1. This case has been referred to a Full Bench for decision, by the following order:
'Important questions of law regarding inheritance among Sree Bhandara Chettis--a minority community of considerable numerical strength in the Trivandrum District --' arise for decision in this case, and the rulings of the Travancore High Court on the matter are not uniform. We consider that there should be an authoritative pronouncement on these questions by a Full Bench, and so we accede to the request of the learned counsel appearing on both sides and refer this case for hearing and disposal by a Full Bench'.
2. The suit was to set aside a deed of partition and for recovery of possession of immovable properties in case the defendants trespassed on the same after suit or were found to be in possession. The properties which form the subject matter of the suit were acquired in the name of Mathevi Kali (deceased). She had two sons, Padmanamhan and Raman, and three daughters, Bhagavathi, Lekshmi (first defendant) and Narayani. Bhagawathi had five daughters including the first plaintiff: the other daughters are not parties to the suit. Padmanabhan had not married but he and Raman were having one wife, Gouri, in common.
Gouri's children are defendants 2 to 6. Defendants 8 to 10 are the children of Lekshmi. Narayani died without issue. On 23-2-1100 Padmanabhan, Raman and Lekshmi executed a partition deed Ext. A in respect of the properties which stood in the name of their deceased mother Mathevi Kali and) this deed is sought to be set aside in this suit. The plaintiff's case is that the parties who belong to the Sree Bandara or Sree Pandara Chetti community in Trivanojrum are governed by Hindu Mithakshara Law modified by custom and that female members who are married in the approved or thalikettu form lose all rights in their family while those married in the sambandhom form retain interest in their original family.
According to the plaintiff, Bhagawadiy alone among the three daughters of Mathevi Kali was married in the sambandhom form while the other sisters were married in the thalikettu form and of the daughters of Bhagawathi, all except the plaintiff were married in the thalikettu form, the plaintiff alone having been married in the sambandhom form. It is also alleged that the properties belonged to Mathevi Kali as her stridhanam property and that the same devolved on the plaintiff as the other female members had lost their rights to the same, having been married' in the thalikettu form.
The plaintiff had an alternative case that in case this custom was not found, it should be held that the parties were governed by Marumakkathayam law and that the partition deed which was not assented to by all the members was to be treated as inoperative. The property obtained by Padmanabhan in partition was thereafter gifted by him to the 7th defendant who is the wife of the fifth defendant, and this gift deed was also sought to be set aside. During the pendency of the suit the plaintiff's son got impleaded as additional second plaintiff.
3. Written statements were filed by defendants 1, 3, 5 and 7. The first defendant contended that the parties were governed by Hindu Mithakshara Law, She denied the custom pleaded by the plaintiffs regarding the two forms of marriage and the effect of the same in the matter of inheritance and succession. She also denied the allegation that) the parties were governed by Marumakkthayam law.
Another contention was that the properties did not belong to Mathevi Kali in whose name they stood and that the same were acquired by the husband of Mathevi Kali for the benefit of the family. The plaintiff and her sisters to whom property had been allotted under the partition were stated to have accepted the arrangement and taken possession of their shares. It was also contended that the suit was barred by adverse possession and limitation. The contentions of defendants 3, 5 and 7 were more or less the same as those raised by the first defendant.
4. The plaintiff filed a replication reiterating the allegations in the plaint and stating that even if the defence allegation that the parties were governed by Marumakkathayam law was true, the partition deed which was not assented to by all the members was invalid. The other allegations in the written statements were denied.
5. The trial court held that the parties were governed, not by Hindu Mitakshara Law or the same modified by custom, but by principles of Marumakkathayam law. Though the learned Munsiff stated:
'In the first place it is conceded that the community broadly follows the Mitakshara system, her (plaintiff's) case here is that she is governed by a custom in variance with it, The only question thatarises in this case is whether the custom pleaded is proved'.
In another part of his judgment he held:
'From the analysis of the evidence supplied by the documents it is abundantly clear that there are clear eases of Marumakkathayam law existing among these people .'....... It is very clear from the evidence in this case that the habits and manners of these people are steadily crystallising into Maruimk-kathayam system ,.... .I do not think it is possible to check the progress of these forces without causing some violence to their sentiments and usage and I do not see why the progress should be set back'.
In view of his conclusion on the main question the Munsiff did not consider it necessary to enter findings on issues 15 and 17 which dealt with the question whether the properties belonged to Mathevi Kali.
The suit was decreed setting aside the partition deed and allowing the plaintiff to recover possession of the properties. On appeal by the third defendant the learned District Judge of Trivandrum set aside the decree, holding that the law applicable to the parties was Hindu Mitakshara Law and that the custom pleaded by the plaintiffs was not proved. The suit was accordingly dismissed and the plaintiffs have preferred this second appeal,
6. The scope of the controversy was considerably narrowed down by counsel on both sides according to whom the points arising for decision are:
(1) What is the law governing the parties? Is it Hindu Mitakshara Law modified by custom that women married in the thalikettu form lose their rights in the family of then- parents and those married in the sambandhom form retain the same?
