Kavalappara Kottarathil Kochunni Alias
Moopil Nair Vs. Kavalappara Kottarathil Parvathi Nethiar [1969] Insc 197 (21
August 1969)
21/08/1969
ACT:
Custom-Impartible Estate-Marumakkathayam
Law-Sthanee of Kavalappara estate paying maintenance to junior members of
family-Payment whether based on custom-Opinio necessitatis an essential element
of Custom.
HEADNOTE:
Defendant No. 1 was the Sthanee of
Kavalappara estate which was an impartible estate governed by Marumakkathayam
law.
The plaintiffs claimed maintenance based on a
family custom entitling the members to maintenance out of the entire income of
the Sthanam. Past maintenance was claimed as also future maintenance from the
date of the suit.
Defendant No. 1 denied that the plaintiffs
had any right based on custom as claimed by them; according to him from older
times two kalams of the Sthanam had been set apart for their maintenance. He
claimed that the Privy Council in suit no. 46 of 1934 had declared him absolute
owner of the Sthanam properties but despite that, out of generosity only he had
been paying to the junior members of the Swaroopam Rs. 17.000/- annually. The
trial court granted maintenance to the plaintiffs for the period claimed at the
rate of Rs. 250/- per mensem for each of the plaintiffs. Defendant No. 1
appealed to the High Court and the plaintiffs filed cross- objections as the
rate of maintenance allowed to them was lower than they had claimed. The High
Court partly allowed the appeal negativing the plaintiffs' claim for arrears of
maintenance, and dismissed the cross-objections of the plaintiffs. Both the
parties appealed to this Court. The questions that fell for consideration were:
(i) whether the right to maintenance as claimed by the plaintiffs was based on
custom; (ii) whether the High Court was right in disallowing the claim of the
plaintiffs to arrears of maintenance; (iii) whether the rate of maintenance as
ordered by the trial court and' confirmed by the High Court was justified.
HELD: (i) An alleged custom, in order to be
valid, must be proved by testimony to have been obeyed from consciousness of
its obligatory character. A mere convention between family members or an
arrangement by mutual consent for peace and convenience cannot be recognised as
custom. In order that a custom should acquire the character of law the custom
must be accompanied by the intellectual element, the opinion necessitatis. the
recognition that there is authority behind it. [45 B--C; D E] Rarnrao v.
Yeshwantrao, I.L.R. 10 Bom. 327, applied.
In the present case the evidence sufficiently
proved a custom in Kavalappara estate by which the Sthanee was legally obliged
to give maintenance to junior members of the family. It was possible that the
practice of paying maintenance to junior members originated as an act of
generosity of the previous Sthanee. But it had continued without interruption
for such a length of time that it had acquired the character of a legal right.
[42] Kochuni v. Kuttanunnt, A.I.R. 1948 (P.C.) 47, 52, explained.
37 (ii) Although it had been alleged by the
plaintiffs that they had not been paid any maintenance, the High Court had'
found that maintenance had been given to the plaintiffs' mother with whom the
plaintiffs had been living. The High Court's refusal to grant to the plaintiffs
arrears of maintenance before the date of the, suit must, in the circumstances,
be upheld. [46 C] (iii) The High Court in fixing the amount of maintenance for
each of the plaintiffs at Rs. 250./- per month had taken into account all the
relevant factors. It had further directed that it was open to the parties after
two years to move the trial court for variation in the rate of maintenance
fixed on the ground of altered circumstances of the Estate. There was no reason
for interfering with the judgment of the High Court in this matter. [46. G]
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1235 to 1237 of 1966:.
Appeals from the judgment and decree dated
September 20, 1963 of the Kerala High Court in Appeal Suit No. 304 of 1962.
Rameshwar Nath, Mahinder Narain and Swaranjit
Sodhi, for' the appellants (in C.A. No. 1235 of 1966) and respondent No, 11 (in
C.As. Nos. 1236 and 1237 of 1966).
K. Javaram and R. Thiagarajan, for the
appellants (in C.As.Nos. 1236 and 1237 of 1966) and respondents Nos. 1 to 7 (in
C.A. No. 1235 of 1966).
