KERALA HIGH COURT

THANKAMMA AND ANR. VS N. KUNJAMMA AND ORS

ON 26 NOVEMBER, 1985

Summarised Judgement (Scroll for Complete Judgement)

Facts of the Case:

This is an appeal by the plaintiffs. They filed the suit for partition. Plaint B schedule property originally belonged to one Chadayan Pathiru. Pathiru died leaving a son, Paulose, and two daughters Rajamma and Thankamma. Plaintiffs contended that no streedhanam was given by Pathiru to his daughters.

The case is that the properties of Pathiru devolved on all his three children. Plaintiffs submitted that the Travancore Christian Succession Act (Regulation II of 1092), for short the Act, is not applicable to Pathiru and his children being Protestant Christians of Neyyattinkara Taluk and that by virtue of a customary usage prevalent among the community, all the children both male and female are entitled to equal shares in the properties of their parents. The plaintiffs are assignees of the rights of Rajamma and Thankamma.

Observation of Court:

I shall briefly refer to the scheme of the Act. I may quote here the objects and reasons for the Travancore Christian Succession Act (Regulation II of 1092).

The law of intestate succession among the various sections of Indian Christians in Travancore is vague and unsettled. The High Courts have been complaining about the unsatisfactory state of the law among Christians. Repeated representations were made by Christian representatives about the desirability of enacting a law of succession. The necessity for legislation has therefore long been felt.

On this report, provisions are made excluding the daughters from inheriting a share of the properties of their parents when they died intestate. I do not think that it can be doubted that if the relevant provisions of the Act regarding succession are applicable to the plaintiffs they cannot claim a share in the properties and so the suit for partition has to be dismissed.

Now reverting back to the effect of section 30, I should say that Section 30 is the declaration and recognition of the customary usage among certain class of Roman Catholic Christians of Latin rite and certain Protestant Christians of the named Taluks sharing the properties of the intestate by the male and female heirs of the intestate equally. Such a custom will have force of law; it need not be proved on a custom having the force of law as such in view of the declaration in Section 30. Section 30 makes it easy for those who claimed that they belonged to Protestant Christians residing in one of the named Taluks to claim the benefit of the custom.

I shall now refer to certain other decisions on this aspect. One of the earliest decisions, where a consideration of this question is seen attempted is (1940) 30 Travancore LJ 470 (Anthony Sebastian Fernandez v. Vareethu Lassar Fernandez). Madhavan Pillai, J. agreeing with the learned Chief Justice observed : -

"It is evident from Section 30 of the Christian Succession Act (Act II of 1092) that the custom applicable to certain classes of the Roman Catholic Christians of the Latin Rite and also to certain- Protestant Christians has been preserved only to the extent of retaining the usage among them for the male and female heirs to share equally in the property of the intestate and not to the extent of excluding female heirs from inheritance merely because streedhanam has been received.

Judgement of Court:

The provisions of the Christian Succession Act referred to above, are, therefore repugnant to the continued existence of the custom that women of these particular communities to whom streedhanam has been paid have no further claim upon their father's estate. The custom accordingly has to be treated as abrogated by the Act."

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Complete Judgement

KERALA HIGH COURT

THANKAMMA AND ANR. VS N. KUNJAMMA AND ORS. ON 26 NOVEMBER, 1985

Equivalent citations: AIR 1986 Ker 134

Author: V Kalliath

Bench: V Kalliath

JUDGMENT Varghese Kalliath, J.

1. This is an appeal by the plaintiffs. They filed the suit for partition. Plaint B schedule property originally belonged to one Chadayan Pathiru. Pathiru died leaving a son, Paulose, and two daughters Rajamma and Thankamma. Plaintiffs contended that no streedhanam was given by Pathiru to his daughters. The case is that the properties of Pathiru devolved on all his three children. Plaintiffs submitted that the Travancore Christian Succession Act (Regulation II of 1092), for short the Act, is not applicable to Pathiru and his children being Protestant Christians of Neyyattinkara Taluk and that by virtue of a customary usage prevalent among the community, all the children both male and female are entitled to equal shares in the properties of their parents. The plaintiffs are assignees of the rights of Rajamma and Thankamma.

