KRISHNAN EMBRANDIRI Vs. KESAVAN EMBRANDIRI

JUDGEMENT

(1.) THE appellant before me in the S.A.is the plaintiff in a suit for partition.Originally there were only 2 defendants in the suit.Defendants 3 to 7 were later on added as additional defendants.Plaintiff and defendants 1 and 2 are,according to the plaintiff,members of a Hindu Mithakshara family,first defendant being the manager.The plaintiff is entitled to 1/3 and defendants 1 and 2 are together entitled to the remaining 2/3.The main dispute between the parties is about the law governing the plaintiff and defendants.According to the first defendant,their family is not governed by the Hindu Mithakshara law,but the law governing Namboodiris,since their family has settled down in Hosdrug at a village called Pullur and adopted the customs,manners and usages,including the custom of impartibility.Therefore according to the first defendant,the suit for partition would not lie as partition cannot be had except by mutual consent.The second defendant supported the case of the plaintiff.

(2.) IT may be necessary to refer to certain facts which are pertinent to the disposal of the case.The parties are Havik Brahmins of South Kanara District formerly forming part of the Madras State,but now forming part of the Kerala State as also part of the Mysore State.They migrated to Hosdrug in North Malabar and settled down there.Whatever might be their law before such migration,according to the first defendant,they have adopted the usages of Namboodiris and their customs and manners.There are several such families of Havik Brah­mins,who,according to the first defendant,have so adopted the customs of the Namboodiris.Though they are not Namboodiris as such and they call themselves by the name Embrandiris they observe all the religious rites that Namboo­diris normally observe.To a certain extent the parties to this case are agreed in this.Even the plaintiff,who,contends that they are still fol­lowers of the Hindu Mithakshara law,admits that certain customs which are peculiar to the Namboodiri families have been adopted by Embrandiris who are settled down in and around Hosdrug.I may refer to some of such manners,customs and usages adopted by the family of the plaintiffs and other Havik Brah­mins settled down in Hosdrug.Normally the Brahmins of South Kanara both Sivalli and Havik have their tuft at the back while Nam­boodiris have their tuft in front.The plaintiff 's family had adopted the custom of Namboodiris in this regard.They wear white dresses,males as well as females as in the case of Namboodiris though South Kanara Brahmins have no objec­tion to wear coloured dresses and their females would not wear white dress.Their women are called as Antharjanams which is peculiar to Namboodiris and they observe a sort of pardha by carrying cadjan leave umbrellas whenever they go out.Their widows do not shave their heads on the death of their husbands though in the case of South Kanara Brahmins the custom is otherwise.At the time of marriage the 'tali 'is tied in a white thread on the bride 's neck whereas in the case of Brahmins of South Kanara what is worn is 'karimani 'or black beads.Among Namboodiris till recently it was custo­mary only for the eldest member in the family to marry leaving the other members to enter into marital relations with members belonging to Nair community.This custom too is said to have been adopted by plaintiff 's family.Among Namboodiris the 'samavarthanam 'for a brahmachari after 'upanayanam 'is to be conducted three years after the 'upanayanam 'and during all these three years he has to wear along with the sacred thread a leather belt made of 'Krishnanjanam ' ;.Among other Brahmins 'samavarthanam 'is conducted just before mar­riage and until 'samavarthanam 'a small piece of leather alone need be worn in the sacred thread itself.This custom of the Namboodiris too is said to have been adopted by the plaintiff.There is a custom among Namboodiri ladies that after the monthly periods,to get purified,they must wear a cloth brought by vannathi.This custom is absent among Brahmins of South Kanara.Among Namboodiris the sradha is performed according to the star (..[VERNACULAR TEXT OMITTED].. while among South Kanara Brahmins this is according to thithi (..[VERNACULAR TEXT OMITTED].. These are some of the very prominent features of distinction between Nam­boodiris on the one hand and the South Kanara Brahmins on the other and all these customs and usages have been adopted by the plaintiff 's family and it is,therefore,the first defendant says,that it must be taken that the law of impartibility of Namboodiris also must be taken to have been adopted by them.I have already referred to the two of the classes of Brahmins in South Kanara who have settled down in various parts of Kerala,Sivalli and Havik.It is the Havik Brahmins who seem to have adopted the customs of Namboodiris easily.The Sivalli Brahmins are not shown to have adopted the cus­toms and manners of Namboodiris or even to have adopted the language Malayalam for their daily use among members,of the family,even those who have settled down in Kerala.They still normally speak the language Tulu.It was contended in an earlier stage of the suit that because of the adoption of customs of Namboo­diris the Embrandiris come,within the definition of Namboodiris under the Madras Namboodiri Act,21 of 1933.That Act applies only to Namboodiri Brahmins.But by section 27 of that Act the provisions of that Act are made applicable to the communities of Adikal,Elayaths,Moosaths,Pidarans and Nambissans who follow customs and usages similar to those of Namboodiris.This case of the 1st defendant came up once to this court in second appeal.The decision is reported in P.Krishnan Embran­diri v. P.Kesavan Embrandiri ,1958 K.L.T.315.There the case of the 1st defendant was found against.It was found that the plaintiff 's family has adopted the customs of Namboodiris coming within the scope of the Madras Namboodiri Act,21 of 1933.But it was held that the Madras Nam­boodiris Act would not apply to Embrandiris even if they adopt the customs and usages of Namboodiris.The communities,who,by adoption of such customs and usages can come within the scope of that Act are mentioned in section 27 of that Act and Embrandiris being not one of them the Act will not apply to them.It would have been sufficient for the disposal of this case,but for a Prayer of the first defendant that he had a case that though governed by the Hindu Mithakshara law it is open to a party to show that such law had been modified by custom and it is their case that the custom relating to impartibility prevalent among Namboodiris has been adopted by the family of the plaintiffs.This court permitted such a contention to be raised and directed the trial of the case based upon such a contention and for that further pur­pose sent the case back to the trial court.It was so raised.But soon thereafter the Kerala Namboodiri Act,1958 came into force and the plain­tiffs thereupon again moved the court for an amendment to avail of the benefit of that Act,as according to the first defendant it was suffi­cient to show that their family followed the customs,manners and usages of the Namboo­diris to bring them within the scope of that Act.Though that amendment was refused,the matter came up to this court in revision at the instance of the first defendant and this court directed that the amendment should be per­mitted to be carried out.That decision is reported in 1959 K.L.J.390.The matter went back and the court has again considered the question.The trial court held that the parties are governed by the Kerala Namboodiri Act and gave the plaintiff a decree for partition regarding his share of 1/8,as according to that Court all the defendants were entitled to a share each.The appellate court confirmed this and hence this S.A.by the plaintiff.I may refer shortly to the legislative history of section 2(f)of Kerala Namboodiri Act,1958.

