1. This is an appeal by the 9th defendant against the decree of the learned district judge of alleppey, Setting aside an alienation in his favour evidenced by ext. Xvi dated 20 - 6 - 1113. The findings of the learned judge about the document being supported by consideration and tarwad necessity are in favour of the appellant; but the transaction has been set aside by the learned district judge on the ground that the provisions of the travancore malayala brahmin regulation, S. 6 will apply. The further reasoning of the learned judge is that inasmuch as one of the major members of the illom at that time, Namely, The 4th defendant, Having admittedly not joined in the transaction, The latter is hit by the provisions of s. 5 and in this view the learned judge has set aside the transaction as not binding on the plaintiffs' illom.
2. The circumstances under which this litigation arose can be briefly stated. The three plaintiffs, Defendants 1 to 3, & 5 to 7 claim to be members of a malayala brahmin family. It is also stated that plaintiffs and defendants 1 to 3 are the children of one madhavan and formed one sakha. The 4th defendant is the wife of the first defendant and the plaintiffs are the children of the 4th defendant. Defendants 5 to 7 are the brothers of the deceased madhavan.
3. The plaintiffs challenge certain other transactions also; but i am concerned in this appeal only with the transaction evidenced by ext. Xvi dated 20 - 6 - 1113, Executed in favour of the 9th defendant, By defendants 1 to 3 and 5 to 7. That is the transaction that has been set aside. According to the plaintiffs, The suit property is also the self - acquisition of their grand father, Namely, Deceased madhavan, And as such defendants 5 to 7 have absolutely no rights to deal with the property. There were, No doubt various allegations about the passing of consideration as also the transaction being supported by tarwad necessity. In the plaint, The various plaintiffs claimed to be malayala brahmin embrans. More than this, There was no other reference as to what exactly is the law by which they are governed.
4. The appellant contended that the plaintiffs are governed by the hindu mitakshra law. Therefore applying that provision of law, He contended that the plaintiffs have no right to challenge the transaction inasmuch as it was for purposes binding on the family and it is also supported by consideration. The one thing to be noted is that the 9th defendant specifically pleaded in para. 12 of his written statement that the plaintiffs are governed by the hindu mitakshara law. No doubt, There was an alternative plea, Even assuming the plaintiffs are governed by the malayala brahmin regulation. The learned judge has negatived the various contentions raised by the plaintiffs on facts and, As i mentioned at the beginning of this judgment, Has recorded findings on those points in favour of the appellant. Those findings are that certain other items of property, Including the suit property, Must have been acquired with illom funds, That they belonged to the illom as a whole consisting of the plaintiffs and defendants 1 to 7 and not to the branch of the plaintiffs and defendants 1 to 3 alone. The learned judge has also considered, As i mentioned earlier, The question about the passing of consideration and tarwad necessity. Even here, The learned judge has accepted the case of the 9th defendant - appellant that the transaction is supported by consideration and also tarwad necessity. Those findings are not challenged before me by the plaintiffs. The ground on which the transaction was set aside, As i mentioned earlier, Was that s. 5 of the travancore malayala brahmin act, Act 3 of 1106, Governed this transaction and as the provisions of that section have not been complied with, The transaction has to be set aside. It is on this basis that the transaction has been ultimately set aside. There are certain consequential reliefs given by the learned judge with regard to the refund of the consideration by the plaintiffs as also the liability of the appellant for mesne profits which will be adverted to by me after i record my findings on the question of law decided by the learned judge.
5. The learned district judge is of the view that it is necessary to consider whether embrandiris will come under the definition of the term'malayala brahmin' as contained in s. 2, Clause (1) of travancore regulation iii of 1106, And for this purpose the learned judge is further of the view that one must try to find out what is the law by which they were governed before the passing of travancore regulation iii of 1106. In this connection the learned judge is of the view that the preponderance of authority is in favour of the opinion that it is hindu law except to the extent modified by custom that governs the malayala brahmins. He, No doubt adverts to the allegations in the plaint and says that except pleading that the plaintiffs are governed by the malayala brahmin regulation no special custom is set up, Much less proved by the plaintiffs in this case. Even here i may remark, As pointed out by mr. Bhoothalingam iyer, Learned counsel for the appellant, That there is no such pleading in the plaint as assumed by the learned judge. Ultimately, The learned judge comes to the conclusion that at the time when the properties were acquired, The acquirer, Namely, Madhavan, Was governed by hindu law. Then he passes on to certain decisions bearing upon the law applicable to namboodiris, Which in my opinion is not relevant to the matter in hand.
