PARAMBARATHIL PATUKKAYIL CHAKKUTTI Vs. KOTHAMBRA CHANDUKUTTI

JUDGEMENT

(1.) The parties to this second appeal are Thiyyas of Calicut following the Makkatayam Law. The sons of the 2nd defendant are the appellants.

(2.) In a suit instituted by the 1 defendant against the 2nd defendant and his deceased brother Kelan (O.S. No. 1258 of 1916) he obtained a money decree against the 2nd defendant personally and against defendants 3 to 5, the wife and children of the deceased Kelan. In execution of that decree he attached the family properties in possession of the 2nd defendant. This second appeal arises out of the suit instituted by the appellants for a declaration that the properties attached for the decree in O.S. No. 1258 of 1916 are not liable to be attached and sold for that decree. The Lower Courts overruled the appellants contention and dismissed their suit.

(3.) In second appeal it is argued that the suit property is impartible according to the Makkatayam Law governing the Thiyyas of Calicut and is not liable to be attached and sold. The question whether the property is impartible or not was not raised by the plaintiffs as a point for decision either in the pleadings or in the issues; but in support of the argument that the suit property is impartible the learned vakil for the appellants relied here as in the Court below on the decision in Raman Menon V/s. Chathunni (1893) ILR 17 M 184. It is no doubt true that the parties to this suit are, as in Raman Menon V/s. Chathunni (1893) ILR 17 M 184, Makkatayam Thiyyas of Calicut, but we think that that decision must be confined to the facts and circumstances in that particular case and ought not to be understood as a decision applicable generally to all the Thiyya families. In that case the plaintiff alleged that, according to the customary law prevailing among the Thiyyas, the 1 defendant was entitled to a definite share in the property, and the defendants pleaded that the properties were indivisible. The issue raised was vague and the evidence adduced was inconclusive and the witnesses were not even asked the real question at issue. But the Subordinate Judge, on the authority of two unreported cases, came to the conclusion that the ordinary rule of Marumakkatayam against compulsory partition was equally applicable to Thiyyas who followed Makkatayam. In Second Appeal Muthusami Aiyar and Best, JJ., observed that it should not have been decided in that way and they framed an issue, viz.: Whether according to the customary law followed by the parties to this suit, compulsory partition can be effected according to the wish of one member of the tarwad and called for a finding on it after taking fresh evidence. In compliance with the said order the Subordinate Judge held that there was no presumption that the Hindu Law of partibility of family property applied to the case of Makkatayam Thiyyas quoting Rarichan V/s. Perachi (1892) ILR 15 M 281 as authority for that position, that there was no written evidence in support of Such a custom and that the oral evidence was quite unsatisfactory or insufficient to establish any such alleged custom or compulsory partition and returned a finding in the negative. The learned Judges simply accepted that finding in second appeal and did not independently consider the question themselves. In view of the fact that the finding was not arrived at on any satisfactory evidence in the case and that even the Subordinate Judge's reading of the decision in Rarichan V/s. Perachi (1892) ILR 15 M 281 is not quite correct as we shall presently show, we think that Raman Menon V/s. Chathunni (1893) ILR 17 M 184 should not be considered as a decision generally applicable to all families among Thiyyas. The same view has been expressed in Second Appeal No. 580 of 1917 by Phillips and Krishnan, JJ. though by way of obiter. This is what the learned Judges state: We would only observe that it is questionable whether a single decision in Raman Menon V/s. Chathunni (1893) ILR 17 M 184 can be said to be a final decision binding on all Thiyyas of Calicut.