2. The contesting respondents submitted that the Act is applicable to Rajamma and Thankamma and as such they have no share in the properties of their parents.

3. The trial court after considering the evidence in the case held that the plaintiffs failed to prove the custom pleaded by the plaintiffs to establish that the daughters are also entitled to an equal share with the sons in the property of their parents. Since this vital fact was not proved, the trial court negatived the right of the plaintiffs to get partition of one-third share in the plaint schedule property.

4. In regard to an extent of 64 cents there was a sale deed executed by the son Paulose in favour of Thankamma and her husband. The sale deed is Ext. A1. It is dated 1-4-1109. Subsequently, Thankmma along with Rajamma executed a sale deed to the plaintiffs in regard to the said 64 cents Thankamma obtained under Ext. Al and the one-third share in B schedule properties which Rajamma was entitled. Thus a sale deed was executed for 1 acre 7 cents in favour of the plaintiffs. The trial court passed a preliminary decree for partition on the basis of this sale deed. Plaintiffs were allowed 421/2 cents in plaint B schedule property.

5. The defeated plaintiffs filed an appeal before the appellate court. The appellate court also agreed with the trial court that Rajamma and Thankamma had no right in the property left by their father. Nevertheless, on the basis of the sale deed, the appellate court also allowed 421/2 cents to the plaintiffs. Of course, the District Court further directed the trial court to go into the question of the actual extent of B schedule property and to allot l/3rd of the actual extent of B schedule property. This the appellate court did because in the sale deed, Ext. Al, even though a specific extent of 64 cents is stated, it was further stated in the sale deed that this 64 cents is one-third of i acre 92 cents which was held by Pathiru and subsequently devolved on Paulose on the death of Pathiru. Now the dissatisfied plaintiffs appeal.

6. The root question that has to be decided in this appeal is whether the Act in regard to succession is applicable to Pathiru and his children. The learned counsel for the appellants submits that in view of Section 30 of the Act, the parties (the predecessor-in-interest of the plaintiffs) are not governed by the provisions contained in the Act.

7. The Christian community in Kerala is not an equable or even unit. It is certainly not a homogeneous unit. There are different sects and sub sects, having their own peculiarities even in matters of inheritance and devolution of properties. Codification of laws relating to succession and allied matters for the Christians was undertaken only early in this centuary. Before that the only source of law for the courts to resolve disputes was custom. Custom was the guiding rule and it was often difficult of proof. When the law was codified by enacting a uniform code for all Christians in Travancore, some sections and localities were left out of their ambit, obviously to be governed only by the rule of custom. Now I shall quote Section 30 of the Act.

"Sections 24, 28 and 29 shall not be applicable to certain classes of the Roman Catholic Christians of the Latin Rite and also to certain Protestant Christians living in Karunagapally, Quilon, Chirayinkil, Trivandrum, Neyyattinkara, and other Taluks, according to the customary usage among whom the male and female heirs of an intestate share equally in the property of the intestate."

8. It is submitted by the learned counsel for the appellants that by virtue of the above quoted section, the provisions of the Act are not applicable to the heirs of Pathiru who was a Protestant Christian of Neyyattinkara Taluk and that the daughters of Pathku are entitled to a share in the properties left by Pathiru.

9. I shall briefly refer to the scheme of the Act. I may quote here the objects and reasons for the Travancore Christian Succession Act (Regulation II of 1092).

"The law of intestate succession among the various sections of Indian Christians in Travancore is vague and unsettled. The High Courts have been complaining about the unsatisfactory state of the law among Christians. Repeated representations were made by Christian representatives about the desirability of enacting a law of succession. The necessity for legislation has therefore long been felt.

The usage of the various sections of the Christian community do not agree in all respects. Separate legislation for the various sections of Christians is neither desirable nor practicable and is likely to lead to much litigation and trouble. It is therefore thought necessary to enact a common law for all the various sections of Indian Christians."