M.R.K. Pillai, for respondent No. 3 (.in
C.As. Nos.
1236and 1237 of 1966) and respondent No. 9
(in C.A. No. 1235 of 1966).
The Judgment of the Court was delivered by
Ramaswami, J. KavaIappara estate is an impartible estate. Succession thereto is
governed by the Marumakkathayam law, that is to say, the eldest member of the
family by female descent will succeed to the Gaddi and hold the estate. The
parties to the suit are members of the Kavalappara Swaroopam, the 1st defendant
being the Sthanee.
The 7th defendant is the mother and the 9th
defendant the elder brother of the plaintiffs. The plaintiffs claimed
maintenance based on family custom entitling the members' to maintenance out of
the entire income of the Sthanam. Past maintenance was claimed for each of the
plaintiffs 1 to 4 for 12 years at Rs. 500/- per mensem; for plaintiff no. 5 at
the above rate and for plaintiffs 6 to 8 at Rs. 400/- per mensem from their
respective dates of birth. Future maintenance from date of suit was also claimed
at the aforesaid rates. The suit was contested by the 1st defendant on the
ground that the plaintiffs had no enforceable legal right to maintenance from
the Sthanam estate; that from olden times two kalams, Palachithara and Velliyad
of the Sthanam estate had been set apart for the maintenance of the 38 junior
members of the Swaroopam that the plaintiffs have to look to those two kalams
only for their maintenance "as deposed by him in the former suit" in
O.S. No. 46 of 1934;
that even after the Privy Council had decided
O.S. No. 46 of 1934 declaring him to be absolute owner of the Sthanam
properties, he had been paying maintenance out of affection;
that though there was no recognised custom
binding on him, he had been adopting the generosity of the predecessor Sthanees
and paying to the junior members of the Swaroopam Rs. 17,000/- annually and
that the plaintiffs had no right to claim income from the Sthanam estate. The
trial court granted maintenance for the period claimed until the date of decree
at the rate of Rs. 250/- per mensem for each of the plaintiffs charged on the
corpus and income of the Sthanam estate. The first defendant appealed to the
Kerala High Court in A.S. No. 304 of 1962. The plaintiffs preferred
cross-objections. The High Court partly allowed the appeal negativing the
plaintiffs' claim for arrears of maintenance and modified the trial court's
decree. The High Court dismissed the cross-object.ions of the plaintiffs. C.A.
No. 1235 of 1966 is brought to this Court by certificate on behalf of defendant
no. 1 and C.As. 1236 and 1237 of 1966 are brought to this Court by certificate
on behalf of plaintiffs.
The first question to be considered is
whether the plaintiffs are entitled to maintenance out of the Sthanam
properties as a matter of family custom. It is argued on behalf of the 1st
defendant that the maintenance allowance was previously given by the Sthanee
only as an act of generosity and not in recognition of any legal claim of
junior members of the Swaroopam. In any case it was contended that the practice
prevailing in the past was that the income from two kalams
"Pilachithara" and "Velliyad" was given to the Amma Nethiar
for the benefit of the members of the Swaroopam and that the members of the
Swaroopam could not insist on anything more than the same as a matter of right.
