1. The parties to this second appeal are Thiyyas of Calicut following the Makkatayam Law. The sons of the 2nd defendant are the appellants.
2. In a suit instituted by the 1st defendant against the 2nd defendant and his deceased brother Kelan (O.S. No. 1258 of 1916) he obtained a money decree against the 2nd defendant personally and against defendants 3 to 5, the wife and children of the deceased Kelan. In execution of that decree he attached the family properties in possession of the 2nd defendant. This second appeal arises out of the suit instituted by the appellants for a declaration that the properties attached for the decree in O.S. No. 1258 of 1916 are not liable to be attached and sold for that decree. The Lower Courts overruled the appellants' contention and dismissed their suit.
3. In second appeal it is argued that the suit property is impartible according to the Makkatayam Law governing the Thiyyas of Calicut and is not liable to be attached and sold. The question whether the property is impartible or not was not raised by the plaintiffs as a point for decision either in the pleadings or in the issues; but in support of the argument that the suit property is impartible the learned vakil for the appellants relied here as in the Court below on the decision in Raman Menon v. Chathunni ILR (1893) M 184. It is no doubt true that the parties to this suit are, as in Raman Menon v. Chathunni ILR (1893) M 184, Makkatayam Thiyyas of Calicut, but we think that that decision must be confined to the facts and circumstances in that particular case and ought not to be understood as a decision applicable generally to all the Thiyya families. In that case the plaintiff alleged that, according to the customary law prevailing among the Thiyyas, the 1st defendant was entitled to a definite share in the property, and the defendants pleaded that the properties were indivisible. The issue raised was vague and the evidence adduced was inconclusive and the witnesses were not even asked the real question at issue. But the Subordinate Judge, on the authority of two unreported cases, came to the conclusion that the ordinary rule of Marumakkatayam against compulsory partition was equally applicable to Thiyyas who followed Makkatayam. In Second Appeal Muthusami Aiyar and Best, JJ., observed that it should not have been decided in that way and they framed an issue, viz.:
Whether according to the customary law followed by the parties to this suit, compulsory partition can be effected according to the wish of one member of the tarwad
and called for a finding on it after taking fresh evidence. In compliance with the said order the Subordinate Judge held that there was no presumption that the Hindu Law of partibility of family property applied to the case of Makkatayam Thiyyas quoting Rarichan v. Perachi ILR (1892) M 281 as authority for that position, that there was no written evidence in support of Such a custom and that the oral evidence was quite unsatisfactory or insufficient to establish any such alleged custom or compulsory partition and returned a finding in the negative. The learned Judges simply accepted that finding in second appeal and did not independently consider the question themselves. In view of the fact that the finding was not arrived at on any satisfactory evidence in the case and that even the Subordinate Judge's reading of the decision in Rarichan v. Perachi ILR (1892) M 281 is not quite correct as we shall presently show, we think that Raman Menon v. Chathunni ILR (1893) M 184 should not be considered as a decision generally applicable to all families among Thiyyas. The same view has been expressed in Second Appeal No. 580 of 1917 by Phillips and Krishnan, JJ. though by way of obiter. This is what the learned Judges state:
We would only observe that it is questionable whether a single decision in Raman Menon v. Chathunni (1893) ILR 17 M 184 can be said to be a final decision binding on all Thiyyas of Calicut.
4. The decision in Velu v. Chamu ILR (1898) M 297 that the case of Raman Menon v. Chathunni ILR (1893) M 184 relating to the Thiyyas could not be taken to lay down that the rule of partibility does not prevail among the Iluvans of Palghat, even assuming that the Iluvans and the Thiyyans had at one time been of one class also lends support to our view.
5. We think the Makkatayam Thiyyas are governed by what is called the customary law and when a question arises as to what is the rule of law governing them on any particular master, 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 covered by prior decisions the question will have to be determined with reference to the evidence in the case. Vide Rarichan v. Perachi ILR (1892) M 281, Raman Menon v. Chathunni ILR (1893) M 184 and Kunhi Pennu v. Chiruda ILR (1896) M 440 in each of which a specific issue was raised as to what is the rule of the customary law on the particular question at issue and the Lower Court was asked to submit a finding after taking fresh evidence on it. See also Imbichi Kandan v. Imbichi Pennu ILR (1895) M 1 where the learned Judges observe that the Subordinate Judge was right in laying down that the question for decision was whether
according to the law and custom followed by Makkatayam Thiyyas of Calicut, property of a deceased person . . . .
6. In the absence of any satisfactory evidence to show what exactly is the rule of the customary law on any particular point, the rule of Hindu Law on that point must, we think, be presumed and adopted to be the rule of the customary law obtaining amongst the community on that point. The presumption is not that the Hindu Law as such is the law governing them in all matters; if that be the presumption a person who alleges a rule of customary law at variance with it will have to prove it as a custom in derogation of the law. The presumption is simply that the rule of Hindu Law is also the rule of the customary law obtaining amongst them, so that if any person alleges that the rule of the customary law on any particular point is something different the evidence that he adduces in support of his allegation ought not to be subjected to those well-known tests which are applied to the case of an alleged custom contrary to, or in derogation of, the law, but should be viewed simply as evidence adduced to show what is the rule of the customary law itself. The presumption therefore will be useful and will hold good only if satisfactory evidence is not forthcoming as to what is the rule of the customary law. If the learned judges in Thaikkandhi Pokkencheri v. Illivathukkal Achuthan : (1920)39MLJ427 or in S. A. No. 2092 of 1920 intended to lay down that the Hindu Law as such governs the community in all matters and that a person alleging a contrary rule of law must prove it as a custom opposed to or in derogation of the law, we must, with due respect, express our dissent from them.
7. We respectfully agree with the observations of the (earned Judges in Rarichan v. Perachi ILR (1892) M 281 on the point under consideration. In that case a person died leaving some self-acquired property and his brother claimed to succeed to it in preference to the widow. He adduced satisfactory evidence to show that according to the customary law prevailing amongst the parties the brother succeeds in preference to the widow. The Munsif decreed the suit in favour of the brother, but the District Judge reversed his decree on the assumption that the Hindu Law applied to the parties in all matters and that any other custom alleged must be proved as a custom in derogation of the law. The High Court in second appeal observed that that is not the correct view and that the only question is what is the law governing the parties on the particular matter and called for a fresh finding. In compliance with the said order, the District Judge on a consideration of the evidence agreed with the Munsif that according to the customary law governing the parties the brother succeeded in preference to the widow and the said finding was accepted in second appeal. In this connection reference might also be made to the well-known decision of the Judicial Committee Fanindra Deb Raikat v. Rajeswar Das ILR (1885) C 463 : LR 12 IA 72. In that case the question was whether in a family which their Lordships of the Privy Council held to be not governed by the ordinary Hindu Law, there was a family custom which did not allow an adopted son to inherit. On the evidence adduced in that case it was held by the Privy Council that the custom referred to above was proved. As regards the question for consideration, their Lordships observed that the question was not whether the general Hindu Law was modified by a family custom forbidding adoption and as regards the evidence relating to custom, their Lordships observed as follows:
Whether if the Baikantpur family were shown to have become Hindus out and out saving only special customs, such evidence would be sufficient to prove a special custom, need not be discussed here. The family is in a totally different position. And their Lordships have no hesitation in holding that, whatever Hindu customs may have been introduced into it, the custom, of succession by adoption has not been introduced.
8. These observations also clearly support the view we have expressed above.
9. Oldfield, J., in Raman v. Muthu (1920) 40 MLJ 301 with whom Hughes, ']., agreed, is not apparently prepared to accept Rarichan v. Perachi ILR (1892) M 281 as laying down the correct law mainly on the ground that neither Rarichan v. Perachi ILR (1892) M 281 nor any of the cases Raman Menon v. Chathunni ILR (1893) M 184, Imbichi Kandan v. Imbichi Pennu ILR (1895) M 1 and Kunhi Pennu v. Chiruda ILR (1896) M 440 in all of which Rarichan v. Perachi ILR (1892) M 281 is referred to with approval mentions Section 16 of Act III of 1873 (The Madras Civil Courts Act) and that by virtue of that section in the absence of proof of special custom Hindu Law has to be administered to Hindus. Section 16 only says that
Where, in any suit or proceeding, it is necessary for any Court to decide any question . . . (a) the Muhammadan Law in cases where the parties are Muhammadans, 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.
10. We think that the expression 'any custom having the force of law' is wide enough to include the customary law which governs such communities and that we are not therefore bound to apply to them the ordinary Hindu Law as such. The cases above referred to clearly hold--and we think rightly--that the question in each case is what is the rule of the customary law on the particular point arising for decision and this position does not in any way contravene the provisions of Section 16 of Act III of 1873.
11. We may also observe that Rarichan v. Perachi ILR (1892) M 281 does not say that there is no presumption that the rule of Hindu Law on any particular point is rule of the customary law governing the Thiyya community on that point. All that it says is that if satisfactory evidence is produced to show that the rule of the customary law is otherwise, effect should be given to it.
12. In the present case the appellants simply relied upon the decision in Raman Menon v. Chathunni ILR (1893) M 184 in support of their contention that the family property is impartible and have not adduced any evidence to show that the property is impartible according to the customary law of the parties. As we pointed out above, the case Raman Menon v. Chathunni ILR (1893) M 184 cannot be held to be a general decision applicable to all the Thiyya families. As the plaintiff have not adduced any satisfactory evidence to show that the rule of customary law on this point is anything other than the Hindu Law rule of partibility we must hold that the presumption that the Hindu Law rule of partibility is also the rule of the customary law holds good and the rule of compulsory partition therefore applies to the present case.
13. In the result we confirm the decree of the Lower Court and dismiss this second appeal with costs.