Sinnanna Kone and Others vs Muthupalani Chetti and Another

Phillips, J.—The appellants set up a peculiar custom in their community that widows and daughters were excluded by the reversioners of the

last male member of a family and this custom has been found by the lower Appellate Court not have been proved.

The finding is objected to on the ground that it is bad in law, but I have not been referred to any statement in the judgment in which the law has

been wrongly propounded and the arguments here have mainly been directed to showing that adequate weight has not been attached by the

learned Subordinate Judge to certain portions of the evidence. It is also contended that two important statements made by the plaintiff''s witnesses

have not been considered at all. The evidence of these witnesses has been dealt with by the Subordinate Judge and there is nothing so vital in these

so-called admissions as to make it obligatory on the Subordinate Judge to deal with them in greater detail. The whole of the evidence is oral

although the custom is said to be one which is in accordance with the law which prevailed before the present system of Hindu Law came into being

and consequently must have been in existence for an incredibly long period, the Judge, therefore rightly relies on the argument that notwithstanding

this fact, there is no documentary evidence to support the custom. Certain documents are alleged to be in existence which have not been produced

and the appellants rely entirely on oral evidence. The Subordinate Judge has found that to be totally inadequate and I see no reason to differ from

his conclusion. An attempt is made to support the custom by a statement in the District Gazetteer where similar custom in this community is

referred to, but the custom there set out is not in accordance with the custom pleaded in this case and, therefore, does not at all corroborate the

existence of the custom pleaded. I see no reason for not accepting this finding of the Subordinate Judge and, therefore, confirm it.

A further point is argued, namely, that the question at issue in this appeal was res judicata because in a connected suit tried with this one and

decided at the same time no appeal was preferred. This question has been expressly decided by a Full Bench of this Court in Panchanada Velan v.

Vaithinatha Sastrial 16 M.L.J. 63 and I am bound by that decision. It is argued that that decision has been overruled by the Privy Council decision

in Bommadevara Naganna Naidu Bahadur v. Ravi Venkatappayy a 76 Ind. Cas. 594 : 46 M. 895 : (1923) M.W.N. 554 : 21 A.L.J. 726 . I have

already considered this point in a previous case, Second Appeal No. 1643 of 1922, where I came to the conclusion that Panchanada, Velan v.

Vaithinatha Sastrial 16 M.L.J. 63 was not expressly overruled and I am still of the same opinion. Applying Panchanada, Velan v. Vaithinatha

Sastrial 16 M.L.J. 63 the Subordinate Judge is right in hearing this appeal and deciding it on the merits.

The second appeal is, therefore, dismissed with costs.