Judgment

HEGDE, J. :- In these appeals by certificate only one question arises for decision and that is whether Chandu, the undivided younger brother of Kelu or the grandchildren of Kelu through his daughter were the legal heirs of Kelu.

2. Before going into that question we may dispose of the contention advanced on behalf of the appellants that there is no satisfactory evidence to show that Chandu was the undivided brother of Kalu. The pleadings in this case proceed on the footing that Chandu and Kelu were the members of an undivided family. The evidence also discloses that fact. The judgments of the Courts below proceed on that basis. Hence the appellants cannot now be permitted to raise the contention in this Court that Chandu is not proved to be the undivided brother of Kelu. In considering the question formulated above, we shall proceed on the basis that Kelu and Chandu were the members of an undivided family.

3. Kelu was a Thiyya resident of Calicut Taluk (at present known as Kozhikode Taluk). He was governed by the customary law known as Makkathayam. He died on November 15, 1935 leaving behind him besides his two brothers Chandu and Chekku, his widow Manikka, daughters Ichira and Ichira s son and daughter who were the appellants before the High Court. He left behind him three items of immovable property which are the subject matter of the present appeals. Kelu s widow Manikka and his daughter Ichira as well as his brother Chekku died prior to 1944 long before the institution of the suits from which these appeals arise.

4. It is not necessary to go into the history of the long litigation. As mentioned earlier, the only question for decision is as to who were the legal heirs of Kelu. It is now established that the suit properties are the self-acquired properties of Kelu. There is no dispute about it now. The High Court came to the conclusion that under the Makkathayam rule Chandu succeeded to the estate of Kelu in preference to his wife, daughter and daughter s children. The said conclusion is challenged in these appeals.

5. The contesting parties are Hindus. As mentioned earlier, they are governed by Makkathayam rule. If the Hindu law as in force in South India had governed the succession with which we are concerned, the wife of Kelu should have succeeded to the estate of her husband in preference to the other heirs. The claims of the son and daughter of Ichira could come in only later. Therefore the principal question that we have to decide is whether the wife of Kelu succeeded to the estate of Kelu on his death.

6. Mr. S. T. Desai, appearing for the appellants contended that Makkathayam rule being a rule of customary law can only derogate the ordinary Hindu law to the extent it is satisfactorily established; in other respects the ordinary Hindu law should prevail; the contesting respondents having not established by positive evidence the claim put forward by them i.e. that Chandu was a preferential heir to Kelu, they must fail. On the other hand it was contended by Mr. Rama Reddy on behalf of the respondents that Kelu was governed by a customary law i.e. Makkathayam law and not by ordinary Hindu law. Hence all that we have to see is whether the customary law pleaded is well established on the basis of the decisions of Courts. According to him the custom pleaded is of a community and not of any family. He urged that the custom in question to the extent relevant for our present purpose is well settled.

7. The law relating to Thiyyas of the former Calicut taluk had come up for decision before the Madras High Court in several cases. The approach to be adopted in spelling out the same is laid down in the decision of the Madras High Court in Pattukkaval Chakkutti v. Kothembra Chandukutti, AIR 1927 Mad 877. Therein the Court observed :

"We think the Makkathayam Thiyyas are governed by what is called the customary law and that when a question arises as to what is the rule of law governing them on any particular matter what we have to