(1) The first defendant in a suit on the file of the Subordinate Judge of Padamanabhapuram, the decision in whose favour was reversed on appeal by the District Judge, Kanyakumari, is the appellant in the second appeal. Though the relief in the suit is one for partition, the substantial question involved is the validity of a family arrangement entered into during the minority of the plaintiff by the plaintiff's mother as guardian. The suit properties were held as joint family properties by the plaintiff's father Aiyappan Pillai Madhavvan Pillai who died on 17th January 1949. He died leaving Janardhanam Pillai the appellant who is the son by his first wife, the plaintiff his daughter by his second wife, and the second wife Lakshmi the second defendant in the suit. On 15th July 1958 on behalf of the plaintiff her minor daughter and on her own behalf the second defendant entered into the family arrangement evidenced by a registered deed of partition (Ex. A 1 registration copy), whereunder the suit properties were divided principally between the first defendant and the plaintiff. Nine items roughly about a fourth share in the properties were allotted for the plaintiff and her mother the second defendant. Of these the second defendant' was given a right of enjoyment for life in respect of our items the said item to go to the plaintiff after her lifetime. The remaining five items of property were to be taken by the plaintiff on her attaining majority and during her minority these items were to be managed by the second defendant. The deed provided that from out of the properties allotted the maintenance and marriage expenses of the plaintiff should be met. There was a provision in the deed permitting the second defendant to raise money on security of the properties for the purpose of making ornaments for the plaintiff and meeting her marriage expenses. The absolute title of the plaintiff to the properties given to her was recognised. The first defendant himself undertook to discharge the encumbrance if any on the properties that were allotted to the plaintiff. The document recited the circumstances which necessitated the family arrangement. A number of obligations had cropped up between the parties. The first defendant claimed that he was the sole heir of his father and he had instituted a suit O. S. 688 of 1965 challenging the claim of the plaintiff and her mother to shares in the properties of the deceased. Competing mortgages over some properties were made by the parties and this had resulted in hotly contested litigations between the creditors and the parties. It is in these circumstances that on the advice of relations of the parties and respectable persons of the locality the settlement is stated to have been arrived at providing maintenance for the widow for her life and provision for the marriage and maintenance expenses of the plaintiff. It is agreed on both sides that the plaintiff and the second defendant are in possession of the properties that have been allotted to them under the deed of family arrangement.
(2) The basis of the suit is the claim by the plaintiff that under the customary law prevalent in the Krishnavagakar community to which the parties belonged the plaintiff was entitled to a half share in the family properties, and that show had been deprived, of her lawful share in the properties under the family arrangement entered into by her mother acting in collusion with the first defendant.
(3) In the second appeal the existence of the custom pleaded is the only question that falls for consideration. It is not in dispute that the family of Mathavan Pillai belonged to the Krishnavagakar community following Makkavazhi. In this community according to the plaintiff when a man has two wives on his death his issues share the estate per stripes according to number of wives and not per capita, the children of one wife taking among themselves one half share and the children of the other wife taking the other half share, that is, sharing according to a custom of Pathinibhagam. The plaintiff would have it that this custom extended to a case where one wife had a son and the other wife had only female issues; even in such a case the son or sons by one wife will take a half share and the daughter or daughters by the other wife will take the other half share. The learned Subordinate Judge in the court of first instance, on a careful consideration of the evidence in the case regarding the custom, held that the plaintiff has not succeeded in proving the custom in the community of a daughter by one wife succeeding to the family properties along with a son by another wife. He found that there was no proof of any fraud in the execution and registration of the deed of family arrangement, and that there was no case for holding that the mother had acted against the interests of her daughter. In the circumstances, he saw no reason for setting aside the family arrangement and found that it was valid and binding on the parties.
(4) On appeal the learned District Judge has reversed the decision upholding the custom pleaded. His finding of the custom is not based on any appreciation of the oral evidence regarding the custom which had been let in by the plaintiff. In fact, there is no discussion at all on the oral evidence let in by the plaintiff. The trial court had discarded the oral evidence. It observed:--
"Thus on going through the entire oral evidence it is very difficult to hold that there is any such custom established in this case. The witnesses speak to various customs and if the plaintiff's witnesses are to be believed, if sons and daughters got equally, then D. 1's sisters will also be entitled to shares in the father's properties. But they are not made parties to the suit."
