MARAKKAKANDI KRISHNAN Vs. PRNRAMANATHA AIYAR AND COMPANY

JUDGEMENT

(1.) The question involved in this appeal is whether the property of the debtors is impartible and if so whether the debt due to the decree-holder is recoverable from that property.

(2.) The respondent in this appeal obtained a money decree against one Baputty who died in April, 1926, leaving two brothers Velukutty and Choyi. The first of them died in 1926 and the second is still alive. In the execution petition filed by the respondent herein to execute his decree, the sons of the judgment-debtor Baputty were impleaded as his legal representatives. They are the appellants in this appeal. Objection was taken that the property of the family consisting of the deceased Baputty, his brothers and sons is impartible and that according to the customary law applicable to the Thiyyas of Calicut Taluk, such an impartible estate cannot be proceeded against in execution of a decree obtained against the deceased Baputty. By impartible it is said that the property is not partible unless all the parties consent. It is urged that as it is not partible at the instance of one member against the wishes of the others, the property is such that it cannot be proceeded against in execution of a money decree obtained against that member.

(3.) The Subordinate Judge held that the effect of the decisions of the Madras High Court is that laid down in the decision in Patukkayil Chakkutti V/s. Kothambra Chandukutti , that the Thiyyas of Calicut are governed by the Makkatayam law of inheritance and that they are governed by customary law. If no evidence is forthcoming as to what is the rule of customary law on a particular point the rule of Hindu Law on that point must be adopted as the customary law obtaining in the community on that point. If a person alleges that the rule of customary law on any particular point is something different from the Hindu Law, the evidence which he adduces in support of his allegation ought not to be subjected to those well-known tests which are applied to the, case of an alleged custom contrary to or in derogation of the law and should be viewed simply as evidence adduced to show what is the rule of customary law itself. Applying this principle, the Subordinate Judge discussed the evidence adduced by either party and came to the conclusion that it was proved by the objectors that the property was impartible and that it cannot be proceeded against in execution of a money decree obtained against Baputty. On appeal the learned District Judge of South Malabar came to the opposite conclusion. The learned District Judge applied the same test as the Subordinate Judge and weighed the evidence according to that standard. He came to the conclusion that the evidence on record was not such as to justify a finding in favour of the objectors. He reversed the order of the Subordinate Judge and directed execution to proceed. Against this decision, the present appeal is filed by the sons of Baputty. They urge that the decision of the District Judge is wrong.