http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: KOCHAN KANI KUNJURAMAN KANI

       Vs.

RESPONDENT: MATHEVAN KANI SANKARAN KANI

DATE OF JUDGMENT07/05/1971

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. GROVER, A.N.

CITATION:  1971 AIR 1398            1971 SCR  786

ACT: Custom-Plea  of tribal custom-Whether family custom  can  be proved. Kanikkars-Whether governed by Marumakkathayam law or  Makka- thayees.

HEADNOTE: The  appellant who was the son of the last male holder,  was recognised  by  the revenue authorities as entitled  to  his father’s estate.  The respondent, who was the brother of the last  male holder, filed two suits claiming to be the  legal heir of the last male holder on the basis that his brother belonged tothe Kanikkar tribe governed by the  customary Marumakkathayam law. The  appellant contended  that  his father was a Makkathayee. The appellantalso  filed  a  suit for eviction of his tenant. In  appeals arising out of the suit, the High Court  decided that  the  family  of  the  last  holder  was  governed   by Marumakkathayam  law, relying on certain admissions made  by the last holder during his ’life time. In appeal to this Court, HELD:The High Court was in error (a)the evidence in the case and various reports and books, which  came  into  existence at undisputed  point  of  time, showed  that  the  Kanikkar tribe was not  governed  by  any particular custom.  Different families of the tribe followed different customs, some of the Marumakkathayam, some of  the Makathayam and others a mixture of the two. [790F-G] (b)The  admissions  by  the  last  male  holder  were  not uniform.  He sometimes described himself as  Marumakkathayee and sometimes as Makkathayee. [790H] (c)Further, the question in issue was whether the Kannikar clan  was  governed  by  Marumakkathayam  law.   The  custom pleaded  by  the respondent was a tribal custom  and  not  a family custom.  He could not be permitted to prove a  custom not pleaded by him and such proof would not help him. [789E] [Therefore,,  respondents  suits  were  dismissed  and   the appellant was give declaration in his suit or eviction, that he  was the owner of the properties.  The suit  was  however remanded  for decision as to his right to evict his  tenant, in view of the prevailing tenancy laws.] Abdul Hussain Khan v. Bidi Sona Dero, 45 I.A. 10 and  Thakur Gokalchand v. Parvin Kumari, [1952] S.C.R. 825, referred to.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 924 to 926 of 1966. 787 Appeals  by special leave from the judgment and order  dated August  31, 1965 of the Kerala High Court in A. S. Nos.  686 of 1961, 469 of 1964 and S. A, No. 356 of 1962 M.Natesan,  N.  Sudhakaran  and P.  K.  Pillai,  for  the appellants (in all the appeals). M.K.  Ramamurthi,  J. Ramamurthi and  Vineet  Kumar,  for respondent No. 1 (in C. A. No. 924 of 1966) and  respondents Nos.  1 and 5 (in C. A. No. 925 of 1966). The Judgment of the Court was delivered by Hegde,  J.-A  common question arises for decision  in  these appeals  by special leave.  That question is. as to  who  is the  legal  heir of the deceased  Kochan  Kani.   Kunjuraman Kani,  the  son  of  the  deceased  Kochan  Kani  (who  will hereinafter be referred to as the appellant) claims that  he is  the  legal heir.  On the other hand Mathevan  Kani  (who will  hereinafter  be  referred to as  the  respondent)  the brother  of the deceased Kochan Kani claims that he  is  the legal heir. According to the respondent the deceased  was governed by Marumakkathayam law but according to the  appel- lant  he  was a Makkathayee.  Both Marumakkatham  system  as well as Makkathayee system are customary laws. After the death of Kochan Kani the revenue authorities  came to  the  conclusion that the appellant was entitled  to  the estate of his father.  Thereafter the respondent filed O. S. No. 74 of 1956 on the file of the Second Additional District Judge, Trivandrum against the appellant and his  step-mother seeking  a declaration that he was entitled to the  transfer of  the  registry  in  his name as the  legal  heir  of  the deceased Kochan Kani.  That suit was dismissed by the  trial court but on appeal the.  High Court of Kerala reversed  the decree of the trial court and decreed the suit in favour  of the  respondent.  Civil Appeal No. 924 of 1966  is  directed against that judgment. The respondent and some of the alienees from him  instituted O. S. No,. 78 of 1959 against the appellant in the, court of Additional  Sub-Judge, Trivandrum for a declaration  of  the title of the respondent in the properties mentioned in  that suit  and for the possession of the same on the ground  that those,  properties belonged to the deceased Kochan Kani  and after his death they had devolved on the respondent-.   That suit  was  decreed  by the trial  court.   As  against  that decision; the appellant appealed to the High Court of Kerala in  A.  S.  No. 469 of 1964 on its file.   That  appeal  was dismissed.   Thereafter the appellant has appealed  to  this Court in Civil Appeal No. 925 of 1966. 788 Civil  Appeal No.’ 926 of 1966 arises from O. S. No. 436  of 124 filed by the appellant and his step-mother in the  court of  ’Additional Munsiff, Neyvattinkara for the  eviction  of Israel  Nadar.  That suit was dismissed- by the trial  court and  the appellant was unsuccessful in the first  appeal  as well as in the second appeal. The  deceased  Kochan  Kani belonged to  a  tribe  known  as Kanikkars.   Originally they were Nomads.  They  hardly  had any  immovable  property.   But in recent  times  they  have settled  down  and  a few of them  have  acquired  immovable properties.   Kochan  Kani was one such In O. S. No.  74  of 1956,  the  respondent  pleaded. that  the  Kanikkars  tribe

