Case: Kaliamma Vs. Janardhanan Pillai &amp; Ors

number of persons in each."Their Lordships, therefore, approached the evidence in that case with a knowledge that such a custom does exist, and was not an improbable one in the particular case, and after examining the evidence came to the conclusion that the custom of Patnibhaga was proved.6. We may now refer to the decisions that were cited before the Court below and were relied upon before this Court. The earliest one is a decision of the year 1890, in Ayikutti Bhagavathi v. Chithambarathanu Mathevan, reported in (1890) 8 TLR 51 where the effect of the evidence was stated as follows :"From the evidence on both sides, it is clear to us that Krishnanvakakkar to which the parties belong, follow the Hindu law with one or two points of divergence from it, viz. the widow cohabiting with the brother of her deceased husband and the existence of Pathini Bhagam."The next decision is of the year 1904, in Ramaswami Sadasivan v. Thanu Gouri, reported in Kolappa Pillais unreported important cases, p. 179. Here again on a consideration of the evidence it was held that the preponderance of evidence as a whole was in favour of Pathni Bhagam. But one of the learned Judges observed :"The Pathni Bhagam which prevails in this community seems to go even beyond the usual custom known as Pathni Bhagam..............that it is not only sons of different mothers that take per stripes (according to the number of mothers) but when one mother has got only female issue and another a male issue the female issue gets a half share in their fathers properties and the male issue by the other wife of the father takes the other half."It is upon this decision that the plaintiff based her whole case. It must be pointed out, however, that the learned Judge did not go into the evidence regarding the particular type of pathnibhagam which was stated to be prevalent among this community. Nor was it necessary to decide that question for the purpose of that case. It was a mere passing observation and this is a solitary case in which such a special custom is mentioned.7. We then come to another decision of the year 1944, in Nagaru Pillai Saraswathi Amma v. Thanu Pillai reported in 1944 T.L.R. 710. In that case also the special custom pleaded by the plaintiff did not arise for decision. What was urged was the right of absolute ownership for a widow of a member of a Krishnanvaka community. The argument was that the existence of Pathnibhagam in the community implied the principle that on the death of the husband of a Krishnavakakar woman, in the absence of his children, she was entitled to inherit her husbands property absolutely. This contention was rejected but the decision proceeded on the basis that the custom of Pathnibhagam was prevalent in this community.8. There is a decision of the District Court of Negercoil in O. S. No. 109 of 1096 M. E. dated 22-12-1923, marked Ex. A-6, wherein it was observed :"But it has been held in Kolappa Pillay, page 179 that in the community Krishnavakakars to which the parties belong that when a man dies leaving two wives even though one wife might have only female issues such female issues are entitled to a half share as the Pathinibhagam to their mother. It appears to me therefore that under the ruling in Kolappa Pillays Select Decisions cited before in which 8 T.L.R. 51 and (1889) I.L.R. 16, Cal 758 (759) have been cited and followed, Plaintiffs are also entitled to a half share in the assets of Kunchan."There is another decision of the District Munsiffs Court of Kuzhithurai in C. S. No. 18 of 1959, dated 2nd January, 1960, wherein it was observed :"Ex. B. 26 judgment proceeded on the basis that as the parties belonged to Krishnan Vakakkar community per capita division among them is not allowable. That community does not follow Hindu Mithakshara Law. There is authority for the proposition that this community follows the system known as Patnibagam under which property of the deceased is inherited according to the number of widows he had irrespective of the existence of the children to the deceased."This decision recognised the existence of Pathnibhagam but not the special custom pleaded by the plaintiff.9. It is thus seen that most of the decisions either expressly or implicitly recognised the existence of custom of Pathnibhagam in this community, but the decision found in Ext. A-6 is the only one on the special kind of pathnibhagam pleaded by the plaintiff and is directly in point. But even this decision did not proceed on the basis of the evidence in the case. It relied on the observation of the learned Chief Justice in the decision already referred to, in 1944 TLR 710. This observation was not, however, based on a discussion of the evidence and was not necessary for the decision in that case, as already pointed out.10. While it is true that this community is a very small community found within a small local area and the cases that are likely to arise in that community, which will reach the courts may not be many, we cannot merely on the ground ignore the well established principle that before a custom can be held as having been proved merely on the basis of earlier decisions, those decisions should have been based on evidence adduced in respect of the cases. That test is not satisfied in this case. Neither of the two decisions which refer to the special kind of pathnibhagam pleaded by the plaintiff was based on the evidence in the case. Thus while the existence of the custom of pathnibhagam in the community may be said to have been established, the special kind of pathnibhagam pleaded by the plaintiff cannot be said to have been established and the appellant cannot succeed unless she establishes the latter. In this view it is unnecessary to go into the question of family arrangement.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. It is thus seen that most of the decisions either expressly or implicitly recognised the existence of custom of Pathnibhagam in this community, but the decision found in Ext. A-6 is the only one on the special kind of pathnibhagam pleaded by the plaintiff and is directly in point. But even this decision did not proceed on the basis of the evidence in the case. It relied on the observation of the learned Chief Justice in the decision already referred to, in 1944 TLR 710. This observation was not, however, based on a discussion of the evidence and was not necessary for the decision in that case, as already pointed out.10. While it is true that this community is a very small community found within a small local area and the cases that are likely to arise in that community, which will reach the courts may not be many, we cannot merely on the ground ignore the well established principle that before a custom can be held as having been proved merely on the basis of earlier decisions, those decisions should have been based on evidence adduced in respect of the cases. That test is not satisfied in this case. Neither of the two decisions which refer to the special kind of pathnibhagam pleaded by the plaintiff was based on the evidence in the case. Thus while the existence of the custom of pathnibhagam in the community may be said to have been established, the special kind of pathnibhagam pleaded by the plaintiff cannot be said to have been established and the appellant cannot succeed unless she establishes the latter. In this view it is unnecessary to go into the question of family arrangement.