6. Then the learned judge, In directly considering the question as to whether the sale transaction in particular, Namely, Ext. Xvi, Is to be set aside or not, Observes that he has already held that the said transaction is supported by consideration and family necessity. Then he adverts to sub - section (1) of s. 2 of the malayala brahmin regulation, And is of the view that the embrandiris are not expressly included in the definition. Then he adverts to the fact that in certain documents, The members of the plaintiffs' family have described themselves as malayala brahmins and it is the view of the learned judge that such a statement, By itself will not show that they are known or recognised as malayala brahmins. It is in this connection that the learned judge refers to what, According to him, Is an admission made by the appellant 9th defendant that he also belongs to the same community as the plaintiffs and that malayala brahmin regulation, Namely, Regulation iii of 1106, Governs them. Therefore, Proceeding on this basis the learned judge finally concludes, That at any rate, For the purpose of this case, It can be held that the plaintiffs and defendants 1 to 7 are malayala brahmins and are governed by regulation iii of 1106. Then the learned judge applies the provisions of s. 5 of the regulation and inasmuch as there has been no compliance with those provisions in the execution of the sale deed, Ext. Xvi, He comes to the conclusion that notwithstanding the fact that ext. Xvi is supported by consideration and tarwad necessity, The document will have to be set aside. On this reasoning, Ext. Xvi is actually set aside by the learned judge as not binding on the tarwad.
7. On behalf of the appellant, Mr bhoothalingam iyer, Learned counsel, Contended that the learned judge himself recognises that there is considerable difficulty in finding as to what law is applicable to these plaintiffs. The learned counsel pointed out that the learned judge accepts the contention of the contesting defendant that embrandiris are not included in the definition of malayala brahmins as contained in s. 2 of the act. He even goes further, According to the learned counsel, And accepts their contention that prior to the coming into force of this regulation, They must be considered to be persons who were governed by the hindu mitakshara law and as such they are persons who are entitled to individual partition before the passing of this regulation and, Therefore, They are not taken in by the expression 'malayala brahmin' as contained in s. 2 (1) of the act. Mr. Bhoothalingam iyer further pointed out that the learned judge also accepts the contention advanced on behalf of his client, That the plaintiffs have not specially set up in the case that they are following hindu. Mitakshara law modified by any other custom. Such a deviation has not been set up. Therefore, Mr. Bhoothalingam iyer contends, Having agreed with the contentions advanced on behalf of his client and also having accepted the further contention that embrandiris as such are not included in the definition of malayala brahmin in s. 2 (1) of the act, That the learned judge erred in proceeding on the basis that the provisions of the said act applied and in consequence holding that the transaction is hit by s. 5 of the act.
8. Mr. Bhoothalingam iyer further contended that the learned judge was wrong in proceeding on the basis that there is any admission by his client, Namely, The 9th defendant, That he and the plaintiffs are all governed by the provisions of the malayala brahmin regulation, Iii of 1106. He also referred to the particular questions and the answers elicited from the 9th defendant in this connection. I may straightaway say that there is no admission, As such by the 9th defendant that he and the plaintiffs are governed by the provisions of the malayala brahmin act, 3 of 1106. In fact, The question was put to him "do not the provisions of the malayala brahmin act apply to you also. " this question evidently proceeds on the basis that the said act applies to certain others. But the answer was "i do not know what that act is. " there was a further question "what is the act that is applicable and by which you are governed. " the answer was "the act that applies to all malayala brahmins will govern us also. " the question that the learned judge had to consider was whether the plaintiffs, Who claim to be malayala brahmins, Embrans are persons who come within the ambit of that expression, Defined in s. 2 (1) of the act. I do not certainly appreciate the court trying to pump out some sort of admission from an illiterate party, As to who are the persons who could be considered to be governed by the act and who come within the scope of a particular expression in any enactment. That is really the duty of the judge and such a decision, On a very serious point cannot certainly be based upon a so - called admission, Assuming there is such an admission by a witness in a case, However important that witness may be, Unless the court had to consider about any particular custom in which case the evidence tendered by witnesses as to what particular custom they followed will certainly have very great value. Therefore, I can straightaway agree with mr. Bhoothalingam iyer that there is no question of any admission by defendant 9 and even if there was an admission it is very improper on the part of the learned judge to base a decision on such an admission.