(3.) IN the present case,I am prepared to agree with the counsel for the respondent that he has succeeded in showing that the family of plaintiff has adopted certain customs,usages and manners of Nambudiris.I have already made reference to these and enumerated them also.If the question could have been decided merely on the application of Kerala Namboodiri Act,1958,I should have accepted the case of the first defendant.But according to me,there is another question which has been raised in the replication filed by the plaintiff in answer to the amended written statement.According to the plaintiff the Kerala Namboodiri Act,1958 having come into force only in 1958 and the plaintiff having sought partition much earlier and thereby having become divided in status,his share must not be affected by the Kerala Namboodiri Act 27of 1958.If the parties to the suit were governed by the Hindu Mithakshara Law until the Kerala Namboodiri Act came into force,then the plaintiff,as one of the three brothers,was entitled to sue for partition and seek 1/3 share and he would become separate from the other members on the date of filing the suit.In that event his share would not be affected by any subsequent enactment which conferred right to the female members also.If on the other hand it is found that the family of the plaintiff though governed by the Hindu Mithakshara Law until the commencement of Kerala Nambudiri Act,1958 had adopted the custom of impartibility also,then plaintiff 's suit should have failed.If it is to be allowed only because of the subsequent event,namely the passing of the Kerala Namboodiri Act,1958 which gave him a right to partition,the share that he will be entitled to would be only 1/8.There cannot be a third case.The learned counsel for the respondent very strenuously urged before me that the Kerala Namboodiri Act,1958 came into force before the decision of the case and the law relating to the parties having been settled only at the time of disposal of the suit plaintiff cannot claim any specific share as on the date of suit and his share must be determined with reference to the provisions of the Kerala Namboodiri Act,1958.Alternatively he contended that the Kerala Namboodiri Act,1958 is a declaratory statute declaring the law of the parties who come within the scope of the Act and therefore even before the Act came into force,it must be taken that the provisions of that Act must be appli­cable.I regret I cannot accept either of these contentions.The court,by deciding the suit,is not laying down the law for the parties,but only applying the law which governed the parties as on the date of the suit duly taking note of subsequent legislations if there is any change in the law.Therefore if the court now finds that on the date of suit the plaintiff was a follower of the Hindu Mithakshara law pure and simple,then the right of the plaintiff would be that available to a member governed by that law and that right being to claim division per stirpes,he could claim 1/3 share and on the filing of the suit he becomes divided in respect of his 1/3 share.Once he is divided any subsequent legis­lation will neither augment or reduce his share and though the question of the applicability of the Kerala Nambudiri Act will have to be considered in determining the shares of those who have not claimed partition before the com­ing into force of the Act,it may not be necessary for considering the share of the plaintiff.I cannot agree that the Act is declaratory of the law.The Act is not retrospective in character;but only prospective.Therefore the only ques­tion that now remains to be considered is whether the plaintiff 's family is governed by Mithakshara Law or whether it is governed by the law as modified by the custom of impartibility.