In our opinion there is no justification for this argument. There is sufficient
evidence on the record of the case to support the finding of the Subordinate
Judge and the High Court that the plaintiffs have established a customary right
of maintenance from the Sthanam properties. In the first place there are two
decisions O.S. 991 and 992 of the year 1817 granting a decree for maintenance
to two members of the Kavalppara Sthanam (Exhibits A-57 and A-58). It was
contended for the Sthanee in those suits that separate properties had been
allotted to Amma Nethiar to maintain all the females and minors in the
Swaroopam, that only major males in the Swaroopam can claim separate
maintenance from him and that those members who chose to live away from the
palace had no right to claim maintenance. These contentions were not accepted
by the Court which gave each of the plaintiffs a money 39 decree for
maintenance both past and future. The material portions of the two decisions
are quoted below:
"On a careful consideration of all the
particulars referred to and in view of the circumstances that the Plaintiff
went separate from the tarwad members in disregard of the orders of Defendant
who is the present Moopil Nair of Kavalppara and in opposition to the status,
ranks and dignities (Sthanamanams) and propriety of Sthanam and merely for
their own pleasure and that, even after the Moopu had caused negotiations to be
made through Brahmins and other respectable persons under his (Moopu's) written
authority with a view to avoid the Moopu (Sthanam) falling into disgrace (as a
result of family) dissension and in view of the fact that, in spite of the
efforts of the said persons, the plaintiff did not return and live together
(have common residence and mess), it is only proper, as the Defendant contends
in his written statement, that it is the Amma Nethiar who should provide for
the maintenance of the plaintiff along with that of the lady members. The
plaintiff's witnesses Cherumpatte Manakkal Vasudevan Bhattathiripad and
Pannasseri Adisseripad state on solemn affirmation that, since it is the Moopu
that manages the properties forming the assets of the Swaroopam (esstate) and
received 16,000 and old fanams being 2 per 10 from the Government if the next
nephew as well as the heir and next of kin of the Moopil Nair were to live
separate from the Moopil Nair and demand maintenance for whatever reasons it
might be, such person ought to be paid maintenance expenses and supported as
befitting the Sthanamanam (rank and dignity) of such person and not necessary
(sic). The plaintiff and his mother Valiakava Nethiar left Kavalappara on the
16th Medom 992 (26th April 1817) and went to and stayed at Mangalathu,
Panambala Kode and Melarkode for reasons not apparent. Under the orders of the
Defendant maintenance had been paid to plaintiff, the said Nethiar and 20
persons from that date, 16th of Medom (26th of April) to the month of Edavam
(May-June). Thereafter the defendant ordered payment of maintenance to 16
persons from 1st Mithunam (13th June) and to 12 persons thereafter.
Subsequently the Moopu ordered that maintenance need be paid for 8 persons only
including (the plaintiff). The written statement (deposition) does not make any
mention as to--nor have the plaintiff's witnesses proved as to what expenses
the sum of--claimed in the plaint relate to. It is therefore 40 decreed that
the Defendant do pay plaintiff 450 fanams being the maintenance expenses for 3
months as evidenced by the plaintiff's witnesses after deducting 25 (? ) fanams
from the amount claimed in the plaint, that the Defendant do also pay the
plaintiff's future maintenance at the rate of 150 fanams a month as mentioned
above and that the plaintiff and Defendant do pay and receive proportionate
costs." Ext. A-58:
"On looking into the matters mentioned
above, there is nothing to show on what ground the plaintiff had gone and lived
separate from the tarwad members of her own accord in disregard of the order of
the present Kavalappara Moopil Nair and without considering the status, dignity
and propriety (of the Sthanam). Even though the Defendant's contention in his
written statement that it is the Amma Nethiar who should look after the
maintenance of the plaintiff in as much as the plaintiff did not return to and
stay in the Kavalppara in spite of the attempts made through the Brahmins and
other respectable persons to avoid the Moopu getting a bad name owing to a
rumour getting afloat that there is dissension among the members as a result of
the plaintiffs action, is a proper only, the court is of the opinion that, if
the members who are related to the Moopil Nair as his direct sister and direct
nephew like the 3rd Nair and who are closely related together as heirs to the
properties live separate for any reason whatsoever and ask for their
maintenance, the Moopil Nair ought to have ordered payment of their
maintenance, amounts and maintained them in accordance with their status in the
Sthanam. Instead of doing this, the Moopil Nair cannot stop the maintenance
paid to the Anandaravas who may be of bad temperament. The plaintiff's and
defendant's witnesses prove that the plaintiff had been paid for the
