1. The suit is brought by the junior members of a Marumakkatayam tarwad against their Karnavan to recover arrears of maintenance. The Karnavan’s defence is that the plaintiffs are already in possession of tarwad property which in the circumstances of the case is sufficient to satisfy their claim. To this it is replied that the property referred to does not belong to the tarwad. The decision of the question depends upon the rule of law applicable to the inheritance to the separate property of a member of a Malabar tarwad.
2. The properties are found by the lower app3llato Court to be the self-acquisition of two deceased members, Paru Amma and her son Krishnan Nair. It is contended for the appellant by Mr. Sundaro, Aiyar that on the death of Krishnan Nair, the survivor, they devolved exclusively on the 2nd defendant, the sole surviving descendant of Paru Amma; while Mr. Sabramania Sastri for the respondent urges that they lapsed on his death to of which the 1st defendant is the Karnvaan and the 2nd defendant is only one; of the junior members.
3. The reported cases undoubtedly support the contention advanced on behalf of the respond-eats and as we are urged to overrule them, it becomes necessary to review the rulings of this Court on that point.
4. The earliest English writer on Marumak-katayam law is Mr. Strange, who was for a long time in Malabar as Registrar and Judge and was subsequently a Judge of the Sudder Court. He states the law thus in his Manual of Hindu Law:
In the Province of Malabar, among the great body of its inhabitants, a different rule-of descent prevails from what exists in the other Districts of the Presidency, Canara excepted. The inheritance runs in the female, not in the male line. A man’s sons are not in the line of his heirs. His property goes to his sisters; sister’s sons; sister’s daughters; sister’s daughter’s sons and daughters; mother; mother’s sisters; & c.
5. The earliest decision of which we have any. report is by Mr. Cook as Sub-Judge of Calicut in 1852:
According to the law of nepotism, a nephew may be heir to a Karnavan’s private property, but as regards the tarwad property the eldest member of the tarwad is the rightful heir.
6. This rule is adopted by Mr. Justice Strange, in the Manual already referred to. See Section 399 of his Manual. Self-acquired movable property, namely, that which is obtained by individual exertion and without aid from the family funds, belongs exclusively to the acquirer, and may be disposed of by him at his pleasure. Females may hold it as well as males. On demise it descerds in the case of males to their sister’s sons, or nearest anandravans, and in the case of females to their issue, male and female.”
7. It will be noticed that reference is made only to movable property. This is due apparently to the fact that at that time there was nothing like self-acquired immovable property, the Sudder Court (Hooper, Strange and Philips, JJ.) having decided in 1859
8. It is immaterial in what way land is obtained in a family governed by Marumakkatayam the rule being, that however acquired by a member of the family, it becomes incorporated in the family possessions and is under all the restrictions as to alienation affecting such property.”
9. The first decision to which our attention has been drawn in which a different rule was laid down is Kamaran v. Syru. Mr. Holloway as Judge of Tellicherry, held: “The truth of the matter is that Kannen (the deceased Kamavari) acquired the property and, following the fallacy which is very prevalent, it has been supposed that his immediate juniors are those entitled to inherit it. It is unnecessary to say that this is not the law of Malabar, a law which I deplore as fruitful in mischief, but by which 1 am bound.” It is said in Mr. Moore’s Malabar Law that this decision was confirmed by the High Court, but that no judgment was written or reasons recorded.
10. On this decision two observations have to be made. The first is that the self-acquisition, of a member should be inherited by his immediate juniors is admitted to be a very prevalent belief. The opposite view presumably that it should lapse to the tarwad is deplored as fruitful in mischief.” The decision is not based on usage and no authorities are referred to.
11. After he became a High Court Judge Mr. Justice Holloway laid down the law in two decisions which are reported in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462. In the first case Philips and Holloway, JJ., held; see p. 102: ‘Self-acquisitions of land by a member of a tarwad are his separate property during his life and may be charged by him for his personal debts. After his death they lapse into his tarwad property, but if accepted by the members they carry their obligations along with them.” In the second case, see p. 163, Scotland and Holloway, JJ., said: “It is unquestionably the law of Malabar that all acquisitions of any member of a family undisposed of at his death form part of the family property, that they do not go to the nephews of the acquirer but fall as all other property does to the management of the eldest surviving male.” Taking “tarwad” to mean a group of persons descended from a common female ancestress, with community of interest with one another- the only sense in which it is used in a Court of law-it is clear that the rule as above stated is not intended to lay down the law of succession applicable generally to a follower of the Marumahkatayam law; for the deceased may have been divided from the rest of the tarwad and hence may not have been at his death a member of the tarwad. The earlier decision refers to a member of the tarwad ‘ and there is very little doubt that family’ in the second judgment is used in the same sense. It is to be noticed that Mr. Justice Holloway about the same time held that under the Hindu Law a similar rule prevailed, i.e., that the self-acquisition lapses to the co-parceners and is not inherited by the wife; Varadiperumal Udaiyan v. Ardanari Udaiyan 1 M.H.C.R. 412.
