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PETITIONER: KELUKUTTY & ORS.

       Vs.

RESPONDENT: MAMMAD & ORS.

DATE OF JUDGMENT01/08/1972

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. GROVER, A.N. PALEKAR, D.G.

CITATION:  1972 AIR 2403            1973 SCR  (1) 757  1972 SCC  (2) 591

ACT: Customary law-Makkathyam--Thiyya-Succession to self acquired property.

HEADNOTE: The Thiyyas of the former Calicut, Taluk are governed by the customary   law  known  as  Makkathayam  and  as   per   the Makkathayam  rule of inheritance an undivided brother  of  a deceased  person succeeds to the self-acquired  property  of the  deceased in preference to the wife and daughter of  the deceased.   Therefore,  the daughter’s son who  comes  after them  under  the general Hindu Law cannot  have  a  superior claim unless a custom to that effect is pleaded and  proved. [760C] Parambarathial  Pattukava  Chakkutti and Ors.  v.  Kothembra Chandukutti, A.I.R. 1927 Mad. 877 Paricham v. Perachi a Ors. I.L.R.  15 Mad. 281 Rama Menon v. Chathunni I.L.R.  17  Mad. 184 Imbichi Kandan & Ors. v. Imbichi Pennu & Ors.  I.L.R. 19 Mad. 1 referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: C.A. No. 749 and 750 of 1967. Appeals  by certificate from the judgment and  decree  dated 19th  October 1965 of the Kerala High Court at Ernakulam  in Second Appeal No. 400 of 1961. S.   T. Desai and A. Sridharan Nambiar for the appellants. P.   Ram Reddy and A. V. V. Nair for respondent No. 1. The Judgment of the Court was delivered by Hegde, J. In these appeals by certificate only one  question arises  for  decision  and  that  is  whether  Chandu,   the undivided  younger brother of Kelu or the grand-children  of Kelu through his daughter were the legal heirs of Kelu. Before going into that question we may dispose, of the  con- tention  advanced on behalf of the appellants that there  is no  satisfactory  evidence  to  show  that  Chandu  was  the undivided  brother  of  Kelu.  The pleadings  in  this  case proceed on the footing that Chandu and Kelu were the members of  an undivided family.  The evidence also  discloses  that fact.   The  judgments of the courts below proceed  on  that

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basis.   Hence  the appellants cannot now  be  permitted  to raise the contention in this Court that Chandu is not proved to  be  the undivided brother of Kelu.  In  considering  the question  formulated  above, we shall proceed on  the  basis that  Kelu  and  Chandu were the  members  of  an  undivided family. 758 Kelu  was  a Thiyya resident of Calicut  Taluk  (at  present known as Kozhikode Taluk).  He was governed by the customary law  known  as Makkathayam.  He died on  November  15,  1935 leaving  behind  him  besides his two  brothers  Chandu  and Chekku, his widow Manikka, daughter Ichira and Ichira’s  son and daughter who were the appellants before the High  Court. He  left behind him three items of immovable property  which are the subject matter of the present appeals.  Kelu’s widow Manikka  and  his  daughter Ichira as well  as  his  brother Chekku died prior to 1944 long before the institution of the suits from which these appeals arise. It  is  not  necessary to go into the history  of  the  long litigation.   As  mentioned earlier, the only  question  for decision  is as to who were the legal heirs of Kelu.  It  is now  established  that  the suit properties  are  the  self- acquired  properties of Kelu.  There is no dispute about  it now.   The High Court came to the conclusion that under  the Makkathayam rule, Chandu succeeded to the estate of Kelu  in preference  to his wife, daughter and  daughter’s  children. The said conclusion is challenged in these appeals. The  contesting parties are Hindus.  As  mentioned  earlier, they are governed by Makkathayam rule.  If the Hindu law  as in  force  in South India had governed the  succession  with which  we  are  concerned,  the wife  of  Kelu  should  have succeeded to the estate of her husband in preference to  the other  heirs.  The claims of the son and daughter of  Ichira could come in only later.  Therefore the principal  question that we have to decide is whether the wife of Kelu succeeded to the estate of Kelu on his death. Mr. S. T. Desai, appearing for the appellants contended that Makkathayam  rule  being a rule of customary  law  can  only derogate  the  ordinary  Hindu  law  to  the  extent  it  is satisfactorily  established; in other respects the  ordinary Hindu law should prevail; the contesting respondents  having not  established by positive evidence the claim put  forward by  them i. e. that Chandu was a preferential heir to  Kelu, they  must fail.  On the other hand it was contended by  Mr. Rama  Reddy  on  behalf of the  respondents  that  Kelu  was governed by a customary law i. e. Makkathayam law and not by ordinary  Hindu  law.   Hence all that we  have  to  see  is whether the customary law pleaded is well established on the basis  of  the decisions of courts.  According  to  him  the custom pleaded is of a community and not of any family.   He urged that the custom in question to the extent relevant for our present purpose is well settled. The law relating to Thiyyas of the former Calicut taluk  had come up for decision before the Madras High Court in several cases.  The approach to be adopted in spelling out the  same is 759 laid  down  in  the decision of the  Madras  High  Court  in (Parambarathil) Pattukkayal Chakkutti and ors. v.  Kothembra Chandukutti(1).  Therein the Court observed :               "We think the Makkathayam Thiyyas are governed               by  what is called the customary law and  that               when a question arises as to what is the  rule               of law governing them on any particular matter               what  we  have to see is what is the  rule  of

