# KALIAMMA v. JANARDHANAN PILLAI & ORS

- **Citation:** [1973] 3 S.C.R. 503
- **Court:** Supreme Court of India
- **Decided:** 1973-02-08
- **Bench:** A. Alagiriswami, I. D. Dua, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kaliamma-v-janardhanan-pillai-ors-5838
- **Pages:** 7

## Headnote

Hindu Law-Special custom-Proof of-Reliance on pr(or decisions.
when permissible.
The appellant was the daughter of a member of the
Krisbna~wakll.
Community by one of bis two wives, and the first respondent was h19 son
by the other wife.
The appellant filed the suit claiming half share of
her father's property on the basis of a custom of special kind of Patnibhag"111. The special kind of Patiiibhagam pleaded by the appellant was tllat
even a daughter was entiUed to a share. On her behalf, reliance was
placed on certain earlier decisions regarding the prevalence of Ibo CUl!olll!
in !he community. The trial court dismissed the suit, but the first appelkle
court held in favour of the appellant. In second appeal, tho High Court
toolt the view that the decisions relied on by the first appellate court could.
not be said to have established the existence of the special custOl)I.
Dismissing the appeal to this Court,
HELD : (I J A custom which has been recognised and affirmed in a,
series of decisions each of which was based on evidence adduced in tM
p"1ticular case may become incorporated in tho rneral Jaw, and proof
of it then becomes unnecessary under s. 57(1) o
the Evidence Act.
[5050-HJ·
Rama Rao v. Rajah of Pittapur, [1918) I.L.R. 41 (Madras), 778 at
785, Pramra; v. Chand Kunwar, [1947) 11 M.L.J. 516 and Uiagar Singh v ..
Mat. Ito, [1959) 2 S.C.R. (Suppl.), 781 followed ..
(2) Among the decisions cited only one decision recognised the special
kind of patnibbagarn pleaded by the appellant.
But even that decision
did not proceed on the basis of -the evidence in the case but relied upon
the observations of the learned judges who decided Ramaswami Sadaaivan
v. Thanu Gouri. But those observations were JKJt based on a discussion of
the evidence and were not necessary for the decision of that case.
[50 DJ
.
Avikutti Bhagavathi & Anr, v. Chithambaratham Mathevan, reported
m 8 T.L.R. 51, Ramaswami Sulusivan v. Thanu Gouri reported in Kol•ppa
Pillai's unreported important cases, p. 179 and Hagaru Pillaf Saraswathi
Amma v. Thanu Pillai Thanu Pillai, reported in 1944 T.L.R. 710 referred
to.
(3) While it is true that the community is a very amall community·
found in a small local area and cases reaching courts may not be many,
the court cannot, on that ground, ignore the well established principle
bef'?"' a c~tom elm be held.~· having been proved on the basis of
earlier dects1ons.
Those dec1S1ons should have been based on evidence.
adduced in those cases. But in the present case, neither of the two decisions which refer to the special kind of patiiibhagarn pleaded by the appellant was based on the evidence in the case. (508 F-H; 509 A-BJ
C1vn. APPELLATE JURISDICTION : Civil Appeal No. 1251 0£
1967.
.
50JI
SUPREME COURT REPOR'I ~
fl 973) 3 s.c.R.
Appeal by special leave from the judgment and order dated
A
September 29, 1966 of the Madras High Coutt in S.A. No. 1670
-Of 1963.
K. T. Harindranath, S. N. Sudhakaran, P. Kesava Pillai and
M. R. Krishna Pillai, for the appellant.
Lily Thomas and A. Sreedhara11 Nambiar, for respondent
B
No. 1.

