{"id":54519,"date":"1973-02-08T00:00:00","date_gmt":"1973-02-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kaliamma-vs-janardhanan-pillai-ors-on-8-february-1973"},"modified":"2017-12-28T11:27:15","modified_gmt":"2017-12-28T05:57:15","slug":"kaliamma-vs-janardhanan-pillai-ors-on-8-february-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kaliamma-vs-janardhanan-pillai-ors-on-8-february-1973","title":{"rendered":"Kaliamma vs Janardhanan Pillai & Ors on 8 February, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kaliamma vs Janardhanan Pillai & Ors on 8 February, 1973<\/div>\n
Equivalent citations: 1973 AIR 1134, \t\t 1973 SCR (3) 503<\/div>\n
Author: A Alagiriswami<\/div>\n
Bench: Alagiriswami, A.<\/div>\n
           PETITIONER:\nKALIAMMA\n\n\tVs.\n\nRESPONDENT:\nJANARDHANAN PILLAI & ORS.\n\nDATE OF JUDGMENT08\/02\/1973\n\nBENCH:\nALAGIRISWAMI, A.\nBENCH:\nALAGIRISWAMI, A.\nDUA, I.D.\nVAIDYIALINGAM, C.A.\n\nCITATION:\n 1973 AIR 1134\t\t  1973 SCR  (3) 503\n 1973 SCC  (1) 644\n\n\nACT:\nHindu\tLaw-Special   custom-Proof  of-Reliance\t  on   prior\ndecisions when permissible.\n\n\n\nHEADNOTE:\nThe   appellant\t was  the  daughter  of\t a  member  of\t the\nKrishnanwaka  Community\t by one of his two  wives,  and\t the\nfirst  respondent  was\this  son by  the  other\t wife.\t The\nappellant filed the suit claiming half share of her father's\nproperty  on  the  basis  of a custom  of  special  kind  of\nPatnibhagam.  The special kind of Patnibhagam pleaded by the\nappellant was that even a daughter was entitled to a  share.\nOn  her\t behalf,  reliance was\tplaced\ton  certain  earlier\ndecisions  regarding  the prevalence of the customs  in\t the\ncommunity.   The  trial court dismissed the  suit,  but\t the\nfirst  appellate court held in favour of the appellant.\t  In\nsecond\tappeal,\t the  High  Court took\tthe  view  that\t the\ndecisions  relied on by the first appellate court could\t not\nbe  said  to have established the existence of\tthe  special\ncustom.\nDismissing the appeal to this Court,\nHELD:\t  (1)  A  custom  which\t has  been  recognised\t and\naffirmed  in a, series of decisions each of which was  based\non  evidence  adduced  in the  particular  case\t may  become\nincorporated  in  the  general law, and\t proof\tof  it\tthen\nbecomes\t unnecessary  under s. 57(1) of\t the  Evidence\tAct.\n[505G-H]\nRama  Rao v. Rajah of Pittapur, [1918] I.L.R.  41  (Madras),\n778  at 785, Pramraj v. Chand Kunwar, [1947] 11\t M.L.J.\t 516\nand Ujagar Singh v. Mat.  Jeo,<\/a> [1959] 2 S.C.R. (Suppl.), 781\nfollowed.\n(2)  Among the decisions cited only one decision  recognised\nthe  special kind of patnibhagam pleaded by  the  appellant.\nBut  even that decision did not proceed on the basis of\t the\nevidence in the case but relied upon the observations of the\nlearned\t judges\t who decided Ramaswami\tSadasivan  v.  Thanu\nGouri.\t  But  those  observations  were  pot  based  on   a\ndiscussion  of the evidence and were not necessary  for\t the\ndecision of that case. [50 D]\nAvikutti  Bhagavathi  & Ant-. v.  Chithambaratham  Mathevan,\nreported in 8 T.L.R. 51, Ramaswami Sulusivan v. Thanu  Gouri\nreported in Kolappa Pillai's unreported important cases,  p.\n179 and Hagaru Pillai Saraswathi Amma v.  Thanu Pillai Thanu\nPillai,<\/a> reported in 1944 T.L.R. 710 referred to.\n(3)  While  it\tis true that the community is a\t very  small\ncommunity  found  in a small local area and  cases  reaching\ncourts\tmay not be many, the court cannot, on  that  ground,\nignore the well established principle before a custom can be\nheld  as  having  been\tproved\ton  the\t basis\tof   earlier\ndecisions.   Those  decisions  should  have  been  based  on\nevidence  adduced in those cases.  But in the present  case,\nneither of the two decisions which refer to the special kind\nof  patnibhagam\t pleaded by the appellant was based  on\t the\nevidence in the case. [508 F-H; 509 A-B]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1251  of
\n1967.\n<\/p>\n
504<\/span><\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nSeptember 29, 1966 of the Madras High Court in S.A. No.\t 167
\nof 1963.\n<\/p>\n
K.   T. Harindranath, S. N. Sudhakaran, P. Kesava Pillai and
\nM.   R. Krishna Pillai, for the appellant.\n<\/p>\n
Lily Thomas and A. Sreedharan Nambiar, for respondent No. 1.