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

follows  Marumakkathayam  system.  In. paragraph  2  of  the plaint he stated :               "...... The Kanis from time immemorial  follow               Marumakkathayam  law  and Kochan Kani  has  in               several   cases  declared  himself  to  be   a               Marumakkathayee". He  also averred in that plaint that in  several  decisions, the.  courts have declared that Kanikkars follow  Marumakkat hayam   system.  The custom pleaded by the respondent was  a tribal  custom  and not a family custom  pertaining  to  the family of Kochan Kani.  In ’O.  S. 78 of 1959, the averments relating  to the custom in question are vague.  At any  rate even  in that suit, the respondent did not put  forward  any family custom.  Therefore the only question that the  courts had  to  decide was whether the respondent  had  proved  the custom  pleaded by him.  It is well established that in  the matter  of custom a party has to plead in specific terms  as to  what  is the custom that he is relying on  and  he  must prove the custom pleaded by him.  He can-not be permitted to prove a custom not pleaded by him.  In Abdul Hussain Khan v. Bibi  Sona Dero(1), the Judicial Committee observed  "It  is therefore  incumbent upon the plaintiff to allege and  prove the,  custom  on which he relies." That was  also  the  view taken by this Court in Thakur Gokalchand v. Parvin  Kumri(2) The  reason  for  this rule is obvious.   Anybody  who  puts forward  ’a custom must prove by satisfactory  evidence  the existence  of  the custom pleaded, its  continuity  and  the consistency  with  which it was observed.  A  party  against whom a custom is pleaded must have notice as to what case he has  to meet.  The opposite party apart from  rebutting  the evidence adduced by the plaintiff may be able to prove  that the  custom  in question was not  invariably  followed.   He cannot  get  ready with that evidence  without  knowing  the nature   of  the  custom  relied  upon  by  the   plaintiff. Therefore  all  that we have to see in the present  case  is Whether the respondent has established (1)  45, I.A, p. 10. (2)  [1952] S. C. R. 825. 789 the  custom  pleaded by him viz. the custom of the  clan  to which the deceased belonged.  The learned trial Judge in  S. 74 of 1956, after carfly  examining the evidence in  the case  came  to the conclusion that the  respondent  has  not proved the, custom pleaded by him.  Hereferred not  merely to the evidence in the case but also to various reports  and books which came into existence at undisputed point of time. On  the  other hand the learned trial judge in O. S.  78  of 1959  mainly  relying on certain alleged admissions  of  the deceased  Kochan  Kani  came  to  the  conclusion  that   he was .governed by Marumakkathayam law.  Similar was the  View taken  by the court in the proceedings arising out of O.  S. 436 of 1124. The High Court came to the conclusion that so far as  Kanik- kars  tribe is concerned, it was not governed by any  single customary  law.  Some of the families  were  Marumakkathees, some  are Makkathayees and some are Misravalis.  But at  the same  time  it  came to the conclusion that  the  family  of Kochan Kani was governed by Marumakkathayam law.  For coming to  that conclusion it solely relied on  certain  admissions made by Kochan Kani during his life time. In  our  opinion  the  High  Court  misdirected  itself   in determining the question before it.  It overlooked the  fact that  the  only plea of the respondent  was  that  Kanikkars tribe was governed by Marumakkathayam law.  He did not plead any family custom.  Before he could succeed in his suits, he

