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PETITIONER: KALIAMMA

       Vs.

RESPONDENT: JANARDHANAN PILLAI & ORS.

DATE OF JUDGMENT08/02/1973

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. DUA, I.D. VAIDYIALINGAM, C.A.

CITATION:  1973 AIR 1134            1973 SCR  (3) 503  1973 SCC  (1) 644

ACT: Hindu   Law-Special   custom-Proof  of-Reliance   on   prior decisions when permissible.

HEADNOTE: The   appellant  was  the  daughter  of  a  member  of   the Krishnanwaka  Community  by one of his two  wives,  and  the first  respondent  was  his  son by  the  other  wife.   The appellant filed the suit claiming half share of her father’s property  on  the  basis  of a custom  of  special  kind  of Patnibhagam.  The special kind of Patnibhagam pleaded by the appellant was that even a daughter was entitled to a  share. On  her  behalf,  reliance was  placed  on  certain  earlier decisions  regarding  the prevalence of the customs  in  the community.   The  trial court dismissed the  suit,  but  the first  appellate court held in favour of the appellant.   In second  appeal,  the  High  Court took  the  view  that  the decisions  relied on by the first appellate court could  not be  said  to have established the existence of  the  special custom. Dismissing the appeal to this Court, HELD:     (1)  A  custom  which  has  been  recognised   and affirmed  in a, series of decisions each of which was  based on  evidence  adduced  in the  particular  case  may  become incorporated  in  the  general law, and  proof  of  it  then becomes  unnecessary  under s. 57(1) of  the  Evidence  Act. [505G-H] Rama  Rao v. Rajah of Pittapur, [1918] I.L.R.  41  (Madras), 778  at 785, Pramraj v. Chand Kunwar, [1947] 11  M.L.J.  516 and Ujagar Singh v. Mat.  Jeo, [1959] 2 S.C.R. (Suppl.), 781 followed. (2)  Among the decisions cited only one decision  recognised the  special kind of patnibhagam pleaded by  the  appellant. But  even that decision did not proceed on the basis of  the evidence in the case but relied upon the observations of the learned  judges  who decided Ramaswami  Sadasivan  v.  Thanu Gouri.    But  those  observations  were  pot  based  on   a discussion  of the evidence and were not necessary  for  the decision of that case. [50 D] Avikutti  Bhagavathi  & Ant-. v.  Chithambaratham  Mathevan, reported in 8 T.L.R. 51, Ramaswami Sulusivan v. Thanu  Gouri

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reported in Kolappa Pillai’s unreported important cases,  p. 179 and Hagaru Pillai Saraswathi Amma v.  Thanu Pillai Thanu Pillai, reported in 1944 T.L.R. 710 referred to. (3)  While  it  is true that the community is a  very  small community  found  in a small local area and  cases  reaching courts  may not be many, the court cannot, on  that  ground, ignore the well established principle before a custom can be held  as  having  been  proved  on  the  basis  of   earlier decisions.   Those  decisions  should  have  been  based  on evidence  adduced in those cases.  But in the present  case, neither of the two decisions which refer to the special kind of  patnibhagam  pleaded by the appellant was based  on  the evidence in the case. [508 F-H; 509 A-B]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1251  of 1967. 504 Appeal  by special leave from the judgment and  order  dated September 29, 1966 of the Madras High Court in S.A. No.  167 of 1963. K.   T. Harindranath, S. N. Sudhakaran, P. Kesava Pillai and M.   R. Krishna Pillai, for the appellant. Lily Thomas and A. Sreedharan Nambiar, for respondent No. 1. The Judgment of the Court was delivered by ALAGIRISWAMI, J. This is an appeal by special leave  against the judgment of the High Court of Madras in Second Appeal. The  appellant  is  the daughter of  one  Ayyappan  Mathevan Pillai, who died on 17th January, 1949, by one of his wives, the  second respondent.  The first respondent is his son  by another  wife.   The  parties  belong  to  the  Krishnanvaka Community found mainly in the Kanyakumari district of  Tamil Nadu.   During the appellant’s minority her mother  and  the first  respondent  entered into a deed  of  partition  under which the appellant was given 9 out of 79 items belonging to her  father.   She filed the suit out of which  this  appeal arises  for partition and possession of a half share in  all her  father’s  properties.   Her  claim  was  based  on  the allegation that in the community to which the parties belong there was a custom of a special kind of pathnibhagam.  While under  the ordinary pathnibhagam a man’s sons  by  different wives  get  their shares on the basis  that  whatever  their number  the property is divided according to the  number  of wives  he  had,  rather than, on a  per  capita  basis,  the special  kind of pathnibhagam pleaded by the  plaintiff  was that  even  a  daughter was entitled to share  on  the  same basis.   She pleaded that as Mathevan Pillai had  two  wives and  she was the daughter by one wife and the 1st  defendant the  son  by the other wife each of them was entitled  to  a half share. The learned Subordinate Judge who tried the suit, on a  con- sideration  of  the evidence in the case,  as  also  various earlier  ,,decisions regarding this custom held against  the plaintiff.   Oil  appeal the District Judge  of  Kanyakumari without  going  into the evidence but on the basis  of  some earlier decisions allowed the appeal.  In the Second  Appeal before  the  High Court the learned ’Single Judge  took  the view  that  the decisions relied on by  the  District  Judge cannot  be  said to have established the  existence  of  the special custom pleaded by the plaintiff.  The 1st  defendant also sought to sustain the partition deed on the basis  that it was the result of a family arrangement.  But the learned Judge did not think it necessary to go into that question in

