THALIYIL MANAYIL PARAMESHWARA TIRUMUMPA Vs. VALIA NARAYAN TIRUMUMPA

JUDGEMENT

(1.) Mr. Sivarama Menon for the appellant wants to contest the correctness of the decision in Govindan Nair V/s. Sankaran Nair 2 Ind. Cas. 183 : 32 M. 351 : 6 M.L.T. 106 : 19 M.L.J. 350. That decision was followed by me and Mr. Justice Spencer in Vazhayil Abuvakkar v. Kunhikuttiyali 74 Ind. Cas. 27 : 16 L.W. 768 : 31 M.L.T. 389 : A.L.R. 1923 Mad. 153. I am not prepared at this stage to refer the appeal to a Bench on the ground that the decision in Govindan Nair V/s. Sankaran Nair 2 Ind. Cas. 183 : 32 M. 351 : 6 M.L.T. 106 : 19 M.L.J. 350 should be re-considered.

(2.) There is another point in the appeal which requires consideration. The parties belong to a class of Nambudiris who have adopted to some extent the Marumakkathayam Law. The appellant asked the lower Court to take evidence on the question of custom obtaining in the class of Nambudiri families to which the parties belong of the self-acquisition of a male member devolving upon the tavazhi and not upon the tarwad in case he dies intestate. This point was neither raised in the pleadings nor in the trial Court and the District Judge who heard the appeal did not think it necessary to call for a finding upon the alleged custom. Considering the fact that this class of Nambudiris has adopted to some extent the Marumakkathayam Law, the question is whether the whole of the Marumakkathayam Law is applicable to them. It is stated that the males in the families contract lawful marriages. Seeing that there is some departure from the ordinary incidents of Marumakkathayam Law in the case of these Nambudiris, I think it would be best in the interests not only of the parties to this litigation but in the interests of the whole of this class of Nambudiris to call for a finding on the alleged custom. The appellant will pay the costs of this inquiry in any event to the respondents, as he did not raise the point in the trial Court. The District Judge will, there, record a finding on the following issue: Is there a custom in the Payyanoor Nambudiri families by which the self-acquisition of a male member dying intestate devolves upon his wife and children and in the absence of wife and children upon the tavazhi and not as in the case of ordinary Marumakkathayam families upon the tarwad.

(3.) Time for return of findings is two months and seven days for objections.