SINNANNA KONE Vs. MUTHUPALANI CHETTI

JUDGEMENT

(1.) The appellants set up a peculiar custom in their community that widows and daughters were excluded by the reversioners of the last male member of a family and this custom has been found by the lower appellate Court not to have been proved.

(2.) The finding is objected to on the ground that it is bad in law, but I have not been referred to any statement in the judgment in which the law has been wrongly propounded and the arguments here have mainly been directed to showing that adequate weight has not been attached by the learned Subordinate Judge to certain portions of the evidence. It is also contended that two important statements made by the plaintiff's witnesses have not been considered at all. The evidence of these witnesses has been dealt with by the Subordinate Judge and there is nothing so vital in these so-called admissions as to make it obligatory on the Subordinate Judge to deal with them in greater detail. The whole of the evidence is oral although the custom is said to be one which is in accordance with the law which prevailed before the present system of Hindu Law came into being and consequently must have been in existence for an incredibly long period. The Judge, therefore, rightly relies on the argument that notwithstanding this fact, there is no documentary evidence to support the custom. Certain documents are alleged to be in existence which have not been produced and the appellants rely entirely on oral evidence. The Subordinate Judge has found that to be totally inadequate and I see no reason to differ from his conclusion. An attempt is made to support the custom by a statement in the District Gazetteer where similar custom in this community is referred to, but the custom there set out is not in accordance with the custom pleaded in this case and therefore, does not at all corroborate the existence of the custom pleaded. I see no reason for not accepting this finding of the Subordinate Judge and, therefore, confirm it.

(3.) A further point is argued namely, that the question at issue in this appeal was res-judicata because in a connected suit tried with this one and decided at the same time no appeal was preferred. This question has been expressly decided by a Pull Bench of this Court in Panchanada Velan V/s. Vaitkinath a Sastrial [1906] 29 Mad. 333 and I am bound by that decision. It is argued that that decision has been overruled by the Privy Council decision in Bommadetiara Naganna Naidu Bahadur V/s. Ravi Venkatappayya A.I.R. 1923 P.C. 167. I have already Considered this point in a previous ease, Second Appeal No. 1643 of 1922, where I came to the conclusion that Panchanada Velan V/s. Vaithinatha Sastrial [1906] 29 Mad. 333 was not expressly overruled and I am still of the game opinion. Applying Panchanada Velan V/s. Vaithinatha Sastrial [1906] 29 Mad. 333 the Subordinate Judge is right in hearing this appeal and deciding it on the merits.