THANKAMMA Vs. NARAYANA PILLAI

JUDGEMENT

(1.) The suit which has given rise to this appeal was brought by a Thenkasi Vellala woman for partition and recovery of one-fifth share in her deceased father's assets which she claimed she was entitled to get under the customary law governing her community, with an alternative prayer that in case it was found that she was not entitled to get a decree for partition she might be allowed to recover Rs. 25,000/from her father's estate in the hands of her brothers in lieu of the streedhanam she was entitled to get from the father's estate under the customary law of the community, or allowed to recover immovable properties worth this much of money from the properties left by her father. Defendants 1 and 2 are the brothers of the plaintiff, and defendants 3 and 4 her elder sisters. Defendant 5 is their mother. The suit was dismissed by the lower Court which held that the Thenkasi Vellala community was governed by the Hindu Mitakshara Law and there was no customary law in the community as alleged by the plaintiff entitling the daughters to get a share in their father's properties or to get streedhanam from the father's assets as a matter of right. Plaintiff has, therefore, filed this appeal.

(2.) According to the tradition which is accepted by both sides, the Thenkasi Vellalas are a community which originally belonged to Thenkasi in the Tinnevelli District and emigrated from there to Travancore some centuries back and settled down principally in the Thodupuzha Taluk. Some of the witnesses examined in the case say there are only 300 families even in the Thodupuzha Taluk while others have given a higher estimate. The estimates given by other witnesses range from 500 to 800 families in the Thodupuzha Taluk. There are, admittedly, only a handful of families living in other parts of the State. It is also admitted by both sides that the Thenkasi Vellalas are followers of the Hindu religion, and in the description of the parties in the plaint the religion of the plaintiff and defendants 1 to 5 is given as Hindu religion. Perumal Pillai Sankara Pillai, the father of the plaintiff and defendants 1 to 4 and the husband of defendant 5, was a vakil practising in the Courts in the Thodupuzha Taluk. He died in Kumbhom 1118 M. E. leaving considerable properties. About 7 years later, on 22-9-1950, the plaintiff brought the present suit in forma pauperis claiming that, under the customary law governing the Thenkasi Vallalas, daughters were entitled to share equally with sons in the assets left by their father and that she was therefore entitled to get one-fifth of the assets left by Perumal Pillai Sankara Pillai and praying for partition and recovery of the said share with past and future mesne profits after partition of the same by metes and bounds. The suit, as originally brought, was only for partition and recovery of possession of the above share, and it was stated in paragraph 7 of the original plaint that among the Thenkasi Vellalas daughters and sons have equal shares in their father's assets and that the rule of law under the Hindu Mithakshara Law under which daughters have no right to get any share in their father's assets is not applicable to their community. In October 1951 the plaintiff filed an amended plaint, after obtaining leave to do so, claiming an alternative relief for recovering from her father's estate in the hands of defendants 1 and 2 Rs. 25,000/-on account of streedhanam which she was entitled to get from the father's estate or for recovering properties worth this much of money. The alternative relief was asked for on the ground that among the Thenkasi Vellalas in the Thodupuzha Taluk there was a long standing custom, which was being observed uninterruptedly, of giving even to married daughters some share in their father's assets under the name of streedhanam, or avakasam, etc., but plaintiff had not been given any streedhanam at the time of her marriage, and that on account of this custom which has obtained the force of law the plaintiff is entitled to get a share in her father's assets, and considering the extent of his assets and the status of the family she is entitled to get Rs. 25,000/-on account of this customary right. In both the original plaint and in the amended plaint it was also averred that from very ancient times the practice and custom among the Thenkasi Vellalas was to give either land and movable properties or money to the daughters in lieu of their customary right in the father's assets.

(3.) The suit was contested by defendants 1 and 5 and defendant G who is an alienee of defendants 1 and 2. They contended that the Thenkasi Vellala community is governed by the Hindu Mitakshara Law and there is no customary law among them as alleged in the plaint entitling the daughters to get a share in their father's assets or to get streedhanam from his assets as a matter of right, that the plaintiff's marriage had been conducted by the father during his lifetime and he had given her a dowry, and that the plaintiff had no right whatever to get either a share in the father's estate or the amount claimed by her as streedhanam. The lower Court found that the Thenkasi Vellalas were governed by the Hindu Mitakshara law and that the plaintiff had not succeeded in proving any custom in derogation of that law entitling the daughters to get a share in the father's assets or entitling them to get streedhanam from his assets as a matter of right, and dismissed her suit ordering the parties to bear their costs. On the question whether the plaintiff was actually paid any dowry by her father during his life-time the lower Court said that there was no clear proof of such payment and that it was not necessary to deal with that question In detail in view of its finding on the other questions.