T.C. Raghavan, J.
1. An interesting question of law relating to the Makkathayee Ezhavas of erstwhile Cochin State is raised in this second appeal. The appellants are defendants 1 to 5, who lost in both the lower courts: and the contesting respondent is the plaintiff.
2. The one item of property involved in this litigation belonged to a Makkathayee Ezhava of Mukundapuram Taluk in erstwhile Cochin State by name Kunhappu, who died in 1096 Makaram leaving his widow Chakki. son Kochunni and three daughters, the sixth defendant, the plaintiff and deceased Kalyani, whose children are defendants 7 to 9. Kochunni died leaving his son Kesayan, who also died subsequently leaving his wife and children, the appellants. The suit which has given rise to the second appeal was filed by one of the daughters of Kunhappu claiming a share in the suit property left by Kunhappu. The claim of the plaintiff was that the law applicable to the Makkathayyee Ezhavas of Mukundapuram Taluk was customary law. and that under the said law a daughter was entitled to a share equal to half of a son's share On the said custom the plaintiff adduced some evidence, which has been rejected by both the lower courts as insufficient to establish the custom pleaded. The appellants claimed that under the customary law applicable to the parties the widow and daughters had no share in the property. They also adduced some evidence to establish the custom, which has also been rejected by both the lower courts as insufficient The lower court have thereafter applied the principle laid down by a Full Bench of the Cochin Chief Court in Kochi v. Raman. 21 Cochin 1. According to that decision, in the absence of proof of the customary law. the rules of justice, equity and good conscience must apply to Makkathayee Fzhavas of Cochin In that decision the learned Judges also held that the rules of justice, equity and good conscience demanded that the daughter should be given a share equal to that of a son The reason given for this conclusion was that in the case of a Makkathayee Fzhava woman, since there was free divorce in the community, she would be helpless after such divorce if she were not given a share in her father's properties It is this decision of the lower courts that is being challenged in second --appeal before me.
3. Regarding the custom pleaded by the plaintiff. I am in agreement! with the view of the lower courts the she has not established the same. But, regarding the custom pleaded by the appellants that daughters are no! entitled to share in their father's properties, I do not express any opinion at this stage.
4. There is another Full Bench decision of the Cochin Chief Court in Lakshmi v. Kunhikutty, 25 Cochin 584 (FB). That case arose from North Cochin; and the Full Bench had occasion to consider the earlier Full Bench decision. The main judgment in that case was by Sahasranama Ayyar J,; and the learned Judge approved the reasoning of the earlier Full Bench. Narayana Ayyar C. J. also agreed with the conclusion of Sahasranama Ayyar J., but disagreed with the reasoning of the earlier Full Bench that because a Makkathayee Ezhava woman was liable to be divorced and was also liable to be thrown helpless she should be given a share in the patrimony. Ouseph J., the third learned Judge, just agreed without indicating to which of the two reasonings given by the two other learned Judges he was agreeing. This Full Bench however held that the law applicable to Makkathayee Ezhavas of North Cochin was their customary law and not the Mithakshara Hindu law as such; and that to establish the said customary law the tests that the custom should be old continuous, invariable, etc. need not be applied. They followed the decision in Pattukkayal Chakutti v. Kothembra Chandukutti, AIR 1927 Mad 877 on this. Thereafter, the evidence in the case regarding the custom pleaded was discussed; and the learned Judges concluded that the evidence was quite sufficient to establish the custom. I may also point out that what the trial court did In that case was to hold that the custom pleaded did not satisfy the well-known tests and therefore was not sufficient; but, since the Hindu law on the question was that the daughter was not entitled to share, the suit of the daughter was dismissed. The Chief Court confirmed that decision; but it held that the evidence in the case was sufficient to establish the customary law pleaded. In that case evidence was taken not only of the customary law prevailing in Cochin State, but of the law prevailing in the adjoining South Malabar as well. One of the witnesses who gave evidence in that case was Sri Ayyakutty, a prominent leader of the Ezhavas of Cochin and a retired District Judge of the State; and another witness who gave evidence was Sri C. Krishnan, a prominent leader of South Malabar Ezhavas, who was later on known as Mithavadi Krishnan. Documents were also produced from both Cochin and South Malabar to establish that daughters had no right to share in the properties left by their father.
5. The reasoning of the lower courts in the present case is that in the decision in 21 Cochin 1 (FB) it was held that in the absence of proof of the customary law, the law applicable to Makkathayee Ezhavas of Cochin was the principle of justice, equity and good conscience and not the Hindu Mithakshara law on the point, and that since that Full Bench decision was not overruled by the later Full Bench decision in 25 Cochin 584 (FB) and since the custom pleadedin the present case was not established, the principle of justice, equity and good conscience must be applied to the case. The reasoning proceeds that since the plaintiff claimed only a half share and not a share equal to that of a son, she need be given only a half share.
