Case: Neelakantan Damodaran Namboori &amp; Another Vs. Velayudhan Pillai Narayana Pillai &amp; Another

3. Vasudevan Namboori, his brothers, Adityan Namboori and Narayanan Namboori, his father, his fathers brothers widow, and his daughter, Nangayya Antharjanam (the 2nd appellant) were the surviving members of Kopprathu Illom in the Malayalam year 1102. It appears that another member of the Illom, Sankaran Namboori, was treated as an outcaste in the year 1084 and though for that reason ceased to be a member of the Illom, he persisted to continue to live in the family house. Nangayya Antharjanam the second appellant, was married to Damodaran Namboori, the first appellant, onThereafter, it the marriage had taken place in sarvaswadanam form, the second appellant would continue to be a member of that family, but she would cease to be so, if the marriage was in the ordinary form.4. The aforesaid three suits were filed in respect of the properties of the family. Narayanan Namboori of Kopprathu Illom filed O. S. No. 20 of 1116 in the District Court of Kottayam for the recovery of the suit property from the first defendant and his assignee, Velavudhan Pillai Narayanan Pillai, the second defendant. It was alleged in the plaint that the first defendant acquired the land on kanom tenure under a compromise entered into by him with the previous karnavan and that the said compromise was not binding on him. With regard to the said property, the State enhanced the fax. Narayanan Namboori, therefore, instituted O. S. No. 107 of 1114 in the District Court of Kottayam for setting aside the order of the State enhancing the tax. To that suit, the State was impleaded as the first defendant and defendants 1 and 2 in O. S. 20 of 1116 as defendants 2 and 3. Onit may be stated that by that time all the members of the family except the widow, Nangayya Antharjanam had passed awaythe said widow, as the sole surviving member of the Kopprathu Illom, executed exhibit XXIX in favour of the second defendant in O. S. 20 of 1116 (Appellant) giving all the properties of the Illom to him. Damodaran Namboori and his wife, Nangayya Antharjanam, after obtaining a deed from Nangayya Antharjanam, the last surviving widow of the family, filed O. S. 72 of 1120 for setting aside exhibit XXIX and for the recovery of the properties comprised therein, setting up the claim that they were members of the Kopprathu Illom by reason of their having been married in sarvaswadanam form. Meanwhile as the first plaintiff in O. S. 107 of 1114 and 20 of 1116 i.e., Narayanan Namboori, died, Nangayya Antharjanam, the daughter of Vasudevan Namboori, and her husband, Damodaran Namboori, filed a joint petition for being impleaded as legal representatives of the deceased. It was also alleged in the petition that the marriage between Nangayya Antharjanam and Damodaran Namboori was performed in sarvaswadanam form. Pending that application the widow, Nangayya Antharjanam, died and the two petitioners were made the 2nd and 3rd plaintiffs in the said suits, subject to the final determination of the question whether they (the petitioners) were the members of the Kopprathu Illom by reason of the said marriage. The three suits were contested by the defendants on the ground, inter alia, that the marriage of Damodaran Namboori and Nangayya Antharjanam did not take place in sarvaswadanam form. They also raised other pleas, which need not be particularized, as nothing turns on them in the appeals. The learned District Judge rejected all the pleas raised by the defendants and decreed the suits. Velayudhan Pillai Narayanan Pillai, the second defendant in O. S. 107 of 1114 and O. S. 20 of 1116 and first defendant in O. S. 72 of 1120, preferred appeals to the High Court against the decrees of the learned District Judge. The High Court on a consideration of the evidence came to the conclusion that Nangayya Antharjanam and Damodaran Namboori were not married in sarvaswadanam form and therefore they were not entitled to be impleaded as the legal representatives of the deceased Narayanan Namboori or to continue the suits O. S. Nos. 20 of 1116 and 107 of 1114 on behalf of the Illom and obtain any relief whatever in those suits. As the appeals were dismissed on a preliminary ground, the learned judges of the High Court felt it unnecessary to consider the other questions raised or to express their opinion thereon. The result was that all the three suits were dismissed with costs in both the Courts. The present three appeals were filed against the judgment of the High Court.

