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Patinharkara Vallabhan Chattan Rajah Avergal and Kuruvayil Kovilagath M.R. Ry. Vallavananathikara Vallabhah Vali Raja Avergal Vs. Rama Varma Alias Kolathoor 5th Rajah Moothaiyil Vallabhah Chattan Kovil Kuruvikul Alias Mankata Kovilagath Vallabhan Chattan Kovil Kuruvikal and ors. and Rama Varma Alias Kolathur V. Rajah Avergal Styled Walluvanathudaya Kattunnen Moothayil Vallabhan Chathan Kovil Kuruvikal Alias Mankath Kovilagath Vallabhan Chathen Kovil Kuruvikal and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1915Mad217; (1915)28MLJ669
AppellantPatinharkara Vallabhan Chattan Rajah Avergal and Kuruvayil Kovilagath M.R. Ry. Vallavananathikara Va
RespondentRama Varma Alias Kolathoor 5th Rajah Moothaiyil Vallabhah Chattan Kovil Kuruvikul Alias Mankata Kovi
Cases ReferredChandika Bahhsh v. Muna Kunwar
- - his position may best be likened to that of a hindu widow with respect to property inherited by her from her husband. the same principle holds good in the case of stanis. another answer is that a stanam is not like a trusteeship. , ordinarily no doubt by virtue of the stani being provided for from the income of the properties attached to his stanam the other members of the kovilagam will be allowed to enjoy the properties of the kovilagam to his exclusion. for all these reasons i hold that this contention must fail. moreover, all of them were made after controversy had begun and it is not safe to act on the statements contained in them. the evidence of neighbouring swaroopams like that of palghat and of the zamorin should have been available to prove a custom like this, if there is.....seshagiri aiyar, j.1. in the walluvanad swaroopam there are nine stanams. the first five of them are known as (1) the walluvanad vallabhan valiya raja stanam (2) vallalpat raja (3) thachalpat raja (4) etathrapat raja and (5) the kolathoor raja stanam. there are two other stanams known as the patinharakara raja and the kizhakkekara. in addition to these seven there are two female stanams known as the kolathoor thamburatti stanatn and the kattamen moothayal thamburatti stanam. it is admitted that, with regard to the first five stanams mentioned above the senior in age belonging to the four kovilagams attached to the swaroopam ordinarily succeeds. these four kovilagams are the mangada kovilagam, the aripra kovilagam, the katanna manna kovilagam and the ayiranazhi kovilagam. the mode of.....

Seshagiri Aiyar, J.

1. In the Walluvanad Swaroopam there are nine Stanams. The first five of them are known as (1) the Walluvanad Vallabhan Valiya Raja Stanam (2) Vallalpat Raja (3) Thachalpat Raja (4) Etathrapat Raja and (5) the Kolathoor Raja Stanam. There are two other Stanams known as the Patinharakara Raja and the Kizhakkekara. In addition to these seven there are two female Stanams known as the Kolathoor Thamburatti Stanatn and the Kattamen Moothayal Thamburatti Stanam. It is admitted that, with regard to the first five Stanams mentioned above the senior in age belonging to the four Kovilagams attached to the Swaroopam ordinarily succeeds. These four Kovilagams are the Mangada Kovilagam, the Aripra Kovilagam, the Katanna Manna Kovilagam and the Ayiranazhi Kovilagam. The mode of succession is regulated in this way. On the occurrence of a vacancy in any one of the stanams the next in rank fills that place; when the fifth Stanam is vacant the senior in age from one of the four Kovilagams succeeds to it; as regards the Kizhakkekara and the Patinharakara Stanams, the Subordinate Judge has gone into the history of their origin. I do not consider it necessary for the purpose of deciding this case to ascertain whether they were off-shoots of the Ayiranazhi Kovilagam, whether the appointment to these two Stanams is by the last holder of the Stanams or whether it is by the Kolathoor Raja or by the senior of all the five Stanam holders, the Valiya Raja; nor is it necessary to consider whether these Stanams can be held only by members of the Ayiranali Kovilagam, I, therefore do not propose to follow the Subordinate Judge into a consideration of these questions. There is no question in this case regarding the two female Stanams and it is not necessary to deal with them at all.

