# KELlJKUITY & ORS v. MAMMAD & ORS

- **Citation:** [1973] 1 S.C.R. 757
- **Court:** Supreme Court of India
- **Decided:** 1973
- **Case number:** CIVIL APPELLATE Jj]RISDICTION: C.A. No. 749 and 750 Of 1967
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kelljkuity-ors-v-mammad-ors-5713
- **Pages:** 4

## Headnote

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757
KELlJKUITY & ORS.
v.
MAMMAD & ORS.
August I, 1972.
,(K. ·S. HEGDE, A. N. GROVER AND D. G. PALEKAR, JJ.J
Custon1ary /aw-Makkathai•an?-Thiyya-Succen·ion to self acquired
property.
The Tuiyyas of the forme~ Calicut, Taluk are governed by the customary law known as Makkathavam and as per the Makkathayam rule of
inheritance an undivided brother of a deceased person succJeeds to
the
self-acqmred property of the deceased in prefereqce to the wife
and
daughter of the deceased. There'fore, the daughter's son who come.s after
them under the general Hindu Law cannot have a superior claim unless
a custom to that effect is ,pleaded and proved.
[760CI
Parambarathial Pattukava Chakkutti and Ors. v. Kothembra Chandu·
kutti, A.I.R, 1927 Mad. 877 Paricham v. Perachi & Ors. I.L.R. 15 Mad.
281 Rama Menon v. Chw:hunni I.L.R. 17 Mad. 184 lmbichi Kandan &
Ors. v, Jmbich! Pennu- & Ors. I.L.R. 19 Mad. 1 referred to.
CIVIL APPELLATE Jj]RISDICTION: C.A. No. 749 and 750
Of 1967.
Appeals by certificate from the judgment and decree dated
19th October 1965 of fu~ Kerala High Court at Ernakulam in
Second Appeal No. 400 of 1961.
S. T. Desai and A. Sridharan Nambiar for the appellants.
P. Ram Reddy and A. V. V. Nair for respondent No. 1.

