Judgment

K. SUBBA RAO, J. : These three appeals by certificate by the High Court of Travancore-Cochin are directed against the common judgment dated December 5, 1952, in A. S. 532, 535 and 540 of 1123 by which the High Court set aside the decrees of the District Court of Kottayam in O. S. 107 of 1114, 20 of 1116 and 72 of 1120 and dismissed the appellants suits.

2. The result of these appeals turns upon the proof of the factum of marriage of the appellants, Damodaram Namboori and Nangayya Antharjanam, in sarvaswadanam form. Though the pleadings disclose a wider field of controversy, it would be enough if the facts and circumstances giving rise to the aforesaid question are briefly stated.

3. Vasudevan Namboori, his brothers, Adityan Namboori and Narayanan Namboori, his father, his father s brother s 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, on 25-6-1102. Thereafter, 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. On 9-4-1116 - it may be stated that by that time all the members of the family except the widow, Nangayya Antharjanam had passed away- the 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. The