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High Court of KeralaDivision BenchAppeals allowed; O.S.462/1985 dismissed; cross ...

S.A.Nos.659 and 751 of 1996 (Karthiyayani v. Saraswathi and others)

Case / Petition Number:S.A. Nos.659 and 751 of 1996
Neutral Citation:null

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. B. Suresh Kumar
  • C. S. Sudha
Judgment Date
2022-12-20
Court Decision / Holding
Appeals allowed. O.S.462/1985 to stand dismissed; cross appeals/cross objections dismissed. The court held that the personal law applicable to Malaya kammalas of Cochin before 1956 is Mitakshara law as modified by custom (per Lilly Mercilin Lewis), recognised sub-divisions among kammalas, and that the issues on form of marriage and related rights need not be answered beyond establishing the governing law. The decision effectively overrides the lower courts’ application of Travancore/Malabar-style laws to Cochin kammalas and settles on Mitakshara law modified by custom for Cochin Kammalas.
Final Disposition
Appeals allowed; O.S.462/1985 dismissed; cross appeals/cross objections dismissed.

Parties to the Case

Appellants / Petitioners

  • P.K. Balan
  • P.K. Babu
  • Ambujakshi
  • P.K. Gopalan
  • P.V. Mohanan
  • P.V. Raju
  • P.V. Nandakumar
  • Omana
  • P.G. Saji
  • P.G. Joshi
  • Rema Raju

Respondents

  • Karthiyayani
  • Saraswathi
  • Prabhakaran
  • P.K. Leela
  • P.K. Sarala
  • P.K. Radha
  • P.K. Vimala
  • P.K. Geetha
  • Vijayan
  • Devaki
  • K.A. Gopalan
  • K.A. Venu
  • K.A. Mundandan
  • K.A. Geetha
  • E.S. Bhavani (Addl.)
  • P.P. Saju (Addl.)
  • P.P. Saji (Addl.)
  • P.P. Suja (Addl.)
  • Karthiyayani’s LRs
  • Saraswathi’s LRs
  • Prabhakaran’s LRs

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri.S.V.Balakrishna Iyer (Sr.)
  • • KUM.B.Anusree
  • • Sri.P.B.Krishnan
  • • Sri.P.M.Neelakandan
  • • Sri.P.B.Subramanyan
  • • Sri.Sabu George

Counsels for Respondents

  • • Sethumadhavan K.C.
  • • Charles S.
  • • S.Nithin Anchal
  • • A.T.Renju
  • • Vimal K. Charles

Case Synopsis & Summary

These second appeals arise from a partition suit in which Malaya kammala families of Cochin contested the law applicable to their personal property. The trial court and the first appellate court had held that Malaya kammalas followed Hindu Mitakshara law modified by custom, with daughters potentially entitled to equal shares in the family property if not married under the kudivaippu form with streedhanam. The parties, who are kammalas domiciled in Cochin, urged that Mitakshara law in its pure form is inapplicable and that customary law and sub-divisional distinctions among kammalas (Malaya-la kammalas, Pandi kammalas, ordinary kammalas) govern inheritance. The High Court, by a reference from a learned single judge, examined authorities from Travancore and Cochin and concluded that for Cochin kammalas prior to 1956 the governing personal law is Mitakshara law as modified by custom, not the Travancore/Malabar variants. It relied on Lilly Mercilin Lewis v. Chanji Nani (1954 KLT 631) and the four essential attributes of custom from Gokal Chand v. Parvin Kumari to evaluate evidence of custom, distinguishing Travancore-era authorities such as Kittu Eacharan, Parameswaran Asari Sanku Asari, Thankammal and Damodaran. The court thus allowed the appeals, dismissed the cross-appeals, and held that the Cochin kammalas are governed by Mitakshara law modified by custom; the other contentious issues were left untroubled. Neutral citation not provided.

Provisions of Law Cited

Hindu Mitakshara law (as modified by custom)Second proviso to Section 60 of the Indian Evidence Act, 1872Cochin Tribes and Castes (historic references)Travancore-Cochin State/Coast personal law precedents (Travancore decisions)State Reorganization Act, 1956

Legal Doctrines & Maxims

  • opinio necessitatis (customs must be obligatory)
  • custom must satisfy immemorial, reasonable, continuous, certain attributes
  • four essential attributes of a valid custom (immemoriality, reasonableness, continuity, certainty)
  • custom in derogation of Hindu Mitakshara law vs. custom as Mitakshara law modified by custom

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argue that the personal law governing Cochin kammalas before 1956 is Hindu Mitakshara law as modified by custom (not pure Mitakshara). They rely on Lilly Mercilin Lewis and related Travancore/Coast literature to claim sub-divisions among kammalas and that custom should grant daughters a customary right in the ancestral property when marriages were conducted in Sambandham form or Kudiveppu form with streedhanam. They contend the trial and first appellate courts misapplied law by importing Travancore Malabar precedents to Cochin kammalas and that the evidence supports a Mitakshara-modified-by-custom regime for Cochin. The broader aim is to recognize a distinct Cochin kammala personal law and deny wholesale application of pure Mitakshara or Travancore-derived rules.

Contentions of Respondents

The respondents contend that kammalas of Cochin are governed by Hindu Mitakshara law pure and simple, with custom only in derogation of established Mitakshara principles. They argue that daughters acquire no share unless supported by recognized custom; they rely on Travancore era decisions such as Parameswaran Asari Sanku Asari and Thankammal and Damodaran, arguing that the law applicable to Cochin kammalas aligns with Mitakshara law. They emphasize that Sambandham and Kudiveppu forms with streedhanam do not automatically grant daughters a share and that pre-1956 law must be read to include precedents from Travancore-Cochin states.

Cited Precedents (8)