12. The next case brought to our notice is S.A. 534 of 1878 in which it was held that a will was not binding upon the tarwad of the testator as the claim of the tarwad to take by survivorship prevailed over the right by devise which took effect only after the testator’s death. The learned Judges (Innes and Muthusamy Aiyar, JJ.,) disagreeing with the Munsif, Mr. E. K. Krishnan, said: ‘We must take it that the law is as laid down in Vol. 11 of the High Court Reports, p. 162. The will then would not be binding upon the tarwad of the testator, because according to the law applicable to such property the self-acquisition of the testator having been left undisposed of by him during his lifetime was not validly disposed of by the will which could only take effect after his death.” The decision did not proceed upon the ground that wills were unknown to or invalid under Marumakkatayam law, but on the ground that they cannot operate against the claim by survivorship. If the ruling in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462. referred to in the judgment declares the law correctly this seems to be the necessary conclusion.
13. The decision in Vira Hayen v. Valia Rani of Pudia Kovilagom Calicut 3 M. 141 is based upon the customary law applicable to stanoms which is in many respects different from the ordinary law and is not applicable to the present case.
14. In the case next cited the representatives of the acquirer remained in possession of his property from 1859 to 1878. It was also found in that case though the Judges said that the finding was unncessary for the decision that the Karnavan of the tarwad had acquiesced in the claim set up by the representatives. The learned Judges say : It is true that the opinion that the self-acquisition of an individual member descended to his own representatives has now been held to be erroneous, but its very prevalence, so far from showing that the possession was not hostile, explains and accounts for the adverse possession taken up by Rayiru.” Here also the prevalence of the belief and the assertion of right in accordance therewith are noticed. After tin’s decision whenever the representatives of the deceased acquirer of property have been in possession of the properties of a deceased member, the Courts refuse to draw the usual presumption of permissive occupation of tarwad property by a junior member but refer such possession to the claim as heir and representative. While the rule has been materially restricted in its operation by this decision, the next case, if not destructive of the principle on which it is based, certainly involves a very wide departure. The point was whether the self-acquired property which lapses to the tarwad according to these decisions enures as assets of the deceased for the payment of his debts. If the tarwad took by survivorship the members while taking the property would not be liable to pay the debts. The learned Judges (Innes and Muthusamy Aiyar, JJ.) point out that the self-acquisition of a member of a tarwad stands on the same footing as the self-acquisition of the member of a Hindu family under the Mitakshara law and that according to the decision of the Privy Council in Kattama Nauchear v. The Rajah of Shivagungah 9 M.I.A. 539 : W.R. 31 (P.C.) such property does not devolve by survivorship as the co-parcener has no communion of interest in it with the other co-parceners. They say: ‘He is, as it were, divided from them in respect of it. If they take it by reason of his leaving no descendants and no widow, they take as heirs and not as parceners.” They apply this principle to the Marumakkatayam tarwad Ryrappan Nambiar v. Kelu Kurup 4 M. 150. This decision has been followed by the late Chief Justice and Benson, J., who held that an undivided member of a tarwad may dispose of his property by will, overruling the decision in S.A. 534 of 1878; See Achutan Nayar v. Cheriotti Nayar 22 M. 9. The case of Komu Nair v. Ittiatha Amma 10 M.L.J. 57 at p. 59 also was cited before us. It was there decided that though the self-acquisition of a person lapses to the tarwad on his death, yet, if such property was a gift from his father then his nearer representatives take such property to the exclusion of his tarwad. Whether it is on the ground that the gift must be presumed to have been intended by the father for the benefit of all his children, or whether it is an exception to the general rule on account of such presumed intent, is not clear; but the result undoubtedly was still further to restrict in practice the operation of the rule in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462. These decisions conclusively establish that the members of a tarwad do not take by survivorship but by succession and the only question for decision is who is the heir. In deciding this question of customary law it is important to consider whether the community have accepted the rule laid down in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462. and whether the usage has been consistent with it. For a wrong may become the source of customary law. In Alami v. Komu 12 M. 126 at p. 132 it was decided that a testator, the last member of a tarwad, could dispose of his property by will. The decision itself is not in point as in that case there was no tarward and, therefore, there was no survivorship. But the facts found were that according to usage the practice of making wills by members of a tarwad was in vogue at least from 1826 and such wills were upheld against the other members. Usage thus did not recognize survivorship and the decision of the late Chief Justice and Mr. Justice Benson in Achutan Nayar v. Cheriotti Nayar 22 M. 9 which was based upon the reason of the law, is fully supported by usage; and the decision in S.A. No. 534 of 1878 which it overruled and which followed the decision in Kallatikunnju Menon v. Palat Erracha Menon 2 M.H.C.R. 462. based on the theory of survivorship is certainly opposed in principle to the usage as proved in Alami v. Komu 12 M. 126, at p. 132.
