PADALA LATCHAMMA Vs. MUTCHI APPALASWAMY

JUDGEMENT

(1.) Two points have been taken in this C.R.P. : (1) that the custom set up is invalid, being opposed to Jaw; (2) that section 14 of the Hindu Succession Act, 1956 gave absolute rights to the widow in the property in her hands and therefore any custom to the contrary cannot prevail against the express provisions of the statute. The petitioners figured as defendants 1 and 2 in the suit. One Muchi Sithanna married the 1st petitioner Padala Lachamma about 10 or 12 years ago. At the time of the marriage she was given a gold Kanti weighing 2 tolas and silver ornaments of 4 tolas. Subsequently Sithanna died. Then Latchamma married Padala Pottiyya who figured as the 2nd defendant in the suit in or about April or May, 1956.It is claimed by the plaintiff, Appalaswami, who is the father of Sithanna, that he is entitled to recover the Ornaments given to the 1st defendant at the time of her marriage, as she has remarried, in accordance with the custom prevailing in Golla community in Srikakulam District to which the parties belong, on the ground that she is bound to return the jewels to the heirs of her deceased husband. The suit was accordingly brought for the recovery of the jewels. According to the custom set up by the plaintiff, when a widow remarries, she forfeits her claim to the jewellery and other gifts given to her at the time of her marriage either by her husband or her relations. Hence the suit.

(2.) The question naturally arises whether the custom as set up is valid, recognisable by courts and enforceable. The question whether a custom could override the ancient texts like Smritis and other texts had been examined in several cases and as these texts are very ancient, and the custom set up invariably develops long subsequent thereto, a well established custom is accepted as binding in preference to the written texts. The law is very clearly laid down in Collector of Madura v. Moottoo Ramalinga, 12 Moo Ind App 397 (PC), wherein the Judicial Committee of the Privy Council observed:- "Under the Hindu system of law, clear proof of usage will outweigh the written text of the law".

(3.) But it is one thing to say that a custom can override the ancient texts and quite another thing to say that a custom can override the statutory provisions which are all comparatively of recent times and which incorporated the policy of the law. A custom which attempts to defeat or nullify a statute must be struck down as invalid without further examination, for the simple reason that the Legislature had determined the policy of the law and what law would govern the parties; find that legislative enactment shall prevail unless the enactment itself saves any prevailing custom to the contrary.Dealing with the essential attributes of a custom that it should be ancient, reasonable, must have been continued or been observed without interruption and must be certain in respect of its nature generally, as well as in respect of the locality where it is alleged to obtain, and of the persons whom it is alleged to affect, and that it should be uniform and obligatory, Mulla in his Hindu Law, 12th Edition, observed at Page 64 thus:-