1. The plaintiff is the appellant. She was the first wife of one Thanamalayan Pillai. The first defendant is the second wife of the said Thanamalayan Pillai. The first defendant is the second wife of the said Thanamalayan Pillai. Defendants 2 to 7 are the children of Thanumalayan Pillai through the second wife. The plaintiff has no child. She has filed this suit for partition of the suit properties, claiming a half share in them, and for possession. She claims that as per the custom prevailing in Krishnavaka Community to which the parties to the suit belong, she is entitled to claim one half of the suit properties. The defendants, though did not dispute the custom as such, claimed that that custom did not enable a female member to claim the status of an heir along with the sons and that therefore the plaintiff was not entitled to any relief. The trial court dismissed the claim of the plaintiff to a half share in the suit properties, but held that she would be entitled to a 1/56th share in items 2 to 4 of the plaint schedule, under the Hindu Succession Act of 1956. The appeal filed by the plaintiff was also dismissed, confirming the decree of the trial court, though a partial relief was granted as to the properties that were liable for partition. It may be mentioned that the trial court disallowed the claim of the plaintiff that items 1 and 7 of the plaint schedule belonged to the joint family. In the appeal filed by the plaintiff, the lower appellate court has allowed the claim of the plaintiff so far as item 1 of the plaint schedule is concerned and rejected her claim relating to item 7 of the plaint schedule.
2. It is alleged in paragraph 4 of the plaint that there is a custom recognised by and prevalent in Krishnavaka community known as patnibhagam. The custom pleaded by the plaintiff has received judicial recognition in a number of decided cases. But what exactly this patnibhagam custom claimed by the plaintiff connotes is the real issue in this second appeal. While the learned counsel for the appellant would contend that even in cases where one of the wives did not have any children, she would be entitled to a half share, the learned counsel appearing for the respondents-defendants would content that the plaintiff would not be entitled to any share under that custom. The principle is stated in 'Hindu Law' by N. R. Raghavachariar, 6th Edn. at page 409 as follows:
'Putrabhaga and patnibhaga; Two modes of division between sons are known in Hindu Law. When the divisions is by the number of sons. it is called putrabhaga; when the division is according to the wives, it is known as patnibhaga. Though putrabhaga is now the recognised rule of Hindu Law, there are still traces of the other view, and a customary law of patnibhaga due probably to the matriarchal theories of the earlier inhabitants, is fairly prevalent in Southern India, especially among the lower castes. Such a custom was held proved in a case where the parties belonged to the Nattukottai Chetti community.'
In Mulla's 'Principles of Hindu Law' 13th Edition at page 366, the principle is stated thus:
'Putrabhaga--When the division is by number of sons it is called putrabhaga; when the division is according to wives, it is known as patnibhaga, Putrabhaga is now the recognised mode of division. But the custom of patnibhaga prevails in some places and in some families especially among Sudras.'
3. The term 'patnibhagam' is explained by Sirkar Sastri in his treatise on Hindu Law thus:--
'The division by number of sons is called putrabhaga, but there exists a custom, in some parts of India, called patnibhag by which the division is according to the number of wives and the sons by each wife constitute a unit.'
In Bangaru Pillai Saraswathiamma v. Thanu Pillai,. 1944 Trav LR 710, it has been held that Krishnavakakars are governed by the Hindu Law with only a few points of divergence from it one such divergence being the custom known as patnibhagam. The custom serves to import only the idea that division of family property among sons of a member of that community must be according to the number of his wives instead of the division being among all his sons equally. This peculiar mode of division known as patnibhagam is distinct from the general mode of division of putrabhagam recognised by Hindu Law.
4. It can be seen from the above decision and the commentaries on Hindu Law that Patnibhagam is a mode of division between the sons and it does not confer any right on the wife. The question whether it conferred any right on a daughter was considered by Natesan. J. in Janardhanan Pillai v. Kaliamma : AIR1968Mad105 wherein it is held that custom did not allow a daughter to claim any share along with the sons. The learned Judge has differed from the decision of a Division Bench of the Travancore High Court in Sadasiva v. Gowri (unreported Travancore Decision page 179 by Kolappa Pillai). Anyway that point does not arise in the present second appeal.
5. A similar custom also prevailed among Nattukottai Chettiar's community of Tamil Nadu and this came up for consideration before the Privy Council in Palaniappa Chettiar v. Alagan Chettiar. ILR 44 Mad 740 : AIR 1922 PC 228. The head-note which clearly brings out the ratio of the judgment is as follows:
'A custom was found to exist among the Nattukottai Chetties inhabiting seven villages in the Madurai Dist, of the Madras Presidency whereby when a Chetti during the life of his wife married another wife he appropriated out of his property a portion, called moopu, for the first wife's maintenance, that portion descending to her son if she had one, and the rest of the property was notionally divided, one moiety going to the son or sons by the first wife, and the other moiety to the son or sons by the second wife. In a suit for partition brought by the only son of a first wife against his father and the sons by the second wife the Judicial Committee applied the custom, without, however, determining what the father's share would be in the circumstances, as the question did not arise before their Lordships.'
6. It would be seen from the Privy Council decision and the other decisions and the passages cited above that where pathnibhagam custom is applied, the property is divided, one moiety going to the son or sons by the first wife and the other moiety to the son or sons by the second wife, or as the case may be among the sons of the different wives of a Hindu. Therefore, when there is no son or sons to the wife she will not be entitled to claim any share under the Pathnibhagam custom but she will be entitled to claim share in the property under the Succession Act. I am therefore clearly of the opinion that the plaintiff will not be entitled to claim one half of the suit properties on the basis of the custom of pathnibhagam prevailing in Krishnavaka community. It is not disputed that the plaintiff has been given a share as per the Hindu Succession Act, 1956.
7. No other point has been urged in the second appeal. The second appeal is dismissed with costs,. No leave.
8. Appeal dismissed.