KAVALAPPARA KOTTARATHIL KOCHUNNI ALIAS MOOPIL NAIR versus KAVALAPPARA KOTTARATIL PARVATHI NETHIAR ALIAS VIJAYAM NETHIARS CHILDREN GOURI NETHIAR AND OTHERS

Citation: [1970] 2 S.C.R. 36 · Decided: 21-08-1969 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed

Judgment (excerpt)

KAVALAPPARA KOTTARATHIL KOCHUNNI 
alias MOOPIL NAIR 
v. 
KAVALAPPARA KOTTARAT'IIL PARVATHI NETHIAR 
alias VUAYAM NEmIAR'S CHILDREN GOURI NETHIAR 
AND OTHERS 
August 21, 1969 
fJ. C. SHAH, ACTING C.J., V. RAMASWf.MI AND A. N. GROVER, JJ.) 
Custon1-l1npartible 
Estate-Marumakkathayam 
Law-Sthanee 
of 
Kavl4lappara estate paying n1aintenance to ;unior members of fan1ily-·Pay-
n1ent whether based on custo111-0pinio necessitatis ,-Qn essential .elen1e11t of 
custom. 
Defendant No. 1 was the Sthanee of Kavalappara estate which was an 
impartible estate governed by Marumakkathayam law. 
The 
plaintiffs 
claimed maintenance based on a family custom entitling the members to 
maintenance out of the entire income of the Sthan-am. 
Past maintenance 
was claimed as also future maintenance from the date of the suit. Defendant 
No. 1 denied that the plaintiff• had any right based on custom as claimed 
by them; according to him from older times two kalams of the Sthanam 
had been set apart for their maintenance. 
He claimed that the 
Privy 
Council in suit no. 46 of 1934 had declared him absolute owner of the 
Sthanr··,] properties but despite that, out of generosity only he had been 
paying to the junior members of the Swaroopam Rs. 17,000/- annually. 
The trial court granted maintenance to the plaintiffs for the period claimed 
at the rate of Rs. 250/- per mensem for each of the plaintiffs. Defendant 
No. 1 appealed to the High Court and the plaintiffs filed cross-objections as 
the rate of maintenance allpwed to then1 was lower than they had claimed. 
The High Court partly allowed the appeal negativing the plaintiffs' claim 
for arrears of maintenance, and dismissed the cross-objections of the plain-
tiffs. Both t'ie parties appealed to this Court. 
The questions that fell for 
consideration were : (i) whether the right to maintenance as claimed by 
the plaintiffs was based on custom; (ii) whether the High Court was right 
in disallowing the claim of the plaintiffs to arrears of maintenance; (iii) 
whether the rate of maintenance as ordered by the trial court and confirmed 
by the High Court was justified. 
HELD : (i) An alleged custom. in order to be valid, must be proved 
by testimony to have b.een obeyed from consciousness of its obligatory 
character. A mere convention between family members or an arrangement 
by mutua] consent for peace and convenie.nce cannot be recognised 
a~ 
custom. 
In order that a custom should acquire the character of law the 
custom must be accompanied by the inte11ectual element, the opinio neces-
sitatis, the recognition that there is authority behind it. [45 ll-C; D-E] 
Ramrao v. Yeshwantrao, I.L.R. 10 llom. 327, applied. 
A 
B 
c 
D 
E 
F 
G 
In the present case the evidence sufficiently proved a custom in Kava~ 
lappara estate by which the Sthanee was legally obliged to give mainte-
nance to iunior members of the family. 
It was possible that the practice 
of payin.i:? rnaintenani:e to iunior members originated as an act of generosity 
of the previous Sthanee. 
But it bad continued without interruption for 
H 
such a length of time that it had acquired the character of a legal right. 
[42 E-F] 
Kochuni v. Kuttanunni, A.l.R. 1948 (P.C.) 47, 52, explained. 
A 
B 
c 
D 
KOCHUNNI v. PARVATHI (Ramaswami, J.) 
17 
(ii) Although it had been alleged by the plaintiffs that :hey had not 
been paid any maintenance, the High Court had found that maintenance 
had .been given to the plaintiffs' mother with whom the plaintiffs had been 
living. The High Court's refusal to grant to the plaintiffs arrears of main-
.tenance before the date of the suit must, in the circumstances, be upheld. 
[46 CJ 
(iii) The High Court in fixing the amount of maintenance for each 
of the plaintiffs at Rs. 250/- per month had taken into account all the rele-
vant factors. 
It had further directed that it was open to the parties after 
two years to move the trial court for variation in the rate of maintenance 
fixed on the ground of altered circumstances of the Estate. 
There was 
no reason for interfering with the judgment of the High Court in this 
matter. [46 GJ 
CIVIL APP,,LLATE JURISDICTION: 
Civil Appeals Nos. 1235 
to 1237 of 1966. 
Appeals from the judgment and aecree dated September 20, 
1963 of the Kerala High Court in Appeal Suit No. 304 of 1962. 
Rameshwar Nuth, Mahinder Narain and Swaranjit Sodhi, for 
the appellants (in C.A. No. 1235 of 1966) and respqndent No. 
11 (in C.As. Nos. 1236 and 1237 of 1966). 
K. Jayaram an

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