6. As I have already indicated, it is difficult to hold that the XXV Cochin Full Bench approved the reasoning of the Full Bench in XXI Cochin. Narayana Ayyar C. J. disagreed with the reasoning of the earlier Full Bench, while Sahasranama Ayyar J. approved that reasoning. The third learned Judge, Ouseph J., as I have already pointed out did not indicate with which reasoning he agreed. Therefore, it is not possible to hold that the subsequent Full Bench approved the reasoning of the earlier Full Bench. As for me, I am in agreement with the reasoning of Narayana Ayyar C. J. The fact that divorce was easy among the Makkathayee Ezhavas of Cochin and the fact that if women were divorced they would be helpless were no reasons for holding that they should be given shares equally with their brothers. These facts, as rightly pointed out by the learned Chief Judge, were accepted by the community; and the divorced women returned to their parental homes and lived there. Again, justice, equity and good conscience in the matter of succession may differ from community to community: what is justice, equity and good conscience for the Hindu may not be justice, equity and good conscience for the Muslim in the field of their personal laws. Therefore, the principles of justice, equity and good conscience embodied in statutes like the Indian Succession Act and the Transfer of Property Act should not be applied to all communities alike in so far as their personal laws are concerned. If it is conceded (and it cannot at any rate be disputed) that Ezhavas are Hindus and if they are governed by their customary law of succession which a party fails to establish by proper evidence, the' principles of justice, equity and good conscience applicable to the party must be the rule of Hindu law on the point. In this view I am in agreement with the view expressed in AIR 1927 Mad 877. I had occasion to consider this question, though not in a case where the parties were Ezhavas; and I already expressed my opinion therein, vide Thankammal v. Madhavi Amma, 1966 Ker LT 181. I reiterate that in a case like this the custom that is sought to be proved is not one in derogation of an established principle of Hindu law, but only the customary law applicable to the community; and that therefore, the tests of antiquity, continuity, invariability, etc. do not apply. I may also add that in the 25 Cochin case the stage for applying either the principle of justice, equity and good conscience or the principle of Hindu law was not reached, because the Full Bench held that the customary law pleaded was established by the evidence on record.
7. The next reasoning of the lower court is that the decision in 25 Cochin applied only to the Ezhavas of Trichur Taluk and it does not apply to the present case coming from Mukundapuram Taluk. I do not find any justification for this conclusion. This is based on the observation of the trial court in that case that the case came from North Cochin, that the question in dispute related only to married daughters and that the District Judge was confining his finding to the case in hand, which observation was accepted by the leading judgment of Sahasranama Ayyar J. If the said observation and the subsequent discussion of the learned Judge are acrutinised closely, the position will appear to be different. What the Full Bench observed was that the decision would be confined only to married daughters and not to others. In other words, the observation was not that the case would be confined only to the Trichur Taluk, or, for that matter, to North Cochin. This is abundantly clear from the subsequent discussion, wherein Sahasranama Ayyar J. refers to the evidence in the case. The evidence came from the adjoining South Malabar District as well as from the other parts of Cochin. As I have already indicated, one of the main witnesses (Sri C. Krishnan) was also from South Malabar. The reasoning of the learned Judge also indicates that the law of the Makkathayee Ezhavas of Cochin was the same as the law of the Makkathayee Ezhavas of South Malabar. This is reinforced by the observation of Narayana Ayyar C. J. at the commencement of his judgment, wherein he says that Makkathayee Ezhavas are found largely in South Malabar and the northern parts of Cochin State. This shows that the evidence in the case and the discussion thereof was not intended to cover the Ezhavas of Trichur Taluk alone as the lower courts seem to think. Narayana Ayyar C. J, clearly says that Makkathayee Ezhavas are largelv found in the northern parts of the State, so that if the decision of the Full Bench applies to North Cochin. It must reasonably be taken that it applies to the Ezhava community as a whole in Cochin State. Therefore, the customary law sought to be proved and proved in the XXV Cochin case must be the law applicable to all the Makkathayee Ezhavas of Cochin State. In this connection, the observation of Narayana Ayyar C. J. in 25 Cochin 584 (FB) that the Ezhava women of Cochin 'do not appear to have agitated their claims, if any, prior to the decision reported in 21 Cochin 1' is pregnant with meaning, because, if they had any such right, there would have been at least some instances of that even earlier
8. Even otherwise, I am inclined to think that the evidence in the present case is sufficient to establish the custom pleaded by the appellants that the daughters are not entitled to share in the properties left by their father. Exs. D-8 and D-9 are two partition deeds The lower courts have rejected these documents on the ground thatin one of them the properties were the self-acquisition of the father and the partition took place during his lifetime, so that it might be construed that he was just distributing his properties to whom-so-even he liked. In the other, at any rate, the parties were two brothers: and they we partitioning properties left by their father also. The reasoninp of the lower courts regarding this document is that some of the properties included therein were the self-acquisition of the brothers, so that, on a partition of those properties and the properties left by the father if they did not give shares to their sisters, it does not show that then was a custom like that disentitling daughters from sharing in the properties left by their father. The first reasoning is not justified by the decision of the Full Bench in XXV Cochin itself. The same argument was advanced he-tore the Full Bench and the Full Bench rejected it The second reasoninp is weaker still: if some self-acquired Hems were also included in the partition, the daughters could not have lost their right in the items left by the father. Therefore, the effect of Exs. D-8 and D-9 is that the appellants have fails established the custom pleaded by them that daughters are not entitled to share in the properties left by their father. T may remind at this stage (even at the risk of repetition) that to establish this custom the requirements of antiquity, continuity, invariability, etc. are not necessary. In this view, I am even of opinion that the customary law] pleaded by the appellants has been fairly established.
