Judgment :- 1. This civil miscellaneous appeal is directed against an appellate order of the court below, which set aside the decree of the trial court and remanded the suit for fresh disposal, in the light of the observations contained in it. 2. The suit was for partition and recovery of the plaintiff's one-third share in the schedule properties. According to the plaintiff, the community of Embrandiri Brahmins to which the parties belonged was governed by the Mitakshara Hindu Law; so the plaintiff was entitled to an equal share along with his two brothers the defendants 1 and 2. The 1st defendant who was the eldest of the brothers and as such the family Kartha, resisted the plaintiff's claim on the basis inter alia that the parties were Malayali Brahmins forming members of an illom governed by the Madras Nambudiri Act, 21 of 1933 and the properties of the illom could be partitioned, if at all, only under the provisions of that Act. He contended, that in this view the remaining members of the illom, viz., his wife and five children were necessary parties to the suit. The 2nd defendant supported the plaintiff's case and claimed division for himself The question of the personal law governing the parties, which arose on the contentions of the parties as above, was the subject-matter of Issue 1 as follows: "Whether the plaintiff and defendants are governed by Mitakshara law or Nambudiri Act of 1933." 3. The plaintiff as Pw.1, gave evidence on the above issue that the ancestors of the parties migrated from the northern part of the District and settled at Pullur some years ago, that they continued to follow the Mitakshara law of inheritance and, had not adopted the customs and usages of Nambudris. In this he was supported by Pw. 2 who was also an Embrandiri. The 1st defendant as Dw.1 however testified that the customs and usages adopted by their ancestors were entirely different from those of the followers of the Mitakshara law but on the other hand were in many respects the same as those of the Nambudris notwithstanding that they were still calling themselves Embranthiris. They must according to him be governed by the Nambudri Act. He also produced Ext. They must according to him be governed by the Nambudri Act. He also produced Ext. B-2 judgment dated 30-6-1942 in O. S.384 of 1940 on the file of the District Munsiff, Kasargod, to show that their distant kinswoman of the Vadakkey Puthi Illom and from whom in fact they got items 6, 8, 9,10 and 15 in due course of inheritance, had been held to be governed by the Nambudri Act. 4. The learned District Munsiff of Hosdurg before whom the case came on for trial, accepted the plaintiff's version and went on to find issue 1 in his favour and finally granted preliminary decree for partition of the plaintiff's 1/3 share in conformity with his findings on the rest of the issues. In appeal by the 1st defendant the Subordinate Judge of Kasargod reversed the finding of the trial court on Issue No.1 and held that the parties were governed by the Nambudiri Act. According to the learned Judge, Ext. B-2 was an important piece of evidence to show that the parties in the present suit had adopted the personal law governing the Nambudris. For, otherwise there was no scope for the devolution upon their illom, of the property of an illom which had been held to be governed by the Nambudri Act by that decision, and their exercising powers over it. The fact that the parties were styling themselves as Embranthiris was not a conclusive test in the matter. The learned judge relied upon Sundara Iyer's Treatise on Malabar and Aliyasanthana Law and the judgment of Muthuswamy Iyer, J. in Vasudevan v. Secretary to State, I. L. R.11 Madras 157, to hold that some of the Nambudris found in Malabar were descendants of Embranthiri Brahmins of Canara, which had adopted the peculiar Nambudri customs and usages and also the personal law governing Nambudris. In the result, the learned judge allowed the appeal and remanded the suit for fresh disposal, after impleading the wife and children of the 1st defendant and in conformity with the findings and directions contained in the judgment. Hence this civil miscellaneous appeal by the plaintiff. 5. Now there is one formidable objection to the application to the parties here, of the provisions of the Madras Nambudri Act of 1933 and that is constituted by the limiting provisions in the Act itself, as regards its application. Hence this civil miscellaneous appeal by the plaintiff. 5. Now there is one formidable objection to the application to the parties here, of the provisions of the Madras Nambudri Act of 1933 and that is constituted by the limiting provisions in the Act itself, as regards its application. For under S.1, Clause.2, the Act applies: "(a) to all Nambudiri Brahmins id the Presidency of Madras who are not governed by the Marumakkathayam law of inheritance; and (b) to all Nambudiri Brahmins outside the said Presidency not governed by the said law, in respect of immovable property situated within it". and S.27 finally says: "The provisions of this Act shall also apply to the following communities in the Malabar district who are not governed by the Marumakkathayam law of inheritance and who follow customs and usages similar to those of the Nambudris, namely, Adigals, Elayads, Moosads, Pitarans and Nambissans" That is to say, there is no inclusion within the scope of the Act, of Embranthiris, to which community the parties here belong, notwithstanding that they follow customs and usages similar to those of Nambudris. The contention raised by the 1st defendant that the parties were Malabar Brahmins governed by the Nambudiri Act could not therefore stand any chance of being entertained. The finding of issue 1 entered by the lower appellate court cannot accordingly be sustained. 8. But learned counsel for the 1st defendant says that though not so clearly expressed in the written statement, his client had still a contention that, to the extent the parties had been following the customs and usages of the Nambudris, the customary law of 'impartibility' which governed the Nambudris before the advent of the Act, must be held to govern them. The argument is that the Embranthiris had given up their original law of the Mitakshara and accepted the law governing the Nambudris among whom they had settled, even though it may be that the enactment of 1933 did not take them in. Learned counsel for the appellant-plaintiff objected that the question of partibility was not intended to put in issue at all by the 1st defendant and the only question in the case on this aspect was, under what law it should be affected, the Mitakshara law or the Nambudri Act. Learned counsel for the appellant-plaintiff objected that the question of partibility was not intended to put in issue at all by the 1st defendant and the only question in the case on this aspect was, under what law it should be affected, the Mitakshara law or the Nambudri Act. We think, however, that the 1st defendant may have had the present contention in view when he said in Para.3 of his written statement: "This defendant submits that the plaintiff and defendants are Malayali brahmins forming members of an illom along with other members governed by Madras Nambudri Act. If at all, partition of the illom properties can be effected only under the provisions of the said Act". We would in the circumstances give him a chance to raise this contention specifically by amendment of his written statement and have an issue raised in the matter and disposed of in due course. The case will therefore have to go bark to the trial court, though not for the reasons contained in the order under appeal and we direct accordingly. 7. We therefore confirm the order of the court below to the extent it set aside the decree of the trial court, and remitted the case for fresh disposal. The finding of the court below that the parties are governed by the Nambudiri Act, 1933 is reversed. The trial court will allow the 1st defendant to amend his written statement as indicated above and raise the additional issue concerned and dispose of the case in due course, in the light of fresh findings on the rest of the issues which it may enter. The parties will be at liberty to let in fresh evidence. The appellant will receive the costs in this court and in the lower appellate court unconditionally from the 1st defendant. The costs in the trial court so far incurred and for the future will be provided for in the judgment of the trial court to follow. Allowed.