Case Note & Summary
The dispute concerned the inheritance of the estate of deceased Kochan Kani, a member of the Kanikkar tribe. The appellant, Kunjuraman Kani, the son of the deceased, claimed to be the legal heir as a Makkathayee, while the respondent, Mathevan Kani, the brother of the deceased, claimed inheritance under the customary Marumakkathayam law. After the death of Kochan Kani, the revenue authorities recognized the appellant as entitled to his father's estate. The respondent then filed two suits seeking declaration of his title as legal heir and possession of properties, contending that the Kanikkar tribe followed Marumakkathayam law. The appellant also filed a suit for eviction of a tenant. The trial courts gave conflicting decisions: one dismissed the respondent's suit, another decreed it, and the eviction suit was dismissed. The Kerala High Court, on appeals, held that the family of Kochan Kani was governed by Marumakkathayam law, relying principally on certain alleged admissions made by the deceased during his lifetime. The appellant appealed to the Supreme Court by special leave. The core legal issue was whether the respondent had proved the custom pleaded by him, namely that the Kanikkar tribe as a whole was governed by Marumakkathayam law. The respondent had pleaded only a tribal custom, not a family custom. The Supreme Court reiterated the settled principle that a party relying on a custom must plead it specifically and prove it by satisfactory evidence; he cannot be permitted to prove a custom not pleaded. This rule was supported by Abdul Hussain Khan v. Bibi Sona Dero and Thakur Gokalchand v. Parvin Kumari. The Court examined various reports and authoritative works, including the Census Report of 1931, the History of Kerala, and books on Travancore tribes, which showed that the Kanikkar tribe was not governed by any uniform custom; different families followed Marumakkathayam, Makkathayam, or a mixture of both. The High Court's reliance on admissions by the deceased was found to be misplaced because those admissions were not uniform. The deceased sometimes described himself as a Marumakkathayee and sometimes as a Makkathayee. Consequently, the alleged admissions could not establish a consistent family custom. The Court held that the respondent had failed to prove the pleaded tribal custom, and the High Court erred in deciding the case on an unpleaded family custom. Accordingly, the Supreme Court allowed Civil Appeals Nos. 924 and 925 of 1966 and dismissed the suits from which they arose. In Civil Appeal No. 926 of 1966, the appellant was declared the owner of the suit properties, but the question of eviction of the tenant was remanded to the lower court for decision in view of the prevailing tenancy laws.
Headnote
A) Custom - Pleading and Proof - Custom must be specifically pleaded and proved; party cannot prove different custom - Not mentioned - The respondent pleaded only a tribal custom of the Kanikkar tribe following Marumakkathayam law, not a family custom pertaining to the deceased's family. The Court held that a party relying on a custom must plead it in specific terms and prove the custom pleaded; he cannot be permitted to prove a custom not pleaded. The respondent's failure to plead family custom was fatal. Held that the trial court's approach in O.S. 74 of 1956 was correct. (Pages 788-789) B) Custom - Tribal Custom - Kanikkar tribe not governed by uniform customary law - Not mentioned - Evidence including Census Report of 1931, History of Kerala, and other authoritative works showed that different families among Kanikkars followed Marumakkathayam, Makkathayam, or a mixture of both. The Court held that the tribal custom of Marumakkathayam law as pleaded was not proved. (Pages 789-790) C) Evidence - Admissions - Inconsistent admissions not reliable to establish custom - Not mentioned - The High Court relied on alleged admissions by deceased Kochan Kani describing himself as Marumakkathayee, but other documents described him as Makkathayee. The Court held these admissions were not uniform and unsafe to rely upon; the High Court misdirected itself. (Pages 790-791) D) Succession - Inheritance - Son inherits when customary law not proved - Not mentioned - Since the tribal custom was not proved and no family custom excluding son was pleaded or proved, the son was entitled to inherit father's property. The Court allowed Civil Appeals Nos. 924 and 925 and dismissed the suits; in Civil Appeal No. 926 the son was declared owner, with eviction question remanded. (Page 791)
Issue of Consideration
Who is the legal heir of deceased Kochan Kani; whether the Kanikkar tribe is governed by Marumakkathayam law or Makkathayam law; whether family custom can be proved when only tribal custom has been pleaded
Final Decision
Civil Appeals Nos. 924 and 925 of 1966 allowed; the suits from which they arose dismissed. Civil Appeal No. 926 of 1966 partly allowed: appellant declared owner of the suit properties; question of eviction of tenant remanded to lower court for decision in view of prevailing tenancy laws.
Law Points
- A party relying on a custom must plead it in specific terms
- the custom pleaded must be proved by satisfactory evidence
- a party cannot be permitted to prove a custom not pleaded
- custom must be continuous and consistently observed
- tribal custom must be distinguished from family custom
- inconsistent admissions are unreliable to establish custom
- Kanikkar tribe not governed by uniform customary law
