JUDGMENT P. Subramonian Poti, J. 1. The appellant before me in the S.A. is the plaintiff in a suit for partition. Originally there were only 2 defendants in the suit. Defendants 3 to 7 were later on added as additional defendants. Plaintiff and defendants 1 and 2 are, according to the plaintiff, members of a Hindu Mithakshara family, first defendant being the manager. The plaintiff is entitled to 1/3 and defendants 1 and 2 are together entitled to the remaining 2/3. The main dispute between the parties is about the law governing the plaintiff and defendants. "According to the first defendant, their family is not governed by the Hindu Mithakshara law, but the law governing Namboodiris, since their family has settled down in Hosdrug at a village called Pullur and adopted the customs, manners and usages, including the custom of impartibility. Therefore according to the first defendant, the suit for partition would not lie as partition cannot be had except by mutual consent. The second defendant supported the case of the plaintiff. 2. It may be necessary to refer to certain facts which are pertinent to the disposal of the case. The parties are Havik Brahmins of South Kanara District formerly forming part of the Madras State, but now forming part of the Kerala State as also part of the Mysore State. They migrated to Hosdrug in North Malabar and settled down there. Whatever might be their law before such migration, according to the first defendant, they have adopted the usages of Namboodiris and their customs and manners. There are several such families of Havik Brahmins, who, according to the first defendant, have so adopted the customs of the Namboodiris. Though they are not Namboodiris as such and they call themselves by the name Embrandiris they observe all the religious rites that Namboodiris normally observe. To a certain extent the parties to this case are agreed in this. Even the plaintiff, who, contends that they are still followers of the Hindu Mithakshara law, admits that certain customs which are peculiar to the Namboodiri families have been adopted by Embrandiris who are settled down in and around Hosdrug. I may refer to some of such manners, customs and usages adopted by the family of the plaintiffs and other Havik Brahmins settled down in Hosdrug. I may refer to some of such manners, customs and usages adopted by the family of the plaintiffs and other Havik Brahmins settled down in Hosdrug. Normally the Brahmins of South Kanara both Sivalli and Havik have their tuft at the back while Namboodiris have their tuft in front. The plaintiff's family had adopted the custom of Namboodiris in this regard. They wear white dresses, males as well as females as in the case of Namboodiris though South Kanara Brahmins have no objection to wear coloured dresses and their females would not wear white dress. Their women are called as Antharjanams which is peculiar to Namboodiris and they observe a sort of pardha by carrying cadjan leave umbrellas whenever they go out. Their widows do not shave their heads on the death of their husbands though in the case of South Kanara Brahmins the custom is otherwise. At the time of marriage the 'tali' is tied in a white thread on the bride's neck whereas in the case of Brahmins of South Kanara what is worn is 'karimani' or black beads. Among Namboodiris till recently it was customary only for the eldest member in the family to marry leaving the other members to enter into marital relations with members belonging to Nair community. This custom too is said to have been adopted by plaintiff's family. Among Namboodiris the 'samavarthanam' for a brahmachari after 'upanayanam' is to be conducted three years after the 'upanayanam' and during all these three years he has to wear along with the sacred thread a leather belt made of 'Krishnanjanam'. Among other Brahmins 'samavarthanam' is conducted just before marriage and until 'samavarthanam' a small piece of leather alone need be worn in the sacred thread itself. This custom of the Namboodiris too is said to have been adopted by the plaintiff. There is a custom among Namboodiri ladies that after the monthly periods, to get purified, they must wear a cloth brought by vannathi. This custom is absent among Brahmins of South Kanara. Among Namboodiris the sradha is performed according to the star (MALAYALAM) while among South Kanara Brahmins this is according to thithi (MALAYALAM). There is a custom among Namboodiri ladies that after the monthly periods, to get purified, they must wear a cloth brought by vannathi. This custom is absent among Brahmins of South Kanara. Among Namboodiris the sradha is performed according to the star (MALAYALAM) while among South Kanara Brahmins this is according to thithi (MALAYALAM). These are some of the very prominent features of distinction between Namboodiris on the one hand and the South Kanara Brahmins on the other and all these customs and usages have been adopted by the plaintiff's family and it is, therefore, the first defendant says, that it must be taken that the law of impartibility of Namboodiris also must be taken to have been adopted by them. I have already referred to the two of the classes of Brahmins in South Kanara who have settled down in various parts of Kerala, Sivalli and Havik. It is the Havik Brahmins who seem to have adopted the customs of Namboodiris easily. The Sivalli Brahmins are not shown to have adopted the customs and manners of Namboodiris or even to have adopted the language Malayalam for their daily use among members, of the family, even those who have settled down in Kerala. They still normally speak the language Tulu. It was contended in an earlier stage of the suit that because of the adoption of customs of Namboodiris the Embrandiris come, within the definition of Namboodiris under the Madras Namboodiri Act, 21 of 