15. Mr. Wigram after referring to the rule laid down in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462. as undoubtedly in accordance with the ancient usage which regarded the family as an indissoluble unit and took no thought of the individuals composing that unit observes in his book on Malabar Law A practice, however, appears to have sprang up of allowing’ self-acquired property to pass to the nearer heir in preference to the head of the family. Thus a woman’s children inherited her self-acquisitions and a man’s self-acquisitions were inherited by his nearest anandravan for the benefit of his branch,” i.e., in other words his tavazhi or the descendants of his mother. It would seem from Mr. Holoway’s judgment in the Tellicherry case that this practice must have sprang up before his decision. Mr. Wigram appears to state the usage correctly and Mr. Jastice Holloway apparently refused to recognise it as opposed to the principle which he applied as well as to Hindu Law as to Marumakkaiayam usage, that it is not the existence of co-parcenary with reference to the property in question that determines the question of the survivorship, but the status of co-parcenary among the persons as members of an undivided family, a view that cannot be maintained after the decision of the Privy Council in Kattama Nauchear v. The Rajah of Shivagungah 9 M.I.A. 539 : W.R. 31 (P.C.).
16. In the Aliya Santana families governed by the same law, with this difference that the practice is in more conformity with the theory of the law, evidence of usage was taken and it was found that it was, distinctly in favour of the claims of the heirs of the acquirer in his own branch and opposed to the claims of the tarwad” or in other words, the same as Mr. Wigram found from his own experience to exist in Malabar. See Antamma v. Kaveri 7 M. 575 at p. 677. Similarly, in the case of another large community to whom this was assumed to apply, the Chief Justice and Mr. Jastice Moore held that the question was open Chemnautha Attekunnatli Lakshmi Amma v. Palakuzhu Thuppan Nambudri 25 M. 662.
17. As to the opinion of the native lawyers, the same judgment Antamma v. Kaveri 7 M. 575 at p. 677 says that Mr. Krishna Menon denies the accepted rule respecting the devolution of property under Marumakkatayam law.” Mr. Gopalan Nair, another experienced Subordinate Judge, said in a case where he had to deal with the devolution of the self-acquisition of a Mopla female: Even in well conducted Nair tarwads in Malabar where the Marumakkatayam law of inheritance obtains in all its purity and integrity, a female’s property which is usually acquired by her more or less with funds derived from her parents or husband goes to her own children and I have never heard a single instance in which a good Karnavan has ever asserted the tarward’s lights to property of this character. Mr. K.R. Krishna Menon, than whom there is no better authority on Malabar law has always maintained that a female’s property would descend to her own children and not to the tarwad, and the oft quoted authority on the other side is the decision in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462. where the question was as to the self-acquisition of a deceased male and not a female member.” See his finding in A.S. No. 125 of 1885. In Komu Nair v. Ittiatha Ammo 10 M.L.J. 57 at p. 59, Mr. Chandu Menon, another experienced Subordinate Judge expressed a similar opinion that a person’s tavazhi would exclude the tarwad. He said in submitting his finding: “I have no doubt in saying that according to the decisions quoted in the order the rule of Malabar law is settled” and after referring to the above decisions he stated that they “clearly established this proposition and I should have taken these to be the guide in solving the problem I have before me, but the common practice of Courts here has been very unsettled.” Mr. Kamaran Nair, another experienced Judge has stated his opinion in these words : The acquisitions of an anandravan were inherited by his sister and nephew and these formed subordinate branches with distinct rights and a good Karnavan never interfered with them.”…. But the Courts…yielding to the force of what they considered to be inexorable logic decided that the tarwad, if anything, must be one and indivisible and that all the acquisitions of a deceased member must lapse into it.” To the same effect is the opinion of the present Subordinate Judge of Palghat, Mr. Imbichunni Nair: Under the immemorial custom of Malabar the private property of any individual member devolves on his immediate heirs, i.e., brothers and sisters, after his death and does not lapse to the tarwad.” So also the late B. K. Krishnan, a Subordinate Judge of great experience stated There is strong desire and conviction on the part of the people that their self-acquisitions should go to their tavazhi and not to the tarwad Karnavan. I believe the people have been disposing as far as possible of their self-acquisitions by gift inter vivos to their own tavazhi, so as to leave none to the tarwad Karnavan. If the general feeling of the people were respected, the law would pass self-acquisitions to the tavazhi “-see their printed opinions annexed to the Report of the Malabar Marriage Commission.
