Kochan Kani Kunjuraman Kani Vs.
Mathevan Kani Sankaran Kani  INSC 156 (7 May 1971)
CITATION: 1971 AIR 1398 1971 SCR 786
Custom-Plea of tribal custom-Whether family
custom can be proved.
Kanikkars-Whether governed by Marumakkathayam
law or Makkathayees.
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 to the Kanikkar tribe governed by the customary
Marumakkathayam law. The appellant contended that his father was a Makkathayee.
The appellant also 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,  S.C.R. 825, referred
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 appellant 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 dismissedby 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 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)  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 car fly 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 Kanikkars 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 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
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
"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 followed 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.
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.