1933. That Act applies only to Namboodiri Brahmins. But by section 27 of that Act the provisions of that Act are made applicable to the communities of Adikal, Elayaths, Moosaths, Pidarans and Nambissans who follow customs and usages similar to those of Namboodiris. This case of the 1st defendant came up once to this court in second appeal. The decision is reported in P. Krishnan Embrandiri v. P. Kesavan Embrandiri, 1958 K.L.T. 315. There the case of the 1st defendant was found against. It was found that the plaintiff's family has adopted the customs of Namboodiris coming within the scope of the Madras Namboodiri Act, 21 of 1933. But it was held that the Madras Namboodiris Act would not apply to Embrandiris even if they adopt the customs and usages of Namboodiris. There the case of the 1st defendant was found against. It was found that the plaintiff's family has adopted the customs of Namboodiris coming within the scope of the Madras Namboodiri Act, 21 of 1933. But it was held that the Madras Namboodiris Act would not apply to Embrandiris even if they adopt the customs and usages of Namboodiris. The communities, who, by adoption of such customs and usages can come within the scope of that Act are mentioned in section 27 of that Act and Embrandiris being not one of them the Act will not apply to them. It would have been sufficient for the disposal of this case, but for a Prayer of the first defendant that he had a case that though governed by the Hindu Mithakshara law it is open to a party to show that such law had been modified by custom and it is their case that the custom relating to impartibility prevalent among Namboodiris has been adopted by the family of the plaintiffs. This court permitted such a contention to be raised and directed the trial of the case based upon such a contention and for that further purpose sent the case back to the trial court. It was so raised. But soon thereafter the Kerala Namboodiri Act, 1958 came into force and the plaintiffs thereupon again moved the court for an amendment to avail of the benefit of that Act, as according to the first defendant it was sufficient to show that their family followed the customs, manners and usages of the Namboodiris to bring them within the scope of that Act. Though that amendment was refused, the matter came up to this court in revision at the instance of the first defendant and this court directed that the amendment should be permitted to be carried out. That decision is reported in 1959 K.L.J. 390. The matter went back and the court has again considered the question. The trial court held that the parties are governed by the Kerala Namboodiri Act and gave the plaintiff a decree for partition regarding his share of 1/8, as according to that Court all the defendants were entitled to a share each. The appellate court confirmed this and hence this S.A. by the plaintiff. I may refer shortly to the legislative history of section 2 (f) of Kerala Namboodiri Act, 1958. 3. The appellate court confirmed this and hence this S.A. by the plaintiff. I may refer shortly to the legislative history of section 2 (f) of Kerala Namboodiri Act, 1958. 3. The law governing Namboodiris in Travancore area prior to the coming into force of the Kerala Act was the Travancore Malayala Brahmins Act of 1106. (Regulation III of 1106). The term Malayala Brahmin was defined in that Act and the definition is in section 2 (1): '"Malayala Brahmin' includes Namboodiri, Potti and others known or recognised as Malayala Brahmins but does not include those who according to the law governing them are entitled to individual partition before the passing of this Regulation." Besides Namboodiri, Potis and others known or recognised as Malayala Brahmins are also taken in within the definition. Brahmins of South Kanara both Sivalli and Havik who have migrated from South Kanara and settled down in various parts of Kerala have adopted the caste name of Poti, Embran and Embrandiri and among them there are those who have adopted the customs, usages and manners of the Namboodiri Brahmins. As I have indicated earlier in this judgment there is a vast section of the community which, in spite of settlement in Kerala for a number of years, have not adopted such customs, manners and usages. It is seen that while Havik Brahmins have generally adopted such customs and manners, it is not shown that Sivalli Brahmins have in any way followed the customs of the Namboodiris. Such of those who have not adopted the customs still continue as a community which has very little in common with Namboodiris. Section 2 (1) of the Malayala Brahmins Act of 1106 is intended to take in within its definition Namboodiris, Potis and members belonging to other communities who are generally recognised as Malayala Brahmins and who are not entitled to individual partition; but does not include those who according to law governing them are entitled to individual partition before the passing of the Malayala Brahmin Regulation of 1106. The Sivalli Brahmins of South Kanara who have settled down in Kerala and who have adopted the caste name of Poti, Embran or Embrandiri and who still continue to be governed by their customs, usages manners as before without in any way adopting the customs of Namboodiri are still governed by the Mithakshara Law and they are not affected by any one of the Legislations which have been successively passed by the legislatures of the erstwhile Travancore and Cochin and also the Madras State, or later by the Kerala State. Even in the Travancore Regulation of 1106 the Potis who come within the Regulation are only those who, according to the law governing them, are not entitled to individual partition. In other words (the latter clause in the definition of Malayala Brahmin but does not include those who according to the law governing them are entitled