2. In 1895 the first defendant in this suit was holding the Patinharakara Raja. On a vacancy having then occurred in the fifth Stanam he succeeded to it. Since 1895 on the occurrence of vacancies in the other Stanams he has moved up with the result that at the time of the suit he was holding the third Stanam. Disputes arose in consequence of the first defendant having occupied the fifth Stanam. As a Malikhana allowance was attached to it, under the direction of the revenue authorities the Tasildar took statements in 1896 from the members of the Swaroopatn in regard to the succession. These will be referred to later on. In 1898 the present 3rd defendant, claiming the right to exclude the first defendant on the ground that he was holding the Patinharakara Stanam brought O.S. No. 13 of 1898 (Exhibit XXV) for a declaration of his right. Mr. Venkataramana Pai, the then Subordinate Judge, held that the 1st defendant was rightly in possession and that the third defendant was not entitled to oust him. In appeal (Exhibit XXVI) the District Judge concurred in this view. In Second Appeal (Exhibit VIII) the High Court called for a finding as to whether the 1st defendant was in possession of the properties attached to the office and on the return of that finding held that a suit for a bare declaration without seeking further relief will not lie. The Second Appeal was dismissed upon that sole ground. The present plaintiff, alleging that his right as senior in the four Kovilagams to succeed to the fifth Stanam accrued to him in 1903, brought this suit for a declaration that he is so entitled and that the first defendant had no right to hold any of the five stanams. The 1st defendant pleaded that the fact of his holding the Patinharakara Stanam was not a disqualification for his succeeding to the fifth Stanam. He further contended that the suit was barred by limitation. The Subordinate Judge decided that the first defendant had no right to any of the five Stanams.: He also held that the plaintiff's suit was not barred by limitation and gave a decree to the plaintiff as prayed for. The 1st defendant has presented this appeal.

3. Before dealing with the questions arising in this case it is necessary to understand the nature of the office of a stani and its legal attributes. The late Mr, Justice Sundara Aiyar in an article on ' Topics of Malabar Law-Stanams' contributed to the Madras Law Journal (vide 13 M.L.J. 161) discusses this question at some length. He says in page 163: 'Whatever may be the origin of Stanam in any particular case, whether it was the result of public law, or owed its origin to a grant by the ruling chief to the holder of an office, or was merely the result of an arrangement amongst the members of a Tarwad for the maintenance of its social prestige and influence, the first essential of a Stanam is that the property vests not in the family of the holder but in himself individually and descends to the person who succeeds to his dignity. Another essential feature is that the stani's ownership and interest in the property of his tarwad ceases on his accession to the Stanam. His relationship and consanguinity with the family do not cease. For all purposes of religious, funeral and other cerernonies the stani continues to belong to the family,' Then the learned writer points out that the accession to the staniship is not analogous to adoption under the Hindu Law. He says further that the stani and his tarwad ' will have the same rights of succession to the properties of each other as if the severance from the family had been the result, not of his accession to the stanam, but of a voluntary division between him and the rest of the family' and that 'the succession to a stanam is generally determined by priority of age'. As regards the nature of the estate taken by the stani he observes : 'The Estate taken by a stani in the Stanam property is a limited one. It is not a mere life-estate, for the stani is not only entitled absolutely to the income accruing during his life, but he has also the power of creating a. charge upon the estate or of alienating it where such charge or alienation is necessary or beneficial to the estate. His position may best be likened to that of a Hindu widow with respect to property inherited by her from her husband.' The decision of the Judicial Committee of the Privy Council in Venkataswara lyan v. Sekari Varma I.L.R. (1881) M. 384 is in full accord with the above statement of the law. Their Lordships of the Judicial Committee say in page 386 : ' It appears that in the families of the Malabar Rajas it is customary to have a number of palaces, to each of which there is attached an establishment with lands for maintaining it, called by the name of a stanam. The Palghat family have no less than nine stanams. Each stanam has a raja at its head or Stanamdar. The Stanamdar represents the corpus of his stanom much in the same way as a Hindu widow represents the estates which have devolved upon her, and he may alienate the property for the benefit or proper expenses of the Stanam.' The same view has been held by Muthusami Aiyar and Parker JJ. in Mahomed v. Krishnan I.L.R. (1887) M. 106. In order to be precise it must be pointed out that the Stanam is held either for the life of the Stani or of those in the grade above him : The Walluvanad Swaroopam, it is conceded, is not different in regard to the appointment of these Stanis from the Palghat Raja Stanams referred to by their Lordships of the Privy Council in Venkateswarn lyan v. Shekari Varma I.L.R. (1881) M. 384.