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the  view  he  took regarding the  custom  pleaded  by  the plaintiff. 505 The  question  that  arises for decision  in  this  case  is whether  the  custom  pleaded  by  the  appellant  has  been established.   On behalf of the appellant reliance  was  not placed on the evidence in the case to establish the  custom. The  argument was simply based on certain earlier  decisions regarding the prevalence of the custom of pathnibhagam among the  community  to  which the  parties  belong.   The  legal position  regarding  the place of customary  law  among  the Hindus is now well established.  In The Collector of  Madura v.  Moottoo Ramalinga Sethupathy(1) it was observed  by  the Privy Council :               "Under the Hindu system of law clear proof  of               usage  will outweigh the written text  of  the               law."               In  Rama  Rao v. Rajah of Pittapur ( 2  )  the               Privy Council observed :               "When a custom or usage, whether in regard  to               a  tenure or a contract or a family right,  is               repeatedly brought to the notice of the Courts               of a country, the Courts may hold that  custom               or usage to be introduced into the law without               the  necessity  of proof  in  each  individual               case.  It becomes in the end truly a matter of               process and pleading."               In  Premraj  v. Chand Kanwar      ( 3  )   the               Privy Council observed               "It is not doubtful that the ordinary rule  is               that  a  party relying on  a  custom..........               which  is at variance with the ordinary  Hindu               law  must  allege  and prove it.   But  it  is               equally  beyond doubt that a custom which  has               been  recognised and affirmed in a  series  of               decisions,  each  of them  based  on  evidence               adduced  in  the particular case.  may  become               incorporated  in  the general  law,  with  the               result  that the onus of proof no longer  lies               on  those  who assert it but  upon  those  who               assert an exception to it." The latest decision is that of this Court in Ujagar Singh v. Mst. Jeo (4) wherein after referring to the statement of law in Rama Rao v. Rajah of Pittapur, earlier referred to,  this Court pointed out that ’when a custom has been so recognised by  the courts, it passes into the law of the land  and  the proof  of it then becomes unnecessary under s. 57(1) of  the Evidence Act.’ In the particular circumstances of that  case this Court pointed out that there was a formidable array  of authorities in support of either view, and, therefore,  went into the evidence and held that the respon- (1)  (1868) 12.M.I.A., 397,436. (3)  (1947) H M.L.J. 516 (P.C.) (2)  (1918) I.L.R. 41 (Madras), 778 at 785. (4)  (1959) 2 S.C.R. (Suppl.), 781. 506 dent  therein  had  proved a custom  whereby  a  sister  was entitled   to  succeed  in  preference  to  the   collateral relations of her brother.  Now  let  us  see whether in the  community  to  which  the parties  belong  the rule of pathnibhagam with  the  special modification  of  that  rule pleaded  by  the  plaintiff  is prevalent.   That the rule of pathnibhagam is  prevalent  in various  parts  of  the  country  there  is  no  doubt.   In Palaniappa  Chettiar v. Alagan Chetti(1) the  Privy  Council

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referred  to the statement of law by Mayne in his Hindu  Law (Edn. 7), para. 473 to the following effect :               "In  some families, however, a  custom  called               patnibhaga  prevails of dividing according  to               mothers, so that if A had two sons by his wife               B  and three sons by C. the property would  be               divided  into moieties, one going to the  sons               by  B, and the other to the sons by C,  Somrun               Singh v. Kkedun Singh.  This practice prevails               locallY  in  Oudh, as  evidenced  by  numerous               Wajib ularz, which I have seen in cases  under               Appeal to the Privy Council." They  also referred to the prevalence of the custom in  many parts  of  Southern India. as referred to by Mr.  Ellis,  on page  357  of Vol.  II of Strange, and at page 167  of  that work to the following effect :               "The  division  of  estates, in  case  of  one               person  having several families  by  different               women,  among  the families  in  equal  shares               without reference to the number of persons  in               each." Their Lordships, therefore, approached the evidence in  that case with a knowledge that such a custom does exist, and was not  an  improbable one in the particular  case,  and  after examining  the  evidence  came to the  conclusion  that  the custom of Patnibhaga was proved. We may now refer to the decisions that were cited before the Courts  below and were relied upon before this  Court.   The earliest  one  is a decision of the year 1890,  in  Avikutti Bhagavathi & ANR. v. Chithambarathanu Mathevan, reported  in 8  T.L.R. 51 where the effect of the evidence was stated  as follows :               "From the evidence on both sides, it is  clear               to  us  that  Krishnavakakkar  to  which   the               parties belong, follow the Hindu law with  one               or two points of divergence from it, viz.  the               widow  cohabiting  with  the  brother  of  her               deceased  husband and the existence of  Pathni               Bhagam." (1)  (1921) I.L.R. 44 (Madras), 740.                             507 The next  decision  is  of the  year  1904,  in  Ramaswami Sadasivan  v.  Thanu  Gouri, reported  in  Kolappa  Pillai’s unreported  important  cases  p.  179.   Here  again  on   a Consideration   of  the  evidence  it  was  held  that   the preponderance of evidence as a whole was in favour of Pathni Bhagom.  But one of the learned Justice observed :               "The Pathni Bhagon which prevails in this com-               munity  seems  to  go even  beyond  the  usual               custom known as Pathni Bhagom. that it is  not               only  sons of different mothers that take  per               stirpes  (according to the number of  mothers)               but when one mother has   got   only    female               issue  and  another a male  issue  the  female               issue  get  a  half share  in  their  father’s               properties  and  the male issue by  the  other               wife of the father takes  the other half." It  is  upon this decision that, the  plaintiff,  based  her whole case.    It  must  be pointed out, however,  that  the learned Judge did not    go into the evidence regarding  the particular  type  of  pathnibhagam which was  stated  to  be prevalent  among  this community. Nor was  it  necessary  to decide that question for the purpose of that case. It was  a mere  passing  observation and this is a  solitary  case  in which such a special custom is mentioned.

