Kelukutty & Ors Vs. Mammad &
Ors  INSC 159 (1 August 1972)
CITATION: 1972 AIR 2403 1973 SCR (1) 757 1972
SCC (2) 591
to self acquired property.
The Thiyyas of the former Calicut, Taluk are
governed by the customary law known as Makkathayam and as per the Makkathayam
rule of inheritance an undivided brother of a deceased person succeeds to the
self-acquired property of the deceased in preference to the wife and daughter
of the deceased. Therefore, the daughter's son who comes after them under the
general Hindu Law cannot have a superior claim unless a custom to that effect
is pleaded and proved.
[760C] Parambarathial Pattukava Chakkutti and
Ors. v. Kothembra Chandukutti, A.I.R. 1927 Mad. 877 Paricham v. Perachi a Ors.
I.L.R. 15 Mad. 281 Rama Menon v. Chathunni
I.L.R. 17 Mad.
184 Imbichi Kandan & Ors. v. Imbichi
Pennu & Ors. I.L.R. 19 Mad. 1 referred to.
CIVIL APPELLATE JURISDICTION: C.A. No. 749
and 750 of 1967.
Appeals by certificate from the judgment and
decree dated 19th October 1965 of the Kerala High Court at Ernakulam in Second
Appeal No. 400 of 1961.
S. T. Desai and A. Sridharan Nambiar for the
P. Ram Reddy and A. V. V. Nair for respondent
The Judgment of the Court was delivered by
Hegde, J. In these appeals by certificate only one question arises for decision
and that is whether Chandu, the undivided younger brother of Kelu or the
grand-children of Kelu through his daughter were the legal heirs of Kelu.
Before going into that question we may
dispose, of the contention advanced on behalf of the appellants that there is
no satisfactory evidence to show that Chandu was the undivided brother of Kelu.
The pleadings in this case proceed on the footing that Chandu and Kelu were the
members of an undivided family. The evidence also discloses that fact. The
judgments of the courts below proceed on that basis. Hence the appellants
cannot now be permitted to raise the contention in this Court that Chandu is
not proved to be the undivided brother of Kelu. In considering the question
formulated above, we shall proceed on the basis that Kelu and Chandu were the
members of an undivided family.
758 Kelu was a Thiyya resident of Calicut Taluk
(at present known as Kozhikode Taluk). He was governed by the customary law
known as Makkathayam. He died on November 15, 1935 leaving behind him besides
his two brothers Chandu and Chekku, his widow Manikka, daughter Ichira and
Ichira's son and daughter who were the appellants before the High Court.
He left behind him three items of immovable
property which are the subject matter of the present appeals. Kelu's widow
Manikka and his daughter Ichira as well as his brother Chekku died prior to
1944 long before the institution of the suits from which these appeals arise.
It is not necessary to go into the history of
the long litigation. As mentioned earlier, the only question for decision is as
to who were the legal heirs of Kelu. It is now established that the suit
properties are the selfacquired properties of Kelu. There is no dispute about
it now. The High Court came to the conclusion that under the Makkathayam rule,
Chandu succeeded to the estate of Kelu in preference to his wife, daughter and
The said conclusion is challenged in these
The contesting parties are Hindus. As
mentioned earlier, they are governed by Makkathayam rule. If the Hindu law as
in force in South India had governed the succession with which we are concerned,
the wife of Kelu should have succeeded to the estate of her husband in
preference to the other heirs. The claims of the son and daughter of Ichira
could come in only later. Therefore the principal question that we have to
decide is whether the wife of Kelu succeeded to the estate of Kelu on his
Mr. S. T. Desai, appearing for the appellants
contended that Makkathayam rule being a rule of customary law can only derogate
the ordinary Hindu law to the extent it is satisfactorily established; in other
respects the ordinary Hindu law should prevail; the contesting respondents
having not established by positive evidence the claim put forward by them i. e.
that Chandu was a preferential heir to Kelu, they must fail. On the other hand
it was contended by Mr. Rama Reddy on behalf of the respondents that Kelu was
governed by a customary law i. e. Makkathayam law and not by ordinary Hindu
law. Hence all that we have to see is whether the customary law pleaded is well
established on the basis of the decisions of courts. According to him the
custom pleaded is of a community and not of any family. He urged that the
custom in question to the extent relevant for our present purpose is well
The law relating to Thiyyas of the former
Calicut taluk had come up for decision before the Madras High Court in several
cases. The approach to be adopted in spelling out the same is 759 laid down in
the decision of the Madras High Court in (Parambarathil) Pattukkayal Chakkutti
and ors. v. Kothembra Chandukutti(1). Therein the Court observed :
"We think the Makkathayam Thiyyas are
governed by what is called the customary law and that when a question arises as
to what is the rule of law governing them on any particular matter what we have
to see is what is the rule of customary law obtaining amongst them in that
matter and in cases which are not sufficiently governed by prior decisions, the
question will have to be determined with reference to the evidence in the
case." In Parichan v. Perachi and ors.(2) the High Court of Madras came to
the conclusion that a community following Makkathayam rule must not be taken to
be necessarily governed by the Hindu law of inheritance with all its incidents.
On the basis of the evidence in that case, the court held that when a member of
the Thiyya community in Calicut following that rule alleged and proved a custom
that undivided brother succeeded to the selfacquired property in preference to
widow, the court must give effect to it.
Therein the competition was between the widow
and the brother of the deceased who was a member of an undivided Tarwad and the
property in dispute was the self-acquisition of the deceased.
In Rama Menon v. Chathunni (3) the High Court
of Madras held that the ordinary rule of Marurnakatayam against compulsory partition
is equally applicable to Tiyans who follow Makkatayam, no custom to the
contrary having been made out.
In Imbichi Kandan and ors. v. Imbichi Pennu
and ors.(4) the High Court held that on the death of a Thiyya of South Malabar
following Makkathayam rule of inheritance, his mother, widow and daughter are
entitled to succeed to his self-acquired properties in preference to his
father's divided brothers. In the course of the judgment, this is what the
learned judges observed:
"The decision of the subordinate judge
is entirely in accordance with the principles laid down in Parichan v. Perachi
and Rama Menon v. Chathunni (supra). it has been decided that the rule of
impartibility applies to Makkatayam Tiyans of Calicut, and in Parichan v.
Perachi following the principle that self-acquired property lapses to the
tarwad, it was held that the undivided brother succeeded in preference to the
(2) I.L.R. 15 Mad. 281.
(1) A.I.R. 1927 Mad. 877.
(3) I.L.R. 17 Mad. 184.
(4) I.L.R. 19 Mad. 1 760 But the case is quite,
different when the brothers are divided and have no community of interest as in
this case, Here it is found that the only property in which plaintiffs and
Kelukutti ever had a common interest is in the family burying place, which will
certainly not constitute then an undivided tarwad. That being so, the mother,
wife and daughter of Changaran who certainly belong to his tarwad are
preferential heirs to his uncle who did not belong to his tarwad at all and had
no community of interest with him." From these decisions it is clear that
Thiyyas of former Calicut Taluk were governed by the customary law known as
Makkathayam. Further as per the Makkathayam rule of inheritance an undivided
brother of a deceased person succeeded to the self-acquired property of the
deceased in preference to the wife and daughter of the deceased. If that is so
the daughter's son who comes after them under the general Hindu law cannot have
a 'superior claim unless a custom to that effect is pleaded and proved. Such a
custom is neither pleaded nor proved.
No other contention was raised before us.
In the result these appeals fail and they are
But in the circumstances of the case we
direct the parties to bear their own costs in this Court.
S.C. Appeals dismissed.