In 12 Travancore LR 131, a Full Bench of the Travancore-Cochin High Court suggested the passing of an enactment on the lines of the Indian Succession Act in force in British India with such alterations as may be considered necessary to give effect to well-established usages which are recognised by the community.

10. The provisions in the Act in regard to inheritance make it clear that the daughters are not entitled to any share in the properties of their parents. When this law was enacted, the Select Committee modified the provision contained in the Bill and when suggesting the modifications, they said : --

"It is contended that a daughter co-existing with sons has only a right to streedhanam and as such she cannot be allowed a definite share of her father's property. Though the contention is well founded, it is desirable that there should be some definite understanding with reference to the amount of streedhanam. It is therefore thought expedient to fix the amount of streedhanam at 1/4 the value of the share of a son, subject, however to a maximum of Rs. 5,000."

On this report, provisions are made excluding the daughters from inheriting a share of the properties of their parents when they died intestate. I do not think that it can be doubted that if the relevant provisions of the Act regarding succession are applicable to the plaintiffs they cannot claim a share in the properties and so the suit for partition has to be dismissed.

11. Now reverting back to the effect of section 30, I should say that Section 30 is the declaration and recognition of the customary usage among certain class of Roman Catholic Christians of Latin rite and certain Protestant Christians of the named Taluks sharing the properties of the intestate by the male and female heirs of the intestate equally. Such a custom will have force of law; it need not be proved on a custom having the force of law as such in view of the declaration in Section 30. Section 30 makes it easy for those who claimed that they belonged to Protestant Christians residing in one of the named Taluks to claim the benefit of the custom. It has to be understood that what is reflected in Section 30 is the approval of the real customary law which was in vogue among the Central Travancore Latin Catholic Christians and certain Protestant Christians. Really, it is an incorporation of the actual customary law that existed among certain class of Latin Catholic Christians and certain Protestant Christians in the Central Travancore as ascertained by the Christian committee appointed for the purpose of investigating the real state of affairs in regard to the law of succession prevalent among the community before enacting the Travancore Christian Succession Act. Perhaps, this provision was made in regard to Latin Christians and Protestant Christians living in Central Travancore on the basis of certain decisions which have noted such a custom among these Christians.

12. Balfour Brown in his Book "The law of Usages and Customs" tells : --

"It is evident that these usages have received the validky of recognition. They have been acknowledged to exist by the Judges of the several courts of justice. The decisions of these judges are recognition of prior facts, and the way that these prior facts were dealt with, that is, the recognition of a custom. In this way it has been held that the Judges are the depositaries of the laws, and living Oracles. They are bound by an oath to decide all cases according to the law of the land, that is, according to the custom already recogn'sed............ These judicial decisions, then, are the most authoritive evidence of the existence of such a custom as shall form part of the common law of the land. In this way we find uncertain practice becoming certain and permanent rule, and that not upon the promulgations of new doctrine, but on the maintenance and exposition of an old one."

To the same effect is the following statement in Salmond's Jurisprudence 7th Edn. at P. 231 :-

"The ancient doctrine that the common law of the realm consists of the common custom of the realm, has now been transformed into the sounder doctrine that the common law of the realm consists of the law which has been declared and created by the reported decisions of the superior courts of justice."

If we examine the earlier decisions of the Travancore High Court, it is possible to discern the genesis of this distinct provision made in Section 30 of the Act for the Latin Christians and Protestant Christians. I do not want to quote from those decisions here.

13. The point the learned counsel for the appellants emphasises is that all the inseparable elements to establish a custom which have got the force of law are not necessary to be proved in cases where Section 30 is applicable. The only requirement that has to be proved is that the parties in this case (Pathiru and his children) are Protestant Christians living in one of those areas mentioned in the section and that there was a customary usage among them inheriting the properties of an intestate by the male and female children equally. Even if the plaintiffs fail to prove the antiquity of that usage or the other requirements like that the usage is not inconsistent with the law of the land, by virtue of Section 30 of the Act the plaintiffs can succeed that their predecessors-in-interest are Christians who are governed by such a valid customary law and the other provisions contained in the Act are not applicable to them.