9. The main theme of the argument of mr. Boothalingam iyer is that inasmuch as embrandiris, To whose class the plaintiffs' family belongs, Are not as such included in the definition of malayala brahmin in s. 2 (1) of the act, The ordinary rule that they are governed by the hindu mitakshara law applies. If hindu law applies, The transaction has to be upheld as it is supported by consideration and also tarwad necessity. The plaintiffs have not set up any case that hindu law followed by them, Is to any extent modified by any other custom. In the absence of any such plea and proof, Mr. Bhoothalingam iyer contends, The straight course would have been to apply the principles of mitakshara law and if that law is applied the transaction cannot certainly be set aside. In this connection, Mr. Bhoothalingam iyer, Quite fairly i should say, Referred me to certain treatises dealing with embrandiris and pottis. Mr. Bhoothalingam iyer also invited my attention to a division bench ruling of the madras high court reported in sankaran nambudiri v. Madhavan (air. 1955 madras 579) where an embrandiri therein, Wanted to take advantage of the madras nambudiri act of 1933. I do not think that the decision of the madras high court helps very much a decision of the point in controversy before me, Namely, As to whether embrandiris can be considered to be "malayala brahmins" within the scope of that expression as contained in travancore regulation iii of 1106. The learned judges of the madras high court had to deal with a claim made by embrandiris for partition under the madras nambudiri act, 21 of 1933. S. 2 (a) of the said act makes it applicable "to all nambudiri brahmins in the presidency of madras who are not governed by the marumakkathayam law of inheritance; and (b) to all nambudiri brahmins, Outside the said presidency, Not governed by the said law, In respect of immovable property situated within it. " then there is another section, Namely, S. 27 which says: "the provisions of this act shall also apply to the following communities in the malabar district, Who are not governed by the marumakkathayam law of inheritance and who follow customs and usages similar to those of the nambudiris, Namely, Adigal, Elayads, Moosads, Pitarans and nambissans. "
10. As i mentioned earlier, In the madras decision the plaintiffs therein instituted a suit for partition under the provisions of the madras nambudiri act, 21 of 1933. That suit was opposed by the karnavan and manager of the illom, The first defendant therein, On the ground that the family were embrandiris who are governed by the mitakshara law. No doubt, The learned judges make some very useful observation, If i may say so with respect, Regarding the personal law of the parties. Reference is also made to thurston's castes and tribes of southern india, Vol. Ii, Page 209 where embrandris are defined as
"embrantiri or embran is a malayalam name for tulu brahmins settled in malabar. They speak both tulu and malayalam."it is also observed that since their traditional migration into malabar they have adopted some of the features of the law of inheritance as marumakkathayam law, Probably previously in existence in malabar based on descent through females. The learned judges in the state of evidence in that case, Came to the conclusion that there was absolutely no evidence before the learned judges that that embrandiri family had ever adopted the personal law governing nambudiris. In my opinion, The nambudiri act as such does not also take in embrandiris as one of the persons mentioned in s. 27 already referred to by me.