4. I have referred to this question at some length, because the various points arising for decision depend upon a proper understanding of the nature of the estate which a Stani possesses.

5. The chief contentions raised in appeal are that the frame of the suit is not proper inasmuch as there is misjoinder both of parties and of causes of action : secondly that the suit is barred by limitation; and thirdly that the Subordinate Judge is wrong in holding that the 1st defendant was not entitled to succeed to the fifth Stanam in 1895.

6. As regards the first point Mr. Rosario contends that all that the plaintiffs can lay claim to is to succeed to the fifth Stanam and he is not justified in tacking on to this claim a declaration that the 1st defendant was not rightly in office in 1895, I cannot agree with this contention. The principal relief claimed is that the plaintiff owing to his seniority in the age has become entitled to succeed to the fifth Stanam in 1903; but it is necessary for him in order that he may get into that stanam to prove that the 1st defendant who is holding the third Stanam should vacate it. The relief against the 1st defendant is only ancillary to the main relief which the plaintiff seeks. I hold the suit was rightly framed.

7. The next question argued by Mr. Rosario relates to the plea of limitation raised in fourth issue. The Subordinate Judge has mixed up questions relating to limitation and prescription in deciding this issue. There are two points to be considered--the first is whether the plaintiffs suit is barred by limitation and the second whether the 1st defendant has acquired a prescriptive right to the office. On the first point I am clearl) of opinion that the Lower Court is right. The right of the plaintiff to succeed to the 5th Stanam accrued only in 1903. It is true that he might have sued in 1895 for a declaration that the 1st defendant was not entitled to succeed to the fifth Stanam; but he was not bound to bring such a suit. I have already pointed out that the position of a Stani is analogous to that of a Hindu widow; and it is settled law that a reversioner or the next life estate owner succeeding after the death of the widow is not bound to bring a suit during her lifetime for a declaration that the acts of the widow are not valid beyond her lifetime. In the case of reversioners under the Hindu Law (See Veerayya v. Gangamma I.L.R. (1913) M. 570 and Prasanna Kumar Mookerjee v. Srikantha Rout (1912) I.L.R. 10 0. ), it has been held that they do not claim through each other. The same principle holds good in the case of stanis. Each has an independent right to the office by being the senior in age when a vacancy occurs. Mr, Rosario referred to an observation in Chiruvolu Punnamma v. Chiruvolu Perarazu I.L.R. (1906) M. 390 : 16 M.L. J wherein it is said that succeeding Mahants and Malabar Stanis have been treated as persons claiming through or under their predecessors, though in strictness they do not so claim. I do not think that this observation can be said to be an authority for the position that Stanis claim through each other. I, therefore, hold that suit is not barred by limitation.

8. The next contention is that the 1st defendant from the time that he succeeded to the stanam in 1895, prescribed for a right to hold a stanam and that the gradations through which he passed during the 13 years preceding the suit gave him a title by prescription to the office of a Stani. It is established that the first defendant did not continue in any of the stanoms for more than six years. It is not the case, therefore, of a right by prescription having been acquired with respect to any one particular stanam, although in the view that I have taken of this question, the fact of any such acquisition will not stand in plaintiff's way of succeeding to the fifth stanam. Reliance is placed upon Annasami Plllai v. Ramakrishna Mudali I.L.R. (1900) M. 219 for the position that what the 1st defendant prescribed for is a right to a stanam independent of the fact that it related to the fifth, fourth or third stanam, and as more than twelve years have elapsed since he so prescribed, his right had become perfected. The first answer to this contention is that before prescription can give a valid title, it must be acquired against specific individual. Prescription acquired against A cannot be tacked on to prescription acquired against B and C and the prescriber cannot say that as he has been holding on against A, B and C in succession for over the statutory period he has acquired a title thereby. The principal requisite of prescription is that the person prescribing should endeavour to get the rights of an individual in whom the property inheres. Another answer is that a stanam is not like a trusteeship. A trusteeship involves rights and obligations apart from the possession of property, whereas a stanam is dependent upon the possession of property alone. It has been held in Koman Nair v. Kozhisseri Nair (1911) 1. M.W.N. 353 that there can be no declaration of a right to a stanam independent of rights to property, it follows from this that a right in a stanam cannot be acquired divorced from the rights to the property appurtenant to that stanam. Annasami Pillai v. Ramakrishna Mudali I.L.R. (1900) M. 219 has therefore no application. On the other hand Ram Kali v. Kedar Nath I.L.R. (1892) A. 156 is in point. There it was held that when a third party had acquired a prescriptive right against the widow in possession, the next life estate holder, the daughter, was not affected by the acquisition of such right and can sue to recover possession of the property. This has been followed in Amrit Dhar v. Bindesri Prasad I.L.R. (1901) A. 448, the principle of these decisions being that, until the right to sue accrues either to a succeeding life estate holder or to the reversioner, the prescriptive title will only affect the rights of the party in possession. Following that analogy, I must hold that any prescription acquired against a stani entitled to possession will only take away his rights to be in enjoyment of the property and will not bar the right of the next person to claim possession of the property when succession opens to him. For these reasons, I hold that the suit is neither barred by limitation nor did the 1st defendant acquire a title to continue in possession by prescriptive right.