## Text

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757
KELlJKUITY & ORS.
v.
MAMMAD & ORS.
August I, 1972.
,(K. ·S. HEGDE, A. N. GROVER AND D. G. PALEKAR, JJ.J
Custon1ary /aw-Makkathai•an?-Thiyya-Succen·ion to self acquired
property.
The Tuiyyas of the forme~ Calicut, Taluk are governed by the customary law known as Makkathavam and as per the Makkathayam rule of
inheritance an undivided brother of a deceased person succJeeds to
the
self-acqmred property of the deceased in prefereqce to the wife
and
daughter of the deceased. There'fore, the daughter's son who come.s after
them under the general Hindu Law cannot have a superior claim unless
a custom to that effect is ,pleaded and proved.
[760CI
Parambarathial Pattukava Chakkutti and Ors. v. Kothembra Chandu·
kutti, A.I.R, 1927 Mad. 877 Paricham v. Perachi & Ors. I.L.R. 15 Mad.
281 Rama Menon v. Chw:hunni I.L.R. 17 Mad. 184 lmbichi Kandan &
Ors. v, Jmbich! Pennu- & Ors. I.L.R. 19 Mad. 1 referred to.
CIVIL APPELLATE Jj]RISDICTION: C.A. No. 749 and 750
Of 1967.
Appeals by certificate from the judgment and decree dated
19th October 1965 of fu~ Kerala High Court at Ernakulam in
Second Appeal No. 400 of 1961.
S. T. Desai and A. Sridharan Nambiar for the appellants.
P. Ram Reddy and A. V. V. Nair for respondent No. 1.
The Judgment of the Court was delivered by
Hegde, J. In these appeals by certificate only one question
arises for decision and that is whether Chandu, the undivided
younger brother of Kelu or the grand-children of Kelu through
his daughter were the legal heirs of Kelu.
Before going into that question we may dispose of tlte contenti<m advanced on behalf of the appellants that there is no
satisfactory evidence to show that Chandu was
the undivided
brother of Kelu. The pleadings in this ·case proceed on the footing that Chandu and Kelu were the members of an undivided
family.
The evidence also discloses that fact.
The judgments
of the courts below proceed on that basis. Hence the appellants
cannot now be permitted to raise the contention in this Court
that Chandu is not proved to be the undivided brother of Kelu.
Jn considering the question formulated above, we shall proceed ·
on the basis that Kelu and Chandu were the members of an undivided family.
758
SUPREME COURT REPORTS
[1973) l S.C.R.
Kelu was a Thiyya resident of Calicut Taluk (at present
known as Kozhikode Taluk).
He was governed by the customary law known as Makka1thayam.
He died
on
November
l 5, 193 5 leaving behind him besides his two brothers Chandu and
Chekku, his widow Manikka, daughter Ichira and Ichira's son
and daughter who were the appellants before the High Court.
He left behind him three items of immovable property which are
the subject matter of the present appeals. Kclu's widow Manikka
and his daughter Ichira as well as his brother Chekku died prior
to 1944 long before the institution of the suits from which the&e
appeals r.rise.
·
It is n01 necessary to go into the history of the long litigation.
As mentioned earlier, the only qu•!stion for decision is as to who
were the legal heirs of Kelu.
It is now established that the suit
properties are the self-acquired properties of Kelu.
There is no
dispute about it '1.0W.
The High Court came to the conclusion
that under the Makkathayam rule. Chandu succeeded io the estate
of-Kelu in preference to his wife, daughter and daughter's children.
The· said conclusion is challenged in these appeals.
The contesting .. ;irurties a.re Hindus.
As mentioned earlier,
they are governed by Makkathayam rule. If the Hindu law as in
force in South [ndia ·had governed the succession with which we
are concerned, the wife of Kelu should have succeeded to the estate of her husband in preference to the other heirs. The claims
of the son and daughter r." Ichira could come in only later. Therefore the principal question that we have to decide is whether the
wife of Kelu succeeded to the estate of Kelu on his death.
Mr. S. T. Desai, appearing for the appellants contended that
Makkathayam rule being a rule of customary law can only derogate the ordinary Hindu law to the extent it is satisfactorily e;-
tablished; in other respects the ordinary Hindu law should prevail; the contesting respondents having not established by positive
evidence the claim put forward by them i. e. that Chandu wru. a
preferential heir to Kelu, they must fail.
On the other hand it
was contended by Mr. Rama Reddy on behalf of the respondents
that Kelu was governed by a customary law i. e. Makk:at~yam
law and not by ordinary Hindu law. Hence all that we have to
see is whether the customary law pleaded is well established on
the basis of the decisions of courts. According to him the custom
pleaded is of a community and not of any family. He urged that
the custom in question to the extent relevant for our present purpose is well settled.
The law relating to Thiyyas of the former Calicut taluk had
come up for decision before the Madras High Court in several
cases.
The approach to be adopted in spelling out the same is
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KELUKUTTY v. M~.MMAD (Hegde, !.)
759
laid down in the decision of th.e Madras High Com•t in (Param·
barathil) Pattukkayal Chakkutti mu' ors. v. Kothembra Cha;zdukutti(1).
Therein ihe Court observed :
"We think the Makkathayam Thiyyas are govemea
by what is called the customary law and that when
a question arises as to what is ihe rule of law governing then:l on any particular matter what we have to see
is what is the rule of customary law obtaining amongst
them in that matter and in cases which are not sufficiently governed by prior decisions, ihe question will
have to be determined with reference to the evidence
in the case."
In Parichan v. Perachi and ors (') ihe High Court of Madras
came to the conclusion that a community following Makkaihayam
rule must not be taken to be necessarily governed by the Hindu
law of inheritance with all its incidents.
On the basis of ihe
cvid~nce in that case, the court held that when a member of the
Thiyya community in Calicut following that rule alleged and
proved a custom that undivided brother succeeded to the selfacquired property in preference to widow, the court must give
effect to it.
Therein the competition was between ihe widow
and the brother of the deceased who was a member of an undivided Tarwad and the property in dispute was ihe self-acquisition of the deceased.
In Rama Menon v. Chathrmni( 8 ), ihe High Court of Madras
held that the ordinary rule of Marumakatayam
against
compulsory partition is equally applicable to Tiyans
who follow
Makkatayam, no custom to the contrary having been made out.
In Imbichi Kandan and ors. v. lmbichi Pennu and ors.(')
the High Court held that on the death of a Thiyya of South
Malabar following Makkaihayam rule of inheritance, his mother,
widow and d
0 ughter are entitled to succeed to his self-acquired
properties in preference to his faiher's divided brothers.
In ihe
course of the judgment, ihis is what ihe learned judges observed:
"The decision of ihe subordinate judge is entirely in
accordance wiih ihe principles laid down in Parichan v.
Perachi and Rama Menon v. Chathunni (supra). It
has been decided ihat the rule of impartibility applies
to Makkatayam Tiyans of Calicut, and in Parichan v.
Perachi following ihe principle ihat self-acquired property lapses to the tarwad, it was
held ihat the undivided broiher succeeded in preference to the widow.
(t) A.LR. 1927 Mad. 877.
(3) I.L.R. 17 Mad. 184.
(2) 1.L.R. 15 Mad. 2~1.
(4) l.L.R. 19 Mad.
1.
:700
SUPREME COURT REPORTS
[1973] 1 S.CR.
But the case is quite different when the brothers arc
divided and have no community of in'terest as· in this case,
Here it is found that the only property in which plaintiffs and Kelukutti ever had a common interest is in the
family burying place, which will certainly not constitute
then an undivided tarwad. That being so, the mother,
wife and daughter of Changaran who certainly belong to
his tarwad are preferential heirs to his l!ncle who did
not belong to his tarwad ar all and had no community
of interest with him.''
From these decisions it is clear thafThiyyas of fonuer CaliA
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cut Taluk were
governed by
the customary law known as
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Makkathayam. Further as per the Makkathayam rule of inheritance an undivided brother of a deceased person succeeded to
the self-acquired property of the deceased in preference to the
wife and daughter of the deceased. If that is so the daughter's
son who comes after them under the general Hindu law cannot
have a superior claim unless a custom to that effect is pleaded
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and proved. Such a custom is neither pleaded nor proved.
No other contention was raised before us.
In the result these appeals fail and they are dismissed.
But
in the circumstances of the case we direct the parties to bear
their own costs in this Court.
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s.c.
Appeals dismissed.
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