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

had  to establish the custom pleaded by him.  Proof  of  any other custom could not help him. There is plenty of evidence to show that the Kanikkars tribe as  such  was not governed by any  particular  custom.   The Census  Report of 193-1, dealing with the  Kanikkars  states thus :               "A man’s property devolves equally on his sons               and sisters’ sons.  In the absence of nephews,               the  sons get the whole property.  Descent  is               reckoned through the female line and  children               belong   to  the  clan  of  the  mother.    In               Cherukara  of Pathanapuram Taluk,  inheritance               is through the male line." In  the History of Kerala edited by Shri K.  P.  Padamanabha Menon, it is observed :               "In  the matter of inheritance there  is  some               difference between the Kanies who live in  the               interior of the hills and those living in  the               plains.   The former follow  Makkathayam,  the               sons taking the father’s property, if any, and               yet  it  is not Makkathayam pure  and  simple,               for, the moiety of the personal property  goes               to  the  sister’s son, i.e.  to  the  nephews.               With those living in or near the               790               plains,   the   self-acquired   property    is               distributed  equally  between  the  sons   and               nephews.   If there are no sons,  the  nephews               inherit the whole property.  The rights of the               widow being considered to maintenance alone." In  Sri L. A. Krishna Iyer’s book on the Travancore  Tribes, dealing with Kanikkars the learned author observes :               "Property   includes   clothing,    implement,               utensils,  weapons,  live  stocks  and  crops.               Deceased man’s property is divided half to his               nephews and the other half among his sons.  In               the absence of a nephew, the property devolves               on  his  sons.   In the  absence  of  sons  it               devolves on the niece.  In her absence it goes               to his brothers and sisters.  In no case  does               it  go to his wife.  Even the hut goes to  the               nephew.  The widow with her children goes back               to her brother.  In regard to the lives stock,               the  Kanikkars  in  the  vicinity  of  Kallar,               state, that pigs and goats are reared by women               and  they pass on to their children  on  their               demise.   When a girl is married the  property               goes  with  her  to her  husband’s  home;  the               husband’s share goes to the nephew." The author also says that "Descend is reckoned in the female line.  A man’s children belong to the clan of the mother". In  the Travancore State Manual published in 1940 by  T.  V. Velu Pillai, dealing with Kanikkars, it is stated thus :               "The law of inheritance is not uniform.   What               generally  obtained is Makkathayam.   In  many               cases  what  belongs  to  a  deceased  man  is               divided  between  sons  and  nephews  equally.               Marumakkathayam  is also met with.   Sometimes               different clans forming the same tribe follow-               ed different systems of inheritance." From the above it is clear that Kanikkars clan as such  does not follow any particular custom.  It appears that different families  follow  different customs.   Some  were  following Marumakkathayam, some Makathayam and others a mixture of the two.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

The High Court has come to the conclusion that the family of Kochan  Kani was governed by Marumakkathayam law  mainly  on the  basis of certain admissions said to have been  made  by him.  These admissions may be classified under two different heads.   In  some of the documents he described  himself  as "ananthiravan"   of   Mathevan-a   practice   followed    by Marumakkathayees.  But he did not do so invariably.  In some documents he had described himself as the son of Malan Kani. Therefore  it  is  unsafe to place  any  reliance  on  those documents.  The second 791 set of documents relied on by the High Court are those where Kochan Kani described himself as a Marumakkathayee but there are   other   documents  where  he  described   himself   as Makkathayeesee Exhts.  D-32 and D-31.  Hence the High  court should  not  have  placed much  reliance  on  these  alleged admissions.   It  may  be  that  Kochan  Kani’s  family  was following  a  custom  which is  partly  Marumakkathayam  and partly Makkathayam. It is not necessary for us to decide in these proceedings as to  the  custom followed by the family of Kochan  Kani.   As seen  earlier,  the only question to be decided  is  whether Kanikkars clan was governed by Marumakkathayam law.  For the reasons  mentioned  above  we have to hold that  it  is  not proved   that   the  clan  in  question   is   governed   by Marumakkathayam  law.  In the result Civil Appeals Nos.  924 and  925 of 1966 are allowed and the suits from  which  they have  arisen are dismissed.  So far as Civil Appeal No.  926 of 1966 is concerned, the appellant being the son of  Kochan Kani  must  be held to be entitled to inherit  his  father’s property,  Unless it is proved that his father was  governed by  a  custom  under  which the son  does  not  inherit  his property.   No such proof is forthcoming.  Therefore  he  is entitled  to have a declaration that he is the owner of  the suit  properties.   But the question whether  the  defendant therein  can  be evicted in view of the  prevailing  tenancy laws  or not has not been decided by the High Court.   Hence that  case is remitted to the High Court for  deciding  that question.  Under the circumstances of the case we direct the parties to bear their own costs in all the courts. V. P. S. 792