THAIKKANDHI POKKANCHERI Vs. ILLIVATHUKKAL ACHUTHEN

JUDGEMENT

(1.) Defendants 1, 3 and 5 are the appellants before us. The case was argued only on behalf of the 1st appellant (1st defendant). On the date of suit she was a married womarr whose husband was alive. The house in dispute belonged to her brother whose son is the minor 1st plaintiff. The house was inherited by the 1st plaintiff s father from the father of himself and of 1st defendant. Practically the only question in this case is that raised by the 7th issue namely " whether under the customary law obtaining among the parties, 1st defendant has a right to be in joint possession of the house and moveables, i.e., jointly with her brother s minor son, the first plaintiff.

(2.) I think it must be taken as settled law that a person who admittedly belongs to the Hindu community and is domiciled in Southern, India is ordinarily governed by the Hindu Law of the shastras as expounded by the Southern commentators. Of course where there are very wide and well known exceptions as in the case of the Nair community in Malabar, such ordinary Hindu Law does not apply but the well known Marumakkathayom system of Law. But as I said we do start with the presumption that the general prevailing law of the Mitakshara applies to every Hindu. I do not think that there are any such observations in Rarichan v. Perachi (1892) I.L.R. 15 M. 281 as can be treated as casting doubt on this prima facie presumption. On the other hand, the case in Kunhi Pennu v. Chiruda (1896) I.L.R. 19 Mad. 440 and the judgment in S.A. No. 518 of 1901 decided by Benson and Moore, JJ. support the existence of that legal presumption. In the judgment in the latter case the learned Judges say. " where the nephew s widow of the last male owner claimed to exclude the ordinary heir of the Hindu law, namely the daughter of the last owner, her claim" that is the claim of the nephew s widow " is not in accordance with the ordinary Hindu Law and she has not proved any special custom in her favour."

(3.) That being so, if a married daughter claims a right of residence in her father s house even after her marriage and especially where her husband is alive the burden of proof lies upon her to show that there is a special custom varying the ordinary Hindu Law on which she could rely in support of her alleged right.