# KOCHAN KANI KUNJURAMAN KANI v. MATHEVAN KA.llill SANKARAN KANI

- **Citation:** [1971] Supp. 1 S.C.R. 786
- **Court:** Supreme Court of India
- **Decided:** 1971-05-07
- **Case number:** Civil Appeals Nos. 924 to 926 of 1966
- **Bench:** K. S. Hegde .Wo A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kochan-kani-kunjuraman-kani-v-mathevan-ka-llill-sankaran-kani-5428
- **Pages:** 6

## Headnote

Custom-Plea of tribal custom-Whether family custom can be p1'oved.
Kanikkars-Whether gov~rned by·Marumakkathayam law or ."dakkathayees.
The appellant who was the son of the last male holder, was recognis·
ed by the revenue authorities as entitled to his father's estate. The res·
pondent, who was the brother of the last male holder, filed two suits claim·
ing to be the legal heir of the last male holder on the basis that bis brother
belonged to the Kanikkar tribe governed by the customary Marumakkathayam law.
The appellant contended that his father was a Makkathayee.
The appellant also filed a suit for eviction of his tenant.
In appeals arising out of the suit, the High Court decided that the
family at the last holder was governed by Marumakkathayam law, relying on certain admissions made by the last holder during his life time.
In appeal to this Court,
HELD : The High Court wa~ in error
(a) the evidence in the case and various reports and books, which came
into existence at undisputed point of time, showed that the Kanikkar tribe
was not governed by any particular custom.
Different families of the
tribe followed different customs. some of the Marumakkathayam, some of
the Makathayam and others a mixture of the two. f790F-G]
(b) The admissions by the last male holder were not unifor!ll. He
sometimes described himself as Marumakkathayee and sometimes :J.s Makkathayee, [790Hl
(c) Further, the question in issue was whether the Kannikar clan v:as
aoverned by Marumakkathayam law. The custom pleaded by the respondent was a tribal custom and not a family custom. He could not be per·
milted to prove a custom not pleaded by him and such proof would not
help him.
[789BJ
rrbereforc, respondents suits WCJ'e dismissed and the appelhhlt W3!;
given a declaration in bis suit or eviction, that he was the owner of t:1e
properties. The suit was however remanded for decjsion as to his right
to evict his te~ant. in view of the prevailing tenancy laws.]
Abdul Hussain Khan v. Bidi Sona Dero. 45
I.A. 10 and
Thakur
Gokalchand v. Parvin Kumar!, (1952] S.C.R. 825, referred to.