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We then come to another decision of the year 1944, in   Nagaru Pillai  Saraswathi  Amma  v.  Thanu  Pillai  Thanu   Pillai, reported  in 1944 T.L.R. 710. In that case also the  special custom pleaded by the plaintiff did not arise for  decision. What;  was urged was the right of absolute ownership  for  a widow of a member of a Krishnanvaka community. The  argument was  that  the existence of Pathnibhagam  in  the  community implied the    principle that on the death of the husband of a Krishnavakakar    woman,  in the absence of his  children, she was entitled to inherit   her     husband’s     property absolutely.  This contention was rejected but  the  decision proceeded on the basis that the custom of    Pathnibhagam was prevalent in this community. There  is a decision of the District Court of  Nagercoil  in O.S. No.  109  of  1096 M.B., dated  22nd  December.  1923, marked    Ex A-6.. wherein it was observed:               "But it has been held in Kolappa Pillay,  page               179  that in the community Krishnavakakars  to               which the parties belong that when a man  dies               leaving two wives    even   though  one   wife               might  have  only female issues  such  females               issue  are  entitled to a half  share  as  the               Pathnibhagam  to their mother.  It appears  to               me therefore that under the ruling in  Kolappa               Pillay’s  Select  Decisions  cited  before  in               which 8 T.L.R. 51 and T.L.R. 7-L796Sup.C. I. /73 508 .lm15 16,  Calcutta 759 have been cited and  followed,  plaintiffs are also entitled to a half share in the assets of Kunchan." There is another decision of the District Munsiff’s Court of Kuzhithurai in O.S. No. 18 of 1959, dated 2nd January, 1960, wherein it was observed               "Ex.   B. 26 judgment proceeded on  the  basis               that  as  the  parties  belonged  to  Krishnan               Vakakkar  community per capita division  among               them-is  not allowable.  That  community  does               not  follow Hindu Mithakshara Law.   There  is               authority   for  the  possession   that   this               community   follows   the  system   known   as               Patnibhagam   under  which  property  of   the               deceased is inherited according to the  number               of widows he had irrespective of the existence               of the children to the deceased." This  decision recognised the existence of Pathnibhagam  but not the special custom pleaded by the plaintiff. It is thus seen that most of the decisions either  expressly or   implicitly  recognised  the  existence  of  custom   of Pathnibhagam  In this community, but the decision  found  in Ext.    A-6  is  the  only  one  on  the  special  kind   of pathnibhagam  pleaded  by the plaintiff and is  directly  in point.  But even this decision did not proceed on the  basis of  the evidence in the case.  It relied on the  observation of  the  learned  Chief  Justice  in  the  decision  already referred  to, in Ramaswami Sadasivan v. Thanu  Gouri.   This observation  was not, however, based on a discussion of  the evidence  and  was not necessary for the  decision  in  that case, as already pointed out. While it is true that this community is a very small  commu- nity found within a small local area and the cases that  are likely  to  arise in that community, which  will  reach  the courts  may  not be many, we cannot merely  on  that  ground ignore  the well established principle that before a  custom can  be  held as having been proved merely on the  basis  of

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earlier  decisions, those decisions, should have been  based on  evidence adduced in respect of the cases.  That test  is not  satisfied in this case.  Neither of the  two  decisions which  refer to the special kind of pathnibhagam pleaded  by the plaintiff was based on the evidence in the case.   Thus while the existence of the custom of pathnibhagam in the                             509 community may be said to have been established, the  special kind of pathnibhagam pleaded by the plaintiff cannot be said to  have been established and the appellant  cannot  succeed unless  she  establishes  the latter.  In this  view  it  is unnecessary to go into the question of family arrangement. The appeal is dismissed with costs of the 1st respondent  to be paid by the appellant. V.P.S.                                 Appeal dismissed. 510