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             customary  law obtaining amongst them in  that               matter and in cases which are not sufficiently               governed by prior decisions, the question will               have  to be determined with reference  to  the               evidence in the case." In Parichan v. Perachi and ors.(2) the High Court of  Madras came   to   the  conclusion  that  a   community   following Makkathayam  rule  must  not  be  taken  to  be  necessarily governed  by  the  Hindu law of  inheritance  with  all  its incidents.   On the basis of the evidence in that case,  the court  held  that when a member of the Thiyya  community  in Calicut following that rule alleged and proved a custom that undivided brother succeeded to the selfacquired property  in preference  to  widow,  the court must give  effect  to  it. Therein  the  competition  was between  the  widow  and  the brother  of  the deceased who was a member of  an  undivided Tarwad and the property in dispute was the  self-acquisition of the deceased. In Rama Menon v. Chathunni (3) the High Court of Madras held that the ordinary rule of Marurnakatayam against  compulsory partition  is  equally  applicable  to  Tiyans  who   follow Makkatayam, no custom to the contrary having been made out. In Imbichi Kandan and ors. v. Imbichi Pennu and ors.(4)  the High  Court  held  that on the death of a  Thiyya  of  South Malabar  following  Makkathayam  rule  of  inheritance,  his mother,  widow and daughter are entitled to succeed  to  his self-acquired  properties  in  preference  to  his  father’s divided  brothers.  In the course of the judgment,  this  is what the learned judges observed:               "The  decision  of the  subordinate  judge  is               entirely  in  accordance with  the  principles               laid  down  in Parichan v.  Perachi  and  Rama               Menon  v.  Chathunni  (supra).  it  has   been               decided that the rule of impartibility applies               to  Makkatayam  Tiyans  of  Calicut,  and   in               Parichan  v. Perachi following  the  principle               that  self-acquired  property  lapses  to  the               tarwad, it was held that the undivided brother               succeeded in preference to the widow.               (2)   I.L.R. 15 Mad. 281.               (1)   A.I.R. 1927 Mad. 877.               (3)   I.L.R. 17 Mad. 184.               (4) I.L.R. 19 Mad. 1               760               But  the  case is quite,  different  when  the               brothers are divided and have no community  of               interest  as  in this case, Here it  is  found               that the only property in which plaintiffs and               Kelukutti ever had a common interest is in the               family burying place, which will certainly not               constitute  then  an undivided  tarwad.   That               being  so,  the mother, wife and  daughter  of               Changaran  who certainly belong to his  tarwad               are  preferential heirs to his uncle  who  did               not  belong  to his tarwad at all and  had  no               community of interest with him." From  these  decisions it is clear that  Thiyyas  of  former Calicut  Taluk were governed by the customary law  known  as Makkathayam.  Further as per the Makkathayam rule of inheri- tance an undivided brother of a deceased person succeeded to the self-acquired property of the deceased in preference  to the  wife and daughter of the deceased.  If that is  so  the daughter’s son who comes after them under the general  Hindu law  cannot have a ’superior claim unless a custom  to  that effect  is  pleaded and proved.  Such a  custom  is  neither

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pleaded nor proved. No other contention was raised before us. In  the  result these appeals fail and they  are  dismissed. But  in the circumstances of the case we direct the  parties to bear their own costs in this Court. S.C.                       Appeals dismissed. 761