Case NameCitationTreatmentExplanation
Lilly Mercilin Lewis v. Chanji Nani1954 KLT 631PositiveUsed as the controlling authority to hold that the personal law for Cochin kammalas is Mitakshara law modified by custom, not purely Mitakshara; the court follows its ratio.
Kittu Eacharan v. Ouseph Ouseph1948 TLR 734DistinguishedFrom Travancore; not applicable to Cochin kammalas; court distinguishes it.
Parameswaran Asari Sanku Asari v. Kochumathevi Lekshmi1957 KLT 1020DistinguishedTravancore decision; not followed for Cochin kammalas.
Thankammal v. Madhavi Amma1966 KLT 181DistinguishedTravancore case; not applicable to Cochin context.
Damodaran v. Palu1986 KLT 1259DistinguishedFrom Malabar context; not applicable to Cochin kammalas.
Nilakantan Nair Velatudhan Nair v. Chirutha Amma Gowri Amma1953 KLT 603DistinguishedCited to indicate certain individuals (blacksmiths) as Kammalas under Hindu law in some contexts; not binding for Cochin pre-1956 regime.
Gokal Chand v. Parvin KumariAIR 1952 SC 231PositiveProvides the test for custom (opinio necessitatis and four essential attributes) used to evaluate community customs.
Ryru Nair v. Govindan NairAIR 1961 Kerala 75Mentioned OnlyCited in passing to discuss binding nature of Lilly Mercilin Lewis and the territorial status of Cochin decisions; not adopted as controlling.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 20[TH] DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944** ## **SA NO. 659 OF 1996** **COMMON JUDGMENT DTD 26/9/1995 IN AS 14/1989 OF Vth ADDITIONAL DISTRICT COURT, EKM** **JUDGMENT DTD 22/6/1988 IN OS 462/1985 OF II ADDITIONAL SUB COURT,ERNAKULAM** **APPELLANTS IN SA/APPELLANTS 1 TO 3, 5 AND 7 TO 9 IN THE LOWER APPELLATE COURT/DEFENDANTS 2,3,9,12 AND LRs OF DEFENDANT NO.10 IN THE SUIT:** **1 P.K.BALAN, SON OF LATE KRISHNAN, RESIDING AT PANACHIKKAL HOUSE, MULLASSERY CANAL ROAD, KARITHALA DESOM, ERNAKULAM VILLAGE, KOCHI-11.** **2 P.K.BABU, S/O. DO. IN DO. DO.** **3 AMBUJAKSHI, W/O.LATE KRISHNAN, IN DO. DO. (DIED).** **(APPELLANTS 1 AND 2 RESPONDENTS 4,6 AND 8, ADDITIONAL RESPONDENTS 15 TO 18 AND 36 TO 38 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED APPELLANT NO.3 AS PER ORDER DATED 11.09.2018 IN MEMO CF 2098 OF 2018 DATED 06.03.2018).** **4 P.K.GOPALAN, S/O.LATE KOCHUKUTTAN ALIAS KITTU, COMPOUNDER, KUNJALU'S NURSING HOME, T.D.ROAD, KARITHALA DESOM, ERNAKULAM, COCHIN-11.(DIED)** **5 P.V.MOHANAN, S/O.P.K.VASU, RESIDING AT PANACHIKKAL HOUSE, KOTTAPLAKKAL PARAMBU, MULLASSERY CANAL ROAD, ERNAKULAM.** ***6 P.V.RAJU,** **SON OF DO. IN DO. DO. (DIED).** 2 ## **S.A.Nos.659 and 751 of 1996** - **7 P.V.NANDAKUMAR, S/O.DO. IN DO. DO.** **(ADDITIONAL APPELLANT NO.6 IN THE LOWER APPELLATE COURT, T.K.SARASWATHY, DEAD BEFORE THE PRONOUNCEMENT OF JUDGMENT, HER LRS ARE APPELLANTS 5 TO 7).** - ***8 OMANA,** **W/O.LATE P.K.GOPALAN, PANACHIKAL HOUSE, INDIRA ROAD, OPP.CENTURY CLUB, VENNALA P.O., KOCHI-682028.** - ***9 P.G.SHAJI, S/O.DO. IN DO. DO.** - ***10 P.G.JOSHI,** **S/O.DO. IN DO. DO.** ***(ADDITIONAL APPELLANTS 8 TO 10 ARE IMPLEADED AS THE LRS OF DECEASED APPELLANT NO.4 AS PER ORDER DATED 06.01.2005 ON I.A.NO.924 OF 2003).** ***11 REMA RAJU, AGED 50 YEARS W/O.LATE P.V.RAJU, RESIDING AT PANACHIKKAL HOUSE, KOTTAPLAKKAL PARAMBU, MULLASSERY CANAL ROAD, ERNAKULAM. *(LEGAL REPRESENTATIVES OF DECEASED 6TH APPELLANT IS IMPLEADED AS ADDITIONAL APPELLANT NO.11 AS PER ORDER DATED 11.09.2018 IN I.A.NO.1001 OF 2018).** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.)** **KUM.B.ANUSREE SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE** **RESPONDENTS IN SA/RESPONDENTS 1 TO 10& 12 TO 15 IN THE LOWER APPELLATE COURT/PLAINTIFFS AND DEFENDANTS 1,4 TO 8,11,13 & 15 TO 18 IN THE SUIT:** - ***1 KARTHIYAYANI,** **D/O.LATE KOCHUKUTTAN ALIAS KITTU AND W/O.APPU, VENMANIKARA KARIKKAMURI, ASARI LANE, KARITHALA DESOM, ERNAKULAM VILLAGE, KOCHI-11.*(DIED, LRs IMPLEADED)** 3 **S.A.Nos.659 and 751 of 1996** - ***2 SARASWATHI, D/O. DO. AND WIFE OF LATE DAMODARAN, THEVARAPPILLI HOUSE, NEERIKKODE P.O., ALANGAD, ALWAYE.** ***(DIED, LRs IMPLEADED)** - ***3 PRABHAKARAN,** **S/O.LATE KRISHNAN, NOW RESIDING AT PANACHIKKAL HOUSE, ANCHUMANA ROAD, MAMANGALAM, PALARIVATTOM, COCHIN-682024.** ## ***(DIED, LRs IMPLEADED)** - ***4 P.K.LEELA,** - **D/O.LATE KRISHNAN AND W/O.CHAKRAPANI, THUNDIPARAMBIL HOUSE, MANALUR DESOM, MANALUR VILLAGE, MANALUR P.O., TRICHUR DISTRICT.** - ***(DIED, LRs IMPLEADED)** - **5** ## **P.K.SARALA,** **D/O.LATE KRISHNAN AND WIFE OF RAJAN,** **CHITTETHPARAMBIL, PONNURUNNI, PONNURUNNI DESOM, POONITHURA VILLAGE, VYTTILA P.O., COCHIN-19.** ## **(DIED)** **(APPELLANTS 1 TO 3, RESPONDENTS 4,6 TO 8 AND ADDITIONAL RESPONDENTS 15 TO 18 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 5TH RESPONDENT AS PER ORDER DATED 24.01.2005 VIDE MEMO CF 4268 OF 2004).** **6** ## **P.K.RADHA,** **D/O.LATE KRISHNAN AND WIFE OF SASEENDRAN, RESIDING AT VELLIMITTATH HOUSE, VELLARAPPILLY, THURAVUMKARA, CHOWARA VILLAGE, CHOWARA P.O., ALWAYE.** **(RESPONDENT 6 IS RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED R24 AS PER ORDER DATED 31.03.2022 IN IA.1/2022.)** - ***7 P.K.VIMALA,** **D/O.LATE KRISHNAN AND WIFE OF RAMACHANDRAN, RESIDING AT THUNDIPARAMBIL HOUSE, NATTASSERY, NEAR SECRED HEART MOUNT P.O., KOTTAYAM DISTRICT.** ***(DIED, LRs IMPLEADED)** 4 **S.A.Nos.659 and 751 of 1996** - **8 P.K.GEETHA,** - **D/O.LATE KRISHNAN AND WIFE OF PRASAD, RESIDING AT PANACHIKKAL HOUSE, MULLASSERY CANAL ROAD, KARITHALA DESOM, ERNAKULAM VILLAGE, COCHIN-11.** - ***9 VIJAYAN,** **S/O.LATE KOCHUKUTTAN ALIAS KITTU, RESIDING AT PANACHIKKAL HOUSE, MULLASSERY CANAL ROAD, KARITHALA DESOM, ERNAKULAM VILLAGE, COCHIN-11** ***(DIED, LRs IMPLEADED)** - ***10 DEVAKY,** **D/O.KOCHUKUTTAN ALIAS KITTU, RESIDING AT** **VELLIMITTATH HOUSE, THURAVUMKARA, CHOWARA P.O., CHOWARA VILLAGE, ALWAYE.** ***(DIED, LRs IMPLEADED)** - **11 K.A.GOPALAN,** **S/O.LATE DAKSHAYANI, RESIDING AT KUTTAMPARAMBIL HOUSE, SOUTH CHITTOOR P.O., COCHIN-27.** - **12 K.A.VENU,** - **S/O.LATE DAKSHAYANI, RESIDING IN DO. DO.** - **13 K.A.MUKUNDAN, S/O. DO. DO IN DO. DO.** - **14 K.A.GEETHA,** - **D/O. DO. AND WIFE OF BABU,** - **RESIDING AT PANACHIKKAL HOUSE, MULLASSERY CANAL ROAD, KARITHALA DESOM, ERNAKULAM VILLAGE, COCHIN-11.** **(RESPONDENT NO.11 IN THE LOWER APPELLATE COURT, K.A.RAJAN, DEAD BEFORE THE PRONOUNCEMENT OF THE JUDGMENT, HIS LR IS RESPONDENT NO.5 HEREIN).** - **ADDL.15 E.S.BHAVANI, W/O.LATE PRABHAKARAN, RESIDING AT PANACHIKKAL HOUSE, ANCHUMANA, MAMANGALAM, PALARIVATTOM P.O., COCHIN- 682024.** - **ADDL.16 P.P.SAJU,** **SON OF DO. RESIDING IN DO. DO.** 5 **S.A.Nos.659 and 751 of 1996** **ADDL.17 P.P.SAJI, SON OF DO. IN DO. DO.** - **ADDL.18 P.P.SUJA, DAUGHTER OF DO. RESIDING OF DO. RESIDING DO. DO.** **(ADDITIONAL RESPONDENTS NO.15 TO 18 ARE IMPLEADED AS THE LR'S OF DECEASED R3 AS PER ORDER DATED 06.01.2005 ON CMP NO.721 OF 1999).** **ADDL.19 T.D.SATHEESH BABU, S/O.DAMODARAN, RESIDING AT THEVARAPPILLIL HOUSE, NEERICODE P.O., ALANGAD, ALWAYE.** **(DIED, LRs IMPLEADED)** - **ADDL.20 T.D.REGHU,** **S/O.DAMODARAN, RESIDING AT THEVARAPPILLIL HOUSE, NEERICODE P.O., ALANGAD, ALWAYE.** **ADDL.21 T.D.VISWOM, S/O. DO. IN DO. DO.** **ADDL.22 T.D.KRISHNAKUMAR, S/O.DO. IN DO. DO.** **ADDL.23 T.D.NEENA,** **DAUGHTER OF DO. IN DO. DO.** **(ADDITIONAL R19 TO R23 ARE IMPLEADED AS THE LR'S OF DECEASED R2 AS PER ORDER DATED 06.01.2005 ON I.A.NO.925 OF 2003).** - **ADDL.24 V.D.SASEENDRAN,** **SON OF DEVAKI, RESIDING AT VELLIMITTATHU HOUSE, THURAVUNKARA, KANJOOR P.O., (VIA) ALWAYE. (DIED)** **ADDL.25 V.D.GOPINATHAN, S/O.DO. RESIDING AT F.18 BUILDING NO.2, MOOLJI NAGAR, S.V.ROAD, BORIVILI (WEST), MUMBAI- 400092.** - **ADDL.26 V.D.REMANI,** **D/O. DO. AND W/O.THANKAPPAN, MALIAKKAL HOUSE, EAST DESOM, DESOM P.O., ALWAYE.** **(ADDITIONAL RESPONDENTS 24 TO 26 ARE IMPLEADED AS THE LR'S OF DECEASED 10TH RESPONDENT AS PER ORDER DATED 24.01.2005 ON CMP.NO.1276 OF 2001).** 6 ## **S.A.Nos.659 and 751 of 1996** **ADDL.27 NARAYANANKUTTY,AGED 71, S/O.LATE KARTHIYAYANI, RESIDING AT VENMANIKARA, KARIKKAMURI, ASARI LANE, KARITHALA DESOM, ERNAKULAM VILLAGE, KOCHI-11.** **ADDL.28 SAILAJA, AGED 65, D/O.LATE KARTHIYAYANI, RESIDING AT VENMANIKARA, KARIKKAMURI, ASARI LANE, KARITHALA DESOM, ERNAKULAM VILLAGE, KOCHI-11. ADDL.29 BALACHANDRAN, AGED 61 YEARS S/O.LATE KARTHIYAYANI, RESIDING AT VENMANIKARA, KARIKKAMURI, ASARI LANE, KARITHALA DESOM, ERNAKULAM VILLAGE, KOCHI-11. ADDL.30 LATHA, AGED 59 YEARS D/O.LATE KARTHIYAYANI, RESIDING AT VENMANIKARA, KARIKKAMURI, ASARI LANE, KARITHALA DESOM, ERNAKULAM VILLAGE, KOCHI-11. ADDL.31 ANILKUMAR, AGED 55 YEARS S/O.LATE KARTHIYAYANI, RESIDING AT VENMANIKARA, KARIKKAMURI, ASARI LANE, KARITHALA DESOM, ERNAKULAM VILLAGE, KOCHI-11. ADDL.32 VASUNDARA, AGED 74 YEARS W/O.LATE VIJAYAN, RESIDING AT PANACHIKKAL HOUSE, MULLASSERY CANAL ROAD, KARITHALA DESOM, ERNAKULAM VILLAGE, COCHIN-11. ADDL.33 P.V.VINOD, AGED 54 YEARS S/O.LATE VIJAYAN, RESIDING AT PANACHIKKAL HOUSE, MULLASSERY CANAL ROAD, KARITHALA DESOM, ERNAKULAM VILLAGE, COCHIN-11. ADDL.34 P.V.ASHA, AGED 50 YEARS D/O.LATE VIJAYAN, RESIDING AT PANACHIKKAL HOUSE, MULLASSERY CANAL ROAD, KARITHALA DESOM, ERNAKULAM VILLAGE, COCHIN-11.** 7 **S.A.Nos.659 and 751 of 1996** **ADDL.35 P.V.BIJU, AGED 48 YEARS S/O.LATE VIJAYAN, RESIDING AT PANACHIKKAL HOUSE, MULLASSERY CANAL ROAD, KARITHALA DESOM, ERNAKULAM VILLAGE, COCHIN-11.** **ADDL.36 T.E.SIVASANKARAN ACHARI,(DIED, LRs RECORDED) AGED 73 YEARS** **S/O.EASWARAN ACHARI, RESIDING AT THUNDIPARAMBIL HOUSE, NATTASSERY, NEAR SECRED HEART MOUNT P.O., KOTTAYAM DISTRICT, KOTTAYAM-6.** **ADDL.37 ANJU, AGED 43 YEARS D/O.LATE VIMALA, RESIDING AT THUNDIPARAMBIL HOUSE, NATTASSERY, NEAR SECRED HEART MOUNT P.O., KOTTAYAM DISTRICT, KOTTAYAM-6.** **ADDL.38 ARUN, AGED 43 YEARS S/O.LATE VIMALA, RESIDING AT THUNDIPARAMBIL HOUSE, NATTASSERY, NEAR SECRED HEART MOUNT P.O., KOTTAYAM DISTRICT, KOTTAYAM-6.** **(LEGAL REPRESENTATIVES OF DECEASED R1, R9 AND R7 ARE IMPLEADED AS ADDITIONAL R27 TO R31, ADDITIONAL R32 TO R35, AND ADDITIONAL R36 TO R38 AS PER ORDER DATED 11.09.2018 IN I.A.NO.902/2018, I.A.NO.899/2018 AND I.A.NO.898/2018 OF RESPECTIVELY).** **(RESPONDENT 6 IS RECORDED AS THE LEGAL REPRESENTATIVE OF DECEASED R24 AS PER ORDER DATED 31/3/2022 IN IA 1/2022)** **LRs RECORDED : APPELLANTS 1 AND 2, RESPONDENTS 4, 6, 8, ADDL.RESPONDENTS 15 TO 18 AND 36 TO 38 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED APPELLANT NO.3 AS PER ORDER DATED 11.09.2018 IN MEMO C.F.2098/2018 DATED 06.03.2018.)** 8 **S.A.Nos.659 and 751 of 1996** **(LRs RECORDED :ADDL.R37 AND R38 RECORDED AS THE LRS OF DECEASED R36 AS PER ORDER DATED 31.03.2022 IN MEMO DATED 19.02.2021.)** - **ADDL.39 JYOTHI LAKSHMI** **W/O.T.D.SATHEESH BABU,AGED 56,RESIDING AT THEVARAPPILLIL HOUSE,NEERICODE P.O.,ALANGAD,(VIA) ALWAYE,ERNAKULAM-683 511.** **ADDL.40 BAJU BABU S/O.T.D.SATHEESH BABU,AGED 31,RESIDING AT THEVARAPPILLIL HOUSE,NEERICODE P.O., ALANGAD,(VIA) ALWAYE,ERNAKULAM-683 511.** - **ADDL.41 ASWATHY** **D/O.T.D.SATHEESH BABU, AGED 28,RESIDING AT THEVARAPPILLIL HOUSE, NEERICODE P.O., ALANGAD VIA, ALWAYE, ERNAKULAM- 683511** **ADDL.42 KRISHNAKUMARI D/O.P.K.LEELA,AGED 58,THONDIPARAMBIL HOUSE, NEAR AYYAPPANKAVU,MANALOOR P.O., THRISSUR-680 617.** **ADDL.43 MURALI.T.C S/O.P.K.LEELA,AGED 56,THONDIPARAMBIL HOUSE, NEAR AYYAPPANKAVU,MANALOOR P.O., THRISSUR-680 617.** **ADDL.44 USHA.T.C D/O.P.K.LEELA,AGED 54,TC9/2870(1),SWAPNAKOODU,KARYAVATTOM P.O.,TRIVANDRUM-695 581.** - **ADDL.45 HEMA RAVINDRAN D/O.P.K.LEELA,AGED 52,KOOTUMACKAL HOUSE,IRINJALAKUDA P.O.,CHELOOR, THRISSUR-680 121.** - **ADDL.46 BINDU** **D/O.SASEENDRAN V.D., AGED 52,VELLIMITATHU HOUSE,THURAVUN KARA,KANJOOR P.O., (VIA)ALWAYE,ERNAKULAM DISTRICT-683 575.** **ADDL.47 SALIM.V.S. S/O.SASEENDRAN V.D., AGED 46,VELLIMITATHU HOUSE,THURAVUN KARA,KANJOOR P.O., (VIA)ALWAYE,ERNAKULAM DISTRICT-683 575.