Case: Kaliamma Vs. Janardhanan Pillai &amp; Ors

2. The appellant is the daughter of one Ayyappan Mathevan Pillai, who died on 17th January, 1949, by one of his wives, the second respondent. The first respondent is his son by another wife. The parties belong to the Krishnanvaka Community found mainly in the Kanyakumari district of Tamil Nadu. During the appellants minority her mother and the first respondent entered into a deed of partition under which the appellant was given 9 out of 79 items belonging to her father. She filed the suit out of which this appeal arises for partition and possession of a half share in all her fathers properties. Her claim was based on the allegation that in the community to which the parties belong there was a custom of a special kind of pathnibhagam. While under the ordinary pathnibhagam a mans sons by different wives get their shares on the basis that whatever their number the property is divided according to the number of wives he had, rather than on a per capita basis, the special kind of pathnibhagam pleaded by the plaintiff was that even a daughter was entitled to share on the same basis. She pleaded that as Mathevan Pillai had two wives and she was the daughter by one wife and the 1st defendant the son by the other wife each of them was entitled to a half share.3. The learned Subordinate Judge who tried the suit, on a consideration of the evidence in the case, as also various earlier decisions regarding this custom held against the plaintiff. On appeal the District Judge of Kanyakumari without going into the evidence but on the basis of some earlier decisions allowed the appeal. In the Second Appeal before the High Court the learned Single Judge took the view that the decisions relied on by the District Judge cannot be said to have established the existence of the special custom pleaded by the plaintiff. The 1st defendant also sought to sustain the partition deed on the basis that it was the result of a family arrangement. But the learned Judge did not think it necessary to go into that question in the view he took regarding the custom pleaded by the plaintiff.

Reasoning: 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.