P KRISHNAN EMBRENDIRI Vs. P KESAVAN EMBRENDIRI

JUDGEMENT

(1.) This civil miscellaneous appeal is directed against an appellate order of the court below, which set aside the decree of the Trial Court and remanded the suit for fresh disposal, in the light of the observations contained in it.

(2.) The suit was for partition and recovery of the plaintiffs one-third share in the schedule properties. According to the plaintiff, the community of Embrandiri Brahmins to which the parties belonged was governed by the Mitakshara Hindu Law; so the plaintiff was entitled to an equal share along with his two brothers the defendants 1 and 2. The 1st defendant who was the eldest of the brothers and as such the family Kartha, resisted the plaintiffs claim on the basis inter alia that the parties were Malayali Brahmins forming members of an illom governed by the Madras Nambudiri Act, 21 of 1933 and the properties of the illom could be partitioned, if at all, only under the provisions of that Act. He contended, that in this view the remaining members of the illom, viz., his wife and five children were necessary parties to the suit. The 2nd defendant supported the plaintiffs case and claimed division for himself.The question of the personal law governing the parties, which arose on the contentions of the parties as above, was the subject matter of Issue 1 as follows:

(3.) The plaintiff as Pw. 1, gave evidence on the above issue that the ancestors of the parties migrated from the northern part of the District and settled at Pullur some years ago, that they continued to follow the Mitakshara law of inheritance and, had not adopted the customs and usages of Nambudris. In this he was supported by Pw. 2 who was also an Embrandiri. The 1st defendant as Dw. 1 however testified that the customs and usages adopted by their ancestors were entirely different from those of the followers of the Mitakshara law but on the other hand were in many respects the same as those of the Nambudris notwithstanding that they were still calling themselves Embranthiris. They must according to him be governed by the Nambudri Act. He also produced Ext. B-2 judgment dated 30-6-1942 in O. S.384 of 1940 on the file of the District Munsiff, Kasargod, to show that their distant kinswoman of the Vadakkey Puthi Illom and from whom in fact they got items 6, 8, 9, 10 and 15 in due course of inheritance, had been held to be governed by the Nambudri Act.