** 9 ## **S.A.Nos.659 and 751 of 1996** **(LEGAL REPRESENTATIVES DECEASED RESPONDENT NO.19 IS IMPLEADED AS ADDL.RESPONDENTS R39 TO R41 AND LRS OF DECEASED R24 IS IMPLEADED AS ADDL.R46 AND R47 AS PER ORDER DATED 31.03.2022 IN IA.20/2018 AND IA.1/2022 RESPECTIVELY. ALSO LRS OF DECEASED R4 IS IMPLEADED AS ADDL.R42 TO R45 AS PER ORDER DATED 07.03.2022 IN IA.4/2021)** **BY ADVS.SETHUMADHAVAN K.C.CHARLES, R1,R2, R27 TO R31, R41,R22 TO R26 S.NITHIN ANCHAL, R32 TO R35 VIMAL K.CHARLES, R27 TO R31, R41 A.T.RENJU, R27 TO R31, R41.** **THIS SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 20.12.2022, ALONG WITH SA.751/1996, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 10 **S.A.Nos.659 and 751 of 1996** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 20[TH] DAY OF DECEMBER 2022 / 29TH AGRAHAYANA,** **1944** **SA NO. 751 OF 1996** **AGAINST THE COMMON JUDGMENT DTD 26/9/1995 IN AS 13/1989 OF Vth ADDITIONAL DISTRICT COURT, EKM AGAINST THE JUDGMENT DTD 22/6/1988 IN OS 462/1985 OF II ADDITIONAL SUB COURT,ERNAKULAM** **APPELLANTS/APPELLANT/DEFENDANT NO.11:** ****1 VIJAYAN, (DIED) S/O. LATE KOCHUKUTTAN ALIAS KITTU, RESIDING AT PANACHIKKAL HOUSE, KOTTAPLAKKAL PARAMBU, KARITHALA DESOM, KARIKKAMURI, MULLASSERI CANAL ROAD, ERNAKULAM, COCHIN-11. (DIED, ADDL APPELLANTS 2 TO 5 IMPLEADED)** **ADDL.2 VASUNDARA, AGED 74 YEARS W/O. LATE VIJAYAN, RESIDING AT PANACHIKKAL HOUSE, MULLASSERY CANAL ROAD, KARITHALA DESOM, ERNAKULAM VILLAGE, COCHIN-11.** **ADDL.3 P.V. VINOD, AGED 55 YEARS S/O. LATE VIJAYAN, RESIDING AT PANACHIKKAL HOUSE, MULLASSERY CANAL ROAD, KARITHALA DESOM, ERNAKULAM VILLAGE, COCHIN-11.** **ADDL.4 P.V. ASHA, AGED 51 YEARS D/O. LATE VIJAYAN, RESIDING AT PANACHIKKAL HOUSE, MULLASSERY CANAL ROAD, KARITHALA DESOM, ERNAKULAM VILLAGE, COCHIN-11.** 11 **S.A.Nos.659 and 751 of 1996** **ADDL.5 P.V. BIJU, AGED 47 YEARS S/O. LATE VIJAYAN, RESIDING AT PANACHIKKAL HOUSE, MULLASSERY CANAL ROAD, KARITHALA DESOM, ERNAKULAM VILLAGE, COCHIN-11.** ***(THE LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 AS PER ORDER DATED 11/09/2018 IN IA 1026/2018)** **BY ADVS.SRI.K.JAYAKUMAR (SR.) SRI.P.B.KRISHNAN NEELAKANDAN P.M. P.B.SUBRAMANYAN SABU GEORGE ANUSREE B.** **RESPONDENTS/R1 TO 11, 13, 14, 16 TO 19 & 21 TO 23 TO LOWER APPELLATE COURT/PLAINTIFFS & DEFENDANTS 1 TO 9, 12, 13, 15 TO 18 & LRs OF D10 IN THE SUIT:** - ***1 KARTHIYAYANI, (DIED) D/O. LATE KOCHUKUTTAN ALIAS KITTU AND W/O. APPU, VENMANIKKARA, KARIKKAMURI, ASANILINE, COCHIN-11. (ADDL.R36 TO R40 IMPLEADED)** *****2 SARASWATHY, (DIED) D/O. LATE KOCHUKUTTAN ALIAS KITTU AND W/O. DAMODARAN, THEVARAPARAMBIL HOUSE, NEERIKODE P.O., ALANGAD, ALWAYE.** ***3 PRABHAKARAN, (DIED) S/O. LATE KRISHNAN, NOW RESIDING AT PANACHIKKAL HOUSE ANCHUMANA ROAD, MAMANGALAM, PALARIVATTOM, COCHIN-682024.** - **4 P.K. BALAN, S/O. DO. IN DO. DO. PANACHIKKAL HOUSE, KOTTAPLAKKAL PARAMBU, KARIKKAMURI, MULLASSERY CANAL ROAD, KARITHALA DESOM, ERNAKULAM, COCHIN-11** 12 **S.A.Nos.659 and 751 of 1996** - **5 P.K. BABU, S/O. DO. IN DO. DO.** - **6 P.K. LEELA,(DIED, LRs IMPLEADED) D/O. DO. AND W/O. CHAKRAPANI, THUNDIPARAMBIL, MANALUR DESOM, MANALUR VILLAGE, POST MANALUR, TRICHUR DISTRICT.** ***7 P.K. SARALA, (DIED) D/O. DO. AND W/O. RAJAN, CHITTETHUPARAMBU, PUNNURUNNY DESOM, POONITHURA VILLAGE.** **(RESPONDENTS 4 TO 6, 8 TO 11 AND ADDITIONAL R21 TO R24 ARE RECORDED AS THE LR'S OF THE DECEASED R7 VIDE ORDER DATED 30.10.2007 IN MEMO BEARING OF 4245 OF 2004).** - ******8 P.K. RADHA,** **D/O. DO. AND W/O. SASIDHARAN, VELLIMITTATH** **VELLARAPILLY, THURAVUMKARA, CHOWARA VILLAGE AND POST, ALWAYE. (ORDERED AS ONE OF LEGAL REPRESENTATIVE OF DECEASED R25)** - ***9 P.K. VIMALA, (DIED) D/O. DO. AND W/O. RAMACHANDRAN, RESIDING AT THUNDIPARAMBIL HOUSE, NATTASSERI, NEAR SECRET HEART MOUNT, KOTTAYAM P.O., KOTTAYAM. (ADDL.R42 TO R44 IMPLEADED)** - **10 P.K. GEETHA, D/O. LATE KRISHNAN, RESIDING AT PANACHIKKAL HOUSE, KOTTAPLAKKAL PARAMBU, KARIKKAMURI, MULLASSERI CANAL ROAD, KARITHALA DESOM, ERNAKULAM.** **11 AMBUJAKSHI, (DIED) W/O. LATE KRISHNAN, IN DO. DO. ****12 GOPALAN, (DIED) S/O. DO. COMPOUNDER, KUNJALU'S NURSING HOME, T.D. ROAD, ERNAKULAM.** 13 **S.A.Nos.659 and 751 of 1996** - ****13 DEVAKI, (DIED) D/O. DO. RESIDING AT VELLIMITTATHU, VELLARAPILLY, THURAVUMKARA, CHOWARA VILLAGE AND POST, ALWAYE.** - **14 GOPALAN,** **S/O. LATE DAKSHAYANI, RESIDING AT KOTTAPARAMBIL HOUSE, SOUTH CHITTUR, P.O. COCHIN-682027.** - **15 VENU, S/O. DO. RESIDING AT KUTTAPARAMBIL HOUSE, SOUTH CHITTOOR P.O., COCHIN-682027.** - **16 MUKUNDAN, S/O. DO. IN DO. DO. DO.** - **17 GEETHA,** - **D/O. DO. RESIDING AT PANACHIKKAL HOUSE, KOTTAPLAKKAL PARAMBU, KARIKKAMURI, MULLASSERY CANAL ROAD, KARITHALA DESOM, ERNAKULAM.** - **18 P.V. MOHANAN,** **S/O. VASU, RESIDING AT PANACHIKKAL HOUSE, KOTTAPLAKKAL PARAMBU, KARIKKAMURI, MULLASSERY CANAL ROAD, ERNAKULAM.** - ***19 P.V. RAJU, (DIED) S/O. DO. IN DO. DO.** - **(ADDL.RESPONDENT NO.41 IMPLEADED)** - **20 P.V. NANDAKUMAR, S/O. DO. IN DO. DO.** **(RESPONDENT NO.15 BEFORE THE LOWER APPELLANTS COURT, K.A.RAJAN, DEAD BEFORE THE PRONOUNCEMENT OF THE JUDGMENT, HIS L.R. IS RESPONDENT NO.7 HEREIN).** **(ADDITIONAL RESPONDENT NO.20 IN THE LOWER APPELLATE COURT, T.K.SARASWATHY, DEAD BEFORE THE PRONOUNCEMENT OF THE JUDGMENT, HER L.RS ARE RESPONDENTS 18 TO 20).** **(LRs OF THE DECEASED RESPONDENT 3)** **ADDL.21 E.S. BHAVANI, W/O. LATE PRABHAKARAN, RESIDING AT PANACHIKKAL HOUSE, ANCHUMANA, MAMANGALAM, PALARIVATTOM P.O., COCHIN-682024.** **ADDL.22 P.P. SAJU,** 14 **S.A.Nos.659 and 751 of 1996** ## **S/O. -DO- RESIDING IN -DO- -DO-** **ADDL.23 P.P. SAJI, S/O. -DO- RESIDING IN -DO- -DO-** **ADDL.24 P.P. SUJA, D/O. -DO- RESIDING IN -DO- -DO-** **(LEGAL HEIRS OF THE DECEASED RESPONDENT 3 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 21 TO 24 VIDE ORDER DATED 06/01/2005 ON CMP 654/99)** **(LRs OF THE DECEASED RESPONDENT 13)** **ADDL.25 V.D. SASEENDRAN,(DIED) S/O. DEVAKI, RESIDING AT VELLIMITTATHU HOUSE, THURAVUNKARA, KANJOOR P.O., (VIA) ALWAYE.** **ADDL.26 V.D. GOPINATHAN, S/O. -DO- RESIDING AT F.18 BUILDING NO.2, MOOLJI NAGAR, S.V. ROAD, BORIVILI (WEST), MUMBAI-400092.** **ADDL.27 V.D. REMANI, D/O. -DO- AND W/O. THANKAPPAN, MALIAKKAL HOUSE, EAST DESOM, DESOM P.O., ALWAYE.** **(LEGAL HEIRS OF THE DECEASED R13 ARE IMPLEADED S ADDITIONAL R25 TO R27 VIDE ORDER DATED 06/01/2005 ON CMP 1275/2001)** **(LRs OF THE DECEASED RESPONDENT 2)** **ADDL.28 T.D. SATHEESH BABU,(DIED) S/O. DAMODARAN, RESIDING AT THEVARAPPILLIL HOUSE, NEERICODE P.O., ALANGAD, ALWAYE.** **ADDL.29 T.D. REGHU, S/O. -DO- IN -DO- -DOADDL.30 T.D. VISWAM, S/O. -DO- IN -DO- -DOADDL.31 T.D. KRISHNAKUMAR, -DO- IN -DO- -DO-** 15 **S.A.Nos.659 and 751 of 1996** **ADDL.32 T.D. NEENA, D/O. -DO- RESIDING IN -DO- -DO-** **(LEGAL HEIRS OF THE DECEASED R2 ARE IMPLEADED AS ADDITIONAL R28 TO 32 VIDE ORDER DATED 06/01/2005 ON I.A. 942/03)** **(LRs OF THE DECEASED RESPONDENT 12)** **ADDL.33 OMANA, W/O. LATE P.K. GOPALAN, PANACHIKKAL HOUSE, INDIRA ROAD, OPP. CENTURY CLUB, VENNALA P.O., KOCHI-28.** **ADDL.34 P.G. SHAJI, S/O. LATE P.K. GOPALAN, PANACHIKKAL HOUSE, INDIRA ROAD, OPP. CENTURY CLUB, VENNALA P.O., KOCHI682028.** **ADDL.35 P.G. JOSHI, S/O. -DO- RESIDING IN - DO- -DO(LEGAL HEIRS OF THE DECEASED R12 ARE IMPLEADED AS ADDITIONAL R33 TO 35 VIDE ORDER DATED 06/01/2005 ON IA 913/03)** **ADDL.36 NARAYANANKUTTY, AGED 71 YEARS S/O.LATE KARTHIYAYANI, RESIDING AT VENMANIKARA, KARIKKAMURI, ASARI LANE, KARITHALA DESOM, ERNAKULAM VILLAGE, KOCHI-11.** **ADDL.37 SAILAJA, AGED 65 YEARS D/O.LATE KARTHIYAYANI, RESIDING AT VENMANIKARA, KARIKKAMURI, ASARI LANE, KARITHALA DESOM, ERNAKULAM VILLAGE, KOCHI-11.** **ADDL.38 BALACHANDRAN, AGED 61 YEARS S/O.LATE KARTHIYAYANI, RESIDING AT VENMANIKARA, KARIKKAMURI, ASARI LANE, KARITHALA DESOM, ERNAKULAM VILLAGE, KOCHI-11.** **ADDL.39 LATHA, AGED 59 YEARS D/O.LATE KARTHIYAYANI, RESIDING AT VENMANIKARA, KARIKKAMURI, ASARI LANE, KARITHALA DESOM, ERNAKULAM VILLAGE, KOCHI-11.** 16 **S.A.Nos.659 and 751 of 1996** ## **ADDL.40 ANILKUMAR,** **S/O.LATE KARTHIYAYANI, RESIDING AT VENMANIKARA, KARIKKAMURI, ASARI LANE, KARITHALA DESOM, ERNAKULAM VILLAGE, KOCHI-11.** **(THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.1 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 36 TO 40 AS PER ORDER DATED 11.09.2018 IN I.A.NO.1024 OF 2018).** **ADDL.41 REMA RAJU, AGED 50 YEARS W/O.LATE P.V.RAJU, RESIDING AT PANACHIKKAL HOUSE, KOTTAPLAKKAL PRAMABU, MULLASSERY CANAL ROAD, ERNAKULAM.** **(THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.19 IS IMPLEADED AS ADDITIONAL RESPONDENT NO.41 AS PER ORDER DATED 11.09.2018 IN I.A.NO.1033 OF 2018).** ## **ADDL.42 E.SIVASANKARAN ACHARI,** **AGED 73 YEARS S/O.EASWARAN ACHARI, RESIDING AT THUNDIPARAMBIL HOUSE, NATTASSERY, NEAR SECRED HEART MOUNT P.O., KOTTAYAM DISTRICT, KOTTAYAM-6.** ## **ADDL.43 ANJU,** **AGED 43 YEARS D/O.LATE VIMALA, RESIDING AT THUNDIPARAMBIL HOUSE, NATTASSERY, NEAR SECRED HEART MOUNT P.O., KOTTAYAM DISTRICT, KOTTAYAM-6.** ## **ADDL.44 ARUN,** **AGED 43 YEARS S/O.LATE VIMALA, RESIDING AT THUNDIPARAMBIL HOUSE, NATTASSERY, NEAR SECRED HEART MOUNT P.O., KOTTAYAM DISTRICT, KOTTAYAM-6** **(THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.9 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 42 TO 44 AS PER ORDER DATED 11.09.2018 IN I.A.NO.1015 OF 2018).** **(RESPONDENT NO.43,44 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.42 AS PER ORDER DATED 31.03.2022 IN MEMO DATED 17.02.2021.)** 17 **S.A.Nos.659 and 751 of 1996** **ADDL.45 JYOTHI LAKSHMI, W/O.T.D.SATHEESH BABU,AGED 56,RESIDING AT THEVARAPPILLIL HOUSE,NEERICODE P.O.,ALANGAD, (VIA) ALWAYE,ERNAKULAM-683 511.** **ADDL.46 BAJU BABU, S/O.T.D.SATHEESH BABU,AGED 31,RESIDING AT THEVARAPPILLIL HOUSE,NEERICODE P.O.,ALANGAD, (VIA) ALWAYE,ERNAKULAM-683 511.** **ADDL.47 ASWATHY, D/O.T.D.SATHEESH BABU,AGED 28,RESIDING AT THEVARAPPILLIL HOUSE,NEERICODE P.O.,ALANGAD, (VIA) ALWAYE,ERNAKULAM-683 511.** **(THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.28 IS IMPLEADED AS ADDL.A45 TO A47 AS PER ORDER DATED 31.03.2022 IN IA.17/2018.)** **ADDL.48 KRISHNAKUMARI, D/O.P.K.LEELA,AGED 58,THONDIPARAMBIL HOUSE, NEAR AYYAPPANKAVU,MANALOOR P.O.,THRISSUR-680 617.** - **ADDL.49 MURALI T.C., S/O.P.K.LEELA,AGED 56,THONDIPARAMBIL HOUSE, NEAR AYYAPPANKAVU,MANALOOR P.O.,THRISSUR-680 617.** **ADDL.50 USHA T.C., D/O.P.K.LEELA,AGED 54,TC9/2870(1),SWAPNAKOODU,KARYAVATTOM P.O.,TRIVANDRUM-695 581.** - **ADDL.51 HEMA RAVINDRAN, D/O.P.K.LEELA,AGED 52,KOOTUMACKAL HOUSE,IRINJALAKUDA P.O.,CHELOOR,THRISSUR-680 121.** **(LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.6 IS IMPLEADED AS ADDL.R48 TO R51 AS PER ORDER DATED 07.03.2022 IN IA.4/2021.** **ADDL.52 BINDU, D/O.SASEENDRAN V.D., AGED 52,VELLIMITATHU HOUSE,THURAVUN KARA,KANJOOR P.O., (VIA)ALWAYE,ERNAKULAM DISTRICT-683 575.** 18 ## **S.A.Nos.659 and 751 of 1996** **ADDL.53 SALIM V.S., S/O.SASEENDRAN V.D., AGED 46,VELLIMITATHU HOUSE,THURAVUN KARA,KANJOOR P.O., (VIA)ALWAYE,ERNAKULAM DISTRICT-683 575.** **(LEGAL REPRESENTATIVES DECEASED RESPONDENT NO.25 IS IMPLEADED AS ADDL.RESPONDENTS 52,53 AS PER ORDER DATED 31.03.2022 IN IA.1/2022 AND RESPONDENT NO.8 IS RECORDED AS ONE OF THE LEGAL REPRESENTATIVE OF DECEASED RESPONDENT NO.25.)** **(RESPONDENTS 4,5,6,8,10, ADDL.RESPONDENTS 21 TO 24 AND ADDITIONAL RESPONDENTS 42 TO 44 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED RESPONDENT NO.11, AS PER THE ORDER DATED 11/9/2018 ON MEMO DATED 17/3/2018)** **(RESPONDENT NO.43 AND 44 ARE RECORDED AS LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.42 AS PER ORDER DATED 31/3/2022 IN MEMO DATED 17/2/2021)** **BY ADVS. K.C.CHARLES SRI.S.V.BALAKRISHNA IYER SR. SRI.S.NITHIN ANCHAL A.T.RENJU VIMAL K.CHARLES** **THIS SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 20.12.2022, ALONG WITH SA.659/1996, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 19 **S.A.Nos.659 and 751 of 1996** **“C.R.”** **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **-------------------------------------------------S.A.Nos.659 and 751 of 1996 ------------------------------------------Dated this the 20[th] day of December, 2022** ## **J U D G M E N T** ## **C.S.Sudha, J.