18. We have not referred to the opinions of Pleaders and Munsifs supporting the above view in the same Report. There is apparently no lawyer who supported the law as laid down in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462.
19. It is impossible to ignore this mass of native legal opinion.
20. The decision in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462. can hardly be supported in principle. Their Lordships of the Privy Council have pointed out in Kattama Nauchear v. The Raja of Shivagungah 9 M.I.A. 539 : W.R. 31 (P.C.) the process of reasoning’ to be applied in such cases. They first state the law applicable to the succession to the property of a divided member and then proceed to consider whether any exception to that rule has been made out in the case of an undivided member who may own separate property. It cannot be denied that the heirs of a follower of the Marumakkatayam law, who does not belong to a tarwad, having been for instance divided from it are his tavazhi as stated by Mr. Wigram, i.e., in the case of a female her own children, in the case of a male the descendants of his mother. Mr. Subramania Sastri for the respondents suggested that the heirs may be all those who were members of the tarvad at the time of partition. They may be a hundred and more of varying degrees of relationship. This is not supported by any decision or writer on Malabar law. The text which explains the Brahmin view of the Marumdkkatayam law which is thus translated by Mr. Logan in his Malabar Manual (p. 157): “The right of inheritance goes towards the nephews” shows that the community had long passed the stage when the right of dealing with self-acquisition in his lifetime was only conceded as a privilege.
21. Though therefore the decision in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462 was passed in 1863, we find that the principle of that decision has been departed from in subsequent decisions; the ruling itself has been treated as a departure from the customary law and has not been acquiesced in. It does not in terms apply to the separate property of females; we are, therefore, of opinion that we are not justified for reasons already stated in applying it to such property. As to the self-acquisitions of males, as the decisions are directly in point and they ought not, in our opinion, to be followed we refer to the Full Bench the question whether the separate property of a member lapses to the tarwad or is inherited by his tavazhi, i.e., his brothers, sisters and their descendants.
22. This Second Appeal coming on for hearing before the Full Bench on Monday and Tuesday the 8th and 9th days of March 1909, upon perusing the order of Reference to the Full Bench and upon hearing the arguments of Mr. P.R. Sundara Aiyar, vakil for appellants, and of Mr. K.R. Subramania Sastri, vakil for the 1st, 10th and 12th to 14th respondents, and of Mr. C. B. Ananta Krishna Aiyar, vakil for the 2nd respondent, and the other respondents not appearing in person or by counsel, and the case having stood over for consideration till this day the Court expressed the following:
23. There can, I think, be no question that the principle of the decision in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462 is opposed to the later developments of the Hindu Law, and it may well be that it is not in harmony with the sentiments of the people who are governed by the Marumakkatayam Law. I appreciate the force of the reasons for the alteration of the law which are urged in the order of reference. But the order of reference in effect asks us to overrule a decision which was given as long ago as 1863, and which, I think I am right in saying, has always been followed by this Court. In a case which came before Sankaran Nair, J., and myself as recently as March 1908, (S. A. No. 784 of 1905) we observe that it is now too late to question the decisions in accordance with which the separate property of a member of a tarwad lapses on the death of that member to the tarwad.