\nThe Judgment of the Court was delivered by
\nALAGIRISWAMI, J. This is an appeal by special leave  against
\nthe judgment of the High Court of Madras in Second Appeal.
\nThe  appellant\tis  the daughter of  one  Ayyappan  Mathevan
\nPillai, who died on 17th January, 1949, by one of his wives,
\nthe  second respondent.\t The first respondent is his son  by
\nanother\t wife.\t The  parties  belong  to  the\tKrishnanvaka
\nCommunity found mainly in the Kanyakumari district of  Tamil
\nNadu.\tDuring the appellant’s minority her mother  and\t the
\nfirst  respondent  entered into a deed\tof  partition  under
\nwhich the appellant was given 9 out of 79 items belonging to
\nher  father.   She filed the suit out of which\tthis  appeal
\narises\tfor partition and possession of a half share in\t all
\nher  father’s  properties.   Her  claim\t was  based  on\t the
\nallegation that in the community to which the parties belong
\nthere was a custom of a special kind of pathnibhagam.  While
\nunder  the ordinary pathnibhagam a man’s sons  by  different
\nwives  get  their shares on the basis  that  whatever  their
\nnumber\tthe property is divided according to the  number  of
\nwives  he  had,\t rather than, on a  per\t capita\t basis,\t the
\nspecial\t kind of pathnibhagam pleaded by the  plaintiff\t was
\nthat  even  a  daughter was entitled to share  on  the\tsame
\nbasis.\t She pleaded that as Mathevan Pillai had  two  wives
\nand  she was the daughter by one wife and the 1st  defendant
\nthe  son  by the other wife each of them was entitled  to  a
\nhalf share.\n<\/p>\n
The learned Subordinate Judge who tried the suit, on a\tcon-
\nsideration  of\tthe evidence in the case,  as  also  various
\nearlier\t ,,decisions regarding this custom held against\t the
\nplaintiff.   Oil  appeal the District Judge  of\t Kanyakumari
\nwithout\t going\tinto the evidence but on the basis  of\tsome
\nearlier decisions allowed the appeal.  In the Second  Appeal
\nbefore\tthe  High Court the learned ‘Single Judge  took\t the
\nview  that  the decisions relied on by\tthe  District  Judge
\ncannot\tbe  said to have established the  existence  of\t the
\nspecial custom pleaded by the plaintiff.  The 1st  defendant
\nalso sought to sustain the partition deed on the basis\tthat
\nit was the result of a family arrangement.  But the learned
\nJudge did not think it necessary to go into that question in
\nthe  view  he  took regarding the  custom  pleaded  by\tthe
\nplaintiff.\n<\/p>\n
505<\/span><\/p>\n
The  question  that  arises for decision  in  this  case  is
\nwhether\t the  custom  pleaded  by  the\tappellant  has\tbeen
\nestablished.   On behalf of the appellant reliance  was\t not
\nplaced on the evidence in the case to establish the  custom.
