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 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
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
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.
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
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