Case: Kavalappara Kottarathil Kochunni Alias Moopil Nair Vs. Kavalappara Kottarathil Parvathi Nethiaralias Vijayam Ne

1. Kavalappara estate is an impartible estate. Succession thereto is governed by the Marumakkathayam law, that is to say, the eldest member of the family by female descent will succeed to the Gaddi and hold the estate. The parties to the suit are members of the Kavalappara Swaroopam, the 1st defendant being the Sthanee. The 7th defendant is the mother and the 9th defendant the elder brother of the plaintiffs. The plaintiffs claimed maintenance based on family custom entitling the members to maintenance out of the entire income of the Sthanam. Past maintenance was claimed for each of the plaintiffs 1 to 4 for 12 years at Rs. 500/per mensem; for plaintiff No. 5 at the above rate and for plaintiffs 6 to 8 at Rs. 400/per mensem from their respective dates of birth. Future maintenance from date of suit was also claimed at the aforesaid rates. The suit was contested by the 1st defendant on the ground that the plaintiffs had no enforceable legal right to maintenance from the Sthanam estate; that from olden times two Kalams, Palachithara and Velliyad of the Sthanam estate had been set apart for the maintenance of the junior members of the Swaroopam; that the plaintiffs have to look to those two Kalams only for their maintenance "as deposed by him in the former suit" in O.S. No. 46 of 1934; that even after the Privy Council had decided O.S. No. 46 of 1934 declaring him to be absolute owner of the Sthanam properties, he had been paying maintenance out of affection; that though there was no recognised custom binding on him, he had been adopting the generosity of the predecessor Sthanees and paying to the junior members of the Swaroopam Rs. 17,000/annually and that the plaintiffs had no right to claim income from the Sthanam estate. The trial court granted maintenance for the period claimed until the date of decree at the rate of Rs. 250/per mensem for each of the plaintiffs charged on the corpus and income of the Sthanam estate. The first defendant appealed to the Kerala High Court in A.S. No. 304 of 1962. The plaintiffs preferred cross objections. The High Court partly allowed the appeal negativing the plaintiffs claim for arrears of maintenance and modified the trial courts decree. The High Court dismissed the cross objections of the plaintiffs. C.A. No. 1235 of 1966 is brought to this Court by certificate on behalf of defendant No. 1 and C.A. 1236 and 1237 of 1966 are brought to this court by certificate on behalf of plaintiffs.

Reasoning: In our opinion there is no justification for this argument. There is sufficient evidence on the record of the case to support the finding of the Subordinate Judge and the High Court that the plaintiffs have established a customary right of maintenance from the Sthanam properties. In the first place there are two decisions O.S. 991 and 992 of the year 1817 granting a decree for maintenance to two members of the Kavalappara Sthanam (Exhibits3. This deposition shows clearly that the Sthanee in office admitted over a century ago his obligation to maintain junior members of the Swaroopam.4. The next piece of evidence is the deposition of the Sthanee in O.S. No. 46 of 1934. In the present case the 1st defendant did not giveour opinion the evidence adduced in the case sufficiently proves a custom in Kavalappara Estate by which the Sthanee was legally obliged to give maintenance to junior members of the family. It is possible that the practice of paying maintenance to junior members originated as an act of generosity of the previous Sthanee. But it has continued without interruption for such a length of time that it has acquired the character of a legalour opinion this argument proceeds on a misreading of the judgment of the Judicial Committee. The Judicial Committee has observed that the claim for maintenance was based on customary rights and was not ex gratia payment.In our opinion the High Court was right in its finding that the plaintiffs have established their right to maintenance from the Sthanam properties as a matter of custom. Counsel on behalf of defendant No. 1 has been unable to make good his argument on this aspect of the case.7. An alleged custom, in order to be valid, must be proved by testimony to have been obeyed from consciousness of its obligatory character. A mere convention between family members or an arrangement by mutual consent for peace and convenience cannot be recognised as custom. In Ramrao v. Yeshwantrao (ILR 10 Bom. 327) it was proved that it had been the practice in a Deshpande Vatandars family for over a hundred and fifty years, without interruption or dispute of any kind whatever, to leave the performance of the services of the Vatan and the bulk of the property in the hands of the elder branch and to provide the younger branches with maintenance only. It was held that such practice was due in its origin to a local or family usage and not to a mere arrangement and that it was therefore to be recognized and acted upon as a legal and valid custom. In order, therefore, that a custom should acquire the character of law the custom must be accompanied by the intellectual element, the opinion necessitates "the conviction on the part of those who use a custom that it is obligatory and not merely optional". In other words the mark which distinguishes custom in the legal sense from mere convention is the opinio necessitatis, the recognition that there is authority behindhave shown in the present case that the plaintiffs have established their right to maintenance from the Sthanam properties not merely as an act of generosity on the part of the Sthanee but the payment of maintenance has been made by the Sthanee as a matter of legalappears that after the decision of the Privy Council declaring the 1st defendant as exclusive owner of properties he has paid Rs. 17,000 annually to the Amma Nethiar for the maintenance of the junior members of theIt is not disputed by the plaintiffs that such payments were made before the institution of the present suit.p.m. to each of the plaintiffs was adequate. The High Court, however, directed that it is open to the parties after two years to move the trial court for variation in the rate of maintenance fixed on the ground of altered circumstances of the Estate. Having heard the parties we see no reason for interfering with the judgment of the High Court in this matter.