Sadasiva Aiyar, J.
1. Defendants 1, 3 and 5 are the appellants before us. The case was argued only on behalf of the 1st appellant (1st defendant). On the date of suit she was a married womarr whose husband was alive. The house in dispute belonged to her brother whose son is the minor 1st plaintiff. The house was inherited by the 1st plaintiff's father from the father of himself and of 1st defendant. Practically the only question in this case is that raised by the 7th issue namely ' whether under the customary law obtaining among the parties, 1st defendant has a right to be in joint possession of the house and moveables, i.e., jointly with her brother's minor son, the first plaintiff.
2. I think it must be taken as settled law that a person who admittedly belongs to the Hindu community and is domiciled in Southern, India is ordinarily governed by the Hindu Law of the shastras as expounded by the Southern commentators. Of course where there are very wide and well known exceptions as in the case of the Nair community in Malabar, such ordinary Hindu Law does not apply but the well known Marumakkathayom system of Law. But as I said we do start with the presumption that the general prevailing law of the Mitakshara applies to every Hindu. I do not think that there are any such observations in Rarichan v. Perachi I.L.R. (1892) M. 281 as can be treated as casting doubt on this prima facie presumption. On the other hand, the case in Kunhi Pennu v. Chiruda I.L.R. (1896) Mad. 440 and the judgment in S.A. No. 518 of 1901 decided by Benson and Moore, JJ. support the existence of that legal presumption. In the judgment in the latter case the learned Judges say. ' where the nephew's widow of the last male owner claimed to exclude the ordinary heir of the Hindu law, namely the daughter of the last owner, her claim' that is the claim of the nephew's widow ' is not in accordance with the ordinary Hindu Law and she has not proved any special custom in her favour.'
3. That being so, if a married daughter claims a right of residence in her father's house even after her marriage and especially where her husband is alive the burden of proof lies upon her to show that there is a special custom varying the ordinary Hindu Law on which she could rely in support of her alleged right.
4. As regards the evidence given in the present case of that custom, of the six witnesses examined by the 1st defendant the evidence of the 6th witness is not relied upon by the lower Courts. It may be taken that both the Courts held that the other five witnesses were honest witnesses. I do not think that in second appeal we are entitled to question the opinion of the lower appellate court as regards the honesty of any particular witnesses. Taking it, then that all these five witnesses are honest witnesses we have to see whether the alleged custom has been sufficiently proved. As pointed out by Mr. Madhavan Nair for the respondent there are certain statements of the 4th and 5th witnesses which indicate that though they may be honest witnesses their evidence should not be given much weight. As regards the other three witnesses, their evidence is only their opinion as to the existence of such a custom such opinion evidence is no doubt, some evidence on the question of custom but when it was put to the test to which such evidence should be subjected as pointed out in Lachman Rao v. Akbar Khan I.L.R(1876) . All. 44 it is seen to be of little value unless the evidence establishes that the claim in dispute can be put forward as one which the community recognises as enforceable by law, it may amount to no more than that such a claim is a moral claim recognised by practice or convention and honoured by respectable people among the community. I think the learned District Judge has given very good reasons in paragraphs 7 to 9 of his judgment for his conclusion that no such legal custom as has been put forward by the 1st defendant has been proved in this case.
5. That a married woman after marriage is called by the family name of her husband, that her funerals are performed by her husband and his relations, that her property is inherited by her husband and his relations, all these make it improbable that the custom namely that of right she is entitled to reside in her parent's family house even after her marriage exists among this community. Without judicial precedents and without at least a few cases where a married woman was attempted to be deprived of her alleged right and was able to enforce it by the decisions of mediators or arbitrators or by the admission of her father or his relations it is very difficult to find the existence of such a custom on the bare opinion of a few witnesses. The admitted fact that an alienee from her father or brother can defeat her so called right of residence shows that the right is not a legal right as in the case of widows in undivided families governed by the ordinary Hindu Law or in the case of unmarried daughters. I therefore agree with the lower appellate Court and would dismiss the second appeal with costs.
6. I agree that this Second Appeal should be dismissed with costs.
7. In Rarichan v. Perachi I.L.R. (1892) Mad. 281 the learned Judges observe ' The word' 'Makkathayom' is generally used in Malabar to denote, the succession of sons in contradistinction to Marumakkathayom or succession of nephews.' After the findings were returned they went on to say ' The evidence is to the effect that the Tiyas of Malabar are not governed by Hindu Law pure and simple, but that their usages with regard to divorce, remarriage and inheritance are not entirely in accordance with Hindu Law, though the succession of sons does obtain among them.' In Second Appeal 518 of 1901 Benson and Moore, JJ. applied the ordinary Hindu Law to a case of South Malabar Tiyas following the Makkathayom law and they required the widow of a nephew to establish a special custom among the community in her favour before she could be allowed to prevail over the rights of a daughter of the last full owner.
8. If the general principles of Hindu Law are applied and if succession of sons obtains among these Tiyas the onus must fall on the 1st defendant, a sister of the last male owner to prove her superior title to succeed against a son of the last male owner. In the opinion of the Lower Appellate Court she did not discharge that onus.
9. The learned District Judge found that the defendants adduced no evidence to show that married women belonging to the families of Tiyas in South Malabar following the Makkathayom law have ever been in the habil of enforcing a right to reside in the house of their parents against the wishes of those parents or their sons. Accepting the correctness of this finding the Second Appeal must necessarily fail.