It found that the evidence for the plaintiff was most unsatisfactory and unreliable. On behalf of the 1st defendant, D. W. 2 has been examined to show that the custom was not prevalent in the community. The learned Subordinate Judge remarked he was a respectable witness and no circumstances had been elicited in his cross-examination to disbelieve his testimony. In the view of the learned Subordinate Judge the Judicial recognition of the custom brought to his notice was not sufficient to accept the custom as established law. The learned District Judge has just one remark to make in regard to the evidence let in by the plaintiff:
"Therefore it is immaterial whether the evidence let in by the plaintiff is not par excellence."
He has rested his decision on certain observations in the decisions of courts relied on for the plaintiff. It will therefore be necessary to examine whether the judicial decisions relied upon by the learned District Judge warrant an inference that the custom had become sufficiently established in the community of Krishnavagakars, to be taken judicial notice of without further evidence of the custom in the case itself.
(5) The jurisdiction of this court to consider this question in second appeal is not disputed. Questions as to the existence of a custom or usage having force of law quite often come as mixed questions of fact and law. This Court in second appeal cannot interfere with the findings of fact from which the custom or usage has been inferred or is to be inferred nor can this court interfere with the credibility or sufficiency of the evidence in support of the facts on which the custom is rested. If the courts below have found instances where the custom has been followed or adopted or varied from, this court cannot reassess the evidence in regard to them. But whether the facts found establish the necessary elements to warrant an inference of the existence of a custom or usage having force of law, will be a matter for consideration in second appeal. While the finding that there is a particular usage will be a finding of fact, the question whether the usage has developed into the customary law of the locality or of community will be a question of law. Here again the approach will not be just to judge the sufficiency of evidence or merely count the number of instances. What may be looked for in the second appellate stage is whether the instances adduced show invariability and certainty. Another essential element that has to be looked for before concluding that a custom or usage has force of law is its antiquity and a custom to receive recognition must be reasonable. It is admitted in this case that the community is governed by the Hindu Mitakshara law. The custom pleaded manifestly differs from the general Hindu law. For an alleged custom to receive recognition in a court of law, there must be satisfactory evidence of usage, long and invariably acted upon in practice and followed in the community whenever occasion arose as to make out that it has by common consent been submitted to as the established governing rule of the community. The incidents of the custom must not be left in doubt, but must be proved with certainty. See Sivanananja v. Muthu Ramalinga, 1866-3 Mad HCR 75 at p. 77. A custom is proved either by actual instance or by general evidence of the members of the community who would be naturally cognisant of its existence. Of course when a custom or usage has been repeatedly brought to the notice of courts, the custom may be held to have been introduced into the law without necessity for proving it in each particular case. In Premraj v. Mt. Chand Kanwar, 1947-2 Mad LJ 516 at p. 517 = (AIR 1948 PC 60 p. 61) the Judicial Committee observed:--
"It is not doubtful that the ordinary rule is that a party relying on a custom affecting the Jains which 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."
(6) In Rama Rao v. Rajah of Pithapur, ILR 41 Mad 778 at p. 785 = (AIR 1918 PC 81 at p. 83) Lord Dunedin observed:--
"No attempt has been as already stated, made by the plaintiff to prove any special custom in this zamindari. That by itself in the case of some claims would not be fatal. 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. Analogy may be found in instances in the law merchant or in certain customs in copy hold tenure. In the matter in hand their Lordships do not doubt that the right of sons to maintenance in an impartible zamindari has been so often recognised that it would not be necessary to prove the custom in each case."
(7) What has to be examined in the instant case is whether the custom pleaded and relied upon has been so repeatedly brought to the notice of courts and so often recognised that it is no longer necessary to prove the existence of the custom in this case. It is seen from the Travancore State Manual published in 1906 that the community of Krishnavagakars are Hindus of the Sudra Caste and formed part of the great pastoral caste of South India, which after a time became mainly agricultural, and that there were two divisions in the caste, one following the Makkathayam system of inheritance and the other, Marumakathayam. In Bhagvathi v. Mathavan, 8 Trav LR 51, it is observed that Krishnavagakars followed the Hindu Law with one or two points of divergence from it, namely, the widow cohabiting with the brother of her deceased husband and the existence of Pathni bhagam. The incidence of the custom of Pathini bhagam was not discussed and did not come up for discussion in the case. The particular custom pleaded in the present case is found recognised in a suit. O.S. 109 of 1096 ME decided in December 1923 in the District Court, Nagarcoil. The certified copy of the judgment has been marked as Ex. B 6. The acceptance of the custom in that case was not based on any evidence of instances adduced in the case. The learned District Judge followed the observations in Sadasivam v. Gowri reported in Kelappa Pillai's Important Un-reported Travancore decisions page 179. Taking the observations as the established law, the plaintiffs in the case were granted a half share in the assets of the deceased in the case. There is a discussion of the custom of Pathini Bhagam in the Krishnavagakar community again, in Saraswati Amma v. Thanu Pillai, 1944 Trav LR 710. The case arose out of a suit filed by a reversioner to set aside the mortgage executed by the widow of a member of the Krishnavagakar community on the ground of absence of necessity and lack of consideration. In an attempt to maintain the validity of the mortgage a contention was raised in the High Court that on account of the custom of Pathini Bhagam prevailing in the community the widow took an absolute interest and the reversioners had therefore no right to question the alienation. It is apparent that the incidents of the custom of pathini bhagam pleaded in that case was of an entirely different character. It was pleaded that it was implied in the principle of Pathini Bhagam that on the death of her husband a Krishnavagakar woman, in the absence of children, was entitled to inherit her husband's property absolutely. The learned Judges held that the term Pathini Bhagam did not carry with it the implications as suggested. They referred to the concept of pathini bhagam found in Sircar Sastri in his treatise on Hindu law, 7th Edn. page 528:
"The division by number of sons is called putrabhag, but there exists a custom, in some parts of India, called Pathnibhag by which the division is according to the number of wives and the sons by each wife constitute a unit".
(8) The learned Judges referred to 8 Trav. LR 51 and Sadasiva v. Gowri, Kelappa Pillai's Important Unreported decisions page 179, and observed:--
"In other words, in terms of the relevant facts of this case, the custom of the Krishnvagakar community varying the general rule of Hindu law, as recognised by this court in 8 Trav LR 51, serves to import only the idea that the division of family property among sons of a member of that community must be according to the number of wives of their father, instead of the same being among all the sons of the father equally, this peculiar mode of division being known as Pathni bhagam, as distinct from the general mode of division recognised by Hindu law of Putra bhagam. That this alone was intended by the learned Judges who decided 8 Trav LR 51 is further clear from the decision of this court in Sadasiva v. Gowri, Kolappa Pillai's Important Unreported decisions page 179."
(9) In Sadasivam v. Gowri, there is no doubt a reference to the custom as now pleaded by the plaintiff. It will be seen in the decision in 1944 Trav. LR 710 itself where the relevant portions in Sadasiva v. Gowri are set out there is no reference or recognition of the custom now pleaded. On the contrary the incidents of the custom of Pathini Bhagam are limited contrasting it with Putra bhagam. But in Sadasiva v. Gowri, Sadasiva Aiyar C. J. while concurring with Padmanabha Aiyar J. has of course stated:-
"It has been clearly established in 8 Trav LR 51, that in the Krishnavagakar community, division is by Pathni bhagam among the children............. But there is no interest or patent immorality in the usage of Pathni bhagam and no such overwhelming preponderance of views in favour of a change of custom to Puthra bhagam within the 151/2 years after the decisions in 8 Trav LR 51, has been proved in the present case. The Pathni bhagam which prevails in this community seems to go even beyond the usual custom known as Pathni bhagam. For I find from the evidence that it is not only sons of different mothers that take per stripes (according to the number of mothers) but when one mother has got only female issue and another a male issue, the female issue gets a half share in their father's properties and the male issue by the other wife of the father takes the other half".
But the other learned Judge Padmanabha Aiyar J. who delivered the leading judgment does not refer to this further incidents of the custom.
