V.P.GOPALAN NAMBIYAR,J. -
(1.) THIS appeal raises an interesting question as to whether the plaintiff -appellant is a 'Nayar 'under the Travancore Nayar Act of 1100,entitled to claim partition thereunder.It was ruled by the court below that she was not.She has preferred this appeal.
(2.) THE appellant is the youngest child of her parents,one Narayanan Ayyappan who died in 1951,and his wife Paru who died in 1964.Defendants 1 to 4 are her brothers,and defendants 5 and 6,her sisters.Defendants 7 to 10 were impleaded as persons in possession of some of the properties.After the death of Ayyappan in 1951,the plaintiff,defendants 2 to 6,and their mother executed a power of attorney(Ext.A -1,dated 9th May 1963)to the 1st defendant.On the strength of the said document,a sum of Rs.10,685.00 due as compensation under certain land acquisition proceedings in respect of properties to which the parties were entitled,was withdrawn by the 1st defendant.Defendants 1 to 4 obtained two release -deeds Ext.A -3,dated 5th June 1965 from the 6th defendant,and Ext.A -2,dated 10th June 1965 from the 5th defendant,for Rs.4,000 each.It was alleged that the consideration for these release -deeds came from the land acquisition amounts obtained by the 1st defendant in pursuance of Ext.A -1,and that therefore the rights obtained under these release -deeds,should enure for the benefit of the plaintiff as well.On this basis,she claimed partition of a one -fifth share in the properties.She also sought an account of the profits from the properties from the 1st defendant.The suit was filed on 5th May 1970.The main defence to the suit was that the parties belonged to the sect or caste known as 'Pranopakaris 'following Mithakshara Law as modified by custom;and that according to the custom of the community,the daughters have to be provided sthreedhanam at the time of their marriage and are not entitled to inherit the estate of their deceased father in the presence of the sons.The plaintiff,it was said had been provided Sthreedhanam at the time of her marriage,as also defendants 5 and 6;and therefore it was contended that none of them were entitled to rights in the properties of Narayanan Ayyappan,which were the properties sought to be partitioned in the suit.This plea of the defendants was accepted by the court below,and the plaintiff's suit was dismissed.On the merits,the court below on Issue 9 entered a finding that the release -deeds Exts.A -2 and A -3 will enure for the benefit of the estate of the deceased Ayyappan.In view of the finding that the plaintiff is not entitled to seek partition under the Nayar Act,the court below held on Issue 5 that the defendants are not liable to account,and,that,if necessary,the accounting will be done at the final decree stage.
The question that was elaborately argued before us in this appeal,was whether the plaintiff was entitled to claim partition under the Travancore Nayar Act,1100.Counsel for the contesting respondents argued that the issue framed in the case had not sufficiently highlighted this aspect,and therefore it would be unfair to consider the question whether the plaintiff is a Nayar governed by the provisions of the Travancore Nayar Act.Issues 1 and 2 are: "1.What is the customary law governing the parties?
2.Is the plaintiff entitled to any share? " ;. In proceedings to discuss these issues,the court below in paragraph 6 stated thus:
"6. Issue Nos.1 and 2 ."The basic matter to be decided in this case is the law governing the parties.For that,the caste and personal law,if any,of the parties have first to be ascertained.The plaintiff's plea regarding this matter is contained in para 1 of the plaint which reads as follows:"
'The plaintiff and defendants 1 to 6 are the children of deceased Narayanan Ayyappan and Paru and are Vilakkathala Nairs governed by Travancore Nair Act(Act 11 of 1100 M.E.) ' ;.
This has been denied in para 3 of the written statement filed by defendants 1 to 4.Para 3 of the written statement reads as follows:
'The relationship of the parties stated in para 1 of the plaint is admitted.But the averments that the parties are Vilakkathala Nairs governed by the Travancore Nair Act,1100 is denied.The plaintiff and defendants 1 to 6 belong to a community known as 'Pranopakari ' ;,a section of the barber community.The members of the said community had domiciled in Travancore from Tamilnad and formerly they were following purely tamil customs in all their ceremonies.They follow Hindu Mithakshara Law as their customary personal law by which daughters are not entitled to a share as of right in the assets of the father ' ;.
It would be found from the pleadings that the plaintiff's case is that the parties are governed by the Travancore Nair Act whereas the defence case is that the parties are governed by Hindu Mithakshara Law as modified by custom " ;.
There can be little doubt that attention had been sufficiently focussed on the aspect argued in appeal.The complaint to the contrary is groundless.Counsel for the respondents referred to the replication filed by the plaintiffs,in paragraph 2 of which it was stated:
"In the family and in the place where the plaintiff and defendants 1 to 6 are born and brought up the Vilakkathala Nayars who are also known as Pranopakaris followed the customary personal law,followed by the Nayar community as modified by the Travancore Nayar Act of 1100 " ;.
We do not understand the above paragraph as giving up the case raised in the plaint that the parties are governed by the Nayar Act,and setting up a case of custom,as contended by counsel for the respondents.
(3.) THE Nayar Act,by section 1(2 ),provides that it shall apply to all Nayars domiciled in Travancore,and to some others,not relevant to notice for the purposes of this case.Section 2(1)of the Act defines 'Nayar 'as follows: "Nayar includes Kiriyam,Illom,Svarupam,Madamangalam and others known or recognised as such " ;.
The Act proceeds to provide for marriage and dissolution among the Nayars,for maintenance,and guardianship,for testamentary and intestate succession,for management of tarwad property,for partition,etc.According to section 11 of the Act,on death of a Nayar,leaving him surviving,a widow or mother or both,and also children,they shall take the whole of the self -acquired and separate property left undisposed of by him,at his death.Under section 17 on the death of a Nayar female,leaving her children,the latter are to take the whole of their separate or self -acquired property left undisposed of.In view of these provisions,if the Act applies there is little doubt that the claim for partition is well -founded.;