The main legal point established in the judgment is the requirement for strong and cogent evidence to establish a custom, and the principle that a defendant can be bound by a judgment against a third party if they rely on the title of that third party in their defense.

Venkataramana Rao, J.

1. This is a suit in ejectment and for recovery of arrears of rent. It was instituted originally by one Achutha Nair as manager of his tarwad. The subject matter of the suit related to four Items of property. It was alleged that items 1 to 3 were leased to the defendants father in Chingom (1908-1909) 1084 with a munpattom of Rs. 40 under a lease deed executed by him in favour of Kunji Amma, the then senior female member of the tarwad on behalf of the tarwad, as the senior male member Govinda Menon was then employed elsewhere. Item 4 was alleged to have been leased orally in 1086 also to the defendants father by one Gopalan Nair who was then managing the tarwad on behalf of the said Govinda Menon. Kunji Amma died before suit. As the defendant who is in possession of the property after the death of his father refused to surrender possession or pay rent from 1104 to the plaintiff, this suit was instituted. The said Achuthan Nair died pending suit and the next senior male member Krishnan Nair was added as plaintiff 2 in the suit. The main defence is that the leases were granted by Kunji Amma who was the senior-most female member, that there is a custom in the tarwad under which the right of management vested in the senior-most female member, that after the death of Kunji Amma the right of management vested in Nanu Amma who is the senior most female member alive, that he has attorned to her and paid and has been paying rent to her and claimed to hold under her and therefore was not bound to surrender possession. The findings of both the Courts are that both the leases were given by Kunji Amma but in regard to the custom and the right to the management of the tarwad properties both the Courts differed.

2. The learned District Munsif found that there was no custom which entitles the senior-most female member of the tarwad to manage the property in preference to the senior-most male and gave a decree to the plaintiff as prayed for. The learned Subordinate Judge took a different view. He was of opinion that the custom has been made out. His reasoning is based on the fact that for a period of nearly 40 years Kunji Amma, the senior-most female member was allowed to manage the tarwad and such management was acquiesced in by the male members and that Nanu Amma was after her the manager in whom the tarwad property vested and the plaintiff had no title to maintain the suit, but he however found that if the plaintiff was the person entitled to the management of the tarwad properties he was entitled to possession of properties items 1 to 3. This finding of the learned Subordinate Judge as to custom is attacked in second appeal and it seems to me that the finding is unsatisfactory. The suit tarwad formed a branch of a main tarwad from which it separated by a deed of partition, Ex. D, in or about 12th July 1877. The said deed of partition distinctly provides that Govinda Menon, the senior-most male member, should be manager of the branch to which Kunji Amma belonged. But for some reason or other Kunji Amma was allowed to manage the tarwad. There is no other instance given of a female member managing the tarwad. Strong and cogent evidence must be given to establish a custom entitling the senior-most female member to manage in preference to the senior-most male. It would be unsafe to infer a custom from the single instance of a senior-most female having been allowed to manage the property for a considerable length of time. The elements which would be required to establish a valid custom cannot be said to have been established in this case. But I think it is unnecessary to rest my decision on this ground as the case can be satisfactorily disposed of on another ground.

3. It has been brought to my notice by Mr. Govinda Menon, who appears for plaintiff 2 (appellant), in this case that, since the filing of the present appeal, in two litigations to which Nanu Amma and the present plaintiff 2 were arrayed as plaintiff and defe