## Text

786
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KOCHAN KANI KUNJURAMAN KANI
v.
MATHEVAN KA.llill SANKARAN KANI
May 7, 1971
[K. S. HEGDE .WO A. N. GROVER, JJ.J
Custom-Plea of tribal custom-Whether family custom can be p1'oved.
Kanikkars-Whether gov~rned by·Marumakkathayam law or ."dakkathayees.
The appellant who was the son of the last male holder, was recognis·
ed by the revenue authorities as entitled to his father's estate. The res·
pondent, who was the brother of the last male holder, filed two suits claim·
ing to be the legal heir of the last male holder on the basis that bis brother
belonged to the Kanikkar tribe governed by the customary Marumakkathayam law.
The appellant contended that his father was a Makkathayee.
The appellant also filed a suit for eviction of his tenant.
In appeals arising out of the suit, the High Court decided that the
family at the last holder was governed by Marumakkathayam law, relying on certain admissions made by the last holder during his life time.
In appeal to this Court,
HELD : The High Court wa~ in error
(a) the evidence in the case and various reports and books, which came
into existence at undisputed point of time, showed that the Kanikkar tribe
was not governed by any particular custom.
Different families of the
tribe followed different customs. some of the Marumakkathayam, some of
the Makathayam and others a mixture of the two. f790F-G]
(b) The admissions by the last male holder were not unifor!ll. He
sometimes described himself as Marumakkathayee and sometimes :J.s Makkathayee, [790Hl
(c) Further, the question in issue was whether the Kannikar clan v:as
aoverned by Marumakkathayam law. The custom pleaded by the respondent was a tribal custom and not a family custom. He could not be per·
milted to prove a custom not pleaded by him and such proof would not
help him.
[789BJ
rrbereforc, respondents suits WCJ'e dismissed and the appelhhlt W3!;
given a declaration in bis suit or eviction, that he was the owner of t:1e
properties. The suit was however remanded for decjsion as to his right
to evict his te~ant. in view of the prevailing tenancy laws.]
Abdul Hussain Khan v. Bidi Sona Dero. 45
I.A. 10 and
Thakur
Gokalchand v. Parvin Kumar!, (1952] S.C.R. 825, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 924 to
926 of 1966.
KOCHAN v. MATHEVAN (Hegde,J.)
78~
Appeals by special leave from the judgment and order dated
A
August 31, 1965 of the Kerala High Court in A. S. Nos. 686 of
1961, 469 of 1964 and S. A. No. 356 of 1962
M. Natesan, N. Sudhakaran and P. K. Pillai, for the appellants
~in all the appeals).
M. K. Ramamurthi, J. Ramamurthi and Vineet Kumar, for
respondent No. 1 (in C. A. No. 924 of 1966) and respondents Nos.
1 and 5 (in C. A. No. 925 of 1966).
The Judgment of the Court was delivered by
Hegde, J.-A common question arises for decision in these
appeals by special leave.
That question is as to who is the legal
heir of the deceased Kochan Kani. Kunjuraman Kani, the son of
the deceased Kochan Kani (who will hereinafter be referred to as
the appellant) claims that he is the legal heir. On the other hand
Mathevan Kani (who will hereinafter be referred to as the respon·
dent) the brother of the deceased Kochan Kani claims that he is
1he legal heir.
According to the respondent the deceased was
governed by Marumakkathayam law but according to the appel·
lant he was a Makkathaiyee. Both Marumakkatham system as well
as Makkathayee system are customary laws.
After the death of Kochan Kani the revenue authorities came
to the conclusion that the appellant was entitled to the estate of
his father.
Thereafter the respondent filed 0. S. No. 74 of 1956
·on the file of the Second Additional District Judge, Trivandrum
against the appellant and his step-mother seeking a declaration
that he was entitled to the transfer of the registry in his name
as the legal heir of the deceased Kochan Kani. That suit was dis·
missed by the trial court but on appeal the High Court of Kerala
reversed the decree of the trial.court and decreed the suit in favour
of the respondent.
Civil Appeal No. 924 of 1966 is directed
against that judgment.
The respondent and some of the alienees from him instituted
0. S. No. 78 of 1959 against the appellant in the court of Additional Sub-Judge, Trivandrum for a declaration of the title of the
respondent in the properties mentioned in that suit and for the
possession of the same on the ground that those properties belonged to the deceased Kochan Kani and after his death they had
devolved on the respondent
That suit was decreed by the trial
court.
As. against that decision, the appellant appealed to the
High Court of Kerala in A. S. No. 469 of 1964 on its file. That
appeal was dismissed.
Thereafter the appellant has appealed to
this Court in Civil Appeal No. 925 of 1966.
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SUPREME COURT REPORTS
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A
Civil Appeal No. 926 of 1966 arises from O. S. No. 436 of
11124 filed by the appellant and his step-mother in the court of
Additional Munsiff, Neyyattinkara for the eviction of Isreal Nadar.
That suit was dismissed by the trial court and the appellant was
unsuccessful in the first appeal as well as in the second appeal.
B
The deceased Kochan Kani belonged to a tribe known as
Kanikkars. Originally they were Nomads. They hardly had any
immovable property.
But in recent times they have settled down
and a few of them have acquired immovable properties. Kochan
Kani was one such.
In 0. S. No. 74 of I 956, the respondent
pleaded that the Kanikkars tribe follows Marumakkathayam sysC
tern. In paragraph 2 of the plaint he stated :
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" .... The Kanis from time immemorial follow Marumakkathayam law and Kochan Kani has in several cases
declared himself to be a Marumakkathayee".
He also averred in that plaint that in several decisiom;, the
courts have declared that Kanikkars follow Marumakkathayam
system.
The custom pleaded by the respondent was a tribal custom and not a family custom pertaining to the family of Kochan
Kani.
In 0. S. 78 of 1959, the averments relating to the custom
in question are vague.
At any rate even in that suit, the respondent did not put forward any family
custom.
Therefore the
only question that the courts had to decide was whether the respondent had proved the custom pleaded by him. It is well established that in the matter of custom a party has to plead in specific
terms as to what is the custom that he is relying on and he must
prove the custom pleaded by him.
He cannot be permitted to
/prove a custom not pleaded by him.
In Abdul Hussain Khan
v. Bibi Sona Dero('), the Judicial Committee observed "It is therefore incumbent upon the plaintiff to allege a.nd prove the custom
on which he relies." That was also the view taken by this Court
in Thakur Gokalchand v. Parvin Kumari(') The reason for this
rule is obvious.
Anybody who puts forward a custom must prove
by satisfactory evidence the existence of the custom pleaded, its
continuity and the consistency with which it was observed. A party