24. In these circumstances I am apprehensive as to the effect of an alteration of the law by judicial pronouncement. It seems to me its effect might be to unsettle titles which for many years have been thought to be secure, and to open a wide door to litigation in Malabar. If this result were to ensue the evils might well outweigh the advantage of bringing the law into harmony with the wishes of the people. I think this is a case in which we should act on the maxim stare decisis, and that, if the law is to be altered it should be altered by the Legislature which can make due provision for the sale guarding of vested interest and existing titles.
25. The question on which our opinion is asked is limited to the self-acquisition of males. I am of opinion that the separate property of a member of a tarwad lapses to the tarwad.
26. I am a party to the order of reference and do not think it necessary to say much.
27. I am not prepared to accept Mr. Subrahmania Sastri’s contention that Holloway. J. in Kallatikiinju Menon v. Palat Erracha Menon 2 M.H.C.R. 462 founded his statement of the law on the view that the tarwad takes the self-acquired property of a deceased member as his heir. It seems a clear inference from his nearly contemporaneous decision in Varadiperumal Udaiyan v. Ardanari Udaiyan 1 M.H.C.R. 412 that that was not his view, and I have no doubt that if he viewed the tarwad in the light of an heir he would have made that clear. He would have used those words of doubtful import, ‘ lapse’ and ‘ fall to the management of the eldest surviving male.’
28. The judgment in S.A. No. 534 of 1878 proceeds on the view which I take of those decisions.
29. The subsequent cases establish the position that the tarwad takes as heir, but in none of them was it necessary for the Court to decide as between the tarwad on the one hand and the tavazhi of the deceased on the other. The decisions support Mr. Sabrahmania Sastri’s case because they take the rule from Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462 as correct and in some cases in Komu Nair v. Ittiatha Amma 10 M.L.J. 57 at p. 59 say that another rule is wrong, but in all the cases the Court might have reached the result which it did reach without deciding the question.
30. What all these cases decide is, as I have said, that a separate property of a member of a tarwad goes to his heir, and the question is who is the heir. The decisions in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462 do not decide that question because they evidently proceed on a different principle, and in none of the succeeding cases was it necessary to decide it for the purpose of the decree. It is suggested that the cases in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462 decide the point by implication, being based upon the usage of Malabar, but there is nothing in the judgments to show that the matter was dealt with as one of well known or proved customary practices.
31. There is thus no case deciding after discussion of the question that the tarwad is the customary heir, no reason why a man’s heirs in Malabar should not be his nearest of kin as kinship is there understood, and on the contrary there are the opinions of Messrs. Cook and Strange prior to the decisions in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462. to support the view that the tavazhi is the heir and not the tarwad.
32. Mr. Subrahmania Sastri drew a dismal picture of the difficulties to be encountered in giving effect to the heirship of the tavazhi, but it seemed to me that the difficulties he depicted are not insurmountable. The people of Malabar may take a lesson from their neighbours in South Canara if they find the matter to difficult for their own capacity.
33. It was suggested in S.A. No. 784 of 1905 that it is now too late to question the law in the accepted cases, and if it were clear that it has been accepted by the people and acted on in their daily life there would be much to be said in favour of leaving these cases undisturbed, but, as the order of reference shows, Malabar Judges have from time to time supported the other view, which was acted upon even in Mr. Holloway’s time by a Karnavan, misled, as Mr. Holloway, thought, by a very prevalent fallacy,” a fallacy which endures as a strong body of opinion to the present day.
34. My answer to the question referred must be that the separate property of the member of a tarwad is inherited by his tavazhi.
Abdur Rahim, J.
