KANNAN Vs. LAKSHMI

JUDGEMENT

(1.) The Second Appeal illustrates the mischief contemplated in the Circular of this Court dated 4-10-1968 for the guidance of the subordinate courts when admissions or concessions are made by advocates in the course of proceedings in court.

(2.) The 1st defendant is the appellant and he is the son of one Unnooli who had another son by name Kunhikanaran and a daughter by name Thirumala. The daughter of Kunhikanaran is the plaintiff and the children of Thirumala are defendants 2 to 4, the only survivor among the three children of Unnooli being the 1st defendant. The plaintiff, who is the granddaughter of Unnooli, claimed a share in the property of her grandmother on the footing that according to the customary law which governed the parties who are Thiyyas of Quilandy she was entitled to such share. Defendants 2 to 4 do not appear to have contested the suit or claimed a share. The 1st defendant pleaded that there was no custom as set up by the plaintiff and that the Hindu Mithakshara law applied to the parties on the basis of which he alone was entitled to inherit the estate of Unnooli. Thus, the main issue was as to whether the plaintiff was entitled to inherit on the basis of the customary law applicable to the parties. The Trial Court decreed the suit on the basis of a concession alleged to have been made by the 1st defendant's advocate. The learned Munsiff observed:

(3.) It is contended before me that what applies to the parties is customary law. It is indubitable that it is not Hindu Mithakshara law as such that applies to the parties but customary law and the burden of proving the rule of custom lies on the plaintiff. In the absence of proof of custom, the Hindu Mithakshara law applies qua custom. This proposition being unchallengeable, the question is what is the customary law that applies to the parties. On this, counsel for the 1st defendant is alleged to have made the concession mentioned above. To my mind it is clear that such a concession is on a point of law, as has been pointed out in a Division Bench ruling reported in AIR 1945 Lahore 336. The headnote of that case sufficiently brings out the point decided: