1. The parties, are Moplahs, and neither side pat forward any special plea as to the applicability, to the family they belong to of Marumakkattayam Law or any system other than the Muhammadan. The construction of the stridhanam deed, Exhibit A, will, however, unless it is governed by special custom, depend on which of these systems should be applied.
2. The District Munsif, without stating clearly whether he eventually proceeded on Muhammadan or Marumakkattayam Law or special custom, evidently considered that no ordinarily prevalent law would suffice for the decision of the case. For he referred to his ignorance of the incidents of such a transaction, the absence of authority and the evidence as to those incidents. The lower Appellate Court appears to have held that that evidence, so far as it was in the defendants' favour, was counterbalanced by the effect of the decision in Packrichi v. Kunhacha 13 Ind. Cas 236: (1911) 2 M.W.N. 538. In doing so it assumed what is not clear, that the document then under consideration was similar in terms to Exhibit A and was executed in similar circumstances. It also assumed that this authority was applicable to transactions between members of the plaintiffs' family and represented a custom binding on all the community, to which they belong, of which the Court could take judicial notice. As observed in Kunhambi v. Kalanthar 24 Ind. Cas. 523 the Courts have power to take judicial notice of a custom, only when its existence among the class affected by it has been proved repeatedly before them, - In the present case the lower Appellate Court had before it only one instance of such proof and no clear evidence as to the class then in question, or its identity with that of the present parties.
3. In these circumstances, we cannot accept the lower Appellate Court's decision and must call for a finding on the issues:
1. Whether the parties are governed by Marumakkattayam or Muhammadan Law?
2. What are the legal incidents attached to Exhibit A as between the parties with reference to special custom, or if special custom is not established, the ordinary law, to which they are subject?
4. Fresh evidence should be taken. Findings will be submitted in two months; and seven days will be allowed for filing objections.
5. In compliance with the above the District Judge of North Malabar submitted the following.
6. I am required by the terms of this reference to decide-
(1) Whether the parties are governed by Marumakkattayam or by Muhammadan Law?
(2) What are the legal incidents attached to Exhibit A as between the parties with reference to special custom or if special custom is not established, the ordinary law to which they are subject?
2. As regards the 1st issue both sides are agreed that they are governed by Marumakkattayam Law. I find accordingly.
3. As regards the second issue having regard to the 8th paragraph of 3rd defendant's written statement and to the evidence of the trustworthy witnesses examined before me, I find that the parties are governed as regards the legal incidents of Exhibit A not by special custom, which is not now pleaded on either side, but by the ordinary Marumakkattayam Law. It is proved before me that direct Stridhanam donees cannot mortgage nor alienate their property. In the two panayams that preceded the kanom that forms the subject of the suit the donor joined; so if the kanom was proper so faras the stridhanam right is concerned, she would have been made to join in it. But this was not done.
4. There are two ways of regarding Exhibit A, I am asked by defendants' Pleader to regard it as merging all previous rights under the stridhanam grants. If this be so, the legal incidents of Exhibit A are that two of the three donees cannot encumber nor part with the property. So the kanom is totally invalid.
5. If, as I hold, Exhibit A conveys the reversion of the rights of the donor to the donees in the stridhanam property already grunted and also a new gift of the house on item No. 2, but without disturbing the stridhanam rights, and arrangements already existing, the preservation of which rights and arrangements is the explanation for the clause forbidding the donees 'creating any debts thereon by yourselves' then again the incidents attaching to Exhibit A are such as to make any kanom on stridhanam property invalid. It does not seem to me that Exhibit A is a simple deed of gift but that, as their Lordships have said, it is a stridhanam gift and, therefore, the ordinary incidents of such a gift attached to it, which is also borne out by the action of the executants of the kanom-deed who made their respective husbands attesting witnesses to it, which corresponds to what is said before me in evidence to-day, viz., that whatever may have been the custom long ago, stridhanam gifts are now-a-days invariably made in the names of wives who hand the property over to their husbands for management.
6. This second appeal coming on for final hearing on the 12th of August 1915, after the return of the findings of the District Court upon the issues referred by this Court for trial, and having stood over for consideration till this day, the Court delivered the following.