THAYOTH PUTHIA PURAYIL SEETHI Vs. MANGOTTIL RYRATH UMMAYYA

JUDGEMENT

(1.) The parties, are Moplahs, and neither side pat forward any special plea as to the applicability, to the family they belong to of Marumakkattayam Law or any system other than the Muhammadan. The construction of the stridhanam deed, Exhibit A, will, however, unless it is governed by special custom, depend on which of these systems should be applied.

(2.) The District Munsif, without stating clearly whether he eventually proceeded on Muhammadan or Marumakkattayam Law or special custom, evidently considered that no ordinarily prevalent law would suffice for the decision of the case. For he referred to his ignorance of the incidents of such a transaction, the absence of authority and the evidence as to those incidents. The lower Appellate Court appears to have held that that evidence, so far as it was in the defendants favour, was counterbalanced by the effect of the decision in Packrichi v. Kunhacha 13 Ind. Cas 236 : 36 M. 385 : (1911) 2 M.W.N. 538 : 21 M.L.J. 122. In doing so it assumed what is not clear, that the document then under consideration was similar in terms to Exhibit A and was executed in similar circumstances. It also assumed that this authority was applicable to transactions between members of the plaintiffs family and represented a custom binding on all the community, to which they belong, of which the Court could take judicial notice. As observed in Kunhambi v. Kalanthar 24 Ind. Cas. 523 : 16 M.L.T. 17 : 27 M.L.J. 156 the Courts have power to take judicial notice of a custom, only when its existence among the class affected by it has been proved repeatedly before them, - In the present case the lower Appellate Court had before it only one instance of such proof and no clear evidence as to the class then in question, or its identity with that of the present parties.

(3.) In these circumstances, we cannot accept the lower Appellate Court s decision and must call for a finding on the issues: 1. Whether the parties are governed by Marumakkattayam or Muhammadan Law? 2. What are the legal incidents attached to Exhibit A as between the parties with reference to special custom, or if special custom is not established, the ordinary law, to which they are subject?