Reasoning:
6. No. material has been placed before us to show precisely the necessary ceremonies accompanying such a marriage and the legal incidents flowing from it. Neither before the High Court nor before the learned District Judge any attempt was made to contend that, though the marriage was ostensibly performed in sarvaswadanam form, the necessary ceremonies were not performed and therefore the marriage in that form was invalid.7. In the circumstances, we do not propose to express our opinion on the customary incidents of such a marriage. In the Courts below, the parties proceeded on the basis that in a sarvaswadanam marriage the daughter retained all the rights in the family properties in spite of her marriage, in the same way as a son did and if there was an agreement to that effect thealso would become a member of the family. We would, therefore, proceed to dispose of these appeals on the same basis.There remains only the oral evidence adduced in this case. P. Ws. 2 and 3 have stated that the marriage was in sarvaswadanam form and exhibit C was written and signed onBoth of the them are related to each other and are also related to Damodaran Namboori. That apart, they had stated that a number of respectable elderly Namboories attended the marriage; but none of them was examined; nor any attempt made to examine the priest, who, according to them, officiated at the marriage. The learned Judges were not able to accept the evidence of P. Ws. 2 and 3. We have gone through the evidence and we do not think that we are justified in taking a different view. P. W. 1, Damodaran Namboori is obviously an interested party and therefore his evidence cannot be accepted.16. To summarize, long before the marriage and the execution of exhibit C, Vasudevan Namboori and other members of the family were not on good terms and indeed there were protracted litigations between them. Vasudevan Namboori, with his daughter, left Kopprathu Illom, when Sankaran Namboori was treated as anoutcaste in the year 1084 andbegan to live in hisIllom. Though, Vasudevan was the karnavan from 1099, the actual management of the Illom affairs was in the hands of Narayanan Namboori. The members of the family joined together, borrowed an amount of Rs. 2, 500 and celebrated the marriage of the daughter of the family in 1102, as it was the legal obligation of the family. At the time of the marriage, streedhanam of Rs. 2, 000 was given to the bride. Exhibit C, the document recording the form of the marriage was not signed by the de facto manager or other elder members of the family. It did not see the light of day till 1106; when reliance was placed upon it, Narayanan Namboori denied that the marriage was in sarvaswadanam form. Narayanan Namboori and other members of the family, except Vasudevan Namboori, never treated the appellants as members of the family. They dealt with the property as if the appellants did not have any interest therein. The appellants also, notwithstanding the execution of exhibit C, never lived in the family house except for 10 days. They never enjoyed the family income nor did they ever claim any share in it. They did not set up that they were married in sarvaswadanam form except in the document Nangayya Antharjanam executed cancelling exhibit XXIX. The respondent who admittedly did not attend the marriage, took up inconsistent positions to suit his convenience. The respectable people who attended the marriage were not examined to prove the form of marriage. The two witnesses that were examined are not only related to each other but are also related to the first appellant. In the circumstances, though exhibit C was executed some time before it was registered, we hold on the evidence that it has not been established that the appellants were married in sarvaswadanam form..17.It is then contended that even if the marriage was not is sarvaswadanam form, the last surviving member of the family conveyed the suit properties to the appellants under exhibit A.There are two obstacles in the way of sustaining the appellants claim on the basis of exhibit A. If the marriage of the appellants did not take place in sarvaswadanam form. Nangayya Antharjanam had acted within her rights in settling her properties on the respondent under exhibit XXIX. Unless exhibit XXIX is displaced, exhibit A will not have any legal effect. The more insurmountable obstacle is that Nangayya Antharjanam did not create any interest in favour of the appellants under exhibit A. It is stated in exhibit A that, by reason of sarvaswadanam marriage, the appellants were entitled to all moveable and immovable properties belonging to Kopprathu Illom and therefore she was executing the release deed conferring all the rights and claims they have obtained over the Illom properties by the sarvaswadanam form of marriage. The document, therefore, in terms confirms therights of the appellants and as we hold that they had no.rights, the document did not convey any interest to them.Prima facie the document supports the appellants version. But a scrutiny of the evidence discloses that the respondents case is true. The circumstances of the family before the date of the marriage would afford a background for appreciating the evidence in this case. Though Vasudevan Namboori was the eldest member of the Koprathu Illom and therefore its de jure karnavan, it is common case that he left his family house along with his daughter and shifted his residence to Sivolli Illom, the place of hisVasudevan Namboori admitted in his evidence in O. S. 448 of 1106 that the Illom affairs were not attended to by him, at any rate, from the year 1099. Cash receipts exhibits AC and AD and the michavaram receipts ranging from 1101 to 1104 are in the name of Narayanan Namboori. Indeed it is not disputed that Narayanan Namboori, the junior member of the family, had been in actual management of the family and its properties till he died.