35. The question on which our opinion is sought, whether the separate property of a male member of a tarwad lapses on Iris death to the tarwad or is inherited by his tavazhi, admits to my mind of no doubt as to how it is to be answered and the answer must be given in favour of the tarwad. The order of reference it will be seen uses the word lapse ‘ in indicating the basis of the tarwad’s claim and the word inheritance’ with reference to the claim of the tavazhi and Mr. Sundara Aiyar who appeared for the appellant tavazhi rested the main strength of his argument on., the alleged difference in the nature of the two rival claims. Upon this aspect of the argument I shall have something more to say presently, but I may observe now that the real question is what is the rule according to the Malabar law regulating the devolution of the self-acquisition of a deceased member of a tarwad, and it can make little difference on what theory you choose to base the rule itself if one exists. If we were for the first time deducing a rule of succession in such cases by some process of a priori reasoning based on the analogy of other systems of law or on our own notions of the fitness of things such arguments as Mr. Sundara Aiyar has addressed to us might be relevant. But admittedly the Malabar law provides for’the devolution of a Nayar’s property and all that we have to determine is whether the course of devolution is as contended for by the appellants or the respondents. And if the statement of the law on the subject as contained in the decisions of this Court is any guide to us, the point cannot be said to be left in the doubt. The Marumakkatayam law to which the question appertains is entirely customary law, for as stated by Holloway and Kindersley, JJ., in Wannathan Kandile Chiruthai v. Kayakadath Pydel Kurup 6 M.H.C.R. 194 if Malabar law is a branch of Hindu law it is one put out or separated from the parent stem before the present form of Hindu law existed”, and their Lordships of the Privy Council in Thiruthipalli Raman Menon v. Varianyattil Palisseri Raman Menon 24 M. 73, at page 30, observe that there are no sacred writings among the Nayars having legal authority and their law is wholly based on the usages of the people.
36. In the last mentioned case the Judicial Committee proceed further to point out that some of these usages are so well established as to be judicially noticed without proof, while others of them are still in that stage in which proof of them is required before they can be judicially recognized and enforced. Now if we find that ever since 1863 this Court has laid down in a series of oases that the self-acquired property of a member of a tarwad devolves on his death upon the tarwad, I think we are bound to treat this as a very cogent proof of the law of Malabar on the point, for otherwise it would not have been judicially noticed. It may, however, be open to a party to raise the question that such was never in fact the law, but was erroneously assumed to be so by the Courts or that though the rule has since been adopted by the people or that in particular families some other mode of succession has prevailed. A person making such an allegation must, however, make it out by clear and sufficient evidence and needless to Say the burden which he has to discharge is a peculiarly heavy one.
37. In 1863 which, so far as the present question is concerned, is substantially the starting date of judicial authority, Philips and Holloway, JJ., in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462. held, that ‘ the self-acquisitions of land by a member of a tarwad are his separate property…. After his death they lapse into the tarwad property.’ In 1864 Scotland, C.J., and Holloway, J.; Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462. held; “it is unquestionably the law of Malabar that all acquisitions of any member of a family undisposed of at his death form part of the family property (i.e., tarwad property), that they do not go to the nephews of the acquirer but fall as other property does to the management of the eldest surviving male (i.e., the Karnavan of the tarwad”). I have inserted the explanatory words within brackets in accordance with what was conceded at the bar. In 1878 in S.A. No. 534 of 1878, referred to in the Order of Reference, Innes and Muthusamy Aiyar, JJ., expressed their opinion that the tarwad takes by survivorship or the self-acquisitions of one of its members. In 1881 Turner, C.J., and Muthusamy Aiyar, J., Vira Rayen v. Valia Rani of Pudia Kovilagom Calicut 3 M.141 held, that according to the custom prevailing in the family of the Zamorin Rajas of Calicut who are the heads of the people following the Marumakkatayam, system the self-acquired property of the holder of a stanom (an office of dignity) becomes on his death the property of the Kovilagom (which corresponds I take it to an ordinary tarwad) in which he was born. The case to my mind is significant as furnishing some evidence of usage on the point in dispute. In 1881 Turner, C.J., and Hutchins, J. Kanara Paniker v. Ryruppa Paniker 3 M. 212 while referring to an opinion which prevailed to the effect that the self-acquisitions of an individual member descended to his own representative (meaning perhaps his brothers or sisters) state that the opinion has been held to be erroneous, but do not suggest that it has been so held wrongly. In 1881 Innes and Muthusamy Aiyar JJ. Ryrappan Nambiar v. Kelu Kurup 4 M. 150 held, that on the death of a member of a tarwad his self-acquired property lapses into the property of the tarwad, but that it remains liable as assets of the deceased for the payment of his debts. In 1884 Turner, C.J., and Muthusamy Aiyar, J., Antamma v. Kaveri 7 M. 575, at p. 677 dealing with the case relating to a family following the Alyasantanan law which resembles in many respects the Marumakkatayam law refers to the rule governing succession to the self-acquired property of a member of a Malabar tarwad as laid down in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462. without suggesting any doubt as to the correctness of the rule. In 1883 Kernan and Muthusamy Aiyar, JJ., Alami v. Komu 12 M. 126 at p. 132 while discussing whether the last surviving’ member of a tarwad can validly dispose of the tarwad property by will assume it to be the settled law that 011 the death of a member of a tarwad his self-acquisition devolved on the tarwad. In 1891 Collins, C.J., and Handley, J., in S.A. No. 1595 of 1889, say that the assets of the deceased member of a tarwad would be taken by the tarwad subject to the payment of his debts. In 1893 before Collins, C.J. and Shepherd, J. in a case, Illikka Pakramar v. Kutti Kunhamed 17 M. 691 concerning succession to the self-acquired property of a Mopla woman it was taken for granted that if she was governed by the Malabar law the property would go to her tarwad. In 1899 Subramania Aiyar Moore, JJ., Komu Nair v. Ittiatha Amma 10 M.L.J. 57 at p. 59 in laying down that the self-acquisitions of a member of the Malabar tarwad devolved on his death not upon his heirs (meaning his sisters and their children), but upon the tarwad express their surprise that the Subordinate Judge in the lower appellate Court being a man of particularly lengthened experience should have fallen into the mistake of holding to the contrary.
