PUZHAKKATTOORAKAYIL KARUVAYOOR RAMAN MOOSAD S SON KARNAVAN ANDMANAGER STANAM NARAYANAN MOOSAD Vs. PUZHAKKATTOORAKAYIL KARUVAYURRAMAN MOOSAD S SON RAMAN MOOSAD

JUDGEMENT

(1.) The respondent, a Nambudri Brahmin, applied to the lower Court for leave to file the suit in question in forma pauperis, the object of the suit being the removal of the karnavan of his illom. The leave having been granted, the lower Court's order is attacked by the first defendant, the karnavan. The plaintiff (the respondent) is not represented in this Court, but at my request Mr. B. Sitarama Rao has argued the case as amicus curiae and I am indebted to him for his lucid and careful argument.

(2.) The karnavan objects that the plaint does not disclose a cause of action and that therefore under Order 33, Rule 5 of the Civil Procedure Code the lower Court ought not to have permitted the plaintiff to sue as a pauper. His learned Counsel's contention is that the right to demand partition, which a Nambudri Brahmin possesses in virtue of the recent Madras Nambudri Act (Act No. XXI of 1933), is inconsistent with the continued existence of a right to bring a suit for the removal of a karnavan. He rests his argument on the well-known maxim, " The reason of the law ceasing, the law also ceases". True, the right to demand the removal of a karnavan was consequent upon, and resulted from, the incident of impartibility, which attached to the property of a Nambudri illom. Says Mr. Justice Sundara Aiyar in his Treatise on the Malabar and Aliyasantana Law, page 104: At the same time it ought not to be forgotten that the junior members not being entitled to partition or even to call upon the karnavan to account, it is but right they should be entitled at least to see that the tarwad affairs are managed by a proper person. Courts should not hesitate to exercise their jurisdiction, when it is clear that the interests of the tarwad require the removal of the karnavan.

(3.) But the question depends not upon any abstract principles but on the definite provisions of the Nambudri Act, which make it clear beyond doubt that except where the law has been expressly altered, the previous law applies. First, the preamble shows that only " in certain respects " the law has been amended, and it makes mention of the five topics with "which the Act deals, namely : (1) family management, (2) marriage, (3) guardianship, (4) intestate succession and (5) partition; it is in regard to each of these matters that the preamble says that the law has been denned and amended " in certain respects " only.