(VYSYAN) KANDIYIL KUNDAN Vs. NEELAMBALATHA ANDI

JUDGEMENT

(1.) This second appeal is against the decision of the lower appellate Court in a suit for title to certain property. The decision of the question at issue depends on whether the families of plaintiffs and defendants who are Tiyyas of Calicut governed by the Makkathayam law follow or do not follow a custom by which joint family estate is not compulsorily partible. The lower appellate Court has held that among the Tiyyas of Calicut the joint family estate is not compulsarily partible.

(2.) The discussion before us has centred mainly on the application of certain decided and reported cases in this Court. That the Tiyyas of Calicut follow the Makkathayam law is not disputed and that is also noted in the local gazetteer. But Makkathayam law means merely a system of inheritance by sons as distinct from Marumakkathayam law, a system of inheritance by daughters and in itself it imports no custom one way or the other on the question of partibility. In Rarichan V/s. Perachi [1892] 15 Mad. 281 it was recognized that in several respects the customary law governing Tiyyas of Calicut differs from the Mitakshara, and it was decided, therefore, that the customary law is a matter of evidence and proof. In Raman Menon V/s. Chatunni [1894] 17 Mad. 184 it was held that no custom to the contrary having been made out, the Makkathayam Tiyyas of Calicut follow Marumakkathayam law of non-partibility. Imbichi Kandan V/s. Imbichi Pennu [1896] 19 Mad. 1 is to the same effect. In Velu V/s. Chamu [1899] 22 Mad. 297 it was held that Raman Menon V/s. Chatunni [1894] 17 Mad. 184 is confined to Tiyyas of Calicut. In Pokkanchart V/s. Achuttan A.I.R. 1921 Mad. 74 it was held that in the absence of proof to the contrary the mitakshara must be the law which prevails and the same proposition is laid down in S.A. 518 of 1901. The whole question has been discussed at length in Pottukkayil Chakkutti V/s. Chandukutti which was also a case from Calicut, where the general conclusion is stated that in the absence of evidence to show what is the rule of customary law on any point the Hindu law must be applied. I agree with the principles laid down in the Pattukkayil Chakkutti V/s. Chandukutti and in particular the expression of opinion therein that Pokkanchari V/s. Achuttan A.I.R. 1921 Mad. 74 goes too far. The general principle of law then is that it lies upon the plaintiffs to establish first what is the customary law of inheritance governing; them and the Court has to decide first whether they have proved such a customary law, then it the Court decides that they have proved it, that is their law and that is the law which the Court has to apply to them; if they have not proved it, then the Court will, in the absence of proof of what their law is, apply to them the ordinary Mitakshara law. The lower appellate Court has viewed the case from this aspect, and come to a definite finding of fact on the evidence to clinch which it calls in aid Raman. Menon V/s. Chatunni as laying down the law applicable to Makkathayam Tiyyas, so that in its view on the evidence the law applicable to the parties in this case is not the Mitakshara law of partibility but the law of impartibility. I think it therefore not necessary that the case should be remanded for a re- hearing. The second appeal is therefore, dismissed with costs. Srinivasa Ayyangar, J.

(3.) The question in this second appeal is whether the decision of the learned District Judge in the lower appellate Court is wrong that according to the customary law applicable to the family of the parties to the litigation there is no right in the members to demand or enforce a compulsory partition. For the purposes of the present case it is unncessary to canvass the correctness of all the observations of the learned Judges in the case of Pottukkayil Chakkutti v. Chandukutti. I take the decision in that case to be, that, if it be claimed that the members of a particular family, albeit, of Thiyyas in Calicut who claim to be governed by a special custom which is not in accordance with the customary lay in South India known as the law of Mitakshara, then the burden of establishing such customary law and its incidents is on those who aver it. I for my part am not disposed to brush aside the decision of the eminent Judges in the case of Banian Menon V/s. Chathunni in the same manner in which it has been treated in the case of Pattukkayil Chakkutti V/s. Chandukutti. That decision was in the year 1893 and merely confirmed the view of Mr. E.R. Krishnan the Subordinate Judge, himself a gentleman of the West Coast. It has been recognized as good law and apparently followed without any question during over thirty years. We also find that the judgment of Sir Arthur Collins in the case Rarichan v Perachi is very much to the same effect and is with special reference to the community referred to as Tiyyas of Calicut.