38. Thus there can be no question that since the rulings reported in Kallati Kunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462 to both of which Holloway, J. who, I understand, possessed particular acquaintance with the Malabar law was a party, all the Judges of the Court who have had occasion to express an opinion on the point accepted his statement as containing a correct exposition of the law. Before those decisions however Mr. Cook in 1852 as Sub-Judge of Calicut had said that according to the law of nepotism a nephew might be heir to a Karnavan’s property and Mr. Justice Strange in his manual on Hindu Law also before the date of rulings in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462 expressed an opinion that a man’s nephews and nieces succeeded to his movable property. Allowing full weight to the views so expressed in a guarded or qualified form by Strange, J., and Mr. Cook, they cannot be taken in face of the concurrence of judicial opinion which has since prevailed in a contrary sense for the space of nearly half a century, to throw any doubt upon what the general Malabar law is on the point. Those views might well be accounted for if they referred to the practice obtaining in certain particular families following a rule of their own in this matter, and such practice might also have found favour with the more advanced section of the people of Malabai desirous of bringing themselves into a line with other people. And that is the inference to which I have been led by the observations of Turner, C.J., and Hutchins, J, to which reference has already been made and by what Mr. Moore, who was also a Judge of this Court, says in his treatise on Malabar Law and Custom, a book which is constantly referred to as an authority on all questions relating to the institutions peculiar to the people of Malabar. He says at page 176 (3rd edition): “These rules laid down in the case already quoted (meaning the case in Kallatikunju Menon v. Palat Erracha Menon 2 M.H.C.R. 462. which is the leading case on the subject is undoubtedly in accordance with the ancient usage which regarded the family as an indissoluble unit and took no thought of the individuals composing that unit. A practice, however, appears to have sprung up of allowing self-acquired property to pass to the nearer heir in preference to the head of the family;” and further on he states “Traces of the practice alluded to by Mr. Justice Strange and Mr. Cook still occasionally come into the notice of the Courts,” and cites a case in which the rule of succession now contended for was found to be proved by the District Munsif. Mr. Mayne in his Hindu Law, Section 241 (6th edition), also lays down: According to the existing Malabar law a member of a tarwad may make separate acquisitions and dispose of them as he pleases during his life; but anything that remains undisposed of at his death becomes part of the family property.” I might note here that reliance is placed in the order of reference upon the evidence of some witnesses who were examined before the Malabar Marriage Commission as supporting the view in favour of the appellants’ claim, but I need hardly point out that such statements cannot do away with the necessity of proving by evidence adduced in the case that the law of Malabar is not as laid down by the Courts. I may also observe that it was stated by the learned vakil who appeared for the respondents that other witnesses examined by the Commission expressed views which supported his clients’ case.
