Judgement

Appeal (No. 32 of 1919) from a judgment and decree of the High Court (January 12, 1915) varying a decree of the Subordinate Judge of Madura (December 23, 1911).

The parties to the litigation were members of a Hindu joint family belonging to the caste of Athangudy Chettis, and were resident at a village called Vallalapatti in the Madura district. The suit was brought by the appellant against the respondents, his father and half-brothers by a second wife, for partition.

By paras. 6 and 13 of his plaint the appellant alleged a custom of his caste, resident at Vallalapatti and certain other villages, in the terms set out in the judgment of the Judicial Committee. By para. 7 he relied on an agreement which " following the custom " was executed by his father in 1885 before marrying his second wife, stipulating to give for the jeshtabhagam of his male children by his first wife certain [@ page LRIA 540] properties and Rs. 500, and to divide and give a moiety of the remaining family properties. He prayed to recover the properties named as jeshtabhagam, also Rs. 500 for moopu, and to have it declared that he was entitled to a moiety of the remainder of the property he also prayed that, if the Court should be of opinion that the father was entitled to maintenance, a direction for payment of a one-fifth share or otherwise.

The respondents by their written statements denied the appellants right to a larger share than that allowed on partition by the ordinary Hindu law.

Both Courts in India held that the agreement, not being registered, was not enforceable; also that the appellant was entitled to recover moopu. The present appeal was confined to the validity and effect of the custom with regard to which oral and documentary evidence was adduced at the trial.

The Subordinate Judge held that there was a custom of the caste whereby upon a second marriage the family property became divisible equally between the male issue of the two wives; he however was of opinion that the father could not be excluded from a share. He declared that the plaintiff was entitled to a one-third share.

The half-brothers (the present respondents 2 to 4) appealed to the High Court, and the plaintiff (the present appellant) filed cross-objections under Order xli., r. 22, maintaining his right under the custom to a moiety of the property. The appeal was allowed, it being held that the plaintiff was entitled to a one-sixth share only ; in other respects the decree of the trial judge was affirmed. The learned judges (Spencer and Sankara Nair JJ.) came to the conclusion " that division according to the number of wives having sons has not been established as a custom, and cannot be enforced in this case."

1921. April 28, 29 ; May 2. Macquisten K.C. and Ingram for the appellant. The evidence established that there was a caste custom in the villages referred to whereby on a second [@ page LRIA 541] marriage the property was divisible according to wives. In the various instances proved effect had been given to that custom; no instance to the contrary was proved. A custom of this nature is not unknown in Hindu law, and is prevalent in Southern India Sumrun v. Khedun ((1814) 2 S. D. A. 116, 147.) ; Temmakal v. Subhammal (( 1864) 2 Madr. H. C. 47.) ; Stranges Hindu Law, vol. ii., p. 237; Maynes Hindu Law, 8th ed., para. 473w. Both Courts upheld the custom as to the moopu, and the custom with regard to the division of the rest of the property rested on the same evidence. It is true that there is no record of a division in the lifetime of the father, but the appellant was entitled to partition and the custom has to be applied. The plaint conceded the fathers right to maintenance. In any case the appellant was entitled to a one-fifth, not a one-sixth, share. Another sharer could not be introduced after suit ; the institution of the suit operated as a partition Suraj Narain v. Ikbal Narain (( 1912) L. R. 40 I. A. 40.); Girja Bai v. Sadashiv Dundhiraj (( 1916) L. R. 43 I. A