Custom cannot be created by an agreement between the parties.

1. Plaintiffs are the appellants.

2. Plaintiffs filed the suit for declaration that they are the heirs of Govindaraj to receive all the benefits that may accrue to the legal heirs of Govindaraj. They contend as follows:

Second plaintiff is the mother of the deceased Govindaraj and the first plaintiff is his only brother. The said Govindaraj died on 21.7.1982 while he was in Army service. The deceased Govindaraj married the defendant in the year 1964, but he had no issues. There were ill feelings between Govindaraj and the defendant which resulted in customary divorce before the mediators. As per the directions of the mediators, the deceased Govindaraj paid a sum of Rs.7,000 to the defendant and a divorce deed was reduced to writing and signed by Govindaraj and the defendant on 24.7.1978 at the Sub-Registrars Office, Pandalgudi. The parties to the divorce belong to Kammavar Naicker Community and customary divorce is recognised in their community. After the divorce, the defendant was living with another person and lost the status of wife of the deceased Govindaraj. The deceased Govindaraj nominated the first plaintiff as his nominee to acquire all benefits of pension and other amounts due to him in the event of his demise. So, as per the nomination of the deceased Govindaraj, the first plaintiff is entitled to all the benefits which will accrue to the legal heir of the deceased Govindaraj. Since the defendant was divorced long before the death of Govindaraj, she cannot claim any right or interest over the pension and other benefits which accrue to the legal heirs of the deceased Govindaraj. The defendant is not the legal heir of the deceased Govindaraj. So, only the plaintiffs are the legal heirs of the deceased Govindaraj.

3. The defendant filed written statement contending as follows:

There was no serious ill feeling between the deceased Govindarajan. He wanted to marry a second time. The defendant resisted it. But, later yielded to the idea in the hope that a child might be born at least to the second wife of her husband. It was represented to her that since customary divorce was not in vogue in the community, she should agree for divorce being effected by court and that a petition for divorce would be filed in the proper forum. The defendant refused to that demand. It was, thereafter, suggested to her that they could not go to court for divorce and that she could continue to enjoy the status of senior wife. The defendant was threatened that if she does not agree for the suggestive of the plaintiffs, there was likelihood of her being done to death. So, the defendant, out of pressure brought upon her agreed to be a party to such document. There has never been any legal divorce effected between the defendant and the deceased Govindaraj. In Kammavar Naicker community, there is no customary divorce. This defendant is not living with any other person. The first plaintiff cannot derive any benefit as the legal heir of the deceased Govindaraj as per the Hindu Succession Act and only the second plaintiff and this defendant alone will be the legal heirs of the deceased Govindaraj.

4. The trial court decreed the suit. The first appellate court set aside the judgment and decree of the trial court.

5. As against the judgment and decree, the present second appeal is preferred by the first plaintiff and the legal representatives of the second plaintiff.

6. The substantial questions of law that were framed at the time of admission of the second appeal are as follows:

(i) When the custom permits customary divorce, is it necessary for the defendants husband to get divorce through court.

(ii) Cannot the factum of custom in the community be proved by ancient, continuous and recent documents with supporting oral evidence.

(iii) Even if the divorce is not effected, has not the second plaintiff, the mother, entitled to her share as heir.

(iv) Can the documentary evidence be rebutted by oral evidence.

(v) When the execution of a registered