TACHOOR POONKUZHI ILLATH KESAVAN UNNI, MINOR, BY HIS GUARDIAN, HEAD CLEARK OF THE THE DISTRICT MUNSIF S COURT; TACHOOR POONKUZHI ILLATH DEVAKI ANTHERJANAM Vs. NICHOLAS

JUDGEMENT

(1.) There were three members in the Tachoor Poonkuzhi Illom, Narayanan and two women. They executed Exhibit IV in favour of one Damodaran whereby they constituted Damodaran their heir and stipulated that Damodaran should marry and beget issue for their Illom to succeed to the Tachoor Poonkuzhi Illom on the death of Narayanan. Damodaran married accordingly, and the 6th defendant, a female child, was born as the result of the union. Narayanan s wife having subsequently given birth to a male child, there were differences amongst the parties and a release was executed in Narayanan s favour by Damodaran, on his own behalf and on behalf of the minor 6th defendant, and by his wife, whereby they renounced all interest in the properties of the Tachoor Poonkuzhi Illom in consideration of a sum of Rs. 18,000 partly paid and partly promised by the father of the plaintiff in this suit. The plaintiff s father who advanced this sum at the request of Narayanan, obtained a mortgage from Narayanan arid the two women of his Illom. The mortgage is impugned as invalid and several questions are argued. But before dealing with them, it is essential to know whether. Exhibit IV is valid and operates to affiliate the offspring of Damodaran whether male or female. It appears to have been assumed in the Courts below that the affiliation was valid. No case has been cited to us where the question has been decided when the affiliation was made not by the sole surviving member of the Illom but as here by a male member and the two women. Our attention was drawn to two cases where the affiliation was made by two women but no question was then raised or decided as to the validity of such affiliation and it may be that those cases stand on a special footing as only one of the women might have been regarded as entitled to the Illom property. Before disposing of the second appeal, we think it necessary to have findings on the following issues: (1) Whether according to the usage amongst Nambudris, the members of an Illom, consisting of one male and two female members, may validly affiliate another by requiring a member of another Illom to marry and beget issue for the first Illom? (2) Whether female issue born of such marriage would be validly affiliated as members of the first Illom?

(2.) Fresh evidence may be taken on both sides. The Judge should examine witnesses he may see fit to call in addition to the evidence which the parties may adduce. The findings should be submitted within three months from this date and seven days will be allowed for filing objections to the said findings.

(3.) In compliance with the order (after recording and discussing evidence contained in the above judgment), the Subordinate Judge of South Malabar at Calicut submitted the following FINDINGS My findings on these issues referred to me for trial are: (1) That according to the usage amongst the Nambudris, the members of an Illom, consisting of one male and two female members, cannot validly affiliate another by requiring a member of another to marry and beget issue for the first Illom unless he or the lady proposed to be married to him is previously made legally an heir of the aforesaid Illom; and. (2) that the female issue born of the marriage would be validly affiliated if the condition laid down by me in connection with the fist issue is fulfilled. These second appeals coming on for final hearing, on Thursday and Friday the 21st and 22nd days of March 1912, and having stood over for consideration till this day, the Court delivered the following JUDGMENT