The main legal point established in the judgment is the requirement for clear proof of custom in determining inheritance rights within a community, and the reliance on historical references and treatises to establish customary law.

1. The only question for determination is this second appeal is whether the appellant's contention that under the system of inheritance obtaining among the Vala Community in this area a daughter is entitled to a share equal to that of a son in her father's estate has been established or not. The lower appellate court decided that the sons inherit to the exclusion of the daughters and that is the decision that is challenged before me.

2. The Valans form one of the two important fishing castes of Cochin, the other being the Arayan or Kadalarayan and according to Mr. Padmanabha Menon in his history of Kerala, Volume III P. 468:

"While the Valans follow a mixed form of inheritance the Arayans observe Makkathayam. The Valans divide their self-acquired property equally among their nephews or ananthiravans and sons"

Mr. Padmanabha Menon was one of the leading lawyers of Cochin and the book was edited and published after his death by another eminent lawyer, the late Mr. T.K. Krishna Menon. There can be no doubt that if a custom as alleged by the appellant obtained in the community it would have found specific mention and I cannot attribute the absence of a reference to such a custom to anything other than the absence of the custom itself.

3. There are references to the rules of inheritance obtaining among the Valans at p.204 of the Cochin State Manual by Mr. C. Achutha Menon, at p. 236 of Volume I of the Cochin Tribes and Castes by Mr. Ananthakrishna Iyer an in Mr. Iyer's Note on Valans in Volume VII of Thurston's Castes and Tribes of Southern India. There is nothing in those passages also which will in any way lend support to the existence of the custom alleged in this case.

4. I am prepared to assume that the Hindu Law as such is not applicable to the Valans and as a result the standard of proof required to establish a rule of Customary Law in their community "need not come up to the standard required to making out a custom in derogation of a known body of antecedent law postulated to be generally binding such as the Hindu Law or the Mohammadan Law" and that all that is required "is such reasonably clear proof as the court will, in the circumstances of each case, insist upon for proving any other fact". See 25 Cochin 584 and 39 Cochin 19. In other words, as stated in latter case the evidence adduced in support of the custom need not be "subjected to those well known tests which are applied to the case of an alleged custom, contrary to, or in derogation of, the ordinary law, but should be merely as evidence adduced to show what is the rule of the customary law itself" and "in any enquiry into what the customary of law of the parties is we do not start with any bias in favour of a particular view - that daughters are or are not entitled to succeed along with the sons - and see whether the evidence adduced is sufficient to displace it. The enquiry itself is - what is the customary law of the community, and this has to be ascertained, like any other question of fact on the evidence in the case. If the court comes to the conclusion that a certain customary law has been proved, then that is their law which the court must apply to them. If not, then the court will, in the absence of proof of what their law is, apply to them rules of justice, equity and good conscience. This, in fact, is the ratio of the decision in Kochi v. Raman (21 Cochin 1)".

5. The issue relating to the alleged custom is issue No.1 (1):

"Has the deceased Kutty's daughter, Pennamma any right in the properties according to the custom of succession among the members of the Vala community?".

and the oral evidence adduced is certainly of no assistance of arrive at any definite conclusion. The trial court has stated:

"The oral evidence in this case is of no use as the witnesses do not speak to any particular instance in support of either party's case".

and the learned District Judge has endorsed that view by saying:

"The oral evidence of custom adduced in the case is me