KESAVAN EMBRANTHIRI Vs. KRISHNAN EMBRANTHIRI

JUDGEMENT

(1.) The petitioner is the 1st defendant in O.S. 309/54 on the file of the Munsiffs Court, Hosdrug. The suit was filed by his brother for partition of joint family properties. The plaintiff alleged that the community of Embrandiries to which the parties belonged was governed by Hindu Mithakshara Law and that he was entitled to an equal share along with his brothers defendants 1 and 2. The 1st defendant on the other hand contended that the parties were Malayalee Brahmins constituting an Illom governed by the Madras Namboodiri Art.21 of 1933, and the properties if partible at all, could be partitioned only under the provisions of that Act, in which case the plaintiff is not entitled to 1/3rd share, and his wife and children should necessarily be impleaded. On this contention an issue was raised whether the plaintiff and defendants were governed by Mithakshara Law or the Namboodiri Act of 1933.

(2.) The learned Munsiff found that the parties were governed by Hindu Mithakshara Law and granted a preliminary decree for partition of the plaintiffs 1/3rd share. The 1st defendant went up in appeal and the Subordinate Judge of Kasargode reversed the finding of the Trial Court and held that the parties were governed by the Madras Namboodiri Act of 1933. The suit was remanded for fresh disposal after impleading the wife and children of the 1st defendant.

(3.) Against this remand order the plaintiff appealed to this Court in C.M.A. 132/57, and the finding of the learned Subordinate Judge was reversed on the ground that Embrandiries were not included within the scope of the Madras Namboodiri Act of 1933. However, on the plea of the first defendant, that though not specifically mentioned in the written statement, he had a contention that in so far as the parties had been following the customs and usages of the Namboodiries, the customary law of impartibility which governed Namboodiris before the passing of the Madras Namboodiri Act must be held to apply to them also, this court was pleased to give the first defendant a chance to raise this contention specifically by amending his written statement. The case was remitted for fresh disposal raising the additional issue on that plea.