to individual partition before the passing of this Regulation," qualified not only ˜others known as Malayala Brahmins', but also Potis and Namboodiris. I am aware that contrary view has been held by a learned Judge of this court in Easwaran Embran v. Krishnan Embran 1961 K.L.T. 5 and if the decision in this case had to be based on this question, I would have referred this matter to the Division Bench. According to me the view taken therein is not correct and this is amply indicated by the definition in the Kerala Namboodiri Act which makes the position clear. In the Madras area there is no definition of the term Namboodiri; but section 27 included certain other communities also within the scope of the Act. But neither Poti nor Embrandiri came within the scope of section 27, so much so in spite of the adoption of Namboodiri customs and manners, those who were not Namboodiris originally and who settled down in Kerala coming from South Kanara continued to be governed by their own law unless such law were modified by custom. The definition of Namboodiri in Cochin Namboodiri Act XVII of 1114 is as follows: 'Namboodiri' means Namboodiri Brahmins and includes the following communities, namely, Potis, Adigals, Elayads, Moosads, Pitarans, Nambiars and Nambissans who are not governed by the Marumakkathayam Law of inheritance and who follow customs and usages similar to those of Namboodiris.� This definition is more akin to the definition of 'Namboodiri' in the Kerala Namboodiri Act. Therefore those Potis who followed customs and usages similar to those of Namboodiris came within the scope of the Cochin Namboodiri Act before the Kerala Namboodiri Act came into force. The definition of Namboodiri in the Kerala Namboodiri Act is as follows: "(f) 'Namboodiri' means a member of the Namboodiri Brahmin community and includes” (i) the members of the following communities, namely, Potis, Adigals, Elayads, Moosads, Pitarans, Nambiars, Nambissans, Unnis and Embrandiris (including Sivalli, Havik and other similar Brahmins known and recognised as Namboodiris) who follow customs, manners and usages similar to those of the Namboodiris and who are not Marumakkathayees; and (ii) members of such other communities who follow customs, manners and usages similar to those of the Namboodiris and who are not Marumakkathayees, as may be notified by the Government from time to time in the Gazette." Attempt has been made by counsel for respondent in this appeal to read this definition as meaning that all communities who are enumerated in the definition are automatically Namboodiris irrespective of whether they follow customs, manners and usages similar to Namboodiris and in support of this he sought to rely on the decision reported in 1961 K.L.T. 5. Even assuming that the interpretation to section 2 (1) of the Malayala Brahmins Act, 1106 in the decision reported in 1961 K.L.T. 5 is correct, (that itself is a matter I am not prepared to agree with as I have already indicated though in the circumstances of the case, I do not feel it necessary to refer this to a Division Bench) that will have no application to the definition of Namboodiri in section 2 (f) of the Kerala Namboodiri Act. In the Travancore Malayala Brahmins Act, in the definition of Malayala Brahmin, the definition, after enumerating certain communities, referred to others and the court read the qualification in the latter part as applying to 'others' only. That is not the case here in the definition of 'Namboodiri' in Act 27 of 1958. If the latter clause, viz. who follow customs, manners and usages similar to those of the Namboodiris" do not qualify the various communities mentioned earlier, then that should be read as qualifying none and that would make the definition itself meaningless. That is not the case here in the definition of 'Namboodiri' in Act 27 of 1958. If the latter clause, viz. who follow customs, manners and usages similar to those of the Namboodiris" do not qualify the various communities mentioned earlier, then that should be read as qualifying none and that would make the definition itself meaningless. Therefore it is evident from the definition of 'Namboodiri' that an Embrandiri who seeks inclusion in that definition must show the adoption of customs, manners and usages similar to those of Namboodiris and they must not be Marumakkathayees. 4. In the present case, I am prepared to agree with the counsel for the respondent that he has succeeded in showing that the family of plaintiff has adopted certain customs, usages and manners of Nambudiris. I have already made reference to these and enumerated them also. If the question could have been decided merely on the application of Kerala Namboodiri Act, 1958, I should have accepted the case of the first defendant. But according to me, there is another question which has been raised in the replication filed by the plaintiff in answer to the amended written statement. According to the plaintiff the Kerala Namboodiri Act, 1958 having come into force only in 1958 and the plaintiff having sought partition much earlier and thereby having become divided in status, his share must not be affected by the Kerala Namboodiri Act 27of 1958. If the parties to the suit were governed by the Hindu Mithakshara Law until the Kerala Namboodiri Act came into force, then the plaintiff, as one of the three brothers, was entitled to sue for partition and seek 1/3 share and he would become separate from the other members on the date of filing the suit. In that event his share would not be affected by any subsequent enactment which conferred right to the female members also. If on the other hand it is found that the family of the plaintiff though governed by the Hindu Mithakshara Law until the commencement of Kerala Nambudiri Act, 1958 had adopted the custom of impartibility also, then