Nanu vs Nani and Another

Nandana Menon, J.—This appeal has been preferred ''by the second Defendant in a suit for variation. Plaintiff is the daughter of deceased Kumaran through his second wirier. The first Defendant is his son through his first wife. Plaintiff: claimed that the plaint schedule item No. 1 and the building standing therein, being item No. 2 in the plaint, belonged to Kumaran and after Kumaran''s demise she was entitled to a half share in it. The parties are blacksmiths belonging to the Kammala community.

The first Defendant and his children who now represent that as his legal representatives contended that the parties were governed by Hindu Law and the plaint schedule property originally belonged to their joint family, that Kumaran was not a divided member at the time of his demise, that in the family partition "of J.103 as per Ext. I the property passed to file first Defendant and that the Plaintiff who was a married daughter of Kumaran had no right to claim a share in it.

The lower Court held that the law governing the pat tics was Hindu Mithakshara Law as modified by custom, that in the community in question daughters had equal rights with sons, that the plaintiff''s marriage was in the sambhandom form as distinguished from the kudiveppu lion, and she had not lost her right to claim a share in the family properties. Hence it was held that she was entitled to a-halt share in the plaint schedule properties. The said decision is now challenged.

The; law governing the Kammala community is Hindu Mithakshara Law and whenever a party claims that there were certain customs which modify it the same have to be proved by reliable evidence. Lilly Mercilin Lewis v.'' Chanji Nani, J 954 Ker LT 631. (A), supports this position. There claim was put forward by a female member. In paragraph 9 of the judgment it is as follows:

The Plaintiff in this case set up a custom by the sons and daughters of a Hindu father of community arc stated to be entitled to their property in equal shares. This is a custom rogation of the Hindu Law and so we have to see what extent this custom has been established in this case. As held by at a particular person or class of persons is governed by custom and a party who is alleged to be governed by customary law must prove that he is so govern the Supreme Court in Gokal Chand v. Parvin Kumari AIR 1952 SC 231 (B), there is no presumption the and must also prove the existence of the custom set up by him.

It was held there that a custom modifying Hindu Law so as to vest in a daughter the right to claim a share had not been proved. In the present case in the plaint the Plaintiff did not even allege the existence of any custom modifying the law governing the parties on the basis of which she could claim a share. The evidence adduced to prove such a custom is not sufficient to make out a custom valid in law for which there must be proof that it was immemorial, reasonable, that it continued without interruption since its immemorial origin and was certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect.

Apart from the Plaintiff here, the witnesses relied upon by the lower Court are P. Ws. 4 to 6. P. W. 4 who proves Ext. B while deposing that females were entitled to shares admits that in his family partition tire sisters were not made parties. P. Y. 5 is a member of the family of the parties and have joined in the partition effected between the first Defendant and other male members of their; family in 1103 as per Ext. I. lie admits that female members were not made parties to it.

In the face of that his statements in support of the Plaintiff''s claim that there was custom governing die parties under which married daughters were entitled to a share have no value at all. P. W. 6 deposes to the practice of giving shares to the females also but admits that he has not seen any document under which females were given shares. Though Exts. B and C evidence the junction of female members in certain partitions and assignments they do not help to make out a custom as such.

On the defence side apart from the second Defendant examined as D. W. 3, D. Ws. 1 and 2 depose in support of tire defence case of married daughters having no right to any share in the family assets. D. W. 1 is a member of the Kammala community itself. Then there is Ext. I of 1103 to which all the male members of Kumaran''s family were parties. The plaint schedule property was set apart to the first Defendant. If the Plaintiff''s case that this property had vested in Kumaran long before, his death is true it is impossible to believe that the first Defendant would have allowed this to be included in a family partition like Ext. I.

The Plaintiff must have been aware of a partition like that but it is only some 21 years after that she came forward with a suit like this. That conduct itself supports the defence contention that the suit is without any bona fides. When evidence is as pointed out above, the lower Court was wrong in holding that the Plaintiff had made out a custom entitling her to claim a share in the plaint schedule property. The evidence does not satisfy the requirements for making out such a custom as to modify the Hindu Law governing the parties. So the lower Court''s decision cannot stand.

In the result, the appeal is allowed with costs throughout and the suit dismissed.