against whom a custom is pleaded must have notice as to what
case he has to meet. The opposite party apart from rebutting the
evidence adduced by the plaintiff may be able to prove that the
custom in question was not invariably followed.
He cannot get
ready with that evidence without knowing the nature of the custom relied upon by the plaintiff.
Therefore all that we have to
see in the present case is whether the respondent has established
(I) 45, I.A. p. 10.
(2) [1952] S. C. R. 825.
KOCHAN v. MATHEVAN (Hegde,J.)
the custom pleaded by him viz. the custom of the clan to which
the deceased belonged. The learned trial Judge in 0. S. 74 of 1956,
after carefully examining the evidence in the case came to the
conclusion that the respondent has not proved the custom pleaded
by him. He referred not merely to the evidence in the case but also
to vari011s reports and books which came into existence at undisputed point of time. On the other hand the learned trial judge
in 0. S. 78 of ·1959 mainly relying on certain alleged admissions
of the deceased Kochan Kani came to the conclusion that he was
governed by Marumakkathayam law.
Similar was the view taken
by the court in the proceedings arising out of 0. S. 436 of 1124.
The High Court came to the conclusion that so far as Kanikkars tribe is concerned, it was not governed by any single customary law.
Some of the families were Marumakkathees, some are
Makkathayees and some are Misravalis.
But at the same time it
came to the conclusion that the family of Kochan Kani was governed by Marumakkathayam law.
For coming to that conclusion
it solely relied on certain admissions made by Kochan Kani during
his life time.
In our opinion the High Court misdirected itself in determining the question before it.
It overlooked the fact that the only
plea of the respondent was that Kanik:kars tribe was governed by
Marumakkathayam law. He did not plead any family custom.
Before he could succeed in his suits, he had to establish the custom
pleaded by him.
Proof of any other custom could not help him.
There is plenty of evidence to show that the Kanikkars tribe
as such was not governed by any patticular custom.
The Census
Report of 1931, dealing with the Kanikkars states thus :
"A man's property devolves equally on his sons and
sisters' sons.
In the absence-of nephews, the sons get the
whole property.
Descent is reckoned through the female
line and children belong to the clan of the mother.
In
Cherukara of Pathanapuram Taluk, inheritance is through
the male line."
In the History of Kerala edited by
Shri K. P. Padamanabha
Menon, it is observed :
"In the matter of inheritance there is some difference
between the Kanies who live in the interior of the hills
and those living in the plains. The former follow Makkathayam, tlie sons taking the father's property, if any, and
yet it is not Makkathayam pure and simple, for, the
moiety of the personal property goes to the sister's son,
i.e. to the nephews.
With those living in or near the
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plains, the self-acquired property is distributed equally
between the sons and nephews. If there are no sons, the
nephews inberit the whole property.
The rights of the
widow being considered to maintenance alone."
In Sri L. A. Krishna Iyer's book on the Travancore Tribes, dealing with Kanikkars the learned author observes :
"Property includes clothing, implement, utensils,
weapons, live stocks and crops. Deceased man's property
is divided half to his nephews and the other half among
his sons. In the absence of a nephew, the property devolves on his sons. In the absence of sons it devolves on the
niece. Jn her absence it goes to his brothers and sisters.
In no case does it go to his wife.
Even the hut goes to
the nephew.
The widow with her children goes back to
her brother.
ln regard to the lives stock, the Kanikkars
in the vicinity of Kallar, state, that pigs and goats are
reared by women and they pass on to their children on
their demise.
When a girl is married the property goes
with her to her husband's home; the husband's share goes
to the nephew."
The author also says that "Descend is reckoned in the female
line.
A man's children belong to the clan of the mother".
In the Travancore State Manual published in 1940 by T. V.
Velu Pillai, dealing with Kanikkars, it is stated thus :
"The law of inheritance is not uniform.
What
generally obtained is Makkathayam. In many cases what
belongs to a deceased man is divided between sons and
nephews equally.
Marumakkathayam is also met with.
Sometimes different clans forming the same tribe followed different systems of inheritance."
From the above it is clear that Kanikkars clan as such does
not follow any particular custom.
It appears that different families follow different customs.
Some were following Marumakkathayam, some Makathayam and others a mixture of the two.
The High Court has come to fhe conclusion that the family
of Kochan Kani was governed by Marumakkathayam law mainly
on the basis of certain admissions said to have been made by
him. These admissions may be classified under two different
heads.
In some of the documents he described himself as "ananthiravan" of Mathevan-a practice followed by Marumakkatbayees.
But he did not do so invariably.
In some documents be
bad described himself as the son of Malan Kani.
Therefore it is
unsafe to place any reliance on those documents.
The second
KOCHAN v. MATHEVAN (Hegde,J.)
set of documents relied on by the High Court are those where
Kochan Kani described himself as a Marumakkathayee but there
are other documents where he described himself as Makkathayeesee Exhts. D-32 and D-31.
Hence the High Court should not have
placed much reliance on these alleged admissions.
It may be that
Kocnan Kani's family was following a custom which is partly
Marumakkathayam and partly Makkathayam.
It is not necessary for us to decide in these proceedings as to
the custom followed by the family of Kochan Kani.
As seen
earlier, the only question to be decided is whether Kanikkars clan
was governed by Marumakkathayam law.
For the reasons mentioned above we have to hold that it is not proved that the clan
in question is governed by Marumakkathayam law.
In the result
Civil Appeals Nos. 924 and 925 of 1966 are allowed and the
suits from which they have arisen are dismissed.
So far as Civil
Appeal No. 926 of 1966 is concerned, the appellant being the son
of Kochan Kani must be held to be entitled to inherit his father's
property, unless it is proved that his father was governed by a
custom under which the son does not inherit his property. No
such proof is forthcoming.
Therefore he is entitled to have a
declaration that he is the owner of the suit properties.
But the
question whether the defendant therein can be evicted in view of
the prevailing tenancy laws or not has not been decided by the
High Court.
Hence that case is remitted to the High Court for
deciding that question.
Under the circumstances of the case we
direct the parties to bear their own costs in 311 the courts.
V.P.S.
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