14. I shall now refer to what Balakrishna Menon, J. said on this aspect in Daisy v. Annamma George, 1982 Ker LT 196 '.-

"It is not enough if the plaintiffs prove that they belong to the Protestant Christian Community living in the Trivandrum Taluk but should also prove that the community to which they belong follows the customary law of inheritance recognised and preserved by the Section. This is different from dufferent from saying that the plaintiffs have to prove the custom itself. I The rigour of proving the custom is dispensed with on account of its recognition and preservation by Section 30 of the Act."

This salient and subtle difference in the matter of proof that is required in the light of Section 30 can be understood if we consider how a custom has to be proved so as to get it the validity in law to apply it as law to be administered in a court when resolving the disputes between the parties.

15. For adopting a different scheme of succession in regard to certain class of Latin Christians, the Christian Committee in their report observed thus : --

"We have now to suggest the extent of the right which a daughter should have in her parents' estate when she has brothers. We have already pointed out that in this respect, the Latin Christians of Central Travancore follow the provisions of the Indian Succession Act under which the sons and daughters of a deceased person divide his properly equally among them. Such a rule does not seem to have ever existed among the Syrians or the South Travancore Christians; nor do we think that the members of these communities are prepared to adopt this rule even though this is the rule observed in most of the Christian countries of Europe and America."

In the report of the Christian Committee, appointed for suggesting the necessary provisions to be made in the law, there is an observation to the effect that in all cases of doubt, the provisions of Indian Succession Act should be adopted.

16. Now I shall deal briefly with the legal requirements which must be fulfilled for a 'usage' or 'conventional custom' before it can serve as a source of law and of legal rights and obligations. Before examining the requirements 1 shall spotlight the principal reason for attributing to custom the force of law. In the forefront, it is because, custom is most often the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public morality. Any rule which has got the approval of custom raises a presumption that it deserves to obtain the sanction of law also. Now the requirements to be fulfilled are (1) Reasonableness : A custom must be reasonable. The party who wants to enforce a custom should prove that custom is in conformity with "justice and public utility". The true rule is that a custom in order to be deprived of legal efficacy must be so obviously and seriously repugnant to right and reason, that to enforce it as law would do more mischief than that which would result from the overturning of the expectations and arrangements based on its presumed continuance and legal validity.

17. A custom to be valid and enforceable should not be contrary to the statutory law. Lord Code said : "No custom or prescription can take away the force of an Act of Parliament" "By no length of desuetude can a statute become obsolete and inoperative in law, and by no length of contrary usage can its provisions be modified in the smallest particular". The law will yield to immemorial local custom, but the enacted law stands for ever. But when a custom is accepted as the law to be applied in the adjudication of the rights of parties, it has got some legal efficacy in a statute. Savigny says "If we consider customs and statutes with respect to their legal efficacy, we must put them on the same level. Customary law may complete, modify, or repeal a statute; it may create a new rule, and substitute it for the statutory rule which it has abolished". Windscheid says :

"The power of customary law is equal to that of statutory law. It may, therefore, not merely supplement, but also derogate from the existing law. And this is true, not merely of rules of customary law inter se, but also of the relations of customary to statute law."

18. The third requisite for using a custom as a source of law is that it must have been observed as of right. What this rule means is that the custom must have been followed openly without the necessity for recourse to force, and without the permission of those adversely affected by the custom being regarded as necessary.

