Kelukutty & Ors. v. Mammad & Ors.

Hegde, J. In these appeals by certificate only one question arises for decision and that is whether Chandu, the undivided younger brother of Kelu or the grand-children of Kelu through his daughter were the legal heirs of Kelu. Before going into that question we may dispose of tlte con­ tenti<m advanced on behalf of the appellants that there is no satisfactory evidence to show that Chandu was the undivided brother of Kelu. The pleadings in this ·case proceed on the foot­ ing that Chandu and Kelu were the members of an undivided family. The evidence also discloses that fact. The judgments of the courts below proceed on that basis. Hence the appellants cannot now be permitted to raise the contention in this Court that Chandu is not proved to be the undivided brother of Kelu. Jn considering the question formulated above, we shall proceed · on the basis that Kelu and Chandu were the members of an un­ divided family. 758 SUPREME COURT REPORTS [1973) l S.C.R. Kelu was a Thiyya resident of Calicut Taluk (at present known as Kozhikode Taluk). He was governed by the custo­ mary law known as Makka1thayam. He died on November l 5, 193 5 leaving behind him besides his two brothers Chandu and Chekku, his widow Manikka, daughter Ichira and Ichira's son and daughter who were the appellants before the High Court. He left behind him three items of immovable property which are the subject matter of the present appeals. Kclu's widow Manikka and his daughter Ichira as well as his brother Chekku died prior to 1944 long before the institution of the suits from which the&e appeals r.rise. · It is n01 necessary to go into the history of the long litigation. As mentioned earlier, the only qu•!stion for decision is as to who were the legal heirs of Kelu. It is now established that the suit properties are the self-acquired properties of Kelu. There is no dispute about it '1.0W. The High Court came to the conclusion that under the Makkathayam rule. Chandu succeeded io the estate of-Kelu in preference to his wife, daughter and daughter's children. The· said conclusion is challenged in these appeals. The contesting .. ;irurties a.re Hindus. As mentioned earlier, they are governed by Makkathayam rule. If the Hindu law as in force in South [ndia ·had governed the succession with which we are concerned, the wife of Kelu should have succeeded to the es­ tate of her husband in preference to the other heirs. The claims of the son and daughter r." Ichira could come in only later. There­ fore the principal question that we have to decide is whether the wife of Kelu succeeded to the estate of Kelu on his death. Mr. S. T. Desai, appearing for the appellants contended that Makkathayam rule being a rule of customary law can only dero­ gate the ordinary Hindu law to the extent it is satisfactorily e;­ tablished; in other respects the ordinary Hindu law should pre­ vail; the contesting respondents having not established by positive evidence the claim put forward by them i. e. that Chandu wru. a preferential heir to Kelu, they must fail. On the other hand it was contended by Mr. Rama Reddy on behalf of the respondents that Kelu was governed by a customary law i. e. Makk:at~yam law and not by ordinary Hindu law. Hence all that we have to see is whether the customary law pleaded is well established on the basis of the decisions of courts. According to him the custom pleaded is of a community and not of any family. He urged that the custom in question to the extent relevant for our present pur­ pose is well settled. The law relating to Thiyyas of the former Calicut taluk had come up for decision before the Madras High Court in several cases. The approach to be adopted in spelling out the same is IL KELUKUTTY v. M~.MMAD (Hegde, !.) 759 laid down in the decision of th.e Madras High Com•t in (Param· barathil) Pattukkayal Chakkutti mu' ors. v. Kothembra Cha;zdu­ kutti(1). Therein ihe Court observed : "We think the Makkathayam Thiyyas are govemea by what is called the customary law and that when a question arises as to what is ihe rule of law govern­ ing then:l on any particular matter 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 suffi­ ciently governed by prior decisions, ihe question will have to be determined with reference to the evidence in the case." In Parichan v. Perachi and ors (') ihe High Court of Madras came to the conclusion that a community following Makkaihayam rule must not be taken to be necessarily governed by the Hindu law of inheritance with all its incidents. On the basis of ihe cvid~nce in that case, the court held that when a member of the Thiyya community in Calicut following that rule alleged and proved a custom that undivided brother succeeded to the self­ acquired property in preference to widow, the court must give effect to it. Therein the competition was between ihe widow and the brother of the deceased who was a member of an un­ divided Tarwad and the property in dispute was ihe self-acquisi­ tion of the deceased. In Rama Menon v. Chathrmni( 8 ), ihe High Court of Madras held that the ordinary rule of Marumakatayam against com­ pulsory partition is equally applicable to Tiyans who follow Makkatayam, no custom to the contrary having been made out. In Imbichi Kandan and ors. v. lmbichi Pennu and ors.(') the High Court held that on the death of a Thiyya of South Malabar following Makkaihayam rule of inheritance, his mother, widow and d 0 ughter are entitled to succeed to his self-acquired properties in preference to his faiher's divided brothers. In ihe course of the judgment, ihis is what ihe learned judges observed: "The decision of ihe subordinate judge is entirely in accordance wiih ihe principles laid down in Parichan v. Perachi and Rama Menon v. Chathunni (supra). It has been decided ihat the rule of impartibility applies to Makkatayam Tiyans of Calicut, and in Parichan v. Perachi following ihe principle ihat self-acquired pro­ perty lapses to the tarwad, it was held ihat the un­ divided broiher succeeded in preference to the widow. (t) A.LR. 1927 Mad. 877. (3) I.L.R. 17 Mad. 184. (2) 1.L.R. 15 Mad. 2~1. (4) l.L.R. 19 Mad. 1. :700 SUPREME COURT REPORTS [1973] 1 S.CR. But the case is quite different when the brothers arc divided and have no community of in'terest as· in this case, Here it is found that the only property in which plain­ tiffs and Kelukutti ever had a common interest is in the family burying place, which will certainly not constitute then an undivided tarwad. That being so, the mother, wife and daughter of Changaran who certainly belong to his tarwad are preferential heirs to his l!ncle who did not belong to his tarwad ar all and had no community of interest with him.'' From these decisions it is clear thafThiyyas of fonuer Cali- cut Taluk were governed by the customary law known as C Makkathayam. Further as per the Makkathayam rule of inheri­ tance an undivided brother of a deceased person succeeded to the self-acquired property of the deceased in preference to the wife and daughter of the deceased. If that is so the daughter's son who comes after them under the general Hindu law cannot have a superior claim unless a custom to that effect is pleaded D and proved. Such a custom is neither pleaded nor proved. No other contention was raised before us. In the result these appeals fail and they are dismissed. But in the circumstances of the case we direct the parties to bear their own costs in this Court. E s.c. Appeals dismissed.