11. On the other hand, Mr. D. Narayanan potti, Learned counsel for the plaintiffs - respondents, Contended that it is absolutely unnecessary to consider the latter part of the definition of malayala brahmin contained in s. 2 (1) of the act. According to mr. Narayanan potti, Plaintiffs have stated in the plaint that they are malayala brahmins and they have also stated that they are embrandiris. He invited my attention to certain passages in text books to the effect that embrandiris are included in the term'potti'. He drew my attention to the fact that the definition of malayala brahmin in the act clearly states that it includes nambudiris and pottis. Therefore, His clients who are embrandiris come under the expression'potti' and as such are automatically governed by the provisions of travancore regulation iii of 1106 and therefore it was absolutely unnecessary on the part of his clients to further plead that they are governed by the malayala brahmin regulation iii of 1106. Barring these two, Namely, Nambudiris and pottis, It is only the other type of people who claim to be malayala brahmins, Within the scope of this expression, Who will have to prove that they are not entitled to individual partition before the passing of this regulation. There is a mistake in the reasoning of the learned judge when he proceeded to consider the law applying to those embrandiris prior to the passing of this regulation because the assumption, According to mr. Potti, Is a wrong assumption on the part of the learned judge that embrandiris are not taken in by the definition of malayala brahmin in the act itself. In my opinion, The learned judge was not justified in trying to find out the law by which these embrandiris were governed prior to the passing of the travancore regulation iii of 1106. In the travancore state manual by shri nagam aiya, Dewan peishkar, It is stated embrans - potti are brahmins that come from tulunad and mangalore in malabar
". In the cochin castes and tribes by l. K ananthakrishna iyer, Vol. Ii, Chap. 13 deals with embrans and konkani brahmins. At page 345 it is mentioned:"these tulu brahmins who have settled in malabar in comparatively recent years are known as embrandiris or embrans. They are found all over the cochin state except in the chittur taluk in thurston's castes and tribes of southern india, Vol. Ii, Page 209, It is stated:
"embrantiri. - 'embrantiri or embran' is a malayalam name for tulu brahmins settled in malabar. They speak both tulu and malayalam. Some of them call themselves nambudiris, But they never intermarry with that class".
sundara iyer in his book on malabar and aliyasanthana law, States: "embrandiris: brahmins of canara in malabar". In the latest travancore state manual by t. K. Velu pillai, Vol. I, At page 840, Pottis are dealt with. It is mentioned: "there are three classes of pottis corresponding to the three periods of their respective settlements in the country. The first class comprises the descendants of the earliest settlers. The sthanathil pottis, The traditional trustees of sri padmanabha's temple, And the pathillathu pottis would come under this division. Under the second class come the later immigrants from the kanarese country who have become assimilated with the general body of nambuthiris in manners and customs. These are the thiruvalla desis so called because their first home in travancore was in or near thiruvalla. The gramams of chengannur and venmani are the two important centres of thiruvalla desis. The mampally pandarathil known also as the vanjipuzha chief is the head of the latter. The third class of pottis are the immigrants from south canara. They are also called embrans. "the pottis have the same ceremonies as the nambuthiris. Their caste government is the same. The vaidikans and smarthas exercise control over them in social and religious matters. "
it will be seen that the pottis are also called embrans and therefore in my opinion the fact that embrans, As such, Are not referred to in the definition of malayala brahmin in s. 2 (1) of the malayala brahmin act, 3 of 1106, Will not lead to the conclusion that embrans are not included in that definition. I have already shown that pottis will also take in embrans, And as such the fact that the definition of malayala brahmin is stated to include a nambudiri, A potti, Clearly shows that embrandiris are malayala brahmins and as such the act by virtue of s. 1 (2) makes it applicable to all malayala brahmins domiciled in travancore. I am in agreement with mr. Narayanan potti that the learned judge need not have gone to find out what was the law applicable to these people prior to the passing of travancore act 3 of 1106. The transaction in this case was admittedly long after the passing of the malayala brahmin act, Namely the transaction ext. Xvi is of 20 - 6 - 1113. Therefore, If embrandiris are pottis who come within the definition of malayala brahmin and as such the art applies, It follows that s. 5 of the act directly hits the transaction in question however had it may be, Especially in view of the finding in favour of the appellant that the transaction is supported by consideration and tarwad necessity. Evidently, These various aspects that have now been placed before me by the learned counsel on both sides were not referred to before the learned judge and that is why the learned judge evidently proceeded on the basis that these embrandiris will have to establish that they are persons who were not entitled to individual partition before the passing of this regulation so as to claim the benefit of travancore regulation. 3 of 1106. S. 2 (1) which defines malayala brahmin is to the following effect:
"in this regulation, Unless there is something repugnant in the subject or context:
[1] 'malayala brahmin' includes nambutiri, Potti and "others known or recognised as malayala brahmins but does not include those who according to the law governing them are entitled to individual partition before the passing of this regulation"".
