Decided on February 21,1967



- (1.) THIS appeal is by defendants 2 to 10 in a suit for partition of Iringayikot Illom of Moosads, governed by the Nambudiri Act. On November 17,1902 , the only members in the illom were two ladies, Parvathi Manayamma and her daughter Savithri manayamma who is the 1st defendant in this suit. The 1st defendant had, long before that date, been married to Narayanan Moosad of Sayanampra Illom and would, under normal conditions, have been a member of that Illom, and not have continued a member of the illom of her parents. But, Ext. BI executed by parvathi Manayamma in favour of the 1st defendant on the aforesaid date recites: Evidently, these recitals recognise the 1st defendant to have subsisting rights in the illom of her birth in spite of her marriage; in other words, that the marriage was solemnized in such a way as to perpetuate the illom through her. All text-books on the law of Nambudiris mention of a particular form of marriage recognized in the community known as 'sarvaswadanam'. When an illom is on the verge of extinction, a girl of the illom is married to a member of another illom in Sarvaswadanam marriage, so that her sons may be members of the illom of her parents to perpetuate it. Sundara iyer's 'malabar and Aliyasanthana Law', at pages 226-227, describes it thus: "sarvaswadanam marriage is referable to the ancient hindu Law which authorised the appointment of a daughter or her male child as the legitimate son of her father for purposes of funeral obsequies and of inheritance. The formula used in that form of marriage is a text of Vasishta which is as follows: 'i give unto the this virgin (who has no brother) decked with ornaments and the son who shall be born of her shall be my son'. It is the special agreement between the bride's father and her husband that distinguishes sarvaswadanam from the ordinary marriage. So long as there is the prospect of a son being born she and through her, her husband hold the property in the event of her parent's death in trust for the heir-in-expectation and if she becomes a widow and the prospect of a male child fails, her legal position is that of a daughter who is retained in the father's family for the purpose of raising up an heir to it instead of, as is ordinarily the case, being transferred to her husband's family. . . It is apparently only the eldest son that enters the illom of the maternal grandfather and not the subsequently born ones. . . " The text of Vasishta Smrithi, referred to in the above passage is: Table:#1 means 'to me' and not 'my'. ] So the correct translation would be: I give to you in marriage my daughter, a brotherless virgin, decked with jewels, (on condition that) whoever is born in her a son shall become a son to me (to perpetuate my line ). Sundara Iyer's observation that apparently only the eldest son becomes a member in the mother's father's family is not borne by this text. The expression "whoever is born in her a son" would, in my opinion, cover all her sons. Whenever a son is born to her he becomes a son of her parent's illom. I may also observe here that the use of the word "heir" for a son of a Sarvaswadanam marriage is not happy, because if the daughter given in Sarvaswadanam marriage continues as a member of her father's family to beget sons to perpetuate the family no question of succession would arise. When ancestral property descends from a father to a son in Hindu Law, it is not succession, but only survival that takes place.
(2.) HERE, it is agreed between the parties that if the plea of the 1st defendant's marriage in Sarvaswadanam form is accepted, not only her first son, but both her sons would be members of the Iringayikot Illom. As Parvathi Manayamma had repeatedly admitted in Ext. BI that the 1st defendant had a subsisting right in the illom in spite of her marriage to a member of another illom, the expression Ahimin in ext. BI in reference to the 1st defendant can only mean 'a member', which implies her marriage in Sarvaswadanam form in vogue in the community. Though the 1st defendant in Para. 2 of her written statement denied the plaint averment of her marriage in Sarvaswadanam form, her assertion in Para. 4 of her written statement gives the lie direct to that denial. 4. Even the observation of the learned author, Sundara iyer, is not to the effect that any one son of a Sarvaswadanam marriage may become an heir to the family: he referred "apparently" to "the eldest son" alone. If the understanding at the 1st defendant's marriage, as stated by the 1st defendant in Para. 4 of her written statement, was that she should continue in the illom and be the progenitress of the illom so that her son should continue the illom of her parents, her marriage could not have been otherwise than in the Sarvaswadanam form. I accept the finding of the Courts below that the marriage of the 1st defendant was in the Sarvaswadanam form. It then follows, as one of its consequences, that her sons are members of the illom. The 1st plaintiff is the widow, the 2nd plaintiff a son and the 3rd plaintiff a daughter of Krishnan Moosad who was the first son of the 1st defendant. 2nd defendant is the second son of the 1st defendant. 3rd defendant is his wife, and defendants 4 to 10 their children. 