(2) Did the properties belong to Mathevi Kali as stridhana property?
(3) Did Bhagawathi predecease her mother Mathevi Kali? If so, did the plaintiff get any right to the properties?
(4) Have the plaintiffs lost their rights, if any, by adverse possession and limitation?
7. We may at the outset observe that it is not possible to have the case finally decided in this second appeal as the courts below have not considered the second point, on the decision of which point 3 would depend. However we consider it proper to decide the main question, that is, the one regarding the law applicable to the parties. Section 18 of the Travancore Civil Courts Act provides :
'Where in any suit or proceeding, it is necessary for any Court under this Regulation to decide any question regarding succession, inheritance, marriage or caste, or any religious usage, or institution,--
(a) The Mahomedan law in cases where the parties are Mahomedans, and the Hindu law in cases where the parties are Hindus, or
(b) any custom (if such there be) having the force of law and governing the parties or property concerned,
shall form the rule of decision, unless such law or custom has, by legislative enactment, been altered or abolished,
(c) in cases where' no specific rule exists, the Court shall act according to justice, equity and good conscience.'
There is a corresponding provision in the Tra-vancore-Cochin Civil Courts Act as well as the Kerala Civil Courts Act. As it is admitted that the parties are Hindus we have to apply the rules of Hindu Law unless it is shown that there is a custom modifying the same,
8. Before considering the question of law applicable to the parties it may be stated that though an alternative case was put forward by the plaintiffs in the trial court that the parties were governed by Marumakkathayam Law -- a view which found favour with the learned Munsiff -- it was not seriously pressed before us. The question whether Marumakkathayam Law applies to this community was considered by the High Court of Travancore in Bhagavathi Pillai v. Narayana Pillai, 20 Trav LJ 1170. After referring to decisions given from 1045 M. E., their Lordships came to the conclusion that Sri Bandara Chettis were Kala Chettis and that in point of succession and inheritance the rules of Hindu Law should be applied to them.
9. As the controversy is about the existence of a custom modifying principles of Hindu Mithakshara Law in matters of inheritance and succession, it may not be necessary to consider in details the several decisions which have held that Sri Bandara Chettis are governed by the ordinary principles of Hindu Mithakshara Law. However a brief reference to some of the decisions may be made. A. S. No. 222f of 1080 is one of the earliest decisions of the High Court of Travancore on the subject. Eapen, J., held:
'On a careful consideration of the evidence to the case, I come to the conclusion that the plaintiffs are Kala Chettis, that there are only two classes of Chettis in these parts, the Kala Chetti and the Konaka Chetti who both arc from the nature of their occupation treated as inferior castes by Sudraa and that they have never been in the habit of entering temples belonging to Brahmins and Sudras and that for some time past the community of Kalla Chettis has been trying to raise its social status by discarding the name of Kala Chetti and taking that of Sri Bandara Chetti.'
Sadasiva Aiyar, C. J., referred to the tradition that 130 families of Kala Chettis by their benefactions to the Sri Padmanabhaswami Temple whose affairs were usually known as Sri Bandaram affairs were given the honorific caste title of Sri Bandara Chettis.
Padmanabha Aiyar, J., to whom the case was referred on account of difference of opinion between Eapen, J. and Sadasiva Aiyar, C. J. on other points, observed that except in claiming a right to enter temples a right which was set up for the first time in 1065 M. E. -- it was not shown in what respect the self-styled Sri Bandara Chettis differed from their original brethren of the Kala Chetti class with whom in common they followed the Makkavazhi system of inheritance.
In Adicha Valliamma v. Eravi Padmanabham, 15 Trav LR 14, it was held that Kala Chettis were governed by the ordinary Hindu Law prevalent in South India and that any special usage or custom modifying the ordinary law of succession had to be proved by clear and unambiguous evidence. It was further held that such custom had not been made out in that case. In the 20 Trav LJ 1170 case referred to earlier it was held :
'The result of the several decisions referred to above seems to be that Sri Bandara Chettis are reajly Kala Chettis and in point of succession and inheritance the ordinary rules of Hindu Law should be applied to them'.
This was followed in Kali Pillai v. Sirkar, 1947 Trav LR 760.
10. The principle to be followed when a custom or usage modifying the law applicable to the parties is pleaded has been laid down by the Privy Council as early as 1872 in Ramalakshmi Ammal v. Sivanatha Perumal, 14 Moo Ind App 570 at p 585:
'It is of the essence of special usages modifying the ordinary law, of succession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends'.
The evidence in the case has to be considered in the light of this principle.
11. The appellants' counsel relied on the decisions reported in 15 Trav LR 14, 20 Trav LJ 1170 and three unreported decisions of the High Court of Travancore as well as Exts. Q, O and W and the evidence of Dws. 1 and 3. In 15 Trav LR 14 the separate property of a deceased member of this community was claimed by his father and widow. The father set up a special usage excluding the widow from inheriting the self-acquired or separate property of her deceased husband.
