Custom modifying Hindu Law recognized the entitlement of married daughters except those married in the Kudivaippu form to shares in their father's properties.

1. The subject matter of this litigation is a plot of land which belonged to one Madappan Asari. According to the plaintiffs he had two sons, the 1st defendant and one Parameswaran Asari, deceased and three daughters, Defendants 2 and 3 and Kochuparvathi deceased. The plaintiffs' case is that they purchased the shares of the three daughters while the 1st defendant purchased the share of Parameswaran Asari. The suit was for partition and recovery of the 3 5th share purchased by the plaintiffs. Defendants 1 and 9 of whom the latter had purchased a portion of the property from the 1st defendant filed a joint written statement denying the plaintiffs' right. They contended that Madappan Asari had only 4 children and that Parameswaran Asari was not his son. It was further contended that in their community married daughters were not entitled to a share in their father's property. The 1st defendant claimed the whole property as the only son of Madappan Asari. The plaintiffs filed a replication in which they asserted that married daughters were also entitled to shares. The trial court found that Parameswaran Asari was not the son of Madappan Asari and that the sale deed Ext F alleged to have been taken by the 1st defendant from him was a fraudulent document. It was also found that daughters are ordinarily entitled to shares in their father's properties and that they lose such rights only when they are married in the Kudivaippu form. A preliminary decree allowing partition was accordingly passed. Defendants 1 and 9 appealed from this decree and the lower appellate court allowed the appeal and dismissed the suit, holding that married daughters could not claim shares in their father's assets. The plaintiffs have therefore preferred this Second Appeal.

2. The parties to the suit belong to the community of Malayala Kammalans. The question is whether married daughters in that community are entitled to share in their father's assets. The plaintiffs admit that they are governed by Mitakshara Law modified by custom. The custom pleaded is that married daughters do not lose right to family properties. In such a case it is for the plaintiffs to prove the custom The identical question arose for decision in Kittu Eacheran v. Ouseph Ouseph and another (1948 T. L. R.734). The High Court of Travancore held that among Malayala Kammalans married daughters except those married in the Kudivaippu form are entitled to shares in their father's properties. In coming to this conclusion the learned judges relied on M. P. Joseph's Principles of Marumakkathayam Law also. Dealing with Malayala Kammalans, the learned author says:-"They are following the Hindu Law as modified by custom. If a girls is married in the Samandham form she retains her right in her family properties but if it is in the Kudivaippu form with Stridhanom she loses her right in the natural family". The decision cited above is an instance in which the custom modifying Hindu Law which has been pleaded in this case has been recognised. There is a decision of the Travancore-Cochin High Court in Mrs. Lilly Merollin Lewis v. Chanji Mani and others (1954 K.L.T. 631). The question which arose in that case was whether Kammalas in Cochin area were followers of Mitakshara Law and whether there was a custom in the community which recognised the right of women to share in family properties. It was held that such a custom was not proved in the case of married daughters. The present case is one arising from the Travancore area. In this case there is not such difficulty in finding that the custom pleaded by the plaintiffs existed, in view of the admission made by the 1st defendant as Dw. 3. He stated in cross-examination as follows:

3. D. W. 2 also admitted that this custom existed in the community. The defendants had no case in the pleadings that the three daughters of Madappan Asari were married in the Kudivaippu form. Learned counsel for the respondents urged that it was for the plaintiffs to alleg