\nThe  argument was simply based on certain earlier  decisions
\nregarding the prevalence of the custom of pathnibhagam among
\nthe  community\tto  which the  parties\tbelong.\t  The  legal
\nposition  regarding  the place of customary  law  among\t the
\nHindus is now well established.\t In The Collector of  Madura
\nv.  Moottoo Ramalinga Sethupathy(1) it was observed  by\t the
\nPrivy Council :\n<\/p>\n
\t      “Under the Hindu system of law clear proof  of
\n\t      usage  will outweigh the written text  of\t the
\n\t      law.”\n<\/p><\/blockquote>\n
\t      In  Rama\tRao v. Rajah of Pittapur ( 2  )\t the
\n\t      Privy Council observed :\n<\/p><\/blockquote>\n
\t      “When a custom or usage, whether in regard  to
\n\t      a\t tenure or a contract or a family right,  is
\n\t      repeatedly brought to the notice of the Courts
\n\t      of a country, the Courts may hold that  custom
\n\t      or usage to be introduced into the law without
\n\t      the  necessity  of proof\tin  each  individual
\n\t      case.  It becomes in the end truly a matter of
\n\t      process and pleading.”\n<\/p><\/blockquote>\n
\t      In  Premraj  v. Chand Kanwar\t( 3  )\t the
\n\t      Privy Council observed
\n\t      “It is not doubtful that the ordinary rule  is
\n\t      that  a  party relying on\t a  custom……….
\n\t      which  is at variance with the ordinary  Hindu
\n\t      law  must\t allege\t and prove it.\t But  it  is
\n\t      equally  beyond doubt that a custom which\t has
\n\t      been  recognised and affirmed in a  series  of
\n\t      decisions,  each\tof them\t based\ton  evidence
\n\t      adduced  in  the particular case.\t may  become
\n\t      incorporated  in\tthe general  law,  with\t the
\n\t      result  that the onus of proof no longer\tlies
\n\t      on  those\t who assert it but  upon  those\t who
\n\t      assert an exception to it.”\n<\/p><\/blockquote>\n
The latest decision is that of this Court in Ujagar Singh v.
\nMst. Jeo<\/a> (4) wherein after referring to the statement of law
\nin Rama Rao v. Rajah of Pittapur, earlier referred to,\tthis
\nCourt pointed out that ‘when a custom has been so recognised
\nby  the courts, it passes into the law of the land  and\t the
\nproof  of it then becomes unnecessary under s. 57(1) of\t the
\nEvidence Act.’ In the particular circumstances of that\tcase
\nthis Court pointed out that there was a formidable array  of
\nauthorities in support of either view, and, therefore,\twent
\ninto the evidence and held that the respon-
\n(1)  (1868) 12.M.I.A., 397,436.\n<\/p>\n
(3)  (1947) H M.L.J. 516 (P.C.)
\n(2)  (1918) I.L.R. 41 (Madras), 778 at 785.
\n(4)  (1959) 2 S.C.R. (Suppl.), 781.\n<\/p>\n
506<\/span><\/p>\n
dent  therein  had  proved a custom  whereby  a\t sister\t was
\nentitled   to  succeed\tin  preference\tto  the\t  collateral
\nrelations of her brother.\n<\/p>\n
 Now  let  us  see whether in the  community  to  which\t the
\nparties\t belong\t the rule of pathnibhagam with\tthe  special
\nmodification  of  that\trule pleaded  by  the  plaintiff  is
\nprevalent.   That the rule of pathnibhagam is  prevalent  in
\nvarious\t parts\tof  the\t country  there\t is  no\t doubt.\t  In
\nPalaniappa  Chettiar v. Alagan Chetti(1) the  Privy  Council
\nreferred  to the statement of law by Mayne in his Hindu\t Law
\n(Edn. 7), para. 473 to the following effect :\n<\/p>\n
\t      “In  some families, however, a  custom  called
\n\t      patnibhaga  prevails of dividing according  to
\n\t      mothers, so that if A had two sons by his wife
\n\t      B\t and three sons by C. the property would  be
\n\t      divided  into moieties, one going to the\tsons
\n\t      by  B, and the other to the sons by C,  Somrun
\n\t      Singh v. Kkedun Singh.  This practice prevails
\n\t      locallY  in  Oudh, as  evidenced\tby  numerous
\n\t      Wajib ularz, which I have seen in cases  under
\n\t      Appeal to the Privy Council.”\n<\/p><\/blockquote>\n
They  also referred to the prevalence of the custom in\tmany
\nparts  of  Southern India. as referred to by Mr.  Ellis,  on
\npage  357  of Vol.  II of Strange, and at page 167  of\tthat
\nwork to the following effect :\n<\/p>\n
\t      “The  division  of  estates, in  case  of\t one
\n\t      person  having several families  by  different
\n\t      women,  among  the families  in  equal  shares