It was held that the parties were governed by Hindu Mithakashara Law and that the usage pleaded was not proved. This decision is of no help to the appellants. The next decision relied on is 20 Trav LJ 1170. Though the point in dispute in that case was whether this community followed the makka-thayam or marumakkathayam system, there is an observation:
'It is common ground that there are two forms of marriage prevailing in the community to which the parties belong, one being the approved front and the other the unapproved one'.
The existence of two forms of marriage and the result flowing therefrom were not matters in dispute so that the above observation has to be treated as obiter. However this decision is useful as earlier unreported decisions of the Travancore High Court: are referred to. Of the unreported decisions only two are of some use in this case. In Kochu Pillai v. Chatayamma, A. S. No. 289 of 1070 (TC) there is an observation that daughters who were not married with rights ('avakasam') in their husband's families were cosharers in their father's properties along with the sons and that females not properly married remained members of their parents family.
Venkitarama Aiyar, J., has pointed out in 20 Trav LJ 1170 that it is not clear from the judgment whether the parties were Sri Bandara Chettis. The other unreported case is Bhagavathi v. lyappan Ra-man, S. A. No. 467 of 1091 (TC). The contention urged on behalf of the plaintiffs in that case that the woman who was married in the sambandhom form and her progeny would form a maruniakkathayam taward and that the family would be makkavazhi i marriage was not in the sambandhom form was not upheld.
The last of the decisions relied on is Narayana v. Bbagavathi Amma, S. A. No. 407 of 1122 (TC). The plaintiffs in that suit were the children of the first defendant's two daughters. They sued for cancellation of a deed of, partition and for partition and recovery of their share in family property on the allegation that their mothers were married in the sambandhom form, that they therefore retained their rights in the family of their birth and that the deed of partition which was not assented to by them was not binding on them,
The courts below had concurrently found that the two sisters were married in the sambandhom form. It was held in second appeal that the plaintiffs were also entitled to the property as their mothers were married in the sambandhom form. This conclusion was reached on the basis of two-partition deeds in tbe family recognising the rights of the mothers of the plaintiffs. It does not appear that there was any other evidence proving the custom pleaded by the plaintiffs. The custom appears to have been found so far as the family of the parties to that suit was concerned. It may be that some families recognised such a' custom but we find it difficult to bold on the basis of this decision that there is such a custom affecting the whole community.
12. Coming to the documents relied on by the appellants, Ex. O is copy of the judgment in O. S. No, 428 of 1104 of the Munsiffs Court, Trivandrum. It is seen from Ex. O that both sides admitted that there were two forms of marriage, sambandhorn and kalyanom and that women married according to the sambandhom form retained their rights in the family of their birth even after marriage while those married in the other form lost such-rights.
Ex. O cannot therefore be taken as a decision on a matter on which there was dispute between the parties. Ex. Q is copy of the written statement in O. S. No. 1915 of 1106 of the same court. The defendant contended that there were two forms of marriage in the community, the shastric form and marriage by presentation of cloth and that the plaintiff's mother having been married in the latter form-the children did not acquire any interest in their father's property.
The suit ended in a compromise admitting the defence contention. Ex. P is copy of the compromise decree. However it is seen that the plaintiffs were given 20 cents of land by the compromise decree. Ex. W is copy of the written statement in O. S. No. 1422 of 1116 of the same court. Ex. W was filed nearly five years after the institution of thissuit so that we do not attach any importance to it.Exs. Q, Q and W are insufficient to establish acustom modifying Hindu Law.
13. The appellants also rely on certain statements made by Dws. 1 and 3. Dw. 1 is the third defendant. He admitted that there were two forms of marriage but according to him this did not make any difference as in either case the wife and children would get an interest in the husband's properties. At a later stage he admitted that he was not sure about this. We do not see any admission in the deposition of Dw. 1 which would' go to prove the plaintiff's case. Dw. 3 is the 10th defendant's husband. He supports the defence case and we are unable to find any admission in his deposition which supports the plaintiff.
14. After considering the evidence and cases relied on by the appellants we are of the opinion that the custom pleaded by the plaintiffs has not been proved and that the parties to this case are governed by Hindu Mithakshara Law.
15. The second point we have formulated is whether the properties belonged to Mathevi Kali as stridhanam property. This arises from the pleadings but there is no issue on the same. The decision of the third point as well as the question whether the sons of Mathevi Kali had any right to the property would depend on this and a decision of the question is therefore essential.
16. Coming to the last point, namely, adverse possession and limitation the decision of the learned Munsiff must be affirmed in the circumstances.
17. In view of the conclusions stated abovethe decrees must be set aside and the suit remandedto the trial court for fresh decision on the evidenceon record, in the light of our finding on the firstpoint. The trial court is directed to decide points 2and 3 and pass a fresh decree. The second appealis allowed as indicated above and the suit is remanded to the trial court. Costs, except the court-fees paid in second appeal which will be refundedto the appellants, will be costs in the cause andwill be provided for in the decree to be passedby the trial court. The suit should' be disposed ofwithin one month of receipt of records.