in my opinion, If the parties come within the ambit of a nambuthiri or a potti automatically they are taken in by the definition of malayala brahmin as contained in s. 2 (1). There is no further necessity for such people to prove that' they had no individual right of partition before the passing of regulation. 3 of 1106. That requirement in my opinion will have to be satisfied not by nambuthiris and pottis but by
"others known or recognised as malayala brahmins but does not include those who according to the law governing them are entitled to individual partition before the passing of this regulation". It is not necessary, As i have already pointed out, That embrandiris who are taken in by the expression'pottis' should establish the latter part of the definition of malayala brahmin under s. 2 (1). In my opinion, There has been a wrong approach made by the learned judge in considering as to whether the plaintiffs in this case are governed by the provisions of travancore regulation. 3 of 1106,
12. Therefore, I am satisfied, After hearing learned counsel on both sides that the conclusion arrived at by the learned judge, Namely, That the plaintiffs are governed by the provisions of the malayala brahmin regulation. 3 of 1906, Is correct, Though not for the reasons mentioned by the learned judge. I have already indicated that there is no such admission by the appellant 9th defendant regarding the applicability of the malayala brahmin act. Even if there is such an admission a decision cannot certainly be based on the admission by a witness about the applicability of an act or otherwise.
13. There is no dispute that under s. 5 of the travancore act 3 of 1106 a transaction in order to be binding on the illom will have to satisfy the various matters mentioned therein. S. 5 is to the effect:
"except for consideration and illom necessity, And with the written consent of all the major members of the illom, No karnavan or other managing member shall sell illom immovable property or execute kanom deeds in respect thereof, Or mortgage it with possession for a period of more than twelve years or lease it with or without premium for a period of more than twelve years"
"nothing in this section shall effect the right of the karnavan to execute solely renewals of kanom deeds already executed".
in this case, Ext. Xvi dated 20 - 6 - 1113 evidences an assignment by the illom of the said item no. 3. Under the section it is clear that in order to be valid and binding the written consent of all the major members of the illom was necessary. Admittedly the 4th defendant who was a major member on that date had not joined in this transaction and as such the decree of the learned judge setting aside ext. Xvi applying the provisions of s. 5 of travancore regulation. 3 of 1106 has to be accepted and confirmed.
14. Mr. Bhoothalingam iyer next contended that though the learned judge in the earlier portion of his judgment is of the view that his client is liable to pay mesne profits only when the entire sale consideration together with interest is paid back to his client, Nevertheless in the operative portion of the judgment the learned judge has given an unqualified decree as against his clients for mesne profits both past and future at the rate mentioned therein. In my opinion, Mr. Bhoothalingam iyer is perfectly justified in requesting me to delete this unconditional decree for mesne profits passed as against his client. The learned judge as a condition to set aside ext xvi has directed the plaintiffs to refund the entire consideration advanced under ext. Xvi together with interest at 6 per cent per annum. This direction was absolutely justified because the finding is that the transaction is supported by consideration and tarwad necessity. That means the proceeds of ext. Xvi have gone for tarwad purposes. This is made clear by the learned judge in para. 12 of his judgment to the effect that ext. Xvi is set aside and the plaintiffs are entitled to recover plaint item no. 3 with mesne profits but only on payment of the consideration under ext. Xvi and interest at 6 per cent thereon. But evidently a sling mistake has been committed by the learned judge in the concluding part of his judgment. Therefore, The final direction given by the learned judge giving an unconditional decree for mesne profits has to be modified. Therefore, The decree of the learned judge will be modified to this extent, Namely, That the liability for mesne profits on the part of the appellant will arise only as and from the date when the entire amount of consideration under ext, Xvi together with interest at 6 per cent thereon as provided by the trial court are either paid directly by the plaintiffs to the 9th defendant or deposited in the trial court under intimation to the 9th defendant. Excepting for this slight modification in all respects the decree of the learned judge is confirmed.
mr. Bhoothalingam iyer has made a final request that his client's right, If any, To claim benefits under kerala act 29 of 1958 may be allowed to be raised by him in execution. If the appellant has any rights under kerala act 29 of 1958, They are not dealt with in this appeal and it is open to the appellant to claim suitable reliefs in the executing court, If he is otherwise entitled to any benefit under that act.
15. Subject to the slight modification mentioned earlier the appeal fails and is dismissed. Parties will bear their own costs throughout.
dismissed.
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