Tachoor Poonkuzhi Illath Kesavan Unni, By his Guardian, Head Cleark of the The district Munsif's Court and Tachoor Poonkuzhi Illath Devaki Antherjanam vs Nicholas and Others

There were three members in the Tachoor Poonkuzhi Illom, Narayanan and two women. They executed Exhibit IV in favour of one Damodaran

whereby they constituted Damodaran their heir and stipulated that Damodaran should marry and beget issue for their Illom to succeed to the

Tachoor Poonkuzhi Illom on the death of Narayanan. Damodaran married accordingly, and the 6th defendant, a female child, was born as the

result of the union. Narayanan''s wife having subsequently given birth to a male child, there were differences amongst the parties and a release was

executed in Narayanan''s favour by Damodaran, on his own behalf and on behalf of the minor 6th defendant, and by his wife, whereby they

renounced all interest in the properties of the Tachoor Poonkuzhi Illom in consideration of a sum of Rs. 18,000 partly paid and partly promised by

the father of the plaintiff in this suit. The plaintiff''s father who advanced this sum at the request of Narayanan, obtained a mortgage from Narayanan

arid the two women of his Illom. The mortgage is impugned as invalid and several questions are argued. But before dealing with them, it is essential

to know whether. Exhibit IV is valid and operates to affiliate the offspring of Damodaran whether male or female. It appears to have been assumed

in the Courts below that the affiliation was valid. No case has been cited to us where the question has been decided when the affiliation was made

not by the sole surviving member of the Illom but as here by a male member and the two women. Our attention was drawn to two cases where the

affiliation was made by two women but no question was then raised or decided as to the validity of such affiliation and it may be that those cases

stand on a special footing as only one of the women might have been regarded as entitled to the Illom property. Before disposing of the second

appeal, we think it necessary to have findings on the following issues:

(1) Whether according to the usage amongst Nambudris, the members of an Illom, consisting of one male and two female members, may validly

affiliate another by requiring a member of another Illom to marry and beget issue for the first Illom?

(2) Whether female issue born of such marriage would be validly affiliated as members of the first Illom?

Fresh evidence may be taken on both sides. The Judge should examine witnesses he may see fit to call in addition to the evidence which the

parties may adduce. The findings should be submitted within three months from this date and seven days will be allowed for filing objections to the

said findings.

In compliance with the order (after recording and discussing evidence contained in the above judgment), the Subordinate Judge of South

Malabar at Calicut submitted the following

FINDINGS

My findings on these issues referred to me for trial are:

(1) That according to the usage amongst the Nambudris, the members of an Illom, consisting of one male and two female members, cannot validly

affiliate another by requiring a member of another to marry and beget issue for the first Illom unless he or the lady proposed to be married to him is

previously made legally an heir of the aforesaid Illom; and.

(2) that the female issue born of the marriage would be validly affiliated if the condition laid down by me in connection with the fist issue is fulfilled.

These second appeals coming on for final hearing, on Thursday and Friday the 21st and 22nd days of March 1912, and having stood over for

consideration till this day, the Court delivered the following

JUDGMENT

The Subordinate Judge has now returned a finding on the first issue remitted to him to the effect that according to the usage amongst the

Nambudris, the members of an Illom, consisting of one male and two, female members, cannot valid affiliate another by requiring a member of any

other Illom to marry and beget issue for the first Illom unless he or the lady proposed to be married to him is previously made legally an heir of the

aforesaid Illom. It is argued for the appellant that the evidence shows that such an affiliation can legally be made independently of the condition

precedent laid down by the Subordinate Judge and reliance is placed on the decision of the late Saddar Court in the case of Tottakara Alluttar

Manakal Narrain Narnbudripad v. T. M. Tnvikrama Nambudripad quoted in the case of Vasudevan v. Secretary of State for India 11 M.K 157 .

We, however, do not think it necessary to decide the question, as, in the present case, the condition precedent has been complied with. The

judgment both of the District Munsif who tried the case and of the Subordinate Judge who heard the appeals and also the order of this Court

calling for a finding, proceeded on the footing that all the then members of the Tachoor Poonkuzhi Illom ""constituted Damodaran as heir "" by

Exhibit IV. No question as to this was referred to the Subordinate Judge. Damodaran, therefore, had an interest in the property of Tachoor

Poonkuzhi Illom. The issue of the marriage which he contracted for the benefit of that Illom also on birth obtained an interest therein under Exhibit

IV. It has been found by the Courts below that at the time when Exhibit G was entered into, a state of things existed in that Illom which made it for

the advantage of all concerned including the present appellant (6th defendant) that Damodaran and his wife and child (6th defendant, appellant in

Appeal Suit No. 383) should separate from that Illom. Exhibit G was executed, no doubt, primarily to carry out arrangements contemplated as

liable to arise when Exhibit IV was executed, but it may also, we think, be regarded as evidencing and part of a family arrangement in the nature of

a partition entered into by all the persons who at the time of its execution had an interest in the property of the Illom either originally, i. e.,

Narayanan, his wife and widowed daughter-in-law, or by virtue of Exhibit IV, that is, Damodaran and his wife and child. It is found that full

consideration was paid for execution of Exhibit G. We do not think that there is any reason to regard Exhibit G as invalid, or as not binding on the

appellant (6th defendant) whose father Da-modaran executed it on her behalf as well as on his own. There is also no reason for regarding Exhibit

B as in any way invalid. It was executed by Damodaran and his wife and the 6th defendant as well as by Narayanan and his wife and widowed

daughter-in-law. The 5th defendant (appellant, in S.A. No. 382) was born long after the execution of Exhibit G and it is not open to him to say that

he is not bound by it.

We, therefore, dismiss both the second appeals with costs.