\n\t      without reference to the number of persons  in
\n\t      each.”\n<\/p><\/blockquote>\n
Their Lordships, therefore, approached the evidence in\tthat
\ncase with a knowledge that such a custom does exist, and was
\nnot  an\t improbable one in the particular  case,  and  after
\nexamining  the\tevidence  came to the  conclusion  that\t the
\ncustom of Patnibhaga was proved.\n<\/p>\n
We may now refer to the decisions that were cited before the
\nCourts\tbelow and were relied upon before this\tCourt.\t The
\nearliest  one  is a decision of the year 1890,\tin  Avikutti
\nBhagavathi & ANR. v. Chithambarathanu Mathevan, reported  in
\n8  T.L.R. 51 where the effect of the evidence was stated  as
\nfollows :\n<\/p>\n
\t      “From the evidence on both sides, it is  clear
\n\t      to  us  that  Krishnavakakkar  to\t which\t the
\n\t      parties belong, follow the Hindu law with\t one
\n\t      or two points of divergence from it, viz.\t the
\n\t      widow  cohabiting\t with  the  brother  of\t her
\n\t      deceased\thusband and the existence of  Pathni
\n\t      Bhagam.”\n<\/p><\/blockquote>\n
(1)  (1921) I.L.R. 44 (Madras), 740.\n<\/p>\n
\t\t\t    507<\/span><\/p>\n
The next  decision  is\tof the\tyear  1904,  in\t Ramaswami
\nSadasivan  v.  Thanu  Gouri, reported  in  Kolappa  Pillai’s
\nunreported  important  cases  p.  179.\t Here  again  on   a
\nConsideration\tof  the\t evidence  it  was  held  that\t the
\npreponderance of evidence as a whole was in favour of Pathni
\nBhagom.\t But one of the learned Justice observed :\n<\/p>\n
\t      “The Pathni Bhagon which prevails in this com-
\n\t      munity  seems  to\t go even  beyond  the  usual
\n\t      custom known as Pathni Bhagom. that it is\t not
\n\t      only  sons of different mothers that take\t per
\n\t      stirpes  (according to the number of  mothers)
\n\t      but when one mother has\tgot   only    female
\n\t      issue  and  another a male  issue\t the  female
\n\t      issue  get  a  half share\t in  their  father’s
\n\t      properties  and  the male issue by  the  other
\n\t      wife of the father takes\tthe other half.”\n<\/p><\/blockquote>\n
It  is\tupon this decision that, the  plaintiff,  based\t her
\nwhole case.    It  must\t be pointed out, however,  that\t the
\nlearned Judge did not\t go into the evidence regarding\t the
\nparticular  type  of  pathnibhagam which was  stated  to  be
\nprevalent  among  this community. Nor was  it  necessary  to
\ndecide that question for the purpose of that case. It was  a
\nmere  passing  observation and this is a  solitary  case  in
\nwhich such a special custom is mentioned.
\n We then come to another decision of the year 1944, in\t Nagaru
\nPillai\tSaraswathi  Amma  v.  Thanu  Pillai  Thanu   Pillai,<\/a>
\nreported  in 1944 T.L.R. 710. In that case also the  special
\ncustom pleaded by the plaintiff did not arise for  decision.
\nWhat;  was urged was the right of absolute ownership  for  a
\nwidow of a member of a Krishnanvaka community. The  argument
\nwas  that  the existence of Pathnibhagam  in  the  community
\nimplied the    principle that on the death of the husband of
\na Krishnavakakar    woman,  in the absence of his  children,
\nshe was entitled to inherit   her     husband’s\t    property
\nabsolutely.  This contention was rejected but  the  decision
\nproceeded on the basis that the custom of    Pathnibhagam
\nwas prevalent in this community.\n<\/p>\n
There  is a decision of the District Court of  Nagercoil  in
\nO.S. No.  109  of  1096 M.B., dated  22nd  December.  1923,
\nmarked\t  Ex A-6.. wherein it was observed:\n<\/p>\n
\t      “But it has been held in Kolappa Pillay,\tpage
\n\t      179  that in the community Krishnavakakars  to
\n\t      which the parties belong that when a man\tdies
\n\t      leaving two wives\t   even\t  though  one\twife
\n\t      might  have  only female issues  such  females
\n\t      issue  are  entitled to a half  share  as\t the
\n\t      Pathnibhagam  to their mother.  It appears  to
\n\t      me therefore that under the ruling in  Kolappa
\n\t      Pillay’s\tSelect\tDecisions  cited  before  in
\n\t      which 8 T.L.R. 51 and T.L.R.\n<\/p><\/blockquote>\n
7-L796Sup.C. I. \/73
\n508<\/span>
\n.lm15
\n16,  Calcutta 759 have been cited and  followed,  plaintiffs
\nare also entitled to a half share in the assets of Kunchan.”