(10) The learned District Judge in the present case has relied on the aforesaid observations of Sadasiva Aiyar C. J. It must be noted that in that case the incident of custom of pathni bhagam as now pleaded was not in issue. The learned Judge Sadasiva Aiyar C. J. has noticed the extent to which the evidence in the case let in about the custom went. the learned Judge points out that it was beyond the usual custom known as Pathni bhagam. The observations "The pathni bhagam which prevails in the community seems to go even beyond the usual custom known as pathni bhagam, "and following are in my view just obiter in the course of the discussion of the relevant issue in that case. In Palaniappa Chettiar v. Alagan Chetti, ILR 44 Mad 740 = (AIR 1922 P. C. 228) the prevalence of the custom of Pathni bhagam in parts of South India. In Mayne's Hindu Law, 11th Edn at page 523, in the footnote, reference is made to existence of the custom of Pathni bhagam in some families of dividing properties according to mothers. But there is no record apart from the observations of Sadasiva Aiyar C. J. in Sadasiva v. Gowri Kolappa Pillai's important Unreported Decision 179, for the existence of the custom of Pathni bhagam where one of the wives has only female issues and there are male issues to the other wife. There is one other case, OS 18 of 1959 on the file of the District Munsif of Kuzhithurai that may be referred to. Herein there is recognition of the custom pleaded. But the observations are too general. The learned District Munsif in loose language observes that this community does not follow the Hindu Mitakshara law and that there was authority for the position that this community followed the system known as Pathni bhagam under which the property of the deceased was inherited according to the number of widows he had irrespective of the existence of children to the deceased. The custom for which it is stated that there was authority goes further than the observations in the decisions noticed above. According to the learned District Munsif even a widow without issue could claim a share. No doubt the custom in the present form was also recognised. Exts. A. 5 and A. 6 are the only decisions wherein it can be said that the particular custom now pleaded gets judicial recognition. But one of the requirements pointed out by the Judicial Committee in 1947-2 Mad LJ 516 at p. 517 = (AIR 1948 P. C. 60 at p. 61) that each of the decisions relied upon must be based on evidence adduced in that particular case, is wanting. Neither of the two cases was based on an analysis of the evidence place before the Court of instances where the Court has been followed or observed. The existence of the custom is more or less for granted. These judgments cannot therefore be relied upon for conferring on the custom the force of law.
(11) Before a custom or usage can be taken to be incorporated in the general law, there must have been repeated recognition by Courts on the evidence adduced in the cases. I have already pointed out that the view of Sadasiva Aiyar C. J. in Sadasiva v. Gowri, Kelappa Pillai's important Unreported decisions pate 179 was only a passing observation of the learned Judge as noticed in the evidence in the case as to the custom. Thus, the evidence of specific instances of the observance of the custom is wanting in the present case. Repeated recognition of the custom in judicial decisions based on evidence adduced in each case is equally wanting. At the most all that could be said to have been seen in the present case is the prevalence of an idea of the existence of such a custom. No attempt has been made in the only two cases where the custom in question directly came up before court, to examine whether the custom or usage pleaded had all the essential attributes of customary law-antiquity, certainty, invariability and reasonableness. This is sufficient to dispose of the case. In the circumstances the decision of the learned District Judge cannot be upheld. The plaintiff's claim to a half share in the estate of her deceased father on the basis of the custom therefore fails.
(12) On this view, it is unnecessary to consider the validity of the family arrangement. Counsel for the first defendant stands by the family arrangement and asserts its validity and binding nature. He contended that in any event it could be looked upon as settlement of doubtful claim. The only case pleaded to vitiate the arrangement was the alleged collusion between the mother of the plaintiff and the first defendant to defeat the plaintiff of her lawful share. There was no evidence of such collusion and it was found against by the trial court. It was not pleaded that sanction of the court had not been obtained in the suit O. S. 686 of 1955 between the parties pending which the settlement was entered into. The partition deed specifically refers to the suit and the settlement. Learned counsel contends that the circumstances of the case do not warrant any inference in the absence of plea that all necessary steps would not have been taken. The suit admittedly had not been taken to conclusion and in all probability sanction of the court should have been obtained. It is quite apparent that in the courts below the invalidity of the family arrangement was rested solely on the existence of the custom. As the custom has not been proved in this case, there is no question of invalidating the family arrangement. Neither side calls for it.
(13) In the result the second appeal is allowed. The decree and judgment of the learned District Judge are set aside and those of the trial court restored. In the circumstances the parties will bear their own costs throughout. No leave.
(14) Appeal allowed.