Kesavan Embranthiri vs Krishnan Embranthiri and Others

Anna Chandy, J.—The petitioner is the 1st defendant in O.S. 309/54 on the file of the Munsiff''s Court, Hosdrug. The suit was filed by his brother for partition of joint family properties. The plaintiff alleged that the community of Embrandiries to which the parties belonged was governed by Hindu Mithakshara Law and that he was entitled to an equal share along with his brothers defendants 1 and 2. The 1st defendant on the other hand contended that the parties were Malayalee Brahmins constituting an Illom governed by the Madras Namboodiri Act, 21 of 1933, and the properties if partible at all, could be partitioned only under the provisions of that Act, in which case the plaintiff is not entitled to 1/3rd share, and his wife and children should necessarily be impleaded. On this contention an issue was raised "whether the plaintiff and defendants were governed by Mithakshara Law or the Namboodiri Act of 1933." The learned Munsiff found that the parties were governed by Hindu Mithakshara Law and granted a preliminary decree for partition of the plaintiff''s 1/3rd share. The 1st defendant went up in appeal and the Subordinate Judge of Kasargode reversed the finding of the trial court and held that the parties were governed by the Madras Namboodiri Act of 1933. The suit was remanded for fresh disposal after impleading the wife and children of the 1st defendant.

Against this remand order the plaintiff appealed to this Court in C.M.A. 132/57, and the finding of the learned Subordinate Judge was reversed on the ground that Embrandiries were not included within the scope of the Madras Namboodiri Act of 1933. However, on the plea of the first defendant, that though not specifically mentioned in the written statement, he had a contention that in so far as the parties had been following the customs and usages of the Namboodiries, the customary law of impartibility which governed Namboodiris before the passing of the Madras Namboodiri Act must be held to apply to them also, this Court was pleased to give the first defendant a chance to raise this contention specifically by amending his written statement. The case was remitted for fresh disposal raising the additional issue on that plea.

By the time the case came up for trial before the Munsiff, the Kerala Namboodiri Act (XXVII of 1958) came into force under the provisions of which Embrandiries (including Sivolli, Haviek and other similar Brahmins known and recognised as Namboodiris) who follow the customs, manners and usages similar to those of the Namboodiris and who are not Marumakkathayees were classified as Namboodiris. In view of this subsequent change in the law the first defendant sought permission to include in the amended written statement an alternative plea that the parties are Namboodiries under the provisions of the Kerala Namboodiri Act of 1958, and that the plaintiff and defendants along with the other members of the Illom, including the wife and children of the 1st defendant are entitled to claim partition as per provisions of Section 13 of that Act, This prayer was objected to by the plaintiff on the ground that it was beyond the scope of the amendment permitted by this Court in the remand order. The learned Munsiff upheld this objection, and the amendment regarding the alternative plea was disallowed. The present petition is against the above order.

It is settled law that it is competent for the court, in fact it is incumbent on the court to take into consideration the facts and events including legislation which have come into existence subsequent to the institution of the suit, so that the court may mould its orders to suit the altered conditions and render complete justice between the parties.

The question was considered at length in the case of Nuri Mian v. Ambica Singh (I.L.R. 1917 Cal 47) and the doctrine recognised that "Ordinarily the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to have the decision of the court on the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a court of justice to take notice of events which have happend since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made." Their Lordships of the Federal Court also considered the point in the case AIR 1941 5 (Federal Court) and held..."the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against. Consequently, the appellate court is competent to take into account legislative changes since the decision in appeal was given and its powers are not confined only to see whether the lower court''s decision was correct according to the law as it stood at the time when its decision was given".

This view has been followed in the cases reported in Joti Bhushan Gupta Vs. B.N. Sarkar through S.N. Mittra, Manager, , Meghajai Mohanji Thakkar v. Anant Padurang Chatre ( AIR 1948 Bom 396) and AIR 1948 1 (Nagpur) . This court also has reaffirmed the principle in the cases reported in Venkiteswara Kammathi Baiakrishna Kammathi v. Anantha Pai Ganesha Pai & others (1954 KLT 87) and in Abdulla v. Krishnan and others (1957 K.L.J. 950). In a recent case of this court Nani Kunjukrishnan v. Padmanabha Pillai Krishna Pillai (1958 KLT 645 : 1958 K.L.J. 984), the question was considered by their Lorships Sankaran and Joseph JJ. It was a case for redemption. During the pendency of the suit the Travancore-Cochin Compensation for Tenants Improvements Act (X of 1956) was passed which substantially changed the method for calculating the value of improvements. It was held that even though the Act came to be passed only after the suit was decreed, the provisions of the Act X of 1956 cannot be ignored, and the value of improvements was fixed according to the provisions of that Act.

Thus it cannot be disputed that the 1st defendant is competent to seek an amendment claiming the relief, if any, to which he became entitle under the Kerala Namboodiri Act of 1958 even though it was passed subsequent to the order of remand.

The only question for consideration is whether the order of remand is a bar for such an amendment being allowed by the Munsiff. It is not. The remand order does not place any fetters on the trial court exercising a jurisdiction inherent in it. This Court could not have anticipated any change in the law, and as such the question of this Court placing any such restriction does not arise at all. The revision petition and the application for amendment of the written statement are accordingly allowed, and the defendant is directed to file an amended written statement. The learned District Munsiff will proceed with the trial of the suit after receiving the additional written statement, and after allowing the plaintiff an opportunity to file a rejoinder to the same. Parties will suffer the costs of the revision.