** What is the law of inheritance or succession that is applicable to Kammalas domiciled in Cochin? Before the formation of the United State of Travancore and Cochin by virtue of the Covenant dated the 29[th] May, 1949, entered into between the Rulers of Travancore and Cochin, was the personal law applicable to Kammalas domiciled in Travancore and Cochin the same? Before the State Reorganization Act, 1956 came into being, was the personal law applicable to Kammalas domiciled in Malabar, a Part A State, being part of Madras, the same as that in Cochin and Travancore? Is there any classification of Kammalas of Cochin as pandi kammalas, malayala kammalas and ordinary kammalas? Are they governed by the same personal law or different personal law? Let us examine. 2. These second appeals are before us based on a reference order 20 **S.A.Nos.659 and 751 of 1996** dated 13/04/2007 of a learned single Judge, according to whom, there are conflicting views regarding the personal law applicable to kammalas of Cochin and also their form of marriage. In the opinion of the learned Judge, important questions of law are involved, namely, the personal law applicable to kammalas of Cochin; whether there is a sub division of kammalas into malayala kammalas and ordinary kammalas ; what is their form of marriage ; whether the form of marriage alone or payment of 'sthreedhanam' in addition to the form of marriage would take away the right of the daughters to a share in the family property, which aspects are required to be decided by a Division Bench. Thus, the matter has come up before us. 3. The aforesaid two appeals arise from a preliminary decree and judgment in O.S.No.462/1985 on the file of the Sub-ordinate Judge's court, Ernakulam, by which a preliminary decree for partition of the plaint schedule property has been granted. The appellants in S.A.No.659/1996 are defendants 2, 3, 9, 12 and the heirs of the tenth defendant. The 11[th] defendant in the suit is the appellant in S.A.No.751/1996. 4. The plaint averments in brief are: - The two plaintiffs; defendants 10 to 13; Krishnan, the father of defendants 1 to 8 and husband of the ninth defendant and late Dakshayani, the mother of defendants 14 to 21 **S.A.Nos.659 and 751 of 1996** 18 are the children of late Kochukuttan @ Kittu (hereinafter referred to as Kittu). The parties are malayala kammalas, governed by Hindu Mitakshara law modified by custom. Kittu had a brother named Sankunni. Kittu was married to Ooli and Sankunni to Lakshmi. Kittu passed away in the year 1938 and his brother Sankunni in the year 1952. Lakshmi died in the year 1971 and Ooli died in the year 1974. The brothers had purchased 30 cents of land as per Ext.A1 sale deed dated 13/01/1109. Out of the 30 cents, about one cent was surrendered for widening the Mullasseri canal. The remaining 29 cents of land is the plaint schedule property. According to the plaintiffs, as per the custom prevailing among the malayala kammalas, the sons and daughters have equal right in the family property, unless the daughters are given away in marriage in the kudivaippu form on payment of sthreedhanam. The widow has no right in the family property. When a male member dies without any issues, the heirs of the male member inherit the property left by the deceased to the exclusion of the widow. The custom among the community is antique, continuous and invariable. The plaintiffs; late Dakshayani and the 13[th] defendant Devaki were not married off in the kudivaippu form of marriage. 4.1. Sankunni died in the year 1952 without any issues. Therefore, 22 **S.A.Nos.659 and 751 of 1996** the plaint schedule property devolved on the children of his brother, Kittu. Late Dakshayani and the 13[th] defendant Devaki were married off during the life-time of Kittu. The plaintiffs were married off after the death of Kittu. None of the daughters were given sthreedhanam and their marriage was solemnized in the 'Sambandham form'. At the time of marriage, it was agreed that the daughters would also have an equal right in the plaint schedule property along with the sons and hence sthreedhanam was neither asked nor given. 4.2. The plaintiffs and defendants have been enjoying the plaint schedule property jointly. The plaintiffs as well as the family members used to reside in the plaint schedule property and were given usufructs from the property. It was the eldest son of Kittu, namely, Krishnan, who was managing the plaint schedule property till his demise in the year 1967. The plaintiffs claiming a share in the plaint schedule property, filed the suit for partition. According to them, they are malayala kammalas governed by Hindu Mitakshara law modified by custom. It is also alleged that after the death of Sankunni, his right in the suit property devolved on the children of Kittu as Lakshmi, the widow, had no right in the estate of Sankunni. At best she had only a right to claim maintenance. Hence the suit for partition 23 **S.A.Nos.659 and 751 of 1996** claiming 1/7 share in the plaint schedule property. 4.3. The first defendant, son of Krishnan, filed written statement supporting the claim of the plaintiffs. 4.4. Defendants 2, 3 and 4, who are also the children of late Krishnan and his widow, namely, the ninth defendant, filed a joint written statement contending that Krishnan was in exclusive possession and enjoyment of 7-3/5 cents of land on the north-eastern portion of Sy.no.524/8 and the building therein as per partition deed no.94/1961 of SRO, Ernakulam. The first defendant has no right in the suit property as he had assigned his right in the suit property in favour of defendants 2 and 3. Buildings bearing no.961 and 962 were constructed by late Krishnan and defendants 2 to 9 respectively with their own funds. Therefore, according to the aforesaid defendants, the plaintiffs are not entitled to any share in the property. 4.5. Defendants 10 and 12 filed a joint written statement contending that the personal law applicable to the parties is Hindu Mitakshara law pure and simple. There is no custom or usage that has modified the law as far as the parties to the suit are concerned. Married daughters are transplanted into the family of their husbands by virtue of which they become members of 24 **S.A.Nos.659 and 751 of 1996** their husband's family. A widow who is a member of the family is entitled to a share in the family property. A widow who has no issues is entitled to succeed to the assets of her husband. The marriage of all the daughters of Kittu were solemnized in the kudivaippu form, that too, after giving sthreedhanam and ornaments. The sambandham form of marriage is a custom prevalent among 'marumakkathayees' only which cannot be pressed into service among the 'makkathayees'. Kittu's daughters ever since their marriage, have no right, joint possession or enjoyment of the plaint schedule property. The buildings situated in the plaint schedule property exclusively belong to the defendants. There was never any agreement in the family to give a share in the property to the daughters as alleged in the plaint. 4.6. The eleventh and thirteenth defendant filed separate written statements supporting the case of the other contesting defendants. The 11[th] defendant filed an additional written statement contending that the parties are Cochin kammalas and that the personal law applicable to the parties is Hindu law. 4.7. A replication was filed by the plaintiffs reiterating the allegations in the plaint and also alleging that the documents created by the widows of Kittu and Sankunni, namely, Ooly and Lakshmi, in favour of the 25 **S.A.Nos.659 and 751 of 1996** defendants are not binding on them. They denied the contention in the additional written statement of the eleventh defendant that the parties to the suit are Cochin kammalas. It has also been alleged that among malayala kammalas, there is no distinction based on their place of domicile. 5. The trial court on an appreciation of the oral and documentary evidence on record found Lakshmi, the widow of Sankunni, to have no right in the property and that after the death of Sankunni and Kittu, the entire property has devolved on the children of Kittu. According to the trial court, the defendants had failed in establishing that the plaintiffs; late Dakshayani and the 13[th] defendant, Devaki, had been married in the kudivaippu form on payment of sthreedhanam and so the plaintiffs were entitled to ignore the documents executed among the other members of the family and claim partition. Therefore, a preliminary decree was passed by which, the children of Kittu were allotted 1/7 share each in the plaint schedule property. 6. Defendants 2, 3, 9, 12 and the legal representatives of the 10th defendant filed A.S.No.14/1989 and the 11th defendant filed A.S.No.13/1989 before the District court, Ernakulam. The appeals were heard together and disposed of by a common judgment. The appeals were allowed in part. It was held that the right of Sankunni had devolved on his widow Lakshmi and 26 **S.A.Nos.659 and 751 of 1996** that she had absolute title over the property, which she in turn had gifted in favour of the sons of Kittu and so the share of Sankunni was not available for partition. As far as the share of Kittu was concerned, it has been held that the parties being malayala kammalas governed by Hindu Mitakshara law modified by custom, daughters are also entitled to a share in the property. For arriving at such a conclusion, the appellate court relied on the decisions in **Kittu Eacharan v. Ouseph Ouseph, 1948 TLR 734** ; **Parameswaran Asari Sanku Asari v. Kochumathevi Lekshmi, 1957 KLT 1020** ; **Thankammal v. Madhavi Amma, 1966 KLT 181** and **Damodaran v. Palu** , **1986 KLT 1259** . 7. Aggrieved by the finding that the parties to the suit are governed by Hindu Mitakshara law modified by custom, defendants 2, 3, 9, 12 and the legal heirs of the tenth defendant have filed S.A.No.659/1996 and the eleventh defendant, S.A.No.751/1996. The plaintiffs, on the other hand, have filed cross appeals/cross objections in both the S.As. challenging the decree passed by the appellate court to the effect that on the death of Sankunni, his widow, Lakshmi became the absolute owner of one-half share of the property. 8. The two appeals were admitted on the following substantial 27 **S.A.Nos.659 and 751 of 1996** questions of law, which are – A. Have not the courts below erred in law in thinking that the law governing kammalas of Cochin is a modified customary form of Hindu Law? - B. Are not the kammalas of Cochin governed by Hindu Mitakshara Law pure and simple? C. Have not the courts below erred substantially in law in holding that, among the kammalas of Cochin a married daughter is entitled to a share of family property? - D. Are not the courts below substantially wrong in law in thinking that the decisions in 1966 KLT 181 and 1986 KLT 1259 are applicable to the kammalas of Cochin? E. The parties to the case being kammalas of Cochin have not the courts below erred in ignoring the decisions of the Cochin High Court and the Travancore-Cochin High Court relating to the personal law governing kammalas of Cochin cited before them? F. Have not the courts below cast the burden wrongly on the question of adverse possession arising in the instant case? G. Have not the courts below erred substantially in law in thinking **S.A.Nos.659 and 751 of 1996** ## 28 that the plaintiffs' claim is not barred by adverse possession and limitation? H. Have not the courts below erred in law in decreeing the suit on the pleadings and in the nature of the evidence available in the case? 9. Heard Adv.S.V. Balakrishna Iyer, the learned Senior Counsel for the appellants and Adv.Sethumadhavan, the learned Senior Counsel for the respondents. 