KAMALAKSHY Vs. NARAYANI

JUDGEMENT

(1.) An interesting question of law relating to the makkathayee Ezhavas of erstwhile Cochin State is raised in this second appeal. The appellants are defendants 1 to 5, who lost in both the lower courts; and the contesting respondent is the plaintiff.

(2.) The one item of property involved in this litigation belonged to a makkathayee Ezhava of Mukundapuram Taluk in erstwhile Cochin State by name Kunhappu, who died in 1096 Makaram leaving his widow Chakki, son Kochunni and three daughters, the sixth defendant, the plaintiff and deceased Kalyani, whose children are defendants 7 to 9. Kochunni died leaving his son Kesavan, who also died subsequently leaving his wife and children, the appellants. The suit which has given rise to the second appeal was filed by one of the daughters of Kunhappu claiming a share in the suit property left by Kunhappu. The claim of the plaintiff was that the law applicable to the makkathayee Ezhavas of Mukundapuram Taluk was customary law; and that under the said law a daughter was entitled to a share equal to half of a son's share. On the said custom the plaintiff adduced some evidence, which has been rejected by both the lower courts as insufficient to establish the custom pleaded. The appellants claimed that under the customary law applicable to the parties the widow and daughters had no share in the property. They also adduced some evidence to establish the custom, which has also been rejected by both the lower courts as insufficient. The lower courts have thereafter applied the principle laid down by a Full Bench of the Cochin Chief Court in Kochi v. Raman (XXI Cochin 1)

(3.) According to that decision, in the absence of proof of the customary law, the rules of justice, equity and good conscience must apply to makkathayee Ezhavas of Cochin. In that decision the learned judges also held that the rules of justice, equity and good conscience demanded that the daughter should be given a share equal to that of a son. The reason given for this conclusion was that in the case of a makkathayee Ezhava woman, since there was free divorce in the community, she would be helpless after such divorce if she were not given a share in her father's properties. It is this decision of the lower courts that is being challenged in second appeal before me.