Kaliamma Vs. Janardhanan Pillai &
Ors  INSC 28 (8 February 1973)
CITATION: 1973 AIR 1134 1973 SCR (3) 503 1973
SCC (1) 644
Hindu Law-Special custom-Proof of-Reliance on
prior decisions when permissible.
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,
 I.L.R. 41 (Madras), 778 at 785, Pramraj v. Chand Kunwar,  11
M.L.J. 516 and Ujagar Singh v. Mat. Jeo,  2 S.C.R. (Suppl.), 781
(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]
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
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 consideration 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 respondent (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 therein had proved a custom whereby a
sister was entitled to succeed in preference to the collateral relations of her
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
"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 community 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 community 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
The appeal is dismissed with costs of the 1st
respondent to be paid by the appellant.
V.P.S. Appeal dismissed.