9. There is vet another aspect which probably may not arise in view of my findings above However since the lower courts have considered this aspect as well. T record my opinion on this too.
10. Kunhappu died in 1096 and after that his son Kochunni had been dealing with the suit property as if it belonged to him The plaintiff's husband PW 3) himself took a mortgage (Ex. D-3) from Kochunnt alone Kochunni and his son Kesavan also dealt with the property as if it belonged to them The lower courts say that in these documents it is not said that the property belongs to them exclusively I am not able to appreciate this reasoning. When the executants of a document say that the property belongs to them. I do not know why the lower courts say that unless they say that the property belongs to them exclusively they are not asserting exclusive title To 1115 when Kochunni wanted to execute a mortgage to the Cochin Land Mortgage Bank (Ex D-l), all the heirs of Kunhappu joined it. The counsel of the plaintiff-respondent argues that this is a recognition of the right of the daughters to share in the property One circumstance will show that this has no such effect as claimed by the counsel. As I have already stated PW 3 took Ex. D-3; and that was in force whenEx. D-l was executed. Thereafter, in 1122 since the bank wanted a first charge, PW. 3 surrendered his mortgage under Ex. D-3 and took a fresh mortgage under Ex. D-4. Even to this document the daughters and their children were not parties. I may point out that Ex. D-l came earlier, wherein all the heirs of Kunhappu were parties: still, such heirs of Kunhappu were not parties to Ex. D-4, the fresh mortgage taken by PW. 3. This shows that all of them joined Ex. D-l, because the bank wanted that and not because the daughters and their children were also entitled to share in the property: if so, they would have been made parties to Ex. D-4 as well. These circumstances, in my opinion, will indicate that after the death of Kunhappu, Kochunni, and after his death his son Kesavan, had been openly exercising rights over the suit property as if the property exclusively belonged to them
11. Some attempt has been made to how that the first appellant (DW. 2) herself admitted that the daughters were exercising rights of ownership over the property, in of her words, sharing the income of the property. This is based on the statement of the first appellant in the box that the daughters used to come to the parental house and take coconuts and jack-fruits. There is also some evidence (this is found even in the 23 Cochin case) that there was a custom of meeting the expenses of the daughters for 'coming and going. This is relied upon to establish the daughters' right to share. The relevant passage from the evidence of DW. 2 is extracted by the lower appellate court; and that shows that coconuts and jack-fruits were given to them, because that was the custom. That does not definitely indicate that they were taking these as share of their income from the property. It is also worthwhile to remember that though Kunhappu died in 1096 (1921), no attempt at partition has been made until this suit was brought in 1957. The circumstances enumerated above will clearly show that Kochunni and Kesavan had been exercising rights over the property exclusively; and that even if the plaintiff and others had any right in the property, such right must have been lost by long adverse possession.
12. The counsel of the plaintiff-respondent lastly argues that the plaintiff, at any rate, was not married before the death of Kunhappu in 1096. so that even the Full Bench decision in 25 Cochin 584 will not apply to her. I do not agree, because I have already indicated that if the custom pleaded by her is not established, it is the principle of Hindu Mithakshara law on the question that should apply both on the ground that it is a rule of Hindu law and on the ground that is only equitable and reasonable to apply that rule to Makkathayee Hindu Ezhavas as a rule of justice, equity, and good conscience I have also held that the custom pleaded by the appellants is substantiated by the evidence they adduced; and that theplaintiff's right if any are barred by adverse possession.
13. The result it that the decision of the lower courts is reversed and the suit is dismissed, in the circumstances, I direct all parties to bear their respective costs throughout.
14. Leave to appeal is granted.