The main legal point established in the judgment is the requirement for evidence to establish customary laws and incidents, such as impartibility, within a community. The judgment also clarifies the inapplicability of the principle of pious obligation in certain cultural contexts.

1. These appeals arise from the decision of the Subordinate Judge of Kozhikode in O.S. No. 17 of 1956. The plaintiffs are the appellants in A.S. No. 551 of 1958. The 2nd defendant is the appellant in A.S. No. 558 of 1958.

2. The suit was in pursuance of : two chitty hypothecation bonds executed by the 1st defendant in favour of the Dharmodayam Company, Trichur, of which the plaintiffs were the trustees. The 2nd defendant, the son of the 1st defendant, contended that the family properties cannot be made liable for the debt under the law obtaining in the Thiyya community of Calicut to which the 1st and 2nd defendants belonged.

3. The contentions of the 2nd defendant were that according to the customary law applicable to the community the family properties were not partible and there was no rule of pious obligation to discharge the debts of father. The learned Subordinate Judge rejected the first contention, accepted the second, and directed as follows:

"In the result the plaintiffs are given the usual mortgage decree for sale, for the plaint amount with interest and costs of the suit against the 1st defendant's half share in the plaint schedule properties. The personal remedy against the 1st defendant is barred and is therefore disallowed. The 2nd defendant's share is exonerated from liability. The 2nd defendant will get his costs from the plaintiffs. Time 4 months."

4. In AIR. 1927 Madras 877 - a case relating to the Thiyyas of Calicut-the Madras High Court dealt with the proper approach to be made in a case like this as follows:

"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 see is what is the rule of customary law obtaining amongst them in that matter and in cases which are not sufficiently governed by prior decisions, the question will have to be determined with reference to the evidence in the case. In the absence of any satisfactory evidence to show what exactly is the tub of the customary law on any particular point, the rule of Hindu law on that point must, we think, be presumed and adopted to be the rule of the customary law obtaining amongst the community on that point. The presumption is not that the Hindu Law as such is the law governing them in all matters; if that be the presumption a person who alleges a rule of customary law at variance with it will have to prove it as a custom in derogation of the law. The presumption is simply that the rule of the Hindu Law is also the rule of the customary law obtaining amongst them, so that if any person alleges that the rule of the customary law on any particular point is something different, the evidence that he adduces in support of his allegation ought not to be subjected to those well known tests which are applied to the case of an alleged custom contrary to or in derogation of the law, but should be viewed simply as evidence adduced to show what is the rule of the customary law itself. The presumption therefore will "be useful and will hold good only if satisfactory evidence is not forthcoming as to what is the rule of the customary law.",

and held that the rule of impartibility should not be invoked in the case of the Thiyyas of Calicut unless it was established by the evidence in a given case. This decision was followed in AIR. 1929 Madras 508.

5. In A.I.R. 1940 Madras 67 it was contended that the incident of impartibility among the Thiyyas of Calicut has been well settled by the decisions of that court and actual proof in a case is no longer necessary. Somayya, J. surveyed the decisions and said:

"This being the state of authorities it cannot be said that the incident of impartibility has been recognised in judicial decisions so as to dispense with proof. It must be proved by the party setting up the incident of impartibility that it exists in the community or in the families in question."

6. The evidence befor