\nThere is another decision of the District Munsiff’s Court of
\nKuzhithurai in O.S. No. 18 of 1959, dated 2nd January, 1960,
\nwherein it was observed
\n\t      “Ex.   B. 26 judgment proceeded on  the  basis
\n\t      that  as\tthe  parties  belonged\tto  Krishnan
\n\t      Vakakkar\tcommunity per capita division  among
\n\t      them-is  not allowable.  That  community\tdoes
\n\t      not  follow Hindu Mithakshara Law.   There  is
\n\t      authority\t  for  the  possession\t that\tthis
\n\t      community\t  follows   the\t system\t  known\t  as
\n\t      Patnibhagam   under  which  property  of\t the
\n\t      deceased is inherited according to the  number
\n\t      of widows he had irrespective of the existence
\n\t      of the children to the deceased.”\n<\/p>\n
This  decision recognised the existence of Pathnibhagam\t but
\nnot the special custom pleaded by the plaintiff.
\nIt is thus seen that most of the decisions either  expressly
\nor   implicitly\t recognised  the  existence  of\t custom\t  of
\nPathnibhagam  In this community, but the decision  found  in
\nExt.\tA-6  is\t the  only  one\t on  the  special  kind\t  of
\npathnibhagam  pleaded  by the plaintiff and is\tdirectly  in
\npoint.\tBut even this decision did not proceed on the  basis
\nof  the evidence in the case.  It relied on the\t observation
\nof  the\t learned  Chief\t Justice  in  the  decision  already
\nreferred  to, in Ramaswami Sadasivan v. Thanu  Gouri.\tThis
\nobservation  was not, however, based on a discussion of\t the
\nevidence  and  was not necessary for the  decision  in\tthat
\ncase, as already pointed out.\n<\/p>\n
While it is true that this community is a very small  commu-
\nnity found within a small local area and the cases that\t are
\nlikely\tto  arise in that community, which  will  reach\t the
\ncourts\tmay  not be many, we cannot merely  on\tthat  ground
\nignore\tthe well established principle that before a  custom
\ncan  be\t held as having been proved merely on the  basis  of
\nearlier\t decisions, those decisions, should have been  based
\non  evidence adduced in respect of the cases.  That test  is
\nnot  satisfied in this case.  Neither of the  two  decisions
\nwhich  refer to the special kind of pathnibhagam pleaded  by
\nthe plaintiff was based on the evidence in the case.   Thus
\nwhile the existence of the custom of pathnibhagam in the
\n\t\t\t    509<\/span>
\ncommunity may be said to have been established, the  special
\nkind of pathnibhagam pleaded by the plaintiff cannot be said
\nto  have been established and the appellant  cannot  succeed
\nunless\tshe  establishes  the latter.  In this\tview  it  is
\nunnecessary to go into the question of family arrangement.
\nThe appeal is dismissed with costs of the 1st respondent  to
\nbe paid by the appellant.\n<\/p>\n
V.P.S.\t\t\t\t       Appeal dismissed.\n510<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kaliamma vs Janardhanan Pillai & Ors on 8 February, 1973 Equivalent citations: 1973 AIR 1134, 1973 SCR (3) 503 Author: A Alagiriswami Bench: Alagiriswami, A. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-54519","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKaliamma vs Janardhanan Pillai & Ors on 8 February, 1973 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kaliamma-vs-janardhanan-pillai-ors-on-8-february-1973\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kaliamma vs Janardhanan Pillai & Ors on 8 February, 1973 - 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