The judgment establishes the importance of proving customary law and the application of statutory provisions in determining inheritance rights. It also highlights the impact of previous court decisions and the significance of justice, equity, and good conscience in inheritance disputes.

K. Sukumaran, J.

1. Has a daughter born in the Thiyya community of Trichur Taluk, a share in her patrimony prior to 1115 M. E.?, is the question which arises in the second appeal. The courts below have answered it in divergent ways, the Trial Court answering it in the affirmative and the lower appellate court in the negative. The second appeal at the instance of the plaintiff worsted in her litigation challenges the correctness of the view taken by the court below.

2. The facts are simple. Ayyappan, father of the plaintiff, who acquired the plaint schedule properties by virtue of the partition deed Ext, A4 dated 24-19-1097 and the assignment Ext. A3 dated 7-1-1103, died in 1108 M.E. He had four daughters - Paru, Kunchi, Sarada and the plaintiff - and one son. the defendant. Paru and Kunchi executed Ext. A5 dated 25-6-1109 releasing : rights in respect of the assets of their father after having received a sum of Rs. 100/- towards their share. Under Ext. A6 dated 7-5-1965 Sarada assigned her rights in respect of the plaint schedule for a consideration of Rs. 300; the document recites that Paru, Kunchi and the plaintiff were the sisters of the defendant and that they and the 1st defendant were the daughters and son born to Ayyappan. A reference is also made to Ext. A5 in the assignment deed Ext. A6. Claiming that the plaintiff remained in joint possession of the properties, she sent a lawyer's notice Ext. A1 on 28-6-1971 demanding a share in the property. The claim was repudiated by the reply Ext. dated 8-7-1971. The suit was, thereafter instituted on 5-8-1971.

3. In the plaint the claim was based on Hindu Succession Act. The evidence of the plaintiff consisted of Exts. A1 to A6, reference to which had already been made. She examined herself and one other witness on her side. P. W. 2 Varu, son of Vareed, is a neighbour. On the side of the defendant, one witness D. W. 2, Velayudhan, aged 81, was examined, apparently to establish the custom in the community in that area about a daughter not inheriting her father's property.

4. The Trial Court decreed the plaintiff's claim on the basis of the Hindu Succession Act, for, obviously succession opened long prior to the coming into force of that enactment, even prior to the Cochin Makkathayam Thiyya Act of 1115. The law applicable is the law as it stood prior to 1115, when the latter enactment (Cochin Marumakkathayam Thiyya Act of 1115) came into force, which made -for the first time the statutory provision conferring rights on the daughters in the family.

5. The Trial Court, however, took the view that the custom alleged by the defendants had not been proved and that Exts. A5 and A6 contained an admission about a daughter having right or interest in the property left by her father. The Observations contained in the decision in Kochi v. Raman, 21 Cochin 1, were relied upon by that court to hold that the plaintiff was entitled to a share in the property of her father. That decision had also held that when custom is not proved, the principles of justice, equity and good conscience should be applied. Equality was equity in such a situation, and consequently a daughter was entitled to have the same share as a son. A preliminary decree granting 1/5 share in the plaint schedule properties was thus passed by the Trial Court.

6. The lower appellate court, on the other hand, took the view that Exts. A5 and A6 documents did not operate as an admission on the part of the . defendant about a daughter being; entitled to a share in her father's property. Nor were they sufficient to constitute the plea of estoppal. Relying on a later decision of this court in Kamalakshy v. Narayani, 1967 KLT 1051, the appellate court took the view that when a custom had not been proved the Hindu Mitakshara Law had to be applied and so applied the plaintiff could not claim any share in the property.

7. The issue would have merited perhaps a deeper consideration and by a larger Bench, had it not been for certain special