Judgment

HEGDE, J: - A common question arises for decision in these appeals by special leave. That question is as to who is the legal heir of the deceased Kochan Kani. Kunjuraman Kani, the son of the deceased Kochan Kani (who will hereinafter be referred to as the appellant) claims that he is the legal heir. On the other hand Mathevan Kani (who will hereinafter be referred to as the respondent) the brother of the deceased Kochan Kani claims that he is the legal heir. According to the respondent the deceased was governed by Marumakkathayam law but according to the appellant he was a Makkathayee. Both Marumakkatham system as well as Makkathayee system are customary laws.

2. After the death of Kochan Kani the revenue authorities came to the conclusion that the appellant was entitled to the estate of his father. Thereafter the respondent filed O. S. No. 74 of 1956 on the file of the Second Additional District Judge, Trivandrum against the appellant and his step mother seeking a declaration that he was entitled to the transfer of the registry in his name as the legal heir of the deceased Kochan Kani. That suit was dismissed by the trial court but on appeal the High Court of Kerala reversed the decree of the trial court and decreed the suit in favour of the respondent. Civil Appeal No. 924 of 1966 is directed against that judgement.

3. The respondent and some of the alienees from him instituted O. S. No. 78 of 1959 against the appellant in the court of Additional Sub-Judge, Trivandrum for a declaration of the title of the respondent in the properties mentioned in that suit and for the possession of the same on the ground that those properties belonged to the deceased Kochan Kani and after his death they had devolved on the respondent. That suit was decreed by the trial court. As against that decision, the appellant appealed to the High Court of Kerala in A. S. No. 469 of 1964 on its file. That appeal was dismissed. Thereafter the appellant has appealed to this Court in Civil Appeal No. 925 of 1966.

4. Civil Appeal No. 926 of 1966 arises from O. S. No. 436 of l124 filed by the appellant and his step mother in the court of Additional Munsiff, Neyyattinkara for the eviction of Isreal Nadar. That suit was dismissed by the trial court and the appellant was unsuccessful in the first appeal as well as in the second appeal.

5. The deceased Kochan Kani belonged to a tribe known as Kanikkars. Originally they were Nomads, They hardly had any immovable property. But in recent times they have settled down and a few of them have acquired immovable properties. Kochan Kani was one such. In O. S. No. 74 of 1956, the respondent pleaded that the Kanikkars tribe follows Marumakkathayam system. In paragraph 2 of the plaint he stated :

"...... The Kanis from time immemorial follow Marumakkathayam Law and Kochan Kani has in several cases declared himself to be a Marumakkathayee."

6. He also averred in that plaint that in several decisions, the courts declared that Kanikkars follow Marumakkathayam system. The custom pleaded by the respondent was a tribal custom and not a family custom pertaining to the family of Kochan Kani. In O. S. 78 of 1959, the averments relating to the custom in question are vague. At any rate even in that suit, the respondent did not put forward any family custom. Therefore the only question that the courts had to decide was whether the respondent had proved the custom pleaded by him. It is well established that in the matter of custom a party has to plead in specific terms as to what is the custom that he is relying on and he must prove the custom pleaded by him. He cannot be permitted to prove a custom not pleaded by him. In Abdul Hussain Khan v. Bibi Sona Dero, 45 Ind App 10 the Judicial Committee observed "It is therefore incumbent upon the plaintiff to allege and prove the custom on which he relies." That was also the view taken by this Court in Thakur Gokalchand v. Parvin Kumari, 1952 SCR 825. The reason for this rule is obvious.