maintenance from the Medom 992 (April-May, 1817) when she went separate until
the 30th of Karkitakam (about the 16th of August) and that the Moopil Nair had
stopped paying for the maintenance thereafter. From the evidence of the
plaintiff's witnesses it has been proved that the plaintiff and the persons
staying with her would all together require 3 fanams for maintenance expenses
and 1 fanam for extra expenses for a day. It, therefore, does not appear from
the oral and documentary evidence that they would require anything more
than--fanams for the maintenance for the 3 months from 41 the 1st of Chingam
(14th August) to the 1st of Vrichigam (14th November) the date of the suit,
calculating at 120 fanams a month. It is not clear from the plaint as to what
expenses the sum of Rs. 150 claimed in the plaint relates. I therefore direct
the defendant to pay to plaintiff a sum of Rs. 360 fanams after deducting 165
fanams from the amount claimed by the plaintiff and I also direct that the
Defendant do pay to the plaintiff the future maintenance at the rate of 120
fanams a month and that the plaintiff and Defendant do pay and receive
proportionate costs." Exhibit B-1 is a deposition given in O.S. 2 of 1859
by the then Sthanee of the Kavalappara Swaroopam. The deposition is marked as
Ex. 67(b) in O.S. 46 of 1934 and reads as follows:
"The properties belong to the Sthanam
only. Two Kalams (lands attached to two granaries) have been set apart for the
maintenance of the members of the tarwad. And it has been the practice that the
rest of the members maintain themselves therefrom. It has been so separately
allotted from ancient times. When precisely, is not known. It could be seen
from the accounts that It has been so set apart. It is only if I think it
necessary to take back what has been so set apart, that I should give them
their maintenance expenses .... I have not enquired whether there were any
other places where the entire properties and the Malikhan belonged to the
Sthanam only and the tarwad has no separate property of its own." [The
High Court has observed that this translation is not correct and that 'kalam'
denotes a division of the estate for purposes of collecting rents from the
tenants. Again a true translation of the first sentence in the above quotation
would be 'only the Sthanam has properties and no.t the properties belong to the
Sthanam only".] This deposition shows clearly that the Sthanee in office
admitted over a century ago his obligation to maintain junior members of the
Swaroopam.
The next piece of evidence is the deposition
of the Sthanee in O.S. No. 46 of 1934. In the present case the 1st defendant
did not give evidence. He admitted that his deposition in the previous suit
O.S. No. 46 of 1934 contained a true statement of facts. The previous
deposit;on of the 1st defendant in Ex. B-13 and reads as follows:
"4. The eldest lady in the Swaroopam is
called Aroma Nethiyar. Some properties had been allotted for the L 1 Sup
CI/70--4 42 maintenance of the members in the name of Amma Nethiar ..... Those
properties had been allotted in ancient times in her name from the properties
of the Moopil Nair.
5. The Moopil Nair was originally a ruling
chief. The grant of properties in the name of Amma Nethiyar should have been
made when the Moopil Nair was a ruling chief. The present Amma Nethiyar has
even now the right to manage the properties which had been so allotted. It was
in ignorance of such allotment that my eider brother and after him, myself
managed those properties along with the stanam properties. I am willing to hand
back the management of those properties to Amma Nethiyar. If those properties
are handed back, I shall no more be liable to pay the maintenance of the
members." In his written statement defendant no. 1 made the following
admission in para 6:
" ..... The defendant does not deny that
the members of the Swaroopam are entitled to be maintained by the Moopil Nayar
by virtue of custom. But that does not make him any the less a Stani nor
detract from the Stanom character of the properties." In our opinion the
evidence adduced in the case sufficiently proves a custom in Kavalappara Estate
by which the Sthanee was legally obliged to give maintenance to junior members
of the family. It is possible that the practice of paying maintenance to junior
members originated as an act of generosity of the previous Sthanee. But it has
continued without interruption for such a length of time that it has acquired
the character of a legal right.
On behalf of defendant no. 1 it was contended
that the Judicial Committee had said that the payment for maintenance was an
act of generosity on the part of the Sthanee and was not a legal right of the
junior members.
Reference was made to the following passage
in the judgment in Kochunni v. Kuttanunni(1):
"The maintenance claimed was a customary
one originating in ancient times when admittedly the Muppil Nair was a Sthani
in possession of Sthanam rights. There is no evidence as to how the maintenance
allowance arose, whether it was given in recognition of a legal claim or was
only a generous provision made for the benefit of the women and younger
members, which the Raja was perfectly competent to do out of property (1)
A.I.R. 1948(P.C.).47at p. 52.
