KELUKUTTY v. MAMMAD & ORS.

757 **A** **B** ## **c** **D** E **F** **G** **H** ,(K. ·S. HEGDE, A. N. GROVER AND D. G. PALEKAR, JJ.J _**Custon1ary**_ _**/aw-Makkathai•an?-Thiyya-Succen·ion to self acquired**_ _property._ The Tuiyyas of the forme~ Calicut, Taluk are governed by the customary law known as _Makkathavam_ and as per the _Makkathayam_ rule of inheritance an undivided brother of a deceased person succJeeds to the self-acqmred property of the deceased in prefereqce to the wife and daughter of the deceased. There'fore, the daughter's son who come.s after them under the general Hindu Law cannot have a superior claim unless a custom to that effect is,pleaded and proved. [760CI _Parambarathial Pattukava Chakkutti and Ors._ v. _Kothembra Chandu·_ _kutti,_ A.I.R, 1927 Mad. 877 _Paricham_ v. _Perachi_ & _Ors._ I.L.R. 15 Mad. 281 _Rama Menon_ v. _Chw:hunni_ I.L.R. 17 Mad. 184 _lmbichi Kandan_ & _Ors._ v, _Jmbich! Pennu-_ & _Ors._ I.L.R. 19 Mad. 1 referred to. CIVIL APPELLATE Jj]RISDICTION: C.A. No. 749 and 750 Of 1967. Appeals by certificate from the judgment and decree dated 19th October 1965 of fu~ Kerala High Court at Ernakulam in Second Appeal No. 400 of 1961. S. _T._ _Desai_ and _A._ _Sridharan Nambiar_ for the appellants. _P._ _Ram Reddy_ and _A._ _V. V. Nair_ for respondent No. 1. The Judgment of the Court was delivered by **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 contenti<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 footing 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 undivided family. **KELlJKUITY** **&** **ORS.** _v._ **MAMMAD** **&** **ORS.** _August_ I, 1972. 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 customary 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 estate of her husband in preference to the other heirs. The claims of the son and daughter _r."_ Ichira could come in only later. Therefore 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 derogate the ordinary Hindu law to the extent it is satisfactorily e;tablished; in other respects the ordinary Hindu law should prevail; 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 purpose 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 A ### c D E F G IL KELUKUTTY _v._ M~.MMAD _(Hegde,_ _!.)_ 759 A B ## c D E G 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 governing 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 sufficiently governed by prior decisions, ihe question will have to be determined with reference to the evidence in the case." H 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 selfacquired 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-acquisition of the deceased. In _Rama Menon_ v. _Chathrmni(_ _[8]_ _),_ ihe High Court of Madras held that the ordinary rule of Marumakatayam against compulsory 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, 0 widow and d 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 property lapses to the tarwad, it was held ihat the undivided broiher succeeded in preference to the widow. (t) A.LR. 1927 Mad. 877. (2) 1.L.R. 15 Mad. 2~1. (3) I.L.R. 17 Mad. 184. (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 plaintiffs 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.'' A B 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 inheritance 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. # •