10. According to the learned Senior counsel for the appellants/the contesting defendants (the defendants), both the trial court as well as the appellate court have substantially erred in applying the personal law applicable to the parties in the case. As a result of the fundamental mistake committed by the courts, the finding and conclusions have apparently gone wrong calling for an interference by this Court. On the other hand, the learned Senior counsel for the respondents/plaintiffs, supported the impugned judgment and submitted that the same is based on a correct interpretation of the law applicable and hence calls for no interference. Therefore, let us first consider, the law that is applicable to the parties in this case. 11. As noticed earlier, in the plaint, the specific allegation is that 29 **S.A.Nos.659 and 751 of 1996** the parties are malayala kammalas governed by Hindu Mitakshara law modified by custom. The allegation regarding the personal law applicable, is disputed by the defendants, who contend that the parties are kammalas of Cochin and the personal law applicable to the parties is Mitakshara law pure and simple. They deny the allegation of the plaintiffs that the parties are governed by Hindu law or Mitakshara law modified by custom. The allegation that the parties are malayala kammalas is not disputed or denied by the defendants in their written statements. It is true that the 11[th] defendant has filed an additional written statement much after all the defendants filed their written statements, contending that the parties are Cochin kammalas. This is not of much significance since the parties have no case that they do not belong to Cochin or that they are not domiciled in Cochin. The plaintiffs when examined as PW1 and PW2 respectively, have admitted in their cross examination that they are members of the ashari (ആശ�ര�) community born and brought up in the State of Cochin. PW2 admitted that for generations, the family has been residing in Cochin. Therefore, the pleadings as well as the evidence on record make it clear that the parties are kammalas domiciled in Cochin. 12. An argument was advanced by the learned senior counsel for 30 **S.A.Nos.659 and 751 of 1996** the plaintiffs that the defendants also admit the existence of the custom pleaded in the plaint because, had their contention only been that the parties are governed by Hindu law pure and simple, they would have stopped at that. On the other hand, they have also taken up a contention in their written statements that the daughters of Kittu were married off in the kudivaipu form after payment of streedhanam and as they have been transplanted into the family of their husbands, they cannot claim any share in the property. This argument does not seem to be correct. Para 3 of the written statement of defendants 10 and 12, whose contentions are seen adopted by the other contesting defendants also, says - “…... _The personal law applicable to plaintiff and defendants is Hindu Mitakshara Law pure and simple…....”._ In para 5 it is contended - “…………. _The personal law applicable to the plaintiffs and defendants is Hindu Mitakshara (Hindu Law) pure and simple. No custom or usage has modified the same so far as the parties to the suits are concerned. Married daughters are transplanted into the family of their husband's by virtue of which they became member of their husband’s family. A widow who is a member of the family is entitled to a share in the family property in general. The widow who has no issues are entitled to succeed to the assets of her husband. All the marriages that have_ 31 **S.A.Nos.659 and 751 of 1996** _been conducted in the family of the plaintiff as well as the defendants are in Kudivaipu Form that too, after giving Streedhanam and ornaments to the females of the family. The averment that plaintiffs and defendants are members of the same family is absolutely false.”_ In para 6 it is contended“ _……. Since Streedhanam and ornaments were given to the respective females there was no occasion or need for giving any assurance that the daughters of Kittu had equal right over his assets as that of the male issues. Hence the allegation that Streedhanam was not asked for nor given is untrue and incorrect. The further allegation that the marriages of the daughters of Kittu were conducted in sambadha form is highly artificial. The sambadha form or system of marriage is a peculiar custom prevalent among the Marumakkathayees only which cannot be pressed into service among the Makkathayees.”_ 13. Here it would be apposite to refer to O.VIII Rules 3,4 and 5 CPC. Rule 3 says that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but he must deal specifically with each allegation of fact of which he does not admit the truth. Rule 4 says that where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Rule 32 **S.A.Nos.659 and 751 of 1996** 5 says that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted. The aforesaid contentions are obviously made in compliance with the aforesaid provisions. They are not admission of the custom pleaded in the plaint, as argued on behalf of the plaintiffs. 14. Before we go into the question as to the law applicable to the parties, let us consider whether there is a sub-division of kammalas into pandi kammalas, malayala kammalas and ordinary kammalas as urged by the plaintiffs. Chapter XVIII of the book, 'Cochin Tribes and Castes' (Vol.I) written by L.K. Ananthakrishna Iyer published in the year 1909 deals with kammalas, their origin; migration; internal structure of the caste; marriage customs; inheritance; caste assembly etc. Regarding internal structure of caste, at page 342, it is stated that the kammalans, who are also called Nanku parisha or Panchalans, are the artisan classes, living in all the villages and towns of the State. They are strictly speaking, one caste, the members of which are divided into six occupational groups or sub-castes, namely, (1) Marasaris or workers in wood (carpenters), (2) Kallasaris (stone masons), (3) Kollans (blacksmiths), (4) Moosaris (bell-metal workers), (5) 33 **S.A.Nos.659 and 751 of 1996** Thattans (goldsmiths), and (6} Tolkollans (leather workers). The Marasaris are again sub-divided into Thachans (wood-cutters), Avens, Poozhi Asaris, Ettila Parisha, Ircha Thachans (sawyers of wood), and Kolli Vetties. The Kollans are also subdivided into Palisa Kollans, Katachi Kollans, and Theepori Kollans. The Kallasaris and Moosaris have each a subdivision, namely, Silpi Asaris (image makers) and Chembu Kotties (copper workers). The minor subdivisions are based chiefly on occupation, and are mere endogamous septs, the members of which, with the exception of the Silpi Asaris, are inferior in social status to those of the main divisions. This affords evidence to the fact how caste formation is based on occupation. According to the learned author, there are two forms of marriage, namely, tali tying, podamuri or sambandham as among the Nairs and Izhuvans (page 345). As far as inheritance is concerned, it is stated at page 347 that, the - law of succession to property is in the male line, that is, from father to son. Women have no share in the family property; but, in the event of any partition being effected in the family, the unmarried daughters have each a share, and none at all when they marry. 14.1. The book by name 'Castes and Tribes of Southern India’, VolIII-K written by Edgar Thurston and K.Rangachari deals with kammalas of 34 **S.A.Nos.659 and 751 of 1996** various States. This book originally published in the year 1909 was reprinted in the year 1987. The book deals with the kammalas of Travancore, Malabar etc. in detail. There is no mention of any subdivision of kammalas into pandi kammala, malayala kammala or ordinary kammala. However, at page 106, there is reference to Kammalan (Tamil). At page 107 it is stated that Tamil Kammalans are divided into three endogamous territorial groups, Pandya, Sozia (or Chola), and Kongan. The Pandyas live principally in the districts of Madura and Tinnevelly, and the Sozias in the districts of Trichinopoly, Tanjore, Chingleput, North and South Arcot, and Madras. The Kongas are found chiefly in the districts of Salem and Coimbatore districts. In some places, there are still further sub-divisions of territorial origin. Thus, the Pandya Tattans are divided into Karakattar, Vambanattar, Pennaikku-akkarayar (those on the other side of the Pennaiyar river), Munnuru-vittukarar (those of the three hundred families), and so forth. They are further divided into exogamous septs, the names of which are derived from places, e.g., Perugumani, Musiri, Oryanadu, Thiruchendurai, and Kalagunadu. The Kammalans are made up of five occupational sections, viz., Tattan (goldsmith), Kannan (brass-smith), Tac'chan (carpenter), Kal-Tac'chan (stone-mason), and Kollan or Karuman 35 **S.A.Nos.659 and 751 of 1996** (blacksmith). The name Panchala, which is sometimes used by the Tamil as well as the Canarese artisan classes, has reference to the fivefold occupations. At page 125 reference is made to kammalan (Malayalam). Referring to Kammalans of Malabar (page 126), it is stated, the five artisan classes, or Ayinkudi Kammalans, are made up of the following: - |Asari, carpenters|||Karuman, blacksmiths.| |---|---|---| |Musari, braziers|||Chembotti or Chempotti,| ||||| |Tattan, goldsmiths|||coppersmiths.| At page 134, based on the Madras Census Report, 1901, it is stated that the following sub-castes of Malabar Kammalans are recorded: - Kallan Muppan and Kallukkotti (stone-workers), Kotton (brass-smith), Pon Chetti (gold merchant), and Puli- asari (masons). Further, referring to the Cochin Census Report, 1901, it is stated that the Kammalans are divided into six sub-castes, viz., Marasari (carpenter), Kallasari (mason), Musari (brazier), Kollan (blacksmith), Tattan (gold-smith), and Tolkollan (leather-worker). At page 135, referring to the Kammalans of Travancore, it is stated that the titles of the Malayalam Kammalans are Panikkan and Kanakkan. The word Panikkan means a worker, and Kanakkan is the title given to a few old and respectable Kammalas in every village, who superintend the work of others. 36 **S.A.Nos.659 and 751 of 1996** Many Tamil Kammalans have naturalized themselves on the west coast, and speak Malayalam. The malayala kammalas are divided into five classes, viz., Asari or Marapanikkan (workers in wood), Kallan or Kallasari (workers in stone), Musari (braziers and coppersmiths), Tattan (goldsmiths), and Kollan (workers in iron). To these the Jatinirnaya and Keralaviseshamahatmya add a sixth class, the Tacchan or Irchchakollan, whose occupation is to fell trees and saw timber. The Tacchans are also known as Villasans (bowmen), as they were formerly required to supply bows and arrows for the Travancore army. 14.2. ‘Cochin State Manual’ by C. Achyuta Menon published in the year 1911 deals with the personal law applicable to the kammalas of Cochin. In this book it is stated that kammalas are among the first of the polluting castes. They are divided into a number of endogamous sub-castes such as Marasari(carpenter), Kallasari (Manson), Musari(brazier), Karuvan (blacksmith), Tattan(goldsmith) and Tolkollan (leather worker). According to the learned author, all of the aforesaid persons follow the makkathayam system, but they perform the tali marriage like the Nayars as distinct from the real marriage. (See page 203 of the aforesaid book). 14.3. In the Kerala District gazetteer, Ernakulam published in the 37 **S.A.Nos.659 and 751 of 1996** year 1965 at page 272 it is stated that kammalas have always been makkathayis and that women have no share in the family property. 