43 which he regarded exclusively as his own.
The claims of generosity often prevail over a sense of ownership, especially
when the recipient of the bounty is a near relative in a dependent
position." In our opinion this argument proceeds on a misreading of the
judgment of the Judicial Committee. The Judicial Committee has observed that
the claim for maintenance was based on customary rights and was not ex gratia
payment. In the course of the judgment Mr. M.R. Jayakar states:
"The documents material in this
connection are Exs. 'O' and 'P' being the decree and judgment respectively in
two suits for maintenance brought in the year 1817 against the then Muppil
Nair, the first by the then third Nair, a minor, and the second by his mother.
It is material to note what the issue was and what was decreed in these suits.
In the pleadings of both the parties the
claim for maintenance was stated to be based on customary rights. The plaintiff
alleged it is 'the usual custom' that Nair should pay the maintenance. The
defendant admitted 'the custom' but denied his liability to pay the maintenance
on the ground that his ancestors in ancient times had already settled in
accordance with the 'usual practice' certain lands on a lady called Amma
Nethiar for the maintenance of herself and the junior members, and that the
maintenance claimed in the suit, even if it was due, which he denied, should
primarily come out of the lands so set aside in previous times. He also denied
his liability on the ground that the minor and his mother, contrary to his
advice and that of the well wishers of the family had gone away to live
elsewhere. The defendant denied his liability also on other grounds which it is
unnecessary to consider in tiffs case. He, however, expressed his willingness
to supplement the maintenance, if the Court thought proper, on particular
occasions. The Judge, while admitting that it was the responsibility of Amma
Nethiar to maintain the plaintiffs, held that as the plaintiffs stood in the
very near relationship of sister and nephew to the defendant and were his next
heirs it was 'only proper' that the defendant should grant them a periodical
allowance for past and future maintenance. In the light of the pleadings set
out above, the admissions made therein by bolt sides about the customary nature
of the maintenance and the words it was 'only proper' in the judgment, their
Lordships cannot accept this as a decision contra- 44 dicting the incidents of
the property in the hands of the Muppil Nair." In any event the question
as to whether the right of maintenance was given by the Sthanee in recognition
of the legal claim or whether it was an ex gratia payment was not directly in
issue in the previous suit. The question for determination was whether the
existence of maintenance allowance was inconsistent with the Sthanam character
of the properties in possession of the then Moopil Nair. On this point it was
held by the Judicial Committee that the payment of the maintenance allowance
for junior members was not inconsistent with the Sthanam character of the
property on which it was grounded. At p. 53 of the Report Mr. Jayakar has
observed;
"Their Lordships think that in the
proceedings of these two cases there is hardly anything to support the view of
the High Court that the decrees in these two suits are inconsistent with the
Sthanam character of the properties in the possession of the then Muppil Nair
or that he did anything which could be regarded as an admission that the
properties in his hands were not Sthanam properties. On the question whether
and how far the existence of a maintenance allowance is inconsistent with the
Sthanam character of the property, on which it is grounded, the following
passage in Sundata Aiyar's book (p.
255, bottom) may be noted:
"The point of view suggested in some
cases in which the question has arisen is that the members of the family have
rights of maintenance in the property of the Sthanam itself: that is
practically assimilating these properties to impartible zemindaries before the
recent cases.' Besides, the Sthanam in dispute in this case belonged, as stated
above, to the second category, and in such a case the existence of maintenance
allowance would be perhaps not so inconsistent as in the case of a Sthanam of
the third class, carved out of the family property for the support and dignity
of its senior member." The question at issue before the Judicial Committee
was whether the Kavalppara Estate was a Tarawad or joint family property
belonging to the joint family or whether the properties appertained to the
Sthanam and belonged to defendant no. 1 as a Sthanee exclusively. The question
as to the right of maintenance of the plaintiffs was incidentally gone into and
it was ultimately held that the existence of such maintenance fight of junior
members of 45 the family was not inconsistent with the Sthanam character of the
properties.
In our opinion the High Court. was right in
its finding that the plaintiffs have established their right to maintenance
from the Sthanam properties as a matter of custom. Counsel on behalf of
defendant no. 1 has been unable to make good his argument on this aspect of the
case.
