KANAKAMBAL Vs. LAKSHMIKUTTY AMMA

JUDGEMENT

(1.) This second appeal is directed against a preliminary decree for partition of a half share of the suit properties for the plaintiff, passed by the District Judge, Palghat, reversing the decree of the Munsiff, Alathur, dismissing her suit. The properties belonged to one Subramanya Pattar, a brahmin, a non marumakkathayee. In the year 1082, he married the plaintiff's mother Kalliani Amma, a marumakkathayi woman who lived in Trichur in the former Cochin State, and the plaintiff was born in the year 1084. The properties are situated in Palghat district which formed part of the former Presidency of Madras, and later of the State of Madras as it was before the reorganisation of States. Subramanya Pottar's marriage with Kalliani Amma was dissolved in the year 1087 and afterwards he married the first defendant, a woman of his own caste. He died in the year 1129.

(2.) S.30 was contended to be inapplicable, for the reason that at the time the succession opened, the plaintiff was not a marumakkathayi, because she was then governed, not by the Marumakkathayam Law but by the Cochin Nair Act which was in force at the time, and that she was not in the State of Madras. The contention is palpably unsound. The Act has by S.3(e) defined, marumakkathayam as "the system of inheritance in which descent is traced in the female line" and by S.3(f), a marumakkattayi as ''a person governed by the Marumakkathayam law of inheritance.'' The plaintiff fulfils this condition. The Cochin Nair Act of 1095 has, as the Madras Marumakkathayam Act also has done, only defined and amended in certain respects the law relating to marriage, intestate succession, partition etc., applicable to persons governed by the Marumakkathayam Law of inheritance and for that reason alone, it is futile to contend, that the plaintiff was not a marumakkathayi. The Cochin Nair Act of 1113 was enacted only to consolidate and amend the earlier enactment. There is nothing in S.30 which makes it necessary, that the marumakkathayi should also belong to the State of Madras and it is on S.1(2) of the Act, that the decision of this part of the case depends.

(3.) S.1(2) is in the following terms :