14.4. Chapter XII of Travancore State Manual (Vol.I) by Advocate T.K. Velu Pillai, Deputy President, Sri Mulam Assembly, Travancore, Member of the Senate, the Travancore University and former Member of the Senate, University of Madras, published by the Government of Travancore in the year 1940, at page 848 says that the Kammalas of Malabar and the Tamil districts must have descended from the same stock of Naga-Dravidian artisans mentioned in early Tamil literature and inscriptions. They are also known by the name of Viswakarmas. In Travancore, they are of two classes, the Malayalam speaking section and the Tamil speaking section. They are divided into five occupational classes according to the material on which they ply their art. They are Asari (worker in wood), Thattan (goldsmith), Kallan or Kallasari (worker in stone), Musari, (brazier or coppersmith), and Kollan (black-smith). Most of the Kammalas now wear the sacred thread. They are mainly makkathayis, though the Villasans found in the Nedumangad taluk follow the marumakkathayam law. In addition to the above are the Thacchans or the Irchakkollans whose work is to fell trees and saw timber. 38 **S.A.Nos.659 and 751 of 1996** 14.5. However, in the book 'Marumakkathayam and Allied systems of law in the Kerala State' written by Sri.K.Sreedhara Variar, published in the year 1969, says otherwise. At page 16, it is stated that the Kammala community due to its various sub-divisions has given rise to some confusion. There are mainly three sections, namely, malayala kammalas, the pandi kammalas and the ordinary kammalas. All these kammalas follow the makkathayam system. The law applicable to malayala kammalas is Hindu law modified by custom. The author has made this statement based on the dictums in **Parameswaran Asari Sanku Asari** _(Supra)_ and **Thankammal** _(Supra)_ . It is also stated that the pandi kammalas and ordinary kammalas are governed by Hindu Mitakshara law. This statement is stated to be based on the dictum in **Thankammal** ( _Supra_ ) and **Nilakantan Nair Velatudhan Nair v. Chirutha Amma Gowri Amma, 1953 KLT 603** respectively. At page 21 it is stated that a large number of Hindu Communities in the Cochin area are followers of the patriarchal system of descent and governed by the mitakshara system of Hindu law. There is no provincial statute applicable to them. Any departure from Hindu law based on custom or usage would be matter for evidence. Further, a list of 17 Hindus governed by pure Hindu law has been given. The kammalans 39 **S.A.Nos.659 and 751 of 1996** also find a place in the list (the 16[th] number). This statement is seen made relying on the dictum in **Lilly Mercilin Lewis v. Chanji Nani, 1954 KLT 631** . But at a later part of the book, that is, at page 193, it is stated that the law applicable to malayala kammalas of Travancore is the mitakshara law modified by custom. Though they are Makkathayam following communities, there are two forms of marriages prevalent among them. The one is in the Sambandham form where-by the bride retains her rights in her family of birth and in such cases, she is entitled to inherit her father’s properties along with her brothers. Relying on the dictum in **Thankammal** ( _Supra_ ), it is stated that the other form of marriage is in the Kudiveppu form which transfers her membership to her husbands' family. The law applicable to the Malayala Kammalas in the Cochin area is also stated to be the same based on the dictum in **Lilly Mercilin Lewis** _(Supra)_ . We will shortly refer to the decisions relied on by the learned author. 14.6. In the book, India's Communities, N-Z, by K.S.Singh, Vol-VI, published in the year 1998, at page 3663, it is stated that in Kerala, the Viswakarma are also known as Kammalan, Pandithattan or Vishwabrahman. They have four sub-groups, namely, Manu (blacksmith), Shilpi (sculptor), Viswajana (goldsmith) and Thwastha (other metal-workers). These are 40 **S.A.Nos.659 and 751 of 1996** based on traditional occupations. They had migrated from Tamil Nadu long back on the invitation of a Raja. They inhabit the districts of Alleppy, Trivandrum, Quilon, Trichur, Kottayam and Ernakulam in Kerala. They speak Tamil and Malayalam and use both the scripts. 14.7. The plaintiffs, however, rely on a notification dated 27/10/1999 of the Ministry of Social Justice and Empowerment relating to the Central list of other backward classes (OBCs). Item no.8 dealing with the State of Kerala, says that Vishwakarma including kammalas, malayala kammalas, pandi kammalas and certain others stated therein comes in the Central list of OBCs. This according to them, establishes their case that there is in fact such sub-divisions among the kammalas. 14.8. Except in the book, 'Marumakkathayam and Allied systems of law in the Kerala State written by K.Sreedhara Variar, there is no reference to the sub-division of kammalas into pandi kammalas, malayala kammalas and ordinary kammalas. On the other hand, a reading of the contents at page 3663 of the book, India's Communities, referred to hereinabove, it appears that the word pandi kammalas has been used to refer to persons who had migrated from Madras to Travancore or Malabar. Further, from a reading of the aforesaid books, it appears that kammalas are sub-divided into sects or 41 **S.A.Nos.659 and 751 of 1996** classes or sub-divisions depending on their occupation and the material on which they ply their art. The names by which they are known gives an indication of their respective occupations. They also seem to be divided into sects or divisions, the names of which are derived from places. As opined by the learned author in 'Marumakkathayam and Allied systems of law in the Kerala State', the Kammala community due to its various sub-divisions does seem to have raised some confusion. It seems that though they are known by various names, they all are kammalas coming under the larger canvass or umbrella of the community known as Viswakarma. The notification at best only shows that Viswakarma community, an OBC, takes within its fold kammalas known as pandi kammalas and malayala kammalas. 15. Now we come to the various decisions relied on by the trial court as well as the appellate court and referred to in the book 'Marumakkathayam and Allied systems of law in the Kerala State’. In the first of the cases, namely, **Kittu Eacharan** _(Supra)_ , it has been held that the system of inheritance among the malayala kammalas is not pure Hindu Mitakshara law but Mitakshara law modified by custom. It has been further held that female members would not lose their right in the property, if they were not given sthreedhanam. Reference has been made to a passage in the 42 **S.A.Nos.659 and 751 of 1996** book written by M.P. Joseph on Marumakkathayam law, which reads – “ _They are followers of Hindoo Law as modified by custom. If a girl is married in the Sambandhom form, she retains her right in her family properties. But if it is in the Kudivaipoo form with Stridhanom, she loses her right in her natural family_ .” The conclusion that malayala kammalas are governed by Mitakshara law modified by custom, has been arrived at by the learned Judge based on the paragraph in the aforesaid book. However, it needs to be noted that the book written by M.P. Joseph in the year 1926 was not dealing with kammalas of Cochin. Chapter XIV from which the passage has been extracted, is titled 'Minor Castes in Malabar, their system of inheritance'. Therefore, the kammalas referred to in Chapter XIV is with reference to the Kammalas of Malabar and not the Kammalas of Cochin. In this case which arose from the Travancore area, the learned Judge had applied a law applicable to kammalas of Malabar and held that daughters would lose their right in the property only if they were married off in the kudivaipu form after giving sthreedhanam. As observed in the reference order, prior to the formation of the State of Kerala, the law applicable to Malabar area was of the State of Madras. Therefore, any system of law prevailing in the Malabar area prior to 1926 cannot be taken as the basis to hold that kammalas of 43 **S.A.Nos.659 and 751 of 1996** Cochin or Travancore were also followers of the same law. 16. Here it would be apposite to refer to the dictum in **Nilakantan Nair Velatudhan Nair** _(Supra)_ , wherein the learned Single` judge relying on M. P. Joseph's book on the Principles of Marumakkathayam Law, page 451; and the Travancore State Manual, Vol. 1-1940 Edition by Sri T. K. Velu Pillai, page 848, held that blacksmiths are Kammalas and are ordinarily governed by the Hindu Law and not by the Marumakkathayam Law. 17. The next decision relied on by the courts is the decision in **Parameswaran Asari Sanku Asari** _(Supra)_ . That was a case which arose from Attingal and hence from Travancore. The parties in the said suit described themselves as malayala kammalas. The learned Judge, relying on the dictum in **Kittu Eacharan** _(Supra)_ held that among malayala kammalas, married daughters except those married in the kudivaippu form are entitled to a share in their father's property. This decision also relies on the passage by Sri. M.P. Joseph in his book, 'The Principles of Marumakkathayam Law' which has been referred to earlier. In this decision, the learned Judge has referred to the decision in **Lilly Mercilin Lewis** _(Supra)_ also. But the dictum in **Lilly Mercilin Lewis** _(Supra)_ was distinguished and not followed stating that in the said case the question was whether kammalas of Cochin, 44 **S.A.Nos.659 and 751 of 1996** are followers of Mitakshara law and whether there was a custom in the community which recognized the right of women to a share in the family property. The said dictum was not applied as the case involved in **Parameswaran Asari Sanku Asari** _(Supra)_ was from Travancore. 18. The next decision relied on by the courts is **Thankammal** _(Supra),_ which was also a case from Travancore. This decision also places reliance on the passage from the book by M.P. Joseph. The plaintiff, a Hindu kammala (carpenter), claimed that she was a Hindu malayala kammala whereas the contesting party claimed that she was a Hindu pandi kammala. It has been held that the law applicable to pandi kammalas is pure Hindu Mitakshara law as applied to Hindus in South India; whereas, the law applicable to malayala kammalas is Hindu Mitakshara law modified by custom. From the evidence on record, it was concluded that the plaintiff was a malayala kammala and so the law applicable to her is Hindu Mitakshara law modified by custom. The learned Judge relied on **Kittu Eacharan** _(Supra)_ and also the passage in the book by Sri. M.P.Joseph to conclude that it was Hindu Mitakshara law modified by custom, that is applicable to malayala kammalas and that the daughters have a right in the father’s property unless they were married off in the kudivaippu form of 45 **S.A.Nos.659 and 751 of 1996** marriage on payment of Streedhanam. It was also held that the position is the same as that of the kammalas of Cochin, relying on the decision in **Lilly Mercilin Lewis** ( _Supra_ ). 19. Yet another decision relied on by both the courts is the decision in **Damodaran** _(Supra)_ . That was a suit for partition on the file of the Munsiff court, Koyilandy, obviously from Malabar and not from Cochin. In this decision also the learned Judge relying on the decisions in **Kittu Eacharan** _(Supra)_ , **Parameswaran Asari Sanku Asari** _(Supra)_ and **Thankammal** _(Supra)_ , held that the personal law applicable to Kammalas is Hindu Mitakshara law modified by custom. 