19. The fourth and last requirement of a valid custom refers to the length of time during which it has been established. Custom to acquire the force of law must be immemorial. It should have been in existence for such a long time that in the language of the law "the memory of man runneth to the contrary". In the words of Littleton, "no custom is to be allowed, but such custom has hath been used by title of prescription, that is to say from time out of mind. This idea of immemorial custom of antiquity as a requisite for a valid custom was the contribution of the Canon Law to the English Law. Time Immemorial in English Law means "time so remote that no living man can remember it or give evidence concerning it." Custom is said to be immemorial, when its origin was ancient, that the origin or beginning of it was beyond human memory, so that no evidence was available as to a time when it did not exist. I say all these only to indicate how difficult it is for a party to prove a custom so as to obtain relief on the basis that that custom is a source of law for resolving the dispute in question. These difficulties to a large extent have been removed by enacting Section 30 of the Act. It mandates that a party coming within the four walls of Section 30 need not necessarily prove all the requisite elements referred above for obtaining relief on the basis of the custom referred in Section 30. Note the language used in Section 30. "Certain Protestant Christians living..... according to the customary usage among whom the male and female heirs of an intestate share equally in the property of the intestate''. As stated earlier, two things are clear from the language of the section; one is such a customary usage enabling the male and female heirs of an intestate to share equally the property of the intestate was in force among the named class of Christians as a source of law when the Act was enacted and that the Legislature wanted to preserve that customary usage. In the light of this understanding of the section, I shall examine as to what has to be proved by a party to claim protection of Section 30. I have already quoted what Balakrishna Menon, J. has said on this aspect.

20. I shall now refer to certain other decisions on this aspect. One of the earliest decisions, where a consideration of this question is seen attempted is (1940) 30 Travancore LJ 470 (Anthony Sebastian Fernandez v. Vareethu Lassar Fernandez). Madhavan Pillai, J. agreeing with the learned Chief Justice observed : --

"It is evident from Section 30 of the Christian Succession Act (Act II of 1092) that the custom applicable to certain classes of the Roman Catholic Christians of the Latin Rite and also to certain- Protestant Christians has been preserved only to the extent of retaining the usage among them for the male and female heirs to share equally in the property of the intestate and not to the extent of excluding female heirs from inheritance merely because streedhanam has been received. It is just this latter exclusion that is contemplated by Section 28 of the Act and Section 30 has expressly made Section 28 not applicable to the classes mentioned in that section. The same idea is almost expressly suggested by the proviso to Section 33, which explains the consequence of the payment of slreedhanam on the right to claim shares by females. The provisions of the Christian Succession Act referred to above, are, therefore repugnant to the continued existence of the custom that women of these particular communities to whom streedhanam has been paid have no further claim upon their father's estate. The custom accordingly has to be treated as abrogated by the Act."

In Anthony Barbara v. Agasthian 1962 Ker LT 641 Velu Pillai, J. even after considering (1940) 30 Travancore LJ 470, insisted that the customary usage mentioned in Section 30 has to be proved just like any other custom. Velu Pillai, J. observed that the custom has to be alleged and proved in order to attract Section 30.

21. In an unreported decision in A.S. No. 361 of 1959, Raghavan, J., construed Section 30 and observed : --

"This shows that the Roman Catholic Christian of the Latin Rite or the Protestant Christian, who claims that Section 30 applies to him, must establish that he^ belongs to a class of the Roman Catholic Christians of the Latin Rite or to the Protestant Christians living in the taluks mentioned in the section and must also prove that the customary usage among the class to which he belongs is that the male and female heirs of an intestate share equally in the property of the intestate. It is therefore in the nature of an exception and the one who pleads the benefit of that section must prove the facts necessary to bring the case within the section."

Madhavan Nair, J. in Kunjupillai Kurup v. Fernandez 1963 Ker LT 737 : (AIR 1963 Ker 365) (FB) said :-

"What Section 30 does is to grant an immunity from the operation of Ss. 24, 28 and 29 to all Roman Catholic Christians of the Latin Rite "according to the customary usage among whom the male and female heirs of an intestate share equally in the property of the intestate."

It follows that in order to obtain the immunity it is not enough if the plaintiff proves that she is a Roman Catholic Christian of the Latin Rite; she must also establish that she belongs to a class of Roman Catholic Christians of the Latin Rite among whom the usage specified does obtain."

22. What the law requires before an alleged custom can receive the recognition of the Court and so acquire legal force, is satisfactory proof of usage, so long and invariably acted upon in practice, as to show that it has by common consent, been submitted to as the established governing rule of the particular family, class, district or country and the course of practice upon which the custom rests must not be left in doubt, but be proved with certainty. Vide Sivananja v. Muttu Ramalinga (1866) 3 Mad HC 75 at 77. This decision was confirmed by the Judicial Committee of the Privy Council in Ramalakshmi v. Sivanantha, (1872) 14 Moo Ind. App. 570 (585).

