PADMANABHAN MOOSAD Vs. PARVATHI MANAYAMMA

JUDGEMENT

(1.) THIS appeal is by defendants 2 to 10 in a suit for partition of Iringayikot Illom of Moosads, governed by the Nambudiri Act. On November 17,1902 , the only members in the illom were two ladies, Parvathi Manayamma and her daughter Savithri manayamma who is the 1st defendant in this suit. The 1st defendant had, long before that date, been married to Narayanan Moosad of Sayanampra Illom and would, under normal conditions, have been a member of that Illom, and not have continued a member of the illom of her parents. But, Ext. BI executed by parvathi Manayamma in favour of the 1st defendant on the aforesaid date recites: Evidently, these recitals recognise the 1st defendant to have subsisting rights in the illom of her birth in spite of her marriage; in other words, that the marriage was solemnized in such a way as to perpetuate the illom through her. All text-books on the law of Nambudiris mention of a particular form of marriage recognized in the community known as 'sarvaswadanam'. When an illom is on the verge of extinction, a girl of the illom is married to a member of another illom in Sarvaswadanam marriage, so that her sons may be members of the illom of her parents to perpetuate it. Sundara iyer's 'malabar and Aliyasanthana Law', at pages 226-227, describes it thus: "sarvaswadanam marriage is referable to the ancient hindu Law which authorised the appointment of a daughter or her male child as the legitimate son of her father for purposes of funeral obsequies and of inheritance. The formula used in that form of marriage is a text of Vasishta which is as follows: 'i give unto the this virgin (who has no brother) decked with ornaments and the son who shall be born of her shall be my son'. It is the special agreement between the bride's father and her husband that distinguishes sarvaswadanam from the ordinary marriage. So long as there is the prospect of a son being born she and through her, her husband hold the property in the event of her parent's death in trust for the heir-in-expectation and if she becomes a widow and the prospect of a male child fails, her legal position is that of a daughter who is retained in the father's family for the purpose of raising up an heir to it instead of, as is ordinarily the case, being transferred to her husband's family. . . It is apparently only the eldest son that enters the illom of the maternal grandfather and not the subsequently born ones. . . " The text of Vasishta Smrithi, referred to in the above passage is: Table:#1 means 'to me' and not 'my'. ] So the correct translation would be: I give to you in marriage my daughter, a brotherless virgin, decked with jewels, (on condition that) whoever is born in her a son shall become a son to me (to perpetuate my line ). Sundara Iyer's observation that apparently only the eldest son becomes a member in the mother's father's family is not borne by this text. The expression "whoever is born in her a son" would, in my opinion, cover all her sons. Whenever a son is born to her he becomes a son of her parent's illom. I may also observe here that the use of the word "heir" for a son of a Sarvaswadanam marriage is not happy, because if the daughter given in Sarvaswadanam marriage continues as a member of her father's family to beget sons to perpetuate the family no question of succession would arise. When ancestral property descends from a father to a son in Hindu Law, it is not succession, but only survival that takes place.

(2.) HERE, it is agreed between the parties that if the plea of the 1st defendant's marriage in Sarvaswadanam form is accepted, not only her first son, but both her sons would be members of the Iringayikot Illom. As Parvathi Manayamma had repeatedly admitted in Ext. BI that the 1st defendant had a subsisting right in the illom in spite of her marriage to a member of another illom, the expression Ahimin in ext. BI in reference to the 1st defendant can only mean 'a member', which implies her marriage in Sarvaswadanam form in vogue in the community. Though the 1st defendant in Para. 2 of her written statement denied the plaint averment of her marriage in Sarvaswadanam form, her assertion in Para. 4 of her written statement gives the lie direct to that denial. 4. Even the observation of the learned author, Sundara iyer, is not to the effect that any one son of a Sarvaswadanam marriage may become an heir to the family: he referred "apparently" to "the eldest son" alone. If the understanding at the 1st defendant's marriage, as stated by the 1st defendant in Para. 4 of her written statement, was that she should continue in the illom and be the progenitress of the illom so that her son should continue the illom of her parents, her marriage could not have been otherwise than in the Sarvaswadanam form. I accept the finding of the Courts below that the marriage of the 1st defendant was in the Sarvaswadanam form. It then follows, as one of its consequences, that her sons are members of the illom.