LexKELUKUTTY & ORS. versus MAMMAD & ORS.
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A B c D E F G H 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 custo- mary 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 con- tenti<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 foot- ing 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 un- divided 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 custo- mary 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 es- tate of her husband in preference to the other heirs. The claims of the son and daughter r." Ichira could come in only later. There- fore 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 dero- gate the ordinary Hindu law to the extent it is satisfactorily e;- tablished; in other respects the ordinary Hindu law should pre- vail; 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
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