23. Today we recognise that custom is custom of judicial decisions and not of popular actions, said Rosce Pound in Common Law and Legislation XXI Harvard Law Review 383 at 406. It is doubtful says Gray in his 'Nature and Source of Law' whether at all stages of legal history rules laid down by judges have not generated customs rather than custom generated the rules. In Leones v. Lilly, 1966 Ker LT 636 this court observed : --

"It has been held in Kunjupillai Kurup v. Sabastian Elaprasya Fernande, 1963 Ker LT 737 : (AIR 1963 Ker 365) (FB) that in order to attract Section 30, it is not enough if the plaintiff proves that she is a Roman Catholic Christian of the Latin Rite, but it must further be proved that she belongs to a class of Roman Catholic Christians of the Latin Rite, among whom the usage obtains. The parties and the court misdirected themselves as to the nature of the enquiry under Section 30, perhaps in view of earlier decided cases on the subject."

23(a). In my judgment what the plaintiffs who claim the benefit of Section 30 of the Act should prove is that they belong to that Protestant Christian community who follow a customary usage whereby the male and female children would inherit the properties of their intestate parents equally. When the plaintiffs satisfy the other requirements of the section, the Courts are bound to take note of the fact that the Act has recognised and approved such customary usage, on account of the fact that at least some among the Roman Catholic Christians of Latin Rite and certain Protestant Christians certainly followed such a customary usage. When I say 'at least some' my feeling is a large section among that communities; otherwise there is no rationale for Section 30 of the Act. The discussions I have made lead me to say that the yoke the plaintiffs have to bear is mild and the burden is light, howbeit they have to bear the yoke and discharge the burden.

24. Now, I shall turn to the facts. According to the plaintiffs, the parties (the predecessor-in-title of the plaintiffs) belonged to that Protestant Christian Community which had followed the customary usage whereby males and females share equally the estate of the father. To prove this customary usage, no document which would certainly indicate such a usage, has been produced and proved. The plaintiffs relied on Ext. A1 sale deed executed by Pathiru Paulose in favour of Thankamma and her husband. Under this document, Pathiru has sold one third of certain items of Fathiru's properties to his sister, on the eve of her marriage as streedhanam. The learned counsel for the appellants submits that some significance should be given to that singular fact that the sale deed is in respect of one third of several items of properties, which once belonged to Pathiru. He submits that from this peculiar nature of the sale, viz, conveying one-third right in several items of properties left by the father Pathiru, it is possible for a searching eye to discern tacit application of the customary usage of sharing the property of the intestate equally by male and female children. The counsel submits that the document Ext. A1 would whisper in our ears the voice of that customary usage of inheritance that was followed by the children of Pathiru, by which Thankamma's entitlements to one-third share in her father's property is secured. The learned counsel submits that taking into account the fact that Thankamma is entitled as a legal heir to one-third right in the properties of Pathiru Ext. Al document was executed. Certainly this is a point which has to be examined. But the learned counsel for the respondents countered this argument by saying that Ext. Al is a positive proof to show that on the death of Pathiru, Thankamma did not inherit any share in the property of her father; if Thankamma had inherited any share in the property, there is no point in Paulose dealing with the property as if the properties are his own and effecting a sale deed. It is significant to note thaat Ext. A1 Paulose did not say in unequivocal terms that he is the full owner of the property. What he says is, that the property belonged to his father, his father died and he is in possession of the properties. He did not say in describing his title that as sole heir he got the entire right in the property. In the last clause of the document Ext. Al, Paulose describes what he had in the property and what he had conveyed :--

(Original in vernacular omitted) This is perhaps the most important clause in the document and strangely it partakes the character of a release also.