20. Coming back to the case on hand, the parties admit that they are malayala kammalas of Cochin origin. In **Lilly Mercilin Lewis** ( _Supra_ ), the main question that arose for consideration was whether Hindu law of inheritance governs the kammala community in Cochin, to which the plaintiff in the said case belonged. Plaintiff had set up a custom by which the sons and daughters of a Hindu father were stated to be entitled to their father’s property in equal shares. This was a custom that was pleaded in derogation of Hindu law and so the court looked into the question as to the extent to which the custom had been established in the said case. It has 46 **S.A.Nos.659 and 751 of 1996** been held that to establish a custom having the force of law, something more than regular and uniform conduct has to be proved. That is to say, it has to be further shown that the conduct had been the result of _opinio necessitatis_ or a conviction on the part of those who had pursued it, that it was obligatory and not merely optional. The Division Bench thereafter referred to the book named ‘The Cochin Tribes and Castes’ by L.K.Anantha Krishna Ayyar, the Superintendent of Ethnography of the Cochin State, to which we have already referred to, in which it is stated that among the kammalans, the law of succession to property is in the male line, that is, from father to son. Women have no share in the family property; but, in the event of any partition being effected in a family, the unmarried daughters have each a share and none at all when they marry. The learned Judges noted that the author had compiled his work under the orders of the then Government and had expressed his opinion after investigation. Therefore, it has been held that opinion thus expressed by an officer as a result of his intimate knowledge of investigation on the subject, is certainly entitled to wait as pointed out in **Gokal Chand v. Parvin Kumari, AIR 1952 SC 231** . Thus it was held that the plaintiff was a Hindu governed by Hindu Mitakshara law and hence she is not entitled to a share in the family property of her father as **S.A.Nos.659 and 751 of 1996** she had been married away during the life time of her father. There was no acceptable proof of any custom to the contrary that was established to prove that the daughter was entitled to a share in the property. 21. As pointed out in the reference order, **Kittu Eacharan** ( _Supra_ ), **Parameswaran Asari Sanku Asari** _(Supra)_ , **Thankammal** ( _Supra_ ) and **Damodaran** ( _Supra_ ) were cases dealing with kammalas either from Travancore or Malabar. Therefore, the dictum in the said decisions cannot be applied to kammalas of Cochin. Travancore and Cochin were two Indian native States which were unified in the year 1949 by virtue of a covenant entered into by the rulers of Travancore and Cochin for the formation of a unified Travancore-Cochin State. The case on hand is a suit for partition of the property of one Kittu, a kammala of Cochin, who died in the year 1938. Therefore, as rightly stated in the reference order, by no stretch of imagination can it be held that the case can be decided on the law that is applicable to kammalas of Travancore because in the year 1938, nobody could have even thought of a unified State of Travancore-Cochin. Hence, as pointed out by the learned Single Judge, in cases like this, the law applicable to the parties has to be decided with respect to the native State to which they belong. The only authority on the point is the decision in **Lilly** 48 **S.A.Nos.659 and 751 of 1996** **Mercilin Lewis** ( _Supra_ ) which specifically dealt with the kammala community of Cochin. 22. It was strenuously and persuasively argued by the learned counsel for the plaintiffs, that the dictum in **Lilly Mercilin Lewis** _(Supra)_ cannot be applied to the case on hand as the same only deals with the kammalas of Cochin and not malayala kammalas. It was also pointed out, relying on the dictum in **Ryru Nair v. Govindan Nair, AIR 1961 Kerala 75** , that the dictum in **Lilly Mercilin Lewis** _(Supra)_ is not binding on this court as this court is not the successor court of the High Court of Travancore-Cochin. We are not going into the question as to whether this court is the successor court or not of the High Court of Travancore-Cochin, as the same does not arise for consideration in this case. Suffice it to say that we do not find any material(s) or ground to differ from the dictum in **Lilly Mercilin Lewis** ( _Supra_ ). The dictum in **Lilly Mercilin Lewis** _(Supra)_ was distinguished and not followed in **Parameswaran Asari Sanku Asari** _(Supra),_ a case from Travancore, stating that the former case dealt with the kammalas of Cochin. In **Lilly Mercilin Lewis** _(Supra)_ it has been held that the inheritance among the kammalas in Cochin is in the male line and so the females have no right in the property. It is further stated that it is only when 49 **S.A.Nos.659 and 751 of 1996** partition takes place, the unmarried daughter gets a share in the property. No material has been placed before us to show that among the kammalas in Cochin, different personal laws are applicable. The statement in **Thankammal** _(Supra)_ by the learned judge to the effect that the dictum in **Kittu Eacharan** _(Supra)_ as well as **Lilly Mercilin Lewis** _(Supra)_ is the same and that all kammalas are governed by Hindu Mitakshara law modified by custom is apparently incorrect. This conclusion is also based on the passage in the book by Sri. M.P.Joseph. We have already stated as to why this passage cannot be applied to the parties in this case. The question as to the law that is applicable to kammalas in Cochin is clear from **Lilly Mercilin Lewis** _(Supra)_ and **Parameswaran Asari Sanku Asari** _(Supra)_ . 23. Admittedly, Kittu, the father of the plaintiffs and the contesting defendants passed away in the year 1938. During the life time of Kittu, two daughters, namely, late Dakshayani, who is the mother of defendants 14 to 18 and 13[th] defendant Devaki, were married off. The plaintiffs were admittedly married off after the death of their father in the year 1938 and before the death of his brother Sankunni in the year 1952. A doubt arose as to whether on the death of Kittu, had not the property devolved on his children, that is, his sons and daughters and if so, whether the fact that the 50 **S.A.Nos.659 and 751 of 1996** first and the second plaintiffs were married off subsequently, would in any way take away the right which has devolved on them on the death of their father. The learned senior counsel for the defendants pointed out that the law of succession as per Mitakshara law is in the male line and that daughters have no right in the father's property. According to him, under Hindu law, a daughter would inherit the property of her father only in the event of the father dying without a son or grandson or great grand son or widow (reference made to Mulla on Hindu Law – 22[nd] Edition, para 543 @ page 733 and para 437 @ page 646). Therefore, on the death of Kittu, the property went to his heirs, namely, his four sons. While so, had any partition been effected in the family and had the plaintiffs been unmarried at that point of time, then they would certainly have got a share in the property. However, in this case, no partition took place between the death of Kittu in the year 1938 and the marriage of the plaintiffs and so the plaintiffs have no share in the property of their father and hence have no right to claim partition, goes the argument. 24. The plaintiffs, though have pleaded in the plaint, that the plaint schedule property in this case had been purchased by Kittu and Sankunni with the remuneration obtained by them when their ancestral property had 51 **S.A.Nos.659 and 751 of 1996** been acquired, no evidence has been adduced to substantiate the same. Therefore, as held by both the courts, the property can only be taken to be the self acquired property of Kittu and Sankunni. The plaintiffs in order to succeed to the said property will have to establish that there is a custom prevalent in their community by which they would lose their right to inherit a share in their father’s property only in the event of their marriage being solemnized in the kudivaippu form on payment of dowry. This is a custom pleaded in derogation of the principles of Hindu law. As held in **Thankammal** _(Supra)_ there is a difference between a custom in derogation of an established principle of pure Hindu Mitakshara law and a system of Hindu Mitakshara law modified by custom. Both are different. In the first, the system of law applicable is Hindu Mitakshara law; and the party pleading a custom is pleading an exception to that. That is, is pleading a custom in derogation of the settled law. In that case, he must naturally establish that the custom he pleads satisfies the test of antiquity, continuity, invariability etc. In the second case, law applicable is a modified form of Hindu Mitakshara law and not Hindu Mitakshara law as such. In fact, the law applicable in such a case is customary law, which is the modified form of Hindu Mitakshara law. Therefore, the test in such a case would be for 52 **S.A.Nos.659 and 751 of 1996** finding out the system of modified Hindu Mitakshara law or customary law. The enquiry should not be directed to see whether the custom pleaded satisfies the test of antiquity, continuity, invariability etc., so as to displace or dethrone the settled system of pure Hindu Mitakshara law. 25. Further, as held in **Lilly Mercilin Lewis** _(Supra)_ , it has to be seen as to the extent to which the custom pleaded has been established. Referring to the decision of the Supreme Court in **Gokal Chand** _(Supra)_ , it has been held that there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by customary law must prove that he is so governed and must also prove the existence of the custom set up by him. It has further been laid down that a custom in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" should not be strictly applied to Indian conditions, and that what was necessary to prove was that the usage had been acted upon in practice for such a long period and with such invariability as to show that it had, by common consent, been submitted to as the established governing rule of a particular locality. A 53 **S.A.Nos.659 and 751 of 1996** custom to be valid in law must have four essential attributes, namely, (i) It must be immemorial, (ii) It must be reasonable, (iii) It must have continued without interruption since its immemorial origin and (iv) It must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect. To establish a custom having the force of law, something more than regular and uniform conduct has to be proved. That is to say, it has to be further shown that the conduct had been the result of opinio necessitatis or a conviction on the part of those who had pursued it, that it was obligatory and not merely optional. 26. The plaintiffs have been unable to show, any judicial precedent, apart from the decisions relied on by both the trial court as well as the appellate court, which are apparently and obviously not applicable to the kammalas of Cochin. The dictums in **Kittu Eacharan** ; **Parameswaran Asari Sanku Asari** ; **Thakammal** and **Damodaran** cannot be applied to the facts of the case on hand for reasons already stated and so the passage in the book of M.P.Joseph relied on in the said decision also cannot be applied here. However, the passage in the book 'Cochin Tribes and Castes' (Vol.I) written by L.K. Ananthakrishna Iyer referred to and relied on by the court in 54 **S.A.Nos.659 and 751 of 1996** **Lilly Mercilin Lewis** _(Supra)_ can certainly be relied on in the light of the second proviso to Section 60 of the Evidence Act. 27. The plaintiffs do not dispute that as per Hindu law or Mitakshara law pure and simple, the law of succession is in the male line and that the daughters have no right in the father's property and that a daughter would inherit the property of her father only in the event of the father dying without a son or grandson or great grandson or widow. Our attention was drawn by the learned counsel for the plaintiffs to Ext.A15 and the deposition of DW4, one of the parties to the deed, to substantiate their case of custom. It was pointed out that the property covered by Ext.A15 is situated in Cochin and that DW4, a relative of the plaintiffs and defendants, admitted that property covered by the deed is his father’s property and that his married sisters are also parties and signatories in the deed. According to the plaintiffs, DW4 and his sisters are the vendors/assigners in the deed, in which it is stated that it is their joint rights that is being assigned. Therefore, the argument is that if the married sisters had no right in the property, there was absolutely no necessity for them to be parties or signatories to the deed. The recitals in the deed would also substantiate their case, argues the plaintiffs. 