The right to claim share in the illom property vested in the member of the illom upon making the claim, and the right could be transmitted by will or otherwise.

Pandrang Row, J.

1. This is an appeal from the decree of the Subordinate judge of Ottapalam dated the 23rd August, 1935, which dismissed the suit originally instituted by one Bhavatharathan Nambudripad for partition of his share in the property of his illom. He instituted the suit on 20th February, 1934. He executed a registered will seven days later leaving all his property including his share in his illom property to his Nair wife and children. He died on 2nd July, 1935. The Nair wife and children applied to be brought on record as the legal representatives of the deceased plaintiff, claiming to come in as such under the registered will and also as the heirs of the deceased plaintiff under the Marumakkathayam law. That application was dismissed, the Subordinate Judge holding that the right to sue did not survive as there was no severance of status by the mere filing of the suit and that as there was no severance of status, there was nothing to which the legal representatives could lay claim. Not only was the application dismissed but the suit was also dismissed on the ground that the right to sue did not survive, as the sole plaintiff had died. In other words, the learned Subordinate Judge appears to have looked upon the suit for partition as if it was a purely personal action which ceased to survive after the death of the sole plaintiff, and this in spite of the specific provision in the recent legislation giving the right to any member of an illom to claim his share in the illom property. The Madras Nambudri Act of 1932, which is Act XXI of 1933 was an Act to define and to amend, among other things, the law relating to partition applicable to Nambudri Brahmins, and Section 23 of the Act provides distinctly as follows:

Any member of an illom male or female may claim to take his or her share of all the properties of the illom over which it has power of disposal and separate from the illom.

2. This unqualified right which is given to every member of the illom was surely meant to be a fight which would vest in the member of the illom who is making the claim in question, separation being of course a necessary concomitant of the claim. It could not have been intended by the Legislature that till the Court passed a decree in a suit preferred by any member of the illom, there could be no vested right in the member which could be transmitted by him either by will or otherwise. It is not seriously disputed that if he had chosen to make an alienation of his share during his lifetime the alienee would be entitled to maintain his right to recover the particular share that would have fallen to the deceased alienor. There seems to be no particular reason why the rule of law which applies to the Hindus governed by the Mitakshara law should not apply to Nambudris, namely, that there is a division of status, and, so to speak, a division of title, and a proprietary interest vested in the person concerned the moment he makes an unqualified and unambiguous declaration of his intention to claim his share and separate himself from the family even though such declaration is unilateral.

3. This was the law as laid down by their Lordships of the Judicial Committee in Girja Bai v. Sadashiv Dhundiraj (1916) 31 M.L.J. 455 : L.R. 43 IndAp 151 : I.L.R. 43 Cal. 1031 (P.C.) beyond any shadow of doubt, though some previous observations of their Lordships had pointed this way. In any case when the Legislature was considering this Nambudri Act of 1932, it must be obvious that it had this well-established rule in its mind when it enacted this Section 23, which gave every member of an illom the right to claim his or her share, that on the making of such a claim he would have a vested right so far as his share of the property was concerned, though that share remained to be ascertained later on, either by mutual agreement or by an order of Court. In our opinion a perusal of the whole of the Chapter relating to partition in this Act XXI of 1933 shows that the