plaintiff's suit should have failed. If it is to be allowed only because of the subsequent event, namely the passing of the Kerala Namboodiri Act, 1958 which gave him a right to partition, the share that he will be entitled to would be only 1/8. If it is to be allowed only because of the subsequent event, namely the passing of the Kerala Namboodiri Act, 1958 which gave him a right to partition, the share that he will be entitled to would be only 1/8. There cannot be a third case. The learned counsel for the respondent very strenuously urged before me that the Kerala Namboodiri Act, 1958 came into force before the decision of the case and the law relating to the parties having been settled only at the time of disposal of the suit plaintiff cannot claim any specific share as on the date of suit and his share must be determined with reference to the provisions of the Kerala Namboodiri Act, 1958. Alternatively he contended that the Kerala Namboodiri Act, 1958 is a declaratory statute declaring the law of the parties who come within the scope of the Act and therefore even before the Act came into force, it must be taken that the provisions of that Act must be applicable. I regret I cannot accept either of these contentions. The court, by deciding the suit, is not laying down the law for the parties, but only applying the law which governed the parties as on the date of the suit duly taking note of subsequent legislations if there is any change in the law. Therefore if the court now finds that on the date of suit the plaintiff was a follower of the Hindu Mithakshara law pure and simple, then the right of the plaintiff would be that available to a member governed by that law and that right being to claim division per stirpes, he could claim 1/3 share and on the filing of the suit he becomes divided in respect of his 1/3 share. Once he is divided any subsequent legislation will neither augment or reduce his share and though the question of the applicability of the Kerala Nambudiri Act will have to be considered in determining the shares of those who have not claimed partition before the coming into force of the Act, it may not be necessary for considering the share of the plaintiff. I cannot agree that the Act is declaratory of the law. The Act is not retrospective in character; but only prospective. I cannot agree that the Act is declaratory of the law. The Act is not retrospective in character; but only prospective. Therefore the only question that now remains to be considered is whether the plaintiff's family is governed by Mithakshara Law or whether it is governed by the law as modified by the custom of impartibility. 5. Custom, it is well settled, has to satisfy certain conditions in order to be able to change the law of parties governed by Mithakshara. Before a custom can be recognised as altering the law satisfactory proof of usage for long as to show a common consent of those whom the custom governs has to be shown. By invariable practice it must come to be recognised as a governing rule of the particular class. It is not indicated in this case by the evidence adduced that there is a custom of impartiality adopted by the family of the first defendant. Though the family might have adopted easily the customs, manners and usages of Namboodiris it does not automatically follow that their personal law was also sought to be altered. Strict proof is necessary to show that the parties, by long course of conduct of the community to which the parties belong, have sought to alter their personal law. In fact there is not any evidence before me which would indicate that the custom of impartibility was adopted by the Embrandiris concerned. The trial court assumes that Ext. B2 supports the custom of impartibility. I fail to see how Ext. B2 is of any avail. That is a litigation between parties related to the parties in the present suit. There is an observation in the judgment of the Munsiff in that case that the parties are governed by the Namboodiri law. This is what is sought to be made use of. That decision is after the date the Madras Namboodiri Act came into force and nothing more than a reference to the decision reported in 1958 K.L.T. 315 is necessary to show that the view taken by the learned Munsiff in Ext. B2 is apparently wrong. Ext. B10 also seems to have been referred to as supporting the case of the 1st defendant. Ext. B10 does not relate to the members of the Havik community. It is a decision wherein parties are Sivalli Brahmins. B2 is apparently wrong. Ext. B10 also seems to have been referred to as supporting the case of the 1st defendant. Ext. B10 does not relate to the members of the Havik community. It is a decision wherein parties are Sivalli Brahmins. That apart one single instance is not sufficient to establish a custom, even assuming that it shows that the rule impartibility was accepted in that case. In the absence of sufficient material to show that as a custom the normal rule of Hindu Mithakshara law as to portability has been altered, I am unable to agree with the learned counsel for the respondent. In the circumstances of the case, I think the parties to the suit were governed by the Hindu Mithakshara Law on the date of suit and if so the plaintiff would be entitled to 1/3 share. He having claimed such share and become separate on the date of institution of the suit, his share would not be altered by legislation which came into force later. In that view the plaintiff is entitled to succeed being entitled to 1/3 share in the properties. I therefore allow this Second Appeal in reversal of the decrees of the courts below in so far as the quantum of plaintiff's share is concerned. But, since this is a case where the parties were not quite sure of the law which was applicable to them, I would direct both parties to suffer their costs throughout.