KUNHAMBI Vs. KALANATHAR

JUDGEMENT

(1.) The question on which the parties to this appeal are at issue is whether they are governed by the Muhammadan Law or the Marumakatayam Law. They are Mappillahs of North Malabar. Both the lower Courts have decided that the Muhammadan Law is applicable. The learned District Munsif proceeded on the basis that a custom varying Muhammadan Law to be recognized as valid must satisfy the essentials of peaceableness and consistency." These elements", he added, appear to be wanting in the case." In appeal the Subordinate Judge came to the same conclusion, on the ground apparently that the general presumption is that the parties follow the law of their religion. He stated, however, that no authority was quoted for the proposition that Mappillahs in North Malabar follow the Marumakatayam Law. In conclusion he said : I do not think, for the reasons pointed out by the District Munsif, that the form of evidence, which the law demands to prove a custom, is present in this case."

(2.) It is argued before us that the findings of the lower Courts proceed on such an erroneous view as to the nature of the question to be decided, and in such disregard of the presumptions applicable, that we ought to interfere in second appeal.

(3.) Neither of the lower Courts has alluded to the Madras, Civil Courts Act, Section 16 of which lays down : "Where, in any suit, or proceeding, it is necessary for any Court under this Act to decide any question regarding succession, inheritance, marriage, or caste, or any religious usage, or institution, (a) the Muhammadan Law in cases where the parties are Muhammadans, and the Hindu Law in cases where the parties are Hindus, or (b) any custom (if such there be) having the force of law and governing the parties or property concerned, shall form the rule of decision.