KARTHIYANI AMMA Vs. CHATHAM
LAWS(KER)-1967-6-19
HIGH COURT OF KERALA
Decided on June 13,1967

KARTHIYANI AMMA Appellant
VERSUS
CHATHAM Respondents

JUDGEMENT

- (1.) The suit property belonged to a Vetan by name Chothiran who died issueless. He had a brother, Mundan, and a sister, Pava. The appellant, the sixth defendant, is an alienee from the descendants of Pava, and the contesting respondents the descendants of Mundan. The main question in the second appeal is whether Vetans are marumakkathayees or makkathayees; and on this question the Trial Court held that they were marumakkathayees and the lower appellate court held that they were makkathayees.
(2.) Mr. G. Viswanatha Iyer, the counsel of the appellant, argues that though the contention of the appellant before the courts below was that Vetans were marumakkathayees, they were really followers of a mixed system of inheritance under which nephews and sons inherited together in equal shares or in some other proportion. The argument before me has proceeded on this basis. Mr. Viswanatha Iyer draws my attention to a passage from the Travancore Tribes and Castes by L. A. Krishna Iyer, Vol. I, at page 149dealing with inheritance among Cheruvetans, Elichathivetans, Chingannivetans, etc. The passage says that Mrs. J. W. Evans has recorded in the Madras Museum Bulletin that "inheritance is a mixture of matriarchy and patriarchy", the son and the nephew dividing equally. The author adds as his contribution that this has undergone a change now; and two-thirds now go to the son and a third alone to the nephew among Chingannivetans, and among Cheruvetans half goes to the son and half to the nephew, etc. The counsel then draws my attention to the Travancore State Manual by T. K. Velu Pillai, Vol. I, page 872, wherein the inheritance of Kanikkarans, Malappantarans, Uralis, Vettuvans, etc. is dealt with. The author says that the law of inheritance is not uniform; what generally obtains is makkathayam; and in many cases what belongs to a deceased man is divided between his son and nephews equally. The author points out that what are thus divided are mammatties (spades), bill hooks and crowbars. The author says further that marumakkathayam is also met with; and sometimes different clans forming the same tribe follow different systems of inheritance. One more work is referred to by the counsel; and that is the Census Report of 1931, Part I, Vol. XXVIII, by Kunjan Pillai. At page 403 of this work is stated that among Chingannivetans sons inherit two-thirds and nephews (sister's sons) one-third of a man's property on his demise; and the property is divided equally between sons and nephews among Cheruvetans. In addition to these works Mr. Viswanatha Iyer cites the decision of this Court by Velu Pillai J in Sankaran Kani v. Kunjuraman Kani ( 1965 KLT 1214 ) dealing with the inheritance of Kanikkars. The counsel draws my attention to the passage extracted by Velu Pillai J. from Varki v. Ouseph (22 TLJ. 1239). This passage criticises the view that upon a general presumption Hindus as a rule should be taken as governed by Mithakshara law and not on an estimate of the evidence and circumstances of the case. The passage states further that in view of the prevalence of the marumakkathayam system in total or partial displacement of the general Hindu law among many communities like Nanjinad Vellalas and Ezhavas, who, but for the impact of the marumakkathayam system, ought to have been strict followers of makkathayam, any such general presumption cannot but be so weak as to yield to evidence and circumstances in conflict with it. It is however pointed out that at p. 422 of T. K. Velu Pillai's work Vetans are classified as makkathayees by the author and not as marumakkathayees or as following a mixed or doubtful system of inheritance.
(3.) There are two documents in the case before me which also throw some light on the system of law followed by the Vetans involved in this case. They are Exx. C and D. The parties to those documents are described by their fathers' names as surnames excepting in Ex. C in describing one the uncle's name is also given. The law that should normally apply to such communities (communities considered to be low in the social scale more so the Panchamas, the communities outside the four-fold division in Hinduism)-must be their customary law (vide Thankammal v. Madhavi Amma: 1966 KLT 181 ); and to that extent I am in agreement with the view expressed in Varki v. Ouseph (22 TLJ. 1239). In the absence of a custom of inheritance for Vetans (their customary law) having been established, the presumption is that the system of Hindu Mitakshara law on the point should apply to them: and this presumption has not been displaced by the observation in the passage cited by Velu Pillai J. in the decision of this Court. That passage also proceeds on the presumption that in such a case the law applicable should be Hindu Mitakshara law; but, since in the case before Court the marumakkathayam system of inheritance had partially or totally displaced the Hindu system of inheritance, the marumakkathayam system should be accepted. This is the reasoning in the passage quoted and followed by Velu Pillai J. There is no evidence in this case to show that the marumakkathayam system of inheritance has partially or totally displaced the Hindu system of inheritance, which otherwise should have applied to Vetans, in the absence of proof of their customary law. What little evidence that is available in Exx. C and D (the predominance, I mean) points in the direction of the patriarchal system of inheritance. Though there are some observations in the works pointed out by Mr. Viswanatha Iyer that sons and nephews divide the properties of a deceased man, the other definite classification that Vetans follow the makkathayam system of inheritance is also there. In the light of these opinions of the authors, the division of such property left by a deceased Vetan as mammatties, bill hooks and crowbars cannot displace the system of inheritance they are having. It may be that mammatties, bill hooks and crowbars are divided between nephews and sons; still, the system of inheritance followed by them must remain makkathayam; and for the reason that mammatties, bill hooks and crowbars are divided between sons and nephews the system of inheritance cannot be said to be marumakkathayam. In this view, the decision of the lower appellate court on this question is correct.;


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