An alleged custom, in order to be. valid,
must be proved by testimony to have been obeyed from consciousness of its
obligatory character. A mere convention between family members or an
arrangement by mutual consent for peace and convenience cannot be recognised as
custom. In Ramroa v.
Yeshwantrao(1) it was proved that it had been
the practice in a Deshpande Vatandar's family for over a hundred and fifty
years, without interruption or dispute of any kind whatever, to leave the
performance of the services of the vatan and the bulk of the property in the
hands of the eider branch and to provide the younger branches with maintenance
only. It was held that such practice was due in its origin to a local or family
usage and not to a mere arrangement and that it was therefore to be recognized
and acted upon as a legal and valid custom. In order, therefore, that a custom
should acquire the character of law the custom must be accompanied by the
intellectual element, the opinion necessitatis "the conviction on the part
of those who use a custom that it is obligatory and not merely optional".
In other words the mark which distinguishes custom in the legal sense from mere
convention is the opinion necessitates, the recognition that there is authority
behind it.
"In the modern state the custom, if
legally recognized has behind it the court and an apparatus of coercion. In
primitive communities we do not find authority necessarily organized in the
institutional sense. We must ask, 'what is the ultimate power in the group to
settle conflicts or to prescribe rules ?' It may be the old men, the military
group, the priests, or merely a general consensus of opinion. But the opinion
necessitatis can come into existence only when the community in some way throws
its force behind the particular rules." (See G.W.
Paton--Jurisprudence--3rd edn. p. 164) We have shown in the present case that
the plaintiffs have established their right to maintenance from the Sthanam
properties not merely as an act of generosity on the part of the Sthanee but
the (1) I.L.R. 10 Bombay 327.
payment of maintenance has been made by the
Sthanee as a matter of legal obligation.
The next question is whether the plaintiffs
are entitled to arrears of maintenance. It appears that after the decision of
the Privy Council declaring the 1st defendant as exclusive owner of properties
he has paid Rs. 17,000 annually to the Amma Nethiar for the maintenance of the
junior members of the Swaroopam. It is not disputed by the plaintiffs that such
payments were made before the institution of the present suit. Even after the
institution of the suit the 1st defendant had been depositing annually Rs.
25,000 in court for the maintenance of the plaintiffs and other members of the
Swaroopam as ordered by the trial court. It was alleged by the plaintiffs that
they have not been paid any maintenance. But the High Court found that
maintenance had been given to the plaintiffs' mother with whom plaintiffs had
been living. For these reasons the High Court held that there was no ground for
awarding arrears to maintenance before the date of suit. We see no reason for
taking a view different from that of the High Court in the matter.
As regards the rate of maintenance the trial
court granted decree at the rate of Rs. 250/- p.m. for every one of the
plaintiffs irrespective of age. It has been found by the trial court that the
net income of the Swaroopam was about Rs. 2 lakhs per annum. It is admitted
that the income of the Swaroopam consists mostly of rents from cultivating
tenants. With the abolition of perquisites and the fixation of fair rents by
recent tenancy legislation there appears to have been a reduction of the net
income of the Sthanam in recent years. It also appears that the plaintiffs are
the only minor members in the family and excepting the 7th defendant who is
their mother the defendants are males whose children would not be members of
the Swaroopam. In the Madras Estates (Abolition and Conversion into Ryotwari)
Act 26 of 1948 compensation to members of the family entitled to maintenance
out of an impartible estate is fixed at 1/5 of what is paid for the estate in
view of these considerations the High Court held that the provision of Rs.
250/- p.m. to each of the plaintiffs was adequate. The High Court, however,
directed that it is open to the parties after two years to move the trial court
for variation in the rate of maintenance fixed on the ground of altered
circumstances of the Estate. Having heard the parties we see no reason for
interfering with the judgment of the High Court in this matter.
In the result we dismiss all the three
appeals (Civil Appeals-Nos. 1235, 1236 and 1237 of 1966). There will be no
order as to costs with regard to any of the appeals.
G.C. Appeals dismissed.
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