OMAN PANDALA AMBU PANDALA Vs. KESAVARU SAMBHUVARU

JUDGEMENT

(1.) IN these four cases a common question arises for decision, namely, whether Pandalas domiciled in Travancore are governed by the Travancore Kshatriya Act VII of 1108 or by pure Marumakkathayam Law. The appellant in all of them is one Omal Pandala Ambu Pandala. According to sub-s. (3) of S. 1 of the Travancore Kshatriya Act VII of 1108 the said Act applies to all Malayala Kshatriyas, excluding the members of the Royal Family of Travancore, and to such Kshatriyas not so domiciled, and non-Kshatriyas, whether so domiciled or not, as have, or shall have, marital relations with Kshatriyas domiciled in Travancore; and according to S. 26(1)(b) of the said Act when a Malayala Brahmin who has no caste wife and children dies leaving behind him a Kshatriya widow or widows and children his self-acquired and separate properties have to be taken equally by the Kshatriya widow or widows and children and his Illom. The appellant claims that Pandalas are a sub-caste or section of Malayala Kshatriyas and are governed by the Travancore Kshatriya Act. His case is that he is the lawful son of one Kesavaru Vasudevaru, hereinafter referred to as Vasudevaru, a Malayala Brahmin, who had no caste wife, and that on the death of the said Vasudevaru his (Vasudevaru's) brothers executed on behalf of their Illom an udampady, Ext. VIII, in favour of the appellant and his mother giving to them some of his self-acquired and separate properties in lieu of the share they were entitled to get as his son and widow. One of these Second Appeals, S.A. No. 446 of 1951, arises out of a suit O.S. No. 164 of 1112 of the Chengannoor Munsiff's Court, brought by a junior member of Vasudevaru's Illom for setting aside the udampady, Ext. VIII. That suit was decreed by the trial court, and the trial court's decree was also confirmed by the lower appellate court. S.A. No. 448 of 1951 arises out of a suit, O.S. No. 35 of 1117 also of the Chengannoor Munsiff's Court, brought by the appellant for declaration of title to and recovery of possession of one of the properties comprised in Ext. VIII. The said suit was resisted by the plaintiff in O.S. No. 164 of 1112 and was dismissed by both the courts below. The appellant and his mother had also obtained under Ext. VIII the rights in respect of a hypothecation bond taken by Vasudevaru. IN the proceedings instituted by the hypothecator for discharging the said hypothecation bond by payments in instalments under the Debt Relief Act, D.R.P. No. 946 of 1116 of the Chengannoor Munsiff's Court, one of the junior members of Vasudevaru's Illom claimed that the amount was due to his family, and the appellant claimed that the amount was due to him and his mother. The decisions of the courts below in this matter also went against the appellant and his mother, and S.A. No. 447 of 1951 is the Second Appeal filed against those decisions. After Vasudevaru's death both the appellant and the father of the plaintiff in O.S.No.164 of 1112 applied to get themselves impleaded as Vasudevaru's legal representatives in a suit filed by him, namely, O.S. No. 1617 of 1110 of the Chengannur Munsiff's Court. IN that suit the appellant's application was allowed and the application of the father of the plaintiff in O.S. No. 164 of 1112 was dismissed. Thereupon the father of the plaintiff in O.S. No. 164 of 1112 filed a suit, O.S. No. 112 of 1113 of the Chengannur Munsiff's Court, for setting aside the order in O.S. No. 1617 of 1110 impleading the appellant as additional plaintiff therein. O.S. No. 112 of 1113 was decided by both the courts below against the appellant, and S.A. No. 449 of 1951 is filed against the concurrent decrees in that suit.

(2.) THERE is a recent decision of a Division Bench of this Court to which one of us, M.S. Menon, J., was a party, Narayanan Pandala v. Sankunni Pandala, 1955 KLT 248, to the effect that Pandalas are Malayala Kshatriyas and are governed by the Travancore Kshatriya Act. In that case no person interested in making out that Pandalas are not governed by the Kshatriya Act and are governed by pure Marumakkathayam Law had entered appearance in this Court, and the case was argued on behalf of the respondents by counsel appearing as amicus curae at the court's request. THEREfore, when these second appeals came up for hearing before another member of this Bench sitting as a Single Judge counsel for both sides requested that in view of the importance of this question of law and the fact that the respondents had not entered appearance in Narayanan Pandala v. Sankunni Pandala, 1955 KLT 248, these cases might be referred for decision by a Full Bench, and they have accordingly been referred to the Full Bench. S.A. No. 446 of 1951

(3.) THE trial court found that the mortgage right in respect of A schedule property and the hypothecation bond comprised in Ext. A were the self-acquired and separate properties of Vasudevaru and that the equity of redemption was the self-acquisition of Narayanan Namputhiri. But it upheld the plaintiff's case that the appellant's mother and the appellant were not the wife and son of Vasudevaru and that they were not governed by the Kshatriya Act, and decreed the suit in terms of the plaint without adverting to the contention that Ext. VIII was not liable to be set aside so far as the gift of the equity of redemption to the appellant's mother and the appellant was concerned. In the appeal which the appellant filed against the trial court's decree the lower appellate court held that Vasudevaru and legally married the appellant's mother and his marriage with her was subsisting till the year 1079, that the appellant was born during the subsistence of this marriage, and that he was therefore Vasudevaru's lawful son. Nevertheless, it confirmed the trial court's decree holding that Pandalas are governed by pure Marumakkathayam Law and not by the Travancore Kshatriya Act and that on Vasudevaru's death his self-acquired and separate properties devolved on his Illom and the appellant and his mother were not entitled to get any share in those properties. THE question of the validity of the gift of the equity of redemption made under Ext. VIII was not considered by the lower appellate court also.