## Text

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KALIAMMA
v.
JANARDHANAN PILLAI & ORS ..
February 8, 1973
[A. ALAGIRISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.J
Hindu Law-Special custom-Proof of-Reliance on pr(or decisions.
when permissible.
The appellant was the daughter of a member of the
Krisbna~wakll.
Community by one of bis two wives, and the first respondent was h19 son
by the other wife.
The appellant filed the suit claiming half share of
her father's property on the basis of a custom of special kind of Patnibhag"111. The special kind of Patiiibhagam pleaded by the appellant was tllat
even a daughter was entiUed to a share. On her behalf, reliance was
placed on certain earlier decisions regarding the prevalence of Ibo CUl!olll!
in !he community. The trial court dismissed the suit, but the first appelkle
court held in favour of the appellant. In second appeal, tho High Court
toolt the view that the decisions relied on by the first appellate court could.
not be said to have established the existence of the special custOl)I.
Dismissing the appeal to this Court,
HELD : (I J A custom which has been recognised and affirmed in a,
series of decisions each of which was based on evidence adduced in tM
p"1ticular case may become incorporated in tho rneral Jaw, and proof
of it then becomes unnecessary under s. 57(1) o
the Evidence Act.
[5050-HJ·
Rama Rao v. Rajah of Pittapur, [1918) I.L.R. 41 (Madras), 778 at
785, Pramra; v. Chand Kunwar, [1947) 11 M.L.J. 516 and Uiagar Singh v ..
Mat. Ito, [1959) 2 S.C.R. (Suppl.), 781 followed ..
(2) Among the decisions cited only one decision recognised the special
kind of patnibbagarn pleaded by the appellant.
But even that decision
did not proceed on the basis of -the evidence in the case but relied upon
the observations of the learned judges who decided Ramaswami Sadaaivan
v. Thanu Gouri. But those observations were JKJt based on a discussion of
the evidence and were not necessary for the decision of that case.
[50 DJ
.
Avikutti Bhagavathi & Anr, v. Chithambaratham Mathevan, reported
m 8 T.L.R. 51, Ramaswami Sulusivan v. Thanu Gouri reported in Kol•ppa
Pillai's unreported important cases, p. 179 and Hagaru Pillaf Saraswathi
Amma v. Thanu Pillai Thanu Pillai, reported in 1944 T.L.R. 710 referred
to.
(3) While it is true that the community is a very amall community·
found in a small local area and cases reaching courts may not be many,
the court cannot, on that ground, ignore the well established principle
bef'?"' a c~tom elm be held.~· having been proved on the basis of
earlier dects1ons.
Those dec1S1ons should have been based on evidence.
adduced in those cases. But in the present case, neither of the two decisions which refer to the special kind of patiiibhagarn pleaded by the appellant was based on the evidence in the case. (508 F-H; 509 A-BJ
C1vn. APPELLATE JURISDICTION : Civil Appeal No. 1251 0£
1967.
.
50JI
SUPREME COURT REPOR'I ~
fl 973) 3 s.c.R.
Appeal by special leave from the judgment and order dated
A
September 29, 1966 of the Madras High Coutt in S.A. No. 1670
-Of 1963.
K. T. Harindranath, S. N. Sudhakaran, P. Kesava Pillai and
M. R. Krishna Pillai, for the appellant.
Lily Thomas and A. Sreedhara11 Nambiar, for respondent
B
No. 1.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. This is an appeal by special leave against
the judgment of the High Court of Madras in Second Appeal.
c
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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
appellant's 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 father's 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 man's sons by different wives get
:i;:
their shares on the basis that whatever their numbe~ 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.
F
The learned Subordinate Judge who tried the suit, on a con-
·sideration 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
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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 wu
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the result of a family arrangement. But the learned 1 udge did
not think it necessary to go into that question in the view he took
-regarding the custom pleaded by the plaintiff.
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KALIAMMA v. J. PILLAI (Alagiriswami, J.)
505
The question that arises for decision i~ ,{his case is whether the
custom pleaded by the appellant has be:K'~stablished. On behalf
of the appellant reliance was not placed on the evidence in the
case to establish the custom.
The argument was simply based
on certain earlier decisions regarding the prevalence of the custom
of pathnibhagam among the community to which the parties belong. The legal position regarding the place of customary law
among the Hindus is now well established. In The Collector of
Madura v. Moottoo Ramalinga Sethupathy(') it was observed by
the Privy Council :
"Under the Hindu system of law clear proof of
usage will outweigh the written text of the law."
In Rama Rao v. Rajah of Pittapur(') the Privy Council observed:
"When a custom or usage, whether in regard to a
tenure or a contract or a family right, is repeatedly
brought to the notice of the Courts of a country, the
Courts may hold that custom or usage to be introduced
into the law without the necessity of proof in each
individual case. It becomes in the end truly a matter
of process and pleading."
In Premraj v. Chand Kanwar(') the Privy Council observed :
"It is not doubtful that the ordinary rule is that a
party relying on a custom .......... which is at variance with the ordinary Hindu law must
allege
and
prove it. But it is equally beyond doubt that a custom
which has been recognised and affirmed in a series of
decisions, each of them based on evidence adduced in
the particular case. may become incorporated in the
general law. with the result that the onus of proof no
longer lies on those who assert it but upon those who
assert an exception to it."
The latest decision iS' that of this Court in Ujagar Singh v. Mst.
Jeo(') wherein after referring to the statement of law in Rama
Rao v. Rajah of Pittapur, earlier referred to, this Court pointed
out that 'when a custom has been so recognised by the courts,