39. I shall now briefly notice Mr. Sundara Aiyar’s arguments by which he tried to make out that the view of the law embodied in Kallati Kunju Manon v. Palat Erracha Menon 2 M.H.C.R. 462 and corroborated afterwards by repetition in subsequent cases is wrong. He first of all urges that according to the law of nepotism which prevails among the Nayars a man’s heirs are his nephews and nieces and, therefore, if a different rule of inheritance is sought to be established with reference to the self-acquisitions of a Nayar who is a member of a tarwad, it must be proved to be founded on special usage. But this argument overlooks the fact that, the system of holding the property through the tarwad is at least as well established among the people of Malabar as the fact that their general law of inheritance is founded on the rule of nepotism. And I think it can hardly be disputed that the tarwad system of enjoying property is in full vigour at the present day, as instances of rich tarwads consisting of numerous members constantly come to our notice. If the self-acquisitions of the members of the tarwad descended as a rule to their immediate relations to the exclusion of the tarwad the result in all likelihood would be that very few tarwads would be left. This consideration fortifies me in thinking’ that the rule of succession in such cases as recoginzed by so many experienced Judges of this Court must be well-founded in the usage of the people.
40. It is next argued that even if the rule in favour of succession by the tarwad did prevail at one time it should no longer hold good as it has been held that the member of a tarwad has during his lifetime full powers of disposition over his self-acquisitions and it cannot, therefore, be said that the tarwad takes the property by lapse or survivorship. No doubt the use of the words ‘lapse’ and ‘survivorship’ points to a stage in the growth of the Marumakkatayam system when the tarwad had an interest in the self-acquired property of one of its members, but I do not find it difficult to conceive that though this may serve to explain its origin the rule in favour of succession by the tarwad might have survived the state of things which gave rise to it. For in the nature of things we must not look for strict logical consistency on the development of customary law such as that of Malabar. Though it may not now be quite logical to speak to the tarwal’s succession as by survivorship or lapse there can be no doubt as to what the Courts meant, for Mr. Justice Holloway himself while affirming the right of the tarwad holds that during his lifetime the acquirer is fully entitled to dispose of his self-acquisition.
41. The learned vakil for the appellants complained of great hardship if the claim of the tarwad was preferred to that of the tavazhi and indeed he used stronger language, saying that it would be unreasonable to hold in favour of the tarwad’s claim. But he has failed to convince me that his complaint is well-founded, not that considerations of hardship, even if well-founded, would in any way affect the question. A tarwad, however remote the relationship of some of its members may be, is undoubtedly the natural family of the follower of the Manmakkatayam system, who is born and brought up there and is entitled as long as he lives to be maintained and to have all his legitimate expenses paid out of the tarwad property and enjoys whatever other advantages the membership of such corporation might afford. How can it, therefore, be unreasonable to say that property of a Nayar should devolve on his death upon the tarwad. On the other hand I should consider it eminently reasonable and in the fitness of things for a people whose social life is so moulded to adopt such a rule regulating the succession to their property. It is said, however, that a Nayar is bound to his tavazhi by closer ties of relationship than to his tarwad. That might be so generally, but at the same time the statement would not hold good with reference to each individual member of a tarwad and of a tavazhi. The tavazhi is the name for a group of relations consisting of a man’s brothers, sister’s and their descendants as stated In the order of reference and could not include his mother and grandmother nor their brothers and sisters and their children all of whom, however, would belong to the man’s tarwad which comprises all the descendants of a common female ancestor ranging from the nearest to the most remote. When the competition, therefore, is between the tarwad and the tavazhi, I shall find it difficult to affirm with any certainty that a Nayar would be apt to regard for instance his brothers and sisters as having greater claims upon him than his mother. However they may be, I feel myself bound to hold that the law on the point in disputes is as laid down by the Judges of tin’s Court from the day of Holloway, J., onwards.
42. I am also of opinion that though in the cases quoted the present question was not the one brought up for actual decision, still as it was necessary to come to a decision upon it in order to reach the conclusion arrived at by the learned Judges, the controversy falls within the principle expressed by the Judicial Committee in Chotay Lall v. Chunnoo Lall 4 C. 744 at 755 : 6 I.A. 15 : 3 C.L.J. 465 where they observe: The Courts ought not to unsettle a rule of inheritance affording a long series of decisions unless it is manifestly opposed to “law and reason.” The danger is obvious of overriding at the present day the decisions which have laid down the law in favour of succession by the tarwad as I have said I am not satisfied that the rule so enunciated is wrong. I need scarcely observe that if the matter had been res Integra I would have hardly ventured on such a question to express dissent from my learned brothers Miller and Sankaran Nair, JJ., but having regard to the authorities the only possible answer in my opinion is that which I suggested.