Nani Amma and Others vs Kochugovindan Nair and Others

M. Madhavan Nair, J.—This appeal is by the plaintiffs who sought partition of their share in the suit properties which constitute the estate of one Kalliani Amma who belonged to the ''Veluthedan'' community. She died issueless on 2-5-1952 leaving behind her the 1st defendant her husband, the 2nd defendant her father, and the plaintiffs the descendants of her grandmother. Plaintiffs aver that Kalliani Amma was governed by the Cochin Marumakkathayam Act and therefore her husband is entitled only to a moiety of her estate, the balance having devolved on the thavazhies of the plaintiffs. The 1st defendant contends that Kalliani Amma was governed by the Cochin Nayar Act whereunder he is her sole heir. The Court below found the Cochin Nayar Act to apply and therefore nonsuited the plaintiffs. Hence this appeal. The only question here is of the law of succession among the Veluthedans in Cochin area.

The Cochin Nayar Act, XXIX of 1113, in its Section 1 enacts :

It shall apply to all Nayars domiciled in Cochin............

It then follows that if Veluthedans are Nayars, the Cochin Nayar Act must necessarily govern the intestate succession among them. The Act, however, does not define Nayars.

In Krishnan v. Gopalakrishnan Embranthiri (34 Cochin 350) their Lordships of the Cochin High Court observed:

The more important question for consideration is whether, as alleged by the plaintiff, the Cochin Nayar Act is applicable to Veluthedans. The books referred to before us show that Veluthedans form one of the four lower castes of the 18 sub-castes among the Nayar Community.

and after formulating the question in the case as "whether the Nayar Act is applicable to this sub-caste in Cochin" and quoting from the "Report of the Cochin Nayar Regulation Committee" (of which the late K. P. Padmanabha Menon was himself a member) :

The 4 low caste Nayars are :

(1) ..................

(2) ..................

(3) Veluthedan (washerman),

(4)......................

concluded ''that the inclusion of the four lower sub-divisions was not contemplated in the legislation''. This precedent is un-understandable to me. If Veluthedans form a sub-caste of the Nayar community--whether such sub-caste be of the higher order or lower order is immaterial--they are Nayars and the Cochin Nayar Act, which applies to all Nayars in Cochin must necessarily apply to them as well. There is absolutely no warrant to hold that the Act applies only to the higher sub-castes among them. The Act makes no such distinction; and it is not for the Court to import any against the expression of the Act.

The fact that in ancient days of pollution and untouchability, Veluthedans were not allowed to enter the temples where Nayars were allowed free entry is of little relevance in understanding, the scope of a recent enactment. In the absence of a definition of Nayars in the Act, the word must be assumed to carry the sense in which it is understood by the people of the day of its enactment. If then they were known as a sub-sect of the Nayar community they come within the purview of the Act.

It is pertinent to note in this connection that in the neighbouring area of Travancore, two Nayar Judges have in Velayudhan Krishnan v. Velayudhan Govindan (21 T. L. J. 851) held Veluthedans to be known as Nayars and governed by the Nayar Act. Mr. Justice Parameswaran Pillai was one of the leaders of the high-caste Nayars having been himself the President of the Nayar Service Society which is the leading organisation among the community in the State and Mr. Justice Narayana Pillai was a great scholar. Shri K. P. Padmanabha Menon, to whom reference was made in 34 Cochin 350 was, for aught I know, one of the leaders of the high caste Nayars in Cochin. Sri Komattil Achutha Menon, who is well-known for his learning and leadership among the high caste Nayars in Cochin had been for several years the president of the organisation, Cochin Nayar Mahasamajam whose memorandum expressly reckoned Veluthedans as a sub sect of the Nayars. The opinions of these great leaders of the community must necessarily tantamount to recognition of the sect of Veluthedans being a sub-sect of the Nayar community. Devolution of Kalliani Amma''s estate can then be in accordance with Cochin Nayar Act only. It then follows that the 1st defendant is the sole heir of Kalliani Amma and that the plaintiffs have no share in the inheritance. The decree of the court below is therefore right, and this appeal must fail. Judgment accordingly.