Mad. 157 the learned Judges commenting on the evidence of the witnesses examined in that case point out that the appointment of an heir to an illom by a Nambudri widow is called krittrima adoption in contradistinction to pattu kayal dattu which is the regular and religious adoption prevalent among the Nambudris. (See page 177.) At page 174 they state that the krittrima form of adoption does not sever the adoptee from his natural family and that 'this is precisely the effect of appointing a person as heir.' When it is said that the krittrima form of adoption prevails amongst the Nairs, does it necessarily mean that the incident that the adoptees does not lose his rights of inheritance in his natural family, which is the consequence of that form of adoption in the Mithila country, should also be the consequence of the adoption in Malabar where the customary law of Marumakkathayam prevails? Their Lordships of the Privy Council observed in Raman Menon v. Raman Menon that:
There is no sacred book or other writing having legal authority, and there is no series of decisions which can be appealed to in order to determine the circumstances under which and the consents if any subject to which the karnavan for the time being can adopt strangers to the family and thereby make them and their descendants heirs to its property.
12. In the same judgment their Lordships observed generally that:
Litigation between Nayars in South Malabar has to be decided according to the laws and usages of these persons. These laws and usages are very peculiar; some of them are so well established as to be judicially noticed without proof. But others of them are still in that stage in which proof of them is required before they can be judicially recognised and enforced.
13. Malabar Law is essentially a customary law. In Veluthakal Chirudevi v. Veluthakal Tarwad Karnavan , it was observed by Sankaran Nair, J., that:
In deciding questions as to customary law (in that case the question related to partition under Malabar law) if there are texts or series of decisions we should follow them; otherwise such a question has to be decided upon evidence.
14. It is admitted that there are no texts explaining the rights of adoptees under the Malabar law. The same in the case with regard to decisions also. As mentioned in Mr. Justice Sundara Aiyar's book at page 31:
As to whether as a rule the persons adopted lose their rights in their natural family or only gain rights in the family into which they are adopted without losing any of those rights, has not yet been finally decided.
15. Then the learned author gives the following summary of the decisions of this Court having a bearing on the point. In Andale alias Shekhara Pisharodi v. Secretary of State (1893) 3 M.L.J. 242 a case relating to Pisharodies, it was contended that the latter wag the effect, but their Lordships held that such a custom was not made out. In S.A. No. 1555 of 1894, the District Judge of South Kanara sent down an issue, to be tried by the Court of first instance whether according to the rule of law and custom in Aliyasanthana families if a woman is adopted she retains her old rights or loses them. The Sub-Judge Mr. Ghandu Menon found that the evidence adduced by the plaintiff to show that women of the caste of the parties adopted into other families did not lose their rights in their natural families, was good so far as it went but was insufficient to establish a custom. He found however that the conduct of the parties and the documentary evidence showed that in that, particular case the adoption did not sever the status, and that as understood by all the parties from, the beginning the adoption conferred on her a status in the new family in addition to that which she had at the time and not in super session of it. In second appeal in giving effect to this conclusion their Lordships repel the argument of the appellants so far as it rested on the analogy of the Hindu Law by referring to Chandu v. Subba I.L.R.(1889) 13 Mad. 209 and observing that even under that law there is the krittrima form of adoption in which the adopter retains his original status to which they liken the adoption, in question. Having regard to the facts of the case the decision of the Travancore High Court in Velayudam Eswaran v. Ramaswami Iyer 7 Travancore H.C.R. 66 cannot I think be extended to cases, of adoption arising in Malabar; at any rate the learned Judges do not purport to base the decision on considerations applicable generally to Malabar as a whole. In the absence of decisions or texts bearing on the point, it is not safe to decide on the mere ground that the adoption in question has been compared to the krittrima form, that the adopted persons do not lose their rights of inheritance in their natural family. When the text writers say that the form of adoption resembles the krittrima form I think what they purport to emphasise mainly is this, that the adoption is based purely on secular motives and that it has no religious significance, and nothing more. As I have said, the law applicable to the case being essentially a customary law, the question can be decided only by having recourse to evidence as to custom in the absence of texts or express decisions of this Court. In neither of the lower Courts was the question raised as to whether according to the customary law of Malabar persons adopted lose their rights in the natural family. The point was raised in the plaint and denied in the written statement. The evidence, such as it is, says the respondents' learned Counsel, does not support the plaintiff's case. However, as the question is an important one, and as the learned Counsel for the appellants says that the appellants are prepared to give evidence on the point, I think this second appeal cannot be satisfactorily decided without calling for a finding from the lower Court on the question whether, according to the form of adoption prevailing amongst the Nair community in Malabar the persons adopted lost their rights in the natural family. It is open to both parties to adduce fresh evidence on this point.
16. The next point raised relates to the dealings of the properties by the adoptees, which it is alleged, will show that they have acquired what may shortly be described as prescriptive title to these properties, even though as a result of the adoption they may have severed their connection with their natural family; and reliance is placed on Vasudeva Padhi Khadanga Garu v. Maguni Devan Bakshi Mahapatrulu Garu . This is the question raised in issues 11 and 13 on which the learned District Munsiff after a detailed and careful examination of the documents gave his finding in paragraph 50 of his judgment which I have already quoted. The learned Subordinate Judge has dealt with the point in paragraph 8 of his judgment somewhat summarily. He says, after referring to the points of attack against the District Munsiff's finding:
With regard to properties belonging to Pottai Veedu, all that the documents show is that an attempt was made to combine the two tarwads so that while Valia Parvathi would retain her exclusive right to the Tekkai Veetu properties she might also gain to have an interest in the Pottai Veetu properties. I fail to see how any estoppel can arise.
17. He does not deal with the question of prescriptive rights considered by the District Munsiff. This part of the plaintiff's case was considered in considerable detail by the learned District Munsiff. That the plea is not an unusual or an unimportant one is clear from the fact that in S.A. No. 1585 of 1894 Mr. Chandu Menon though he found that there was no evidence to support the custom that the adoptees did not lose their rights in their natural family, yet held that 'the conduct of the parties and the documentary evidence showed that in that particular case the adoption did not sever the status' and the High Court accepted the finding. The Subordinate Judge has set aside the finding of the District Munsiff on what appears to me a very meagre consideration of the question. I would therefore ask the lower Court to submit a fresh finding on the question raised in issues 11 and 13 after discussing the evidence already on record. Mr. Anantharamier on behalf of the respondents says that even if the Subordinate Judge comes to the same finding as has been arrived at by the District Munsiff, still the plaintiff cannot in law claim right to the Pottai Veetu properties on account of any such ground as estoppel or prescription. This question may be argued after the receipt of the finding. As all the evidence on this point has been already adduced, I allow no fresh evidence.
18. In case the lower appellate Court finds that the plaintiffs are entitled to claim maintenance, the learned Subordinate Judge will record a finding as to the rate and amount of maintenance that may be claimed by them from all the suit properties. The learned District Munsiff has given his finding on this question but the Subordinate Judge has not considered it. To avoid any further remand the lower appellate Court will also record a separate finding as to what amount of maintenance the plaintiffs may claim from items 1 to 12 alone.
19. Whether the plaintiffs'can in this suit claim maintenance at least from the admittedly Puthravakasam properties items 1 to 12 in any event, will be considered if necessary after the receipt of the findings.
18. Findings will be submitted within a month after the reopening of the High Court after the midsummer recess. Time for objection ten days.
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20. The case coming on for final hearing after the finding the Court made the following,