KOCHAN KANI KUNJURAMAN KANI versus MATHEVAN KANI SANKARAN KANI

Citation: [1971] SUPP. 1 S.C.R. 786 · Decided: 07-05-1971 · Supreme Court of India · Bench: K.S. HEGDE · Disposal: Appeal(s) allowed

Judgment (excerpt)

786 
A 
B 
c 
D 
E 
F 
G 
H 
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 ."dakka-
thayees. 
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 Marumakkatha-
yam 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, rely-
ing 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 Mak-
kathayee, [790Hl 
(c) Further, the question in issue was whether the Kannikar clan v:as 
aoverned by Marumakkathayam law. The custom pleaded by the respon-
dent 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 Addi-
tional 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 g

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