Judgment

ALAGIRISWAMI, J. :- This is an appeal by special leave against the judgment of the High Court of Madras in Second Appeal.

2. The appellant is the daughter of one Ayyappan Mathevan Pillai, who died on 17th January, 1949, by one of his wives, the second respondent. The first respondent is his son by another wife. The parties belong to the Krishnanvaka Community found mainly in the Kanyakumari district of Tamil Nadu. During the appellant s minority her mother and the first respondent entered into a deed of partition under which the appellant was given 9 out of 79 items belonging to her father. She filed the suit out of which this appeal arises for partition and possession of a half share in all her father s properties. Her claim was based on the allegation that in the community to which the parties belong there was a custom of a special kind of pathnibhagam. While under the ordinary pathnibhagam a man s sons by different wives get their shares on the basis that whatever their number the property is divided according to the number of wives he had, rather than on a per capita basis, the special kind of pathnibhagam pleaded by the plaintiff was that even a daughter was entitled to share on the same basis. She pleaded that as Mathevan Pillai had two wives and she was the daughter by one wife and the 1st defendant the son by the other wife each of them was entitled to a half share.

3. The learned Subordinate Judge who tried the suit, on a consideration of the evidence in the case, as also various earlier decisions regarding this custom held against the plaintiff. On appeal the District Judge of Kanyakumari without going into the evidence but on the basis of some earlier decisions allowed the appeal. In the Second Appeal before the High Court the learned Single Judge took the view that the decisions relied on by the District Judge cannot be said to have established the existence of the special custom pleaded by the plaintiff. The 1st defendant also sought to sustain the partition deed on the basis that it was the result of a family arrangement. But the learned Judge did not think it necessary to go into that question in the view he took regarding the custom pleaded by the plaintiff.

4. The question that arises for decision in this case is whether the custom pleaded by the appellant has been established. On behalf of the appellant reliance was not placed on the evidence in the case to establish the custom. The argument was simply based on certain earlier decisions regarding the prevalence of the custom of pathnibhagam among the community to which the parties belong. The legal position regarding the place of customary law among the Hindus is now well established. In Collector of Madura v. Muttu Ramalinga Sathupathy, (1868) 12 Moo Ind App 379, (436) (PC) it was observed by the Privy Council :

"Under the Hindu system of law clear proof of usage will outweigh the written text of the law."

In Rama Rao v. Rajas of Pittapur, ILR 41 Mad 778 at p. 785 = (AIR 1918 PC 81) the Privy Council observed :

"When a custom or usage, whether in regard to a tenure or a contract or a family right, is repeatedly brought to the notice of the Courts of a country, the Courts may hold that custom or usage to be introduced into the law without the necessity of proof in each individual case. It becomes in the end truly a matter of process and pleading."

In Premraj v. Chand Kanwar, 1947-2 Mad LJ 516 the Privy Council observed :

"It is not doubtful that the ordinary rule is that a party relying on a custom...........which is at variance with the ordinary Hindu law must allege and prove it. But it is equally beyond doubt that a custom which has been recognised and affirmed in a series of decisions, each of them based on evidence adduced in the particular case, may become income incorporated in the general law, with the result that the onus of proof no longer lies on those who assert it but upon those who assert an exception to it."

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