25. We are not on the question of the effect of the sale deed, but we are more concerned about the evidentiary value of this document in regard to the custom among the community. The other document relied on by the plaintiff is Ext. A6. Ext. A6 is a document executed by defendants 1 to 5 who are the wife and children of Paulose. This document is in favour of Rajamma. There is a statement in this document that Pathiru's rights in a building which is the subject-matter of the document, devolved on Paulose and Rajamma, on the death of Pathiru. It has to be noted that Ext. A6 proceeds on the basis that Rajamma was one of the legal heirs of Pathiru. This is inconsistent with the case that the Travancore Christian Succession Act is applicable to Pathiru and the children. In my view, this document would go a long way to support the customary usage pleaded by the plaintiffs. The plaintiffs also rely on the evidence of P.W. 2. In his deposition P.W. 2 said.

(Original in vernacular omitted)

26. The trial court in appreciating the evidence regarding the customary usage set up by the plaintiffs observed : --

"It is stated in Ext. Al that on the death of Pathiru the right devolved on Rajamma and Paulose. That cannot be considered as an admission made by defendants 1 to 5. If such a statement in Ext. A6 is considered as an admission by the heirs of Paulose, then the fact that Ext. Al sale deed was taken by Thankamma would also have to be considered as an admission made by her. that the entire rights devolved on Paulose on the death of Pathiru. As such the plaintiffs have to prove the existence of a customary usage by independent evidence. As stated earlier, the plaintiffs have miserably failed to prove that there was existence of such a customary usage in the community in which Pathiru was a member".

What is stated in the document by D1 to D5 may not amount to an admission, but it may amount to statement of a customary usage of inheritance among the parties. Evidently, the trial court has not attempted to assess the evidence bearing in mind the nature of proof that is required for establishing that customary usage pleaded in the light of Section 30 of the Act. The appellate court also did not notice this vital distinction. It observed : --

"Under these circumstances, the lower court was right in holding that the custom set up is not proved."

Balakrishna Menon, J. has clearly said : --

''This is different from saying that the plaintiffs have to prove the custom itself.'' The appellate court also observed that Ext. A6 will not be of any assistance to the plaintiffs to establish the fact that there was a customary usage among the parties. It observed : --

"Reliance is placed on Ext. A6 which is a release by defendants 1 to 5. who are the wife and children of Paulose in favour of Rajamma regarding a building. This document recites that Pathiru's rights in the building devolved on Paulose and Rajamma. No mention is made of Thankamma. Ext. A6 no doubt proceeds on the basis that Rajamma was one of the heirs of Pathiru. But inasmuch as it detracts from the right of Thankamma, it cannot be said that Ext. A6 supports the custom set up."

I feel that the appellate court did not bear in mind the real nature of the burden of proof that has to be discharged by the plaintiff. Admittedly, the parties belong to Protestant Christians and they are from Neyyattinkara Taluk, one of the Taluks mentioned in Section 30.

27. The appellate court concludes that the plaintiffs failed to prove the "custom itself'. I think the approach made by the court below is not in accordance with the intention of the provision contained in Section 30 of the Act. The appellate court also thinks that the custom pleaded and attempted to be proved by the plaintiffs is not a custom saved by the provisions of the Act. This I say since the court has observed that "there cannot be a custom treating unmarried daughters as heirs and excluding married daughters". The custom pleaded is what is stated in para 3A of the plaint which reads thus : --

(Original in vernacular omitted) The courts below missed the real point. The real point is whether the plaintiffs are in a position to prove that they belonged to that group of Protestant Christians among whom there exists a customary usage whether that customary usage would satisfy the requirements of a valid custom or not, is beside the point by which the male and female children of the intestate shared the estate of the intestate equally. Since this aspect has not been spotlighted and considered by the courts below, I think the judgments and decrees of the courts below have to be set aside and the matter has to be remanded for fresh consideration in the light of what I have said in this judgment. I do so.

28. Parties are free to adduce further evidence in the case if they choose to do so. Parties are directed to appear in the trial court on 18th Dec. 1985. Court-fee paid on the memorandum of appeal will be refunded to the appellants.