55 **S.A.Nos.659 and 751 of 1996** 28. Ext.A15 of the year 1957, is a sale deed by DW4 and his sisters to a third party. Ext.A15 was produced before the trial court after the entire evidence was closed and so the defendants before the appellate court contended that they never got an opportunity to explain the deed. According to the defendants, the sisters of DW4 had also joined in the deed as insisted by the assignee. They also produced Exts.B29 to B31 before the appellate court, which are also seen admitted in evidence by the court, to explain the circumstance in which the names of the sisters of DW4 also find a place in Ext.A15. Ext.B29, Ext.B30 and Ext.B31 are the judgments in O.S.No.10/1959 on the file of the Subordinate Judge’s Court, Ernakulam; in O.S.No.33/1952, District Court, Anchikaimal and in A.S.No.132/1957 of this court respectively. The property covered by Ext.A15 was outstanding on mortgage created in the year 1955 by Lakshmi, wife of late Raman, and their children, both sons and daughters, in favour of one Aminakutty. The sons and daughters of Lakshmi are the vendors in Ext.A15 deed, as per which they assigned the property to one Narayana Iyer. The plaint schedule property in O.S.No.10/1959 belonged to one Krishnan who had 3 children, namely, Raman, Ooli and Lakshmi. Lakshmi and Raman died. Raman’s and Ooli’s heirs were the defendants in the case. The plaintiffs contended that 56 **S.A.Nos.659 and 751 of 1996** the parties are Hindu carpenters and according to the custom in their community, both sons and daughters are entitled to equal share in the property. PW1, one of the witnesses in the suit deposed that Hindu carpenters are also called kammalas. Ext.D8 in the said suit is Ext.A15 herein. Ext.D6 in the said suit is the mortgage deed of the year 1955 referred to in Ext.A15, which was _inter alia_ relied on by the plaintiffs to prove their case. However, the trial court in its judgment dated 26/09/1960 accepted the explanation given by the defendants, namely, the heirs of Raman, that the names of the daughters of Raman and his wife were also included as insisted by the mortgagee due to the pendency of O.S.No.33/1952, wherein, an asari woman had claimed a share in the property on the ground that daughters have equal right with sons in the property. Hence it was concluded that the recitals in the mortgage deed would not amount to proof or admission of the rights of daughters to the father’s property along with the sons. The suit was dismissed holding that in the absence of custom in derogation of Hindu Mitakshara law of inheritance, which is accepted to be the law prevailing among Hindu carpenters, the plaintiffs are not entitled to a share in the property. 57 **S.A.Nos.659 and 751 of 1996** 29. Ext.B30, another suit for partition instituted in which the plaintiffs therein also claimed a share in the property on the basis of a custom that that daughters have equal right with sons in the property. The trial court by Ext.B30 judgment dated 01/08/1956 negatived the claim relying on the dictum in **Lilly Mercilin Lewis** _(Supra)_ . Ext.B31 is the judgment of this court confirming Ext.B30 judgment. It is true that this court in Ext.B31 did not consider the custom pleaded, but dismissed the appeal on other grounds. However, it did not disturb the finding of the trial court that the parties are governed by Hindu law. Ext.B29 probabilises the case of the defendants that the sisters of DW4 joined as partners in Ext.A15 as insisted by the assignee. 30. Further, paragraph 7 of the plaint specifically refers to a written agreement entered into between the parties. According to the plaintiffs, in the year 1960, there was a talk among the male members of the family for partition of the plaint schedule property. The plaintiffs were not parties to the said talk. The plaintiffs were informed by Gopalan, the 12[th] defendant, that each female member would be given ₹4,000/- as their share in the property and no shares would be allotted to the widows of Kittu and Sankunni. The plaintiffs were not agreeable for a partition during the life 58 **S.A.Nos.659 and 751 of 1996** time of Lakshmi and Ooli. Hence an agreement was executed between the male members and spouses of the plaintiffs that a partition need be effected only after the death of Ooli and Lakshmi. It is also alleged that the said agreement was reduced into writing and their husbands and other members were witnesses to the said agreement. None of the parties have produced the documents before the court. In the cross examination, PW1 admitted that the said agreement is in the possession of the 10[th] defendant. If the plaintiffs' case is to be believed, this document is a crucial document which supports her case. In spite of the same, she has not taken any steps to direct the 10[th] defendant to produce the document before the court for which no explanation is forthcoming. The learned senior counsel for the plaintiffs then drew our attention to Ext.A8 and it was submitted that, the fact that there was a written agreement as stated in para 7 of the plaint is probabilized by the contents in Ext.A8 letter, which is admittedly a letter written by 12[th] defendant to the husband of the first plaintiff. According to the learned counsel, this letter also refers to an agreement between the parties to the effect that the daughters would be paid an amount of ₹4,000/- as their share. Pointing to this, it was argued that, had the daughters no share in Kittu's property, there was no necessity for the sons to agree to pay an amount to 59 **S.A.Nos.659 and 751 of 1996** their sisters when the plaint schedule property was decided to be partitioned. This according to the counsel itself would probabilise the case set up by the plaintiffs. We cannot agree to this argument also. We went through the contents of Ext.A8 letter. DW12 Gopalan does not admit in so many words that his sisters are also entitled to a share in their father's property. In the letter it is only stated that there is no property to be given to the ladies. Therefore, an amount of ₹4,000/- would be paid as their share. (.......പ�ണങള�� സല� ഇടവ�ന ഇലനളത� അള�യന� അറ�യ�മലല�. അതപ!�ണ� ഞങള$� സ�മത�!മ�യ� !ഴ�വ�ല�തതപ!�ണ� 4000 ! വ)ത� ഒലര�രതര�� പ!�ട�വ�ന�ണ� ത)രമ�ന�ച�ടളത�. അത� ഉടനട� പ!�ട�വ�ന ഇല�തത പ!�ണ� 6 മ�സത�നള�ല പ!�ട$ണപമന�, 6 മ�സ� !ഴ�ഞ�ല �ല�ശലയ�ട കട� പ!�ട$ണപമന� . ത)രമ�ന�ച�ടണ� അത�ന� പറപമ എല�വര� കട� ഇത�ന� ഒര !ര�റ� എഴത�യത�ന ലശഷലമ ......... ആധ�ര� എഴതനള .) To a query by us as to why the plaintiffs remained silent without taking any steps for all these years and chose to file the suit only in the year 1985, it was submitted that there was an agreement in the family that the property would not be partitioned during the life time of Ooli and Lakshmi. After the death of Lakshmi when the demand of the plaintiffs for a share was not acceded to, the suit was filed. Admittedly, Lakshmi died 60 **S.A.Nos.659 and 751 of 1996** in the year 1971 and Ooli, in the year 1974. The suit is seen filed 11 years thereafter. During this long period the plaintiffs do not ever seem to have staked a claim in the property. They probably must have also understood to have no share or right in their father's property and that must be the reason why the plaintiffs never took any step to get a share in the property though their father passed away in the year 1938 and Ext.A8 letter is of the year 1960. This all the more probablised by the present lie of the property which is evident from the commission report, filed in the final decree proceedings, a copy of which was made available to us during the course of arguments. It is reported that the property is full of buildings, which admittedly have been constructed by the defendants. It is also reported that it is difficult to have a partition in terms of the preliminary decree without causing inconvenience to one or the other sharer. A reading of Ext.A8 letter shows that even way back in the year 1960, there was a clear understanding in the family as to how the property was to be partitioned. The extent, the location etc. of the plots to be allotted to the sharers is clearly referred to. Pursuant to the same the said sharers seem to have put up buildings in their respective plots. In spite of that the plaintiffs are seen to have remained silent. Apart from Ext.A8 letter, Ext.A13 is yet another letter written by the 12[th] defendant to 61 **S.A.Nos.659 and 751 of 1996** the husband of PW1. It also shows that there was an understanding in the family as to how the property is to be partitioned. Both these letters are of the year 1960. In Ext.A8, there is also a reference to payment of an amount of money by the brothers to the sisters. The parties are silent about this agreement. The plaintiffs do not admit or deny having received the amount stated in Ext.A8. 31. It was further submitted on behalf of the plaintiffs that justice, equity and fair play, which is also a source of law, requires the impugned judgment to be upheld and this court may not unnecessarily intervene, that too in second appeal against the concurrent findings and take away the right of the plaintiffs. Equity, justice, fair play etc., would come into play only when there is a vacuum, at which time the court cannot throw up its hand in helplessness and refuse relief to the parties. Such is not the situation in this case. When precedents or materials are before the court regarding the law to be applied, principles of equity cannot be brought in. 32. As far as Sankunni's share of the property is concerned, the self acquired property goes to his wife. Evidence has been brought in to show that Lakshmi, the widow of Sankunni has settled the property in favour of the sons of Kittu. The question of adverse possession etc., raised by the 62 **S.A.Nos.659 and 751 of 1996** defendants do not arise for consideration in the light of our aforesaid conclusion. That being the position, the plaintiffs cannot claim any right or share in the plaint schedule property. 33. It is true that it is against the concurrent findings of the trial court as well as the appellate court that the law applicable to malayala kammalas is Hindu law modified by custom that is being interfered with in this Second Appeal. As both the courts have committed a fundamental mistake in applying the law that is applicable to the parties, we are constrained to interfere with the said finding, which is apparently a question of law and not a finding on fact. In the light of the aforesaid conclusion, the appeals will necessarily have to be allowed. 34. The reference is answered thus- - a. The personal law applicable to malayala kammalas or kammalas of Cochin before the year 1956 is Mitakshara Law as held in **Lilly** ## **Mercilin Lewis v. Chanji, 1954 KLT 631.** - b. Kammalas have been divided into several sub-divisions or subsects based chiefly on their occupation and the material on which they ply their art. - c. In the light of the finding under (a), the other points in the 63 ## **S.A.Nos.659 and 751 of 1996** reference order as to the form of marriage etc. do not arise for consideration and hence are not answered. In the result, the appeals are allowed. O.S.No.462/1985 shall stand dismissed. The cross appeals/cross objections are also dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** ami/Jms