LexGOVIND POTTI GOVINDAN NAMBOODIRI versus KESAVAN GOVINDAN POTTI & ORS.
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•--! ...... .'\ " ~ • "<'. r ~ ~ GOVIND POTT! GOVINDAN NAMBOODIRI A v. KESA VAN GOVINDAN POTT! & ORS. JULY 22, 1987 [O. CHINNAPPA REDDY AND 8 K. JAGANNATHA SHETTY, JJ.] Kerala Nambudiri Act, 1958: Malaya/a Brahmins governed by Hindu Law-Income earned from hereditary profession of Malaya/a Brahmins-Properties purchased from such income-Whether joint family properties. c Practice and procedure: Court not to be prisoner of indecision- Clarity and promptness in decision of court-Necessity for. The plaintiff's great grandfather executed a partition deed Ex. P. 1 under which the properties acquired by him were divided into four D shares as described in Schedules A, B, C & D and distributed to his sons and grandsons. The plaintiff claimed in a suit for partition that plaint B schedule properties consisting of properties in Schedules A & D of Ex. P. 1 had been acquired out of the income from the plaint A schedule and hence they were also the illom properties in which he was entitled to share on per capita basis. Defendants 1 to 10, 24 to 26 and 29 to 33 E supported his case. Defendants 11, 13, 16 to 21, 22 and 27 contended that the plaintif's great grandfather had no surplus income from plaint A schedule properties and the acquisitions made by him which were the subject matter of division under Ex. P. 1 were the separate properties. The trial Court decreed the suit and held that parties were governed p by marumakkathayam Law and Plaint A schedule properties were lllom properties, that the plaintiff's great grandfather could get surplus income therefrom which was utilised for purchasing properties dealt with under Ex. P. 1 and, therefore, the illom properties were available for partition, and that, in any event, the parties by their subsequent ,,,.__ conduct appeared to have treated the properties as illom properties and G passed a preliminary decree for partition on per capita basis. The matter was taken in appeal to the High Court. Cross Objec· tion was also filed. The High Court held that there was no acceptable evidence to show as to what were the properties allotted to the original testator for his maintenance when he left his illom or the Income there· Ii 615 - 616 SUPREME COURT REPORTS (1987] 3 S.C.R. A from and that there was no mat~rial to prove that the plaint A schedule properties were given to him for maintenance; nor was there evidence to establish that the plaint B schedule properties were acquired with the aid qf surplus income from plaint A schedule properties. With regard to properties allotted to the testator's grandson under Ex. P. 1 and his subsequent c~nduct to treat the properties as joint family properties, it B held that firstly, there was no intention on the part of the testator's grandson to treat his properties as illom properties, and secondly, even if he had such an intention it would he doubtful whether the principle of Hindu Law could he applied to the properties. In appeal before this Court, it was urged that the High Court C proceeded on the wrong assumption that there was no proof that the plaint A schedule properties were illom properties that were given to the plaintiff's great grandfather for his maintenance. Dismissing the appeal by special leave, this Court, D HELD: 1. Malayala Brahmins are governed by Hindu Law unless they can be shown to have deviated in any respect and adopted different practices, like local customs, if any. Some of their rights have now been regulated by the Kerala Nambudiri Act, 1958 (Act 27 of 1958) which provides for the family management and partition of ill om properties among Nambudiri Brahmin Community and Section 13 E confers right on a members of illom ·to claim partition on per capita basis. [621F-G] 2. Iswara Sevas in temples like Santhi Ceremony and Parikar- mam works are said to be the hereditary profession of Malayala Brahmins and the illom to which the parties belong. But the income F . earned by any member of an illom from such practice would not become the joint family property. It would be separate property of the indi- vidual. It cannot become joint family property. The position, however, may be different if a member earns from such practices which exclu- sively he long to the joint family. [ 622F -GI G 3.1 In the instant case, there is no doubt that the plaint A j.. schedule properties are common illom properties which were in posses- sion of the testator under a m
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