29. In the decision making process 1 adopted in this judgment, I feel that 1 have been influenced by the thought that the customary usage to be upheld in the decision if the evidence in the case so mandates such a holding is a 'usage' which appears to my mind more in accordance with "the brooding omnipresence" of the paramount law, the spirit of social justice and no gender discrimination. I always remember that considerations of justice, of course, justice according to law are directly relevant to the justification of any decision.

S.A. No. 527 of 1980

30. S.A. No. 527 of 1980 was also heard by me along with S.A. No. 583 of 1980. This is also a suit for partition. The root question to be decided in this case also is whether the predecessors-in-interest of the plaintiffs, namely daughters Pathiru, Rajamma and Thankamma are entitled to an equal share in the properties left by Pathiru along with Pathiru's son, Paulose. The trial court held that the custom set up is not proved and that Paulose inherited the entire rights of Pathiru, and that plaintiffs are not entitled to any right to the suit property and dismissed the suit.

Plaintiffs filed an appeal. The appellate court framed the point on this question thus : --

"Whether the rights of Pathiru were inherited by the son alone or by the daughters also?"

Considering this point, the appellate court held thus : --

"I am in agreement with the view taken by the trial court that the custom set up by the plaintiffs is not proved. If so, Thankamma and Rajamma did not inherit anything from their father.'' After considering the document executed by defendants 1 to 5 in favour of Rajamma in regard to a building belonged to Pathiru, the trial court observed that document will not support the case of the plaintiffs in regard to the customary usage. The trial court also considered the oral evidence in the case. Plaintiffs relied on the evidence of P.W. 2 a member of the community. In his chief examination he said : --

(Original in vernacular omitted) The trial court in appreciating the evidence regarding the customary usage set up by the plaintiffs observed thus : --

"The custom must be anticident. It must have been adopted by the community without any complaint and the same should not have any break. I do not consider that, unless there is evidence to substantiate the fact, that the custom as set up is observed, the plaintiffs cannot claim a l/3rd right on the basis of inheritance.

Commenting on the evidence of P.W. 2, which I have quoted earlier, the trial court observed that that is not a custom as is understood under Section 30 of the Act. Here I may quote the custom pleaded by the plaintiffs in paragraph of the plaint:

(Original in vernacular omitted) Evidently, the trial court thinks that the plaintiffs have to prove all the requirements of the custom for succeeding their plea that they are not governed by Section 30 of the Act. It has to be noted that the learned Munsiff has cited 1967 Ker LT 395 : ('AIR 1967 Ker 259) (S. N. Koya v. Union Territory L.M. & A. Islands). There Mathew, J., as he then was, considering a question regarding custom prevailing in Andreth Island, totally prohibiting alienation of properties, even after actual division of the properties of a torwad among the tavazhis is unreasonable to hold and dispose of property under Article 19(1)(f) of the Constitution. Any amount of recognition given to that custom by the courts in the Islands or the parties in their transactions cannot make it reasonable. It was held that the custom has become void after the advent of the Constitution. Mathew, J., as he then was, considered the ingredients to be proved for a custom to acquire the force of law. Obviously the reference to this decision indicates how the learned Munsiff considered the question of proof of the custom.

31. I said in S.A. No. 583 of 1980 that the parties are not bound to prove all the ingredients necessary for the custom usage to acquire the force of law in view of Section 30 of the Act. This vital aspect of the case was not kept in mind by the learned Munsiff in appreciating the evidence in the case. The appellate court also did not notice this vital distinction. It observed : --

"Under these circumstances, the lower court was right in holding that the custom set up is not proved."

For the reasons stated in the judgment in the connected second appeal, I think the matter has to be considered afresh in the light of the judgment in S.A. No. 583 of 1980. So I have to remand this case for a disposal afresh. The judgments and decrees of the courts below are set aside and the case is remanded to the trial court for fresh disposal. Parties are free to adduce evidence, if they choose to do so. Parties are directed to appear in the trial Court on 18th December, 1985. Institution fee will be refunded to the appellants. Second appeals are disposed of as above. No costs. Send back the records immediately.

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ABHISHEK 03012020