Decided on November 03,1955



- (1.) The Division Bench which heard this appeal at first, referred the case to a Full Bench by the following short order: This appeal arises an important question of law relating to the interpretation of S.33 of the Ezhava Act. So we refer the whole case for decision by a Full Bench.
(2.) The parties to this case are Ezhavas governed by the Travancore Ezhava Act (Act III of 1100). It is common ground that the properties involved in the suit are the self acquisitions of one Raman Krishnan who died intestate on 2.12.1106 i.e., more than 5 years after the Ezhava Act had come into force. He had two sisters, Raman Kunjali and Raman Ittikkali. On the date of the suit there were 28 members in the thavazhi of Kunjali and 39 members in the thavazhi of Ittikkali. Plaintiffs 1, 2 and 6 represent the thavazhi of Kunjali, while plaintiffs 3, 4, 5, 7 and 8 represent the thavazhi of Ittikali. Raman Krishnan and the members of his tarwad were governed by Marumakkathayam Law as modified by custom and usage. By virtue of such custom and usage they were following the Misravazhi system of inheritance, the characteristic feature of that system being that one-half of the separate and self acquired properties of an individual would, on his death, devolve on his Marumakkathayam heirs and the other half on his Makkathayam heirs. By the provisions contained in Part IV of the Ezhava Act, a fundamental change was made in this peculiar system of intestate succession. By S.15 occurring in Part IV it was laid down that on the death of an Ezhava male, leaving him surviving a widow or mother or both and also children or the lineal descendants of deceased children or both, they shall take the whole of the self acquired and separate property left undisposed of at his death and that in the absence of the mother and the widow, the children and the lineal descendants of deceased children shall take the whole and in the absence of the mother, widow and the children, the lineal descendants of deceased children shall take the whole. Excepting the mother none of the other Marumakkathayam heirs of the deceased could claim any share in the self acquired and separate property left by him at his death in case there are his Makkathayam heirs surviving. It is made clear by Ss.16 and 17 that only in the absence of such Makkathayam heirs the property of the deceased would devolve on his Marumakkathayam heirs. The provisions contained in Part IV of the Act relating to intestate succession are of general application and are to govern all the Ezhavas to whom the Act is applicable. But a special provision was made in S.33 of the act enabling such of the Ezhavas who desired to get themselves exempted from Part IV of the Act, to file an application to the State Government within a period of six months from the commencement of the Act and to get an order of exemption by the necessary notification being published in the Government Gazette. Those who are thus exempted will no doubt continue to be governed by the pre-existing customary law relating to intestate succession so long as they have not chosen to have the exemption revoked, as provided for in sub-s. 2 of S.33. Raman Krishnan, according to the plaintiffs, had got himself exempted under sub-s. 1 of S.33 from the operation of Part IV of the Act and that he lived and died as a Misradayi Ezhava. It is on this basis that the plaintiffs have instituted the present suit on behalf of his Marumakkathayam heirs referred to above, for partition and recovery of one-half share in the suit properties, as the legitimate share that should go to the Marumakkathayam heirs of Raman Krishnan as per the Misravazhi system of inheritance.
(3.) The 1st defendant is the widow of Raman Krishnan. Defendants 2 to 9 are the children of the 1st defendant and Raman Krishnan. It is stated that the 1st defendants sister Palpan Narayani was also the wife of Raman Krishnan and that defendants 10 to 13 were born of that union. The status given by the plaintiffs to defendants 10 to 13 is denied by the 2nd defendant who is the main contesting defendant. The decision of this question is not necessary for the disposal of the suit where the real question to be determined is whether the Marumakkathayam heirs of Raman Krishnan are entitled to get one half share in the properties left by him at the time of his death.;

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