4th plaintiff is the wife of the 2nd plaintiff and plaintiffs 5 and 6 their children. The defendants oppose their claim to share in the illom properties asserting the marriage of plaintiffs 2 and 4 to be void, firstly on ground of affinity, and secondly on the ground that the marriage was not solemnized in accordance. with the custom of the community, and therefore the 4th plaintiff and her offspring, plaintiffs 5 and 6, are not members of the illom. It is admitted that the marriage of plaintiffs 2 and 4 was subsequent to the commencement of the Hindu Marriage Act, 1955. S. 3 (g) of the Act defines: "'degrees of prohibited relationship' two persons are said to be within the 'degrees of prohibited relationship' (i) if one is a lineal ascendant of the other; or (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or (iii) if one was the wife of the brother or of the father's or mother's brother or of the grandfather's or grandmother's brother of the other; or (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;" The 4th plaintiff is Krishnan Moosad's father's brother's daughter's daughter, and the 2nd plaintiff is son of Krishnan Moosad. They are not within prohibited degrees of relationship as defind in the Hindu Marriage act; and any text, custom or usage at variance is superseded by the provisions of the Act under S. 4 thereof. The marriage between plaintiffs 2 and 4 cannot therefore be impugned on ground of affinity. As regards the second objection: the contention has been put forth by defendants 2 to 10 in their written statement, para 2, thus: The reference is obviously to the process of the marriage. But the Munsiff, construing the above contention in the light of para. 8 of the 1st defendant's written statement, where objection to the recognition of the marriage was urged only on ground of affinity, held no objection to the mode of its solemnization to have been raised in the pleadings and therefore overruled it. The Subordinate Judge, on appeal, observed: "s. 9 of the Madras Nambudiri Act which governs the parties before me reads as follows: 'notwithstanding any custom or usage to the contrary every male Nambudiri shall, subject to the provisions of S. 5 of the Madras marumakkathayam Act 1932 and any other law for the time being in force, be at liberty to marry in his own community. ' Reading Chapter III of Act 21 of 1932 as such, it will be seen that the marriage of the second plaintiff with the 4th plaintiff does not come within the prohibition contained therein. No ceremony as such has been provided for a marriage under the Nambudiri Act. The section itself says that it is notwithstanding any custom to the contrary. So I am led to think that the fact that the usual customary ceremonies have not been gone into at the time of the 4th plaintiff's marriage is not a reason to hold that the marriage is invalid. " Obviously the Subordinate Judge has assumed that the customary ceremonies have not been followed in the marriage between plaintiffs 2 and 4. He thought such defects are rendered immaterial by the non obstante clause in S. 9 of the Madras Nambudiri Act. I am afraid he was not right in that opinion. The word 'contrary, has no intelligible meaning except in juxtaposition with something and that something in the context of S. 9 is what is provided in the Section itself. It is well known that among the Nambudiris the custom before the Act was for the eldest son alone to marry in the community and for the other sons to marry from Marumakkathayam communities. That was how the rule of primogeniture was observed in the community. S. 9 entitles every male member of a Nambudiri family to marry a female of the community. The non obstante clause in S. 9 therefore refers to a custom or usage contrary to marriages by every male in the same community. In other words, the non obstante clause in S. 9 has no application to customs or usages which do not relate to the right to marry in the community. S. 9 has nothing to do with the process of solemnization of a marriage in the community. In fact, the Madras Nambudiri Act did not make any provision for the solemnization of marriages among the nambudiris. It only saved the existing customary rites and ceremonies in solemnization of marriages by its S. 26, which read: "nothing contained in this Act shall be deemed to affect any law, custom or usage applicable to Nambudiri Brahmans except to the extent expressly laid down in this Act". It is well known that marriages among Nambudiris, inclusive of Moosads, were and still are celebrated in the sacramental form followed by orthodox Hindus, with observation of Saptapadi. S. 7 of the Hindu marriage Act, 1955, lays down that where the customary ceremonies of a marriage include Saptapadi the marriage would be complete and binding only when the saptapadi is completed and the seventh step is taken. In the way the trial was had in this suit, the form in which the marriage of plaintiffs 2 and 4 was solemnized has not been investigated properly. The trial Court assumed that not to be an issue in the case and the first appellate Court assumed it not to be relevant in law. In the circumstances, I would discharge the finding on the validity of the marriage between plaintiffs 2 and 4 and leave the question open to be decided afresh, for which purpose the suit is remitted to the Court of first instance with liberty to parties to adduce additional evidence thereon. I affirm the declaration of the right of plaintiffs 1, 2 and 3 to share in the illom properties, and remit the claim advanced by plaintiffs 4, 5 and 6 to the Court below to be decided afresh in the light of my observations above. The costs of this second appeal will be costs in the cause left to the munsiff.;

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