it passes into the law of the land and the proof of it then becomes
unnecessary under s. 57 (I) of the Evidence Act.' In the particular circumstances of that case this Court pointed out that there
was a formidable array of authorities in support of either view,
and, therefore, went into the evidence and held that the respon-
(I) (1868) 12 .M.I.A., 397, 436.
(3) (1947) II M.L.J. 516 (P.C.)
(2) (1918) I.L.R. 41 (Madras), 778 at 785.
(4) (1959) 2 S.C.R. (Suppl.), 781.
506
SUPREME COURT REPORTS
[1973j 3 s.c.1..
dent therein had proved a custom whereby a sister was entitled
A
to succeed in preference to the collateral relations of her brother.
Now let us. see whether in the community to which the parties
belong the rule of pathnibhagam with the special modification of
that rule pleaded by the plaintiff is prevalent. That the rule of
pathnibhagam is prevalent in various parts of the coun~ there
is no doubt.
In Palaniappa Chetti'ar v. Alagan Chetti( )
the
PriyY Council referred to the statement of law by Mayne in his
Hindu Law (Edn. 7), para. 473 to the following effect:
"In some families, however, a custom called patnibhaga prevails of dividing aCCording to mothers,
so
that if A had two sons by his wife B and three sons by
C, the property would be divided into moieties, one
going to the sons by B, and the other to the sons by C,
Somrun Singh v. Khedun Singh. This practice prevails
locally in Oudh, as evidenced by numerous
W ajib
ularz, which I have seen in cases under appeal to the
Privy Council."
They also referred to the prevalence of the custom in many parts
of Southern India, as referred to by Mr. Ellis, on page 357 of
Vol. II of Strange, and at page 167 of that work to the following
effect :
"The division of estates, in case of
one person
having several families by ditlerent women, among the
families in equal shares without reference to the num-.
ber of persons in each."
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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
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evidence came to the conclusion that the custom of Patnibhaga
was proved.
We may now refer to the decisions that were cited before the
Courts below and, were relied upon before this Court. The earliest
ono is a decision of the year 1890, in Avikutti Bhagavathi &: Anr.
v. Chithambarathanu Mathevan, reported in 8 T.L.R. 51 where
the effect of the evide.nce was stated as follows :
"From the evidence on both sides, it is clear to us
that Krishnavakakkar to which the parties belong, follow the Hindu Jaw with one or two points of divergence
from it, viz. the widow cohabiting with the brother of
her deceased husband and the existence of Pathni
Bhagam."
(I) (1921) I.LR. 44 (Madras), 7'40,
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XALIAMMA v. J; PILLAI (Alagiriswami, /.)
507
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Tue next decision is of the year 1904, in Rama.swami Sadasivan
v. Thanu Gouri, reported in Ko!appa Pillai's 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 Bhagorn. But one of the learned Justice
8
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observed :
"The Pathni Bhagon which prevails in this community seems to go even beyond the usual custom
known as Pathni BJiaiom. . . . that it is not only sons
of different mothers that take per stirpes (according
to the nwnber of ·mothers) but when one mother has
got onlr female issue· and . another a male issue
the
female 1ssqe get a half share in their father's 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
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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.
We then come to another dcclsian oi. the year
1944, in
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Nagaru Pillai SaraswaJhi Amma v. Thanu Pillai Thanu Pillai,
reported in 1944 ]'.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. Tue argument was that
the existence of Pathnibhagam in the community implied the
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principle that on the death of the husband of a Krishnavakakar
woman, in the absence of his children, she was entitled to inherit
her husband's property absolutely. This contention was rejected
but the decision proceeded on the basis that the custom of
Pathnibhagam "".as prevalent in this community.
There is a decision of the District Court of N agercoil in 0 .S.
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No. 109 of 1096 M.B., dated 22nd December. 1923, marked
Ex A-6 .• wherein it was observed:
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"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 females issue are entitled to a half share as the
Pathnibhagam to thir mother. It appears to me therefore that under the ruling in Kolappa Pillay's Select
Decisions cited before in which 8 T.L.R. 51 and I.LR.
17-L796Sup.C. I. /73
508
SUPREME COURT REPORTS
(1973] 3 S.C.ll•
l6, Calcutta 759 have been cited and followed, plaintilfs are also entitled to a half share in the assets of
Kunchan."
There 1s another decision of the District Munsiff's
Court of
Kuzhithurai in 0.S. No. 18 of 1959, dated 2nd January, 1960,
wherein it was observed:
"Ex. B. 26 judgment proc~ on the basis that
as the parties belonged to Krishnan Vakakkar commu-
, nity per capita division among them is not allowable.
'That community does not follow Hindu Mithakshara
Law.
There is authority for the possession that this
community follows the system known as Patnibhagam
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.
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 Ramaswami Sadasivan v. Thanu Gouri. This observation
was not, however, based on a disc11Ssion of the evidence and was
not necessary for the decision . in that case, as already pointed
out.
While it is true that this comlhllll.ity 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 that ground ignore the well
established principie 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
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KALIAMMA Y. J. PILLAI (Alagiriswami, J.)
509
cominunity 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.
The appeal is_ dismissed with costs of the. 1st respondent to
be paid by the appellant.
V.P.S.
Appeal dismissed •
•