1. This reference to a Full Bench was occasioned to consider the applicability of the Hindu Law Doctrine of pious obligation to the Thiyyas of Calicut. The court below ruled that the doctrine has no application to them, relying on a Division Bench ruling of this Court in Dharmodayam Company v. Balakrishnan (1962 KLT. 712). The Division Bench which made the reference found force in the contention that the decision in Dharmodayam Company's case required reconsideration in view of the observations in the Supreme Court decision in Anthonyswamy v. M R. Chinnaswamy (AIR. 1970 S.C. 223).

2. The appeal arises out of a suit for partition. Defendants 2 and 3 who have filed this appeal may be described the alienees of certain items, the 2nd defendant being the mortgagee of items 1 to 5 and the 3rd defendant, the vendee (claimed also to be the lessee) of item 6. The plaintiffs 1 to 5 were the children of the 1st defendant who died pending suit, and the 6th plaintiff is their mother and the wife of the 1st defendant. Items 1 to 5 were hypothecated by Ext. B-5 dated 26121958 for a sum of Rs. 6.850/- to the 2nd defendant. A portion of item 6 was sold by Ext. B-13 dated 13-6-1958 to one M.G. Thomas for Rs. 5,000/-, and the rights became vested in the 1st defendant under Ext. B-14 dated 26 31960 for Rs. 4,000/- The other portion of item 6 was sold under Ext. B-17 dated 26 31960 for Rs. 4,750/-. These two alienations were attacked as not supported by family necessity or benefit and therefore not valid and binding. For defendants 2 and 3 they were sought to be justified on the ground of necessity or benefit, and also on the doctrine of pious obligation of the sons to defray their father's debts. By amendment of plaint it was pleaded that the parties, being Thiyyas of Calicut, are governed by the customary law and that the said custom does not attract the doctrine of pious obligation as known to the Hindu Law. This was in answer to the plea raised by defendants 2 and 3 in their written statement that the Hindu law doctrine of pious obligation applied to the Thiyyas of Calicut. From the amendment of the plaint and the additional written statement filed by defendants 2 and 3 we are satisfied that the contention raised in the appeal had been squarely reflected in the pleadings and no objection on the ground of want of pleading can be raised against it.

3. The court below held that Exts. B-5 and B-13 cannot be supported on the ground of necessity or benefit; and that as far as the doctrine of pious obligation is concerned, it had no application to the plaintiffs and the 1st defendant, as it had not been proved to be part of the customary law of Thiyyas of Calicut. In the result, it passed a preliminary decree for partition directing the plaint properties to be partitioned into 4 equal shares and allotment of 3 such shares to plaintiffs 1 to 3, one such share in items 1 to 5 to 2nd defendant, and one such share in item No 6 to the 3rd defendant It was stated that the share to which the 1st defendant was entitled at the time of the suit was thus given to his alienees, namely, defendants 2 and 3 by way of equity.

4. We have been taken fully through the evidence in the case to show whether the impugned transactions can be justified by necessity or benefit. We are satisfied that the finding of the court below that they cannot be said to be supported by necessity or benefit is correct and has to be affirmed. Briefly stated the position disclosed is as follows: Ext. 8-5 is the hypothecation deed for Rs. 6,850/- in respect of items 1 to 5. Out of the said consideration, Rs.4,500/-was to discharge a prior hypothecation, Ext. B-4 dated 12 91950, and Rs. 2,350/-was stated to be borrowed house construction. There is no proof of any house having been constructed. The prior hypothecation, Ext. B-4 for Rs. 4,500/- recites that the consideration for it was Rs. 2,000/- to discharge a prior loan, and Rs 2,500/-borrowed for the contact work of the 1st defendan