KALIAMMA versus JANARDHANAN PILLAI & ORS

Citation: [1973] 3 S.C.R. 503 · Decided: 08-02-1973 · Supreme Court of India · Bench: C.A. VAIDYIALINGAM · Disposal: Dismissed

Judgment (excerpt)

A 
B 
c 
D 
E 
F 
G 
H 
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 Patnibha-
g"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 deci-
sions which refer to the special kind of patiiibhagarn pleaded by the appel-
lant 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 
D 
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

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