9. On the merits, the principal question is whether the 1st defendant who was a Patinharakara Raja in '1895 rightly became the fifth stani in that year. This question has been discussed before us from four points of view, namely, that the Patinharakara Raj is a stanom, that the 1st defendant did not relinquish that stanom when he attained to the fifth stanom and consequently he lost his right to the latter, that Ariyittu Vazcha is performed to the Patinharakara Raja and that disables him from succeeding to any of the five stanams and that there are instances in which the holder of the Patinharakara stanam has been superseded by his juniors in age indicating thereby that the holding of that stanam is a bar to succeeding to any of the five stanams.

10. As regards the question whether the Patinharakara Raj is a stanam, I have come to the conclusion that it is. Exhibit XXIV is a letter written in the year 1847 by the then Valiya Raja to the revenue officials. In that the writer says ' in this Swaroopam there are 9 Kooruvazchas (stanams) ' made up of the 5 principal stanams and the four other stanams, namely the Kizhekkakara, the Patinharakara, the Kolathoor Thamburatti and the Katanna Mooththen Thamburatti stanams. This was long before disputes arose and this document to my mind is conclusive on the question whether the Patinharakara is a stanam of the same nature as the other five stanams. Exhibit XIII, a letter written by the Patinharakara Raja in the year 1859 to the Collector confirms this view, and it is further supported by Exhibits A, B and C. Mr. Rosario relies upon Exhibit F which contains a written statement filed by the then Patinharakara Raja in a suit of 1873 in which he speaks of the Kizhekkakara Kovilagam having lapsed to the Patinharakara Rajah, and argues that this right of survivorship is inconsistent with Patinharakara being a stanam. I am not prepared to accept this contention. Exhibit F makes no reference to the other five stanams and it is not clear that succession to property on the extinction of heirs leads necessarily to the conclusion that the person succeeding is not a stanam holder.

11. The next point to be considered is whether a man can hold two stanams at the same time. It is conceded that it is not the general practice; but the evidence on this point is to my mind very inconclusive. The Subordinate Judge refers to a large number of documents as bearing upon this question. They are Exhibits G, H, J, N, P, Q, R, AA, and FF. As regards Exhibits H, J, P, Q, R and FF, they only show that a man who succeeded to one of the stanams did not concern himself with the management of the affairs of the Kovilagam from which he came. It does not follow from this that one person cannot hold two stanams. Mr. Ramachandra Aiyar has conceded that, if all the members of the Kovilagam from which the Stani came are dead, there is nothing to prevent the Stani from getting possession of the property of the Kovilagam., Ordinarily no doubt by virtue of the Stani being provided for from the income of the properties attached to his stanam the other members of the Kovilagam will be allowed to enjoy the properties of the Kovilagam to his exclusion. It does not follow therefrom that the Stani has lost all his rights in the Kovilagam. Exhibit G is a written statement by the present 1st defendant while he was holding the Patinharakara Raja Stanam in 1887. In paragraph 2 he says: ' This defendant having attained Patinharakara Rajah's stanam, has given up all his rights to and management of the Kovilagam properties.' He does not say that he had lost his rights to the properties by virtue of his succeeding to the Patinharakara Stanam. Exhibit N is a deposition by the mother of the 1st. Defendant in the year 1886 in which she says of the then Patinharakara Raja that ' he resides permanently in Patinharakara. He has been appointed to that Kovilagam from here. Then, he has no right whatever to the property of this Kovilagam.' This does not advance the case further. Exhibit A A. referred to by the Subordinate Judge makes no reference to the Patinharakara Raja giving up his rights in the property of his Kovilagam. The inference to be drawn from these documents may be thus stated. Ordinarily a man holding the Patinharakara Stanam will not concern himself with the affairs of the Kovilagam from which he succeeded to the stanam. True there are no instances, excepting in the case of the 1st defendant, of a man holding one of the five stanams also holding the Patinharakara Stanam. It may be the first defendant is holding wrongfully the Patinharakara Stanam but I cannot say it is proved that he is disqualified from holding any of the five stanams from the fact of his still retaining the Patinharakara Stanam. Mr. Ramachandra Aiyar contends that before a man can attain to one of the five stanams he must be a Valiya Thambiran of one of the Kovilagarns, and that as when a man becomes the Patinharakara Rajah, he can no longer be the Valiya Thamburan of the Kovilagam from which he came, he cannot succeed to one of the stanams. The term Valiya Thamburan is applied to the senior male in a kovilagam. It is not an office or a dignity and I see no sufficient evidence for the position that a man should be Valiya Thamburan in his Kovilagam before he can claim to hold a stanam. Supposing all the three or four stanams become vacant at the same time, the three or four men senior in age will naturally succeed to these stanams. All of them cannot be Valiya Thamburans. It is curious, as pointed out by Mr. Rosorio, that in Exhibit PPP. the only stanam holder who is mentioned as being disqualified to attain to any other stanam is the holder of the Onnukura Ayiram Stanam. No reference is made in that document to the disqualification of the Patinharakara Raja to hold the other Stanams. For all these reasons I hold that this contention must fail.

12. The next question for decision is whether the Patinharakara Raja is entitled to the Ariyittu Vazcha and, if so, whether that is a bar to his claiming one of the five stamms. Exhibit XXIV leaves no room for doubt that the Patinharakara Raja in entitled to Ariyittu Vazcha. It is said to be the ceremony of coronation. Upon the materials before me I must hold that it is only in special cases that Ariyittu Vazcha is performed. The Valiya Raja has this Ariyittu Vazcha and the Thamburatti of Kolathoor enjoys that privilege. The question is what legal effect should be attached to the performance of the Ariyittu Vazcha. The witnesses examined in this case on behalf of the plaintiff say that there is no Ariyittu Vazcha in the case of the second, third, fourth and fifth stanams, because those stanam-holders have something higher to look to, and the learned Vakil for the respondent asked us to draw the inference therefrom that, where Ariyittu Vazcha is performed for a particular Stani, that man can have no other stanams to aspire to. I cannot accept this argument. This converse of what a witness states is not to be taken to be his deposition. Moreover, if, as the learned Vakil, contends, the Ariyittu Vazcha is conclusive upon the disability of the 1st defendant to succeed to any of the five stanams, it should have been specially pleaded in this case. There is no mention of it in the plaint, no argument was addressed to the Subordinate Judge upon this question; not only this, in the litigation which was started in the year 1898 no reference was made to this ceremony of Ariyittu Vazcha; and in the various depositions which were taken by the Tahsildar in the year 1896 shortly after disputes arose, no member of the family deposed that the fact of Ariyittu Vazcha being performed to the Patinharakara Raja was a reason for his being excluded from the five stanams. I have, therefore, come to the conclusion that the evidence relating to the legal consequences of the performance of Ariyittu Vazcha is inconclusive, and that, as this point was not relied upon before the Tahsildar or in the previous suit or in this litigation in the court below, we should not base our decision on it.

13. It is finally contended that there are instances of a Patinharakara Raja having been superseded by his juniors in age in attaining to the fifth stanam and that shows a consciousness on the part of a various Kovilagams that the Patinharakara Raja cannot succeed to any of these stanams. Four instances of supersession have been referred to. The first is that of Unni Kuna Kunhan who became the fifth Raja in 1025. He belonged to the Katanamanna Kovilagam. The second is the case of another Unni Kunhan who became the fifth Raja in 1030. He belonged to the Ayiranazhi Kovilagam. The third is the case of Umruattan who succeeded to the fifth Stanam in 1036. He belonged to the Mangada Kovilagam. The fourth is the case of Ponunni who belonged to Ayiranazhi and who, the plaintiff says, succeeded to the fifth Stanam ' in 1038, but who, the 1st defendant says, attained that stanam only in 1041. All these four instances are said to have occurred when Bhanu Tham--buran was in the Patinharakara Raj from 1838 to 1865, that is, from the Malayalam year 1013 to 1040. With regard to the first three instances it is denied that these men were junior in age to Bhanu Thamburan. As regards the fourth instance it is conceded that Ponunni was younger than Bhanu but it is argued that as Ponunni succeeded to the fifth Stanam only in 1041, that is, after the death of Bhanu in 1040. That case is not an instance in point. A large number of documents were referred to in this connection. They are Exhibits H, Y, Z, AA, BB, CC, DD, FF, KK, LL, MM, NN, FFF, and OOO. Before dealing with these documents, I must deal with the objection raised by Mr. Rosario to some of them on the ground that they are not receivable in evidence. Exhibit AA is a deposition given by one Kavunni who was the fifth Stanomholder in the year 1885. His evidence relates to the succession of Ponunni in 1038. The learned Vakil objects to the reception of this document in evidence on the ground that it is not a statement relating to the existence of any relationship by blood, marriage or adoption and consequently it is not covered by Section 32 Clause (5) of the Evidence Act. Illustration (d) to Section 32 suggests that a letter containing the date of birth will be receivable in evidence. The words 'relationship by blood, marriage or adoption' have been construed to include statements relating to the date of the birth of a deceased person.

14. In Bamachandra Dutt v. Jogeswar Narain Deo I.L.R. (1893) C. 758 and Dhan Mull v. Ramachunder Ghose I.L.R. (1897) C. 265 the learned Judges of the Calcutta High Court held that evidence of this kind is receivable under Section 32 Clause (5). Following these decisions Bashyam Aiyangar J. in Oriental Government Security Life Assurance Company Limited v. Narasimha Chart I.L.R. (1902) M. 183 decided that documents containing the date of birth of a deceased person come properly under Clause (5) of Section 32. The principle of these decisions, I take it to be, that in order to ascertain the relationships referred to, the dates of birth or death of deceased persons will be material. The date of birth will in many cases be an important factor in ascertaining relationship by blood. I must, therefore, hold that Exhibit AA is receivable in evidence. The next objection relates to the adtnis-sibility in evidence of Exhibits KK, LL, and MM. These are depositions given in Suit No. 13 of 1898 brought by the third defendant for establishing his right to the fifth stanam. The argument of the learned vakil for the appellant is that that suit was not between the same parties or their representatives in interest under the proviso to Section 33 of the Evidence Act and consequently the depositions given in that case should not be read as evidence in the present case. In that suit the third defendant contested the right of the first defendant to hold the fifth stanam. He was then litigating a question in which the present plaintiff is undoubtedly interested. It may be that the plaintiff does not claim through the 3rd defendant: but is he not a representative in interest of the 3rd defendant who brought O.S. No. 13 of 1898? The term ' representative in interest' would no doubt include persons who have derived title from another. I am of opinion, it also includes persons having the same interest in the subject-matter of the litigation. It will comprise all persons on whose behalf, though not in their names or as representing them, the previous litigation is carried on. In other words, all persons, whose rights are litigated bona fide by a person virtually on behalf of a class though they themselves are not eo-nomine on the record, will be considered in the eye of law as representatives in interest of the previous litigant. The judgment of Couch C.J. in Mrino Moyee Debia v. Bhoobun Moyee Debia (1874) 23 W.R. 42 tends to show that where the interests are identical and where the object of the litigation is to advance a common claim, evidence given in a former judicial proceeding can be received in a subsequent proceeding. The learned Chief Justice leaves the question open whether the principles of English rules of evidence relating to similar matter should not be adopted in India. Although the learned Chief Justiqe does not quote it, it was clear that he was referring to the case of Pyke v. Grouch 91 E.R. 1387. That case supports the view I have indicated. My conclusion is that these documents are receivable in evidence. This reasoning does not apply to Exhibit NN., which is a deposition given by the third defendant who is still alive and who has not been examined. The depositions themselves when closely examined are not precise in regard to the age of the persons who succeeded to the stanam and I am not inclined to place much reliance upon them. Moreover, all of them were made after controversy had begun and it is not safe to act on the statements contained in them. Nor am 1 prepared to believe the depositions given by the plaintiff's first, fourth and fifth witnesses. As regards Exhibit FFF, it is clear that it has not been proved to have been written by Bhanu Thamburan. On the other hand the deposition of the plaintiff's first witness makes it clear that it was not written by him. If Exhibit FFF is not proved, Exhibit Y cannot avail the plaintiff. Still there are Exhibits AA and CC depositions given in the year 1885 which make it clear that Ponunni succeeded to the fifth Stanam in the year 1038. As it has been conceded before us that Ponunni was junior in age and that Bhanu Thamburan did not die till 1040, that it is a clear instance of the supersession of a Patinharakara Raja. I do not think that the inference which the Subordinate Judge draws from Exhibits Z and BB and DD is correct. On the whole my conclusion is that one instance in which the holder of the Patinharakara stanam has been superseded by his junior in age has been proved.

15. On these findings the question is whether the plaintiff has established that the 1st defendant in the year 1895 had no right to succeed to the fifth stanom. It is common ground that the senior in age is entitled to succeed to that Stanom, if no infirmative circumstances exist. The burden is, therefore heavily upon the plaintiff to prove his case. All that has been established in the case is that Bhanu Thamburan who was Patinharakara Raja between 1838 and 1865 was superseded by Ponunni; and also that the first defendant did not renounce his right to the Patinharakara stanam when he became the fifth. Raja. Does it necessarily follow from these facts that it was in conscious belief that a Patinharakara Raja is not entitled to the fifth stanam that the supersession took place? It is consistent with the theory that Bhanu, eithpr because he thought that the chances of succeeding to the Valia Rajaship by passing through the intermediate stages were too remote or because there was a palace attached to the Patinharakara stanom, whereas there was none for the fourth, third and second stanams, considered that he will not be wise in giving up his then position for the remote chance of succeeding to the first stanam and to the place attached thereto. The proved instance is as inconsistent with a voluntary giving up of rights as with the view that a Patinharakara Raja is not entitled to the fifth stanam. As has been pointed out in Bamanand v. Surgiani I.L.R. (1891) A. 221, where the proof of custom is consistent with the continuance of the ordinary course of events Or with a deviation from it, the court should come to the conclusion that the custom has not been proved. There has been no decision of a Civil or Revenue Court, and there is no record of any kind showing that the Patinharakara Raja is not entitled to succeed to the fifth Stanam. The evidence of neighbouring Swaroopams like that of Palghat and of the Zamorin should have been available to prove a custom like this, if there is any foundation for it. I do not propose discussing the quantum of proof that is necessary to establish a family custom. The principles enunciated in various decisions may be thus stated: 'To become a family custom, the usage in question must have been prevalent in the family during a long period. It must have become a distinct tradition in the family. In proof of a family custom one of two things must be shown either a clear, distinct and positive tradition in the family that the custom exists or a long series of instances of anomalous successions from which the custom may be inferred. It is no doubt true, as pointed out in Kuar Sen v. Mamman I.L.R. (1895) A. 87, that the principle of the English Common Law that the custom must be immemorial does not apply in India. At the same time it has to be remembered that their Lordships of the Judicial Committee in Chandika Bahhsh v. Muna Kunwar (1902) L.R. 29 I A. 70 : I.L.R. 21 All. 278. laid down where four instances of inheritances in derogation of the ordinary law were proved, that the custom had not been sufficiently established. In the present case it is for the plaintiff to prove that the first defendant was under a disability at the time that the fifth Stanam became vacant. He has to show that it is the custom of the family that, when the senior in age occupies the Patinharakara Raj, he is disentitled to succeed to any of the five Stanams. He has also to show that there was a consciousness among the members of the Swaroopam that a tradition exists excluding the Patinharakara Raja from these Stanams. The evidence adduced in this case is altogether insufficient to establish any of these propositions. I must hold that the plaintiff has failed to prove the case set up by him and that his suit should be dismissed. In the circumstances of the case I think each party should bear his own costs throughout.

16. Appeal 239 will also be reversed.

17. The memorandum of objections will be dismissed.

Ayling, J.

18. I concur.

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