R.M.S.N. NARAYANAN CHETTIAR Vs. M.P.P.S.P.L. MUTHIAH CHETTIAR AND ANR.
HIGH COURT OF MADRAS
R.M.S.N. Narayanan Chettiar
M.P.P.S.P.L. Muthiah Chettiar And Anr.
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Mockett, J. -
(1.) THE Judgment of my learned brother which I have had the advantage of reading has so fully set out the facts and issues for determination in this case that I do not propose to repeat them. I am in complete concurrence with all his conclusions on the issues of fact and I propose to add nothing with regard to points 2 and 3 which relate to the question whether in the case of item 1 of schedule C the property concerned is that of the first plaintiff or of Deivanai and in the case of items 1 to 4 of schedule D whether the properties belong to Deivanai or to the joint family. With regard to the question of fact as to whether the adoption of Subramaniya by the first defendant has been proved, I consider that apart from the oral evidence the documents support the allegation that the adoption was carried out
[After reviewing the evidence on this question His Lordship proceeded]
(2.) WITH regard to the question of law involved, it is important, first to consider whether the learned Judge's conclusion relating to the custom alleged by the plaintiff is correct. That conclusion is to be found in paragraph 84 of the judgment and reads as follows:
I find that the custom of reverter alleged by the plaintiffs in paragraph 21 is true and valid to the extent that presents and moneys proved to have been given by the members of the parental family and their relatives revert to the parental family and the presents and moneys given by the husband's family and their members revert to the husband's family.
But was that custom pleaded in paragraph 21 of the plaint? The effect of the authorities seems to be that a custom must be proved to be certain, reasonable, immemorial and without interruption and each of these circumstances should be alleged in the plaint. It is convenient to set out that part of paragraph 21 of the plaint which purports to plead the custom on which the plaintiffs rely. It is as follows:
According to the custom of the Nattukottai Chettiar community to which the plaintiff and defendants 1 to 3 in particular, belong, the first plaintiff has become entitled at the moment of said Deivanai Achi's death to all the things left by her and referred to in schedules E and F as well as the properties mentioned in G and D schedules if for any reason they also can be said to have belonged to or have been left by her as her effects when she died and all other properties which may hereafter be established or proved to have been left by her by the right or the principle of reverter. According to the binding and immemorial custom of Nattukottai Chettiar community, if a Nattukottai Chettiar woman dies leaving behind her no child or children born to her or any son adopted to her and her husband prior to her death or any lineal descendant or descendants by any such child or children or adopted son, the stridhanam, seermurai and other siruvattu monies and properties of whatever nature they may be whether jewels, vessels, cloths, etc., presented or given to her either at the time of the marriage by her parents' family or relatives or on subsequent numerous occasions in accordance with the general usage, practice or custom of the community or acquired by her from her parents house or other relations in any manner whatsoever except any property that might have been acquired or got directly from her husband's family and all accumulations descend and go to her father or the father's child or children adoptive or natural or his or their lineal descendants, if any, surviving her by right of reverter.
(3.) I omit the rest of the paragraph as it is more in the nature of an argument than in the nature of a pleading. The important allegation is that, according to the binding and immemorial custom of the Nattukottai Chettiar community, if a Nattukottai Chettiar woman dies leaving behind her no child or children born to her or any son adopted to her and her husband prior to her death or any lineal descendant or descendants by any such child or children or adopted son, the stridhanam and other properties given by her relatives or by per parents or it would seem by anyone at any time other than her husband's family descend and go to her father or his family. The only exception is property derived from her husband's family. I again stress the words " or any son adopted to her and her husband prior to her death " and especially the words " prior to " which of course raised the all important point in this case. The plea seeks to exhibit an important addition to the custom of descent of property among Nattukottai Chettiars as recognised by this Court and I do not consider that the evidence is such that the addition to the custom pleaded has been proved. In so far as the customs amongst this community have been accepted, two decisions of this High Court are in point. Madha -van Nair, J., (as he then was) delivering the judgment of the Bench held in Official Assignee of Madras v. Muthayee Achi, (1937) M.W.N. 493, that the following custom had been proved by unimpeachable evidence:
The amounts of the gifts are handed over to the senior male member of the bridegroom's family in the shape of hundies drawn in favour of the bridegroom by the senior male member of the bride's father's family for the amounts. They are so handed over to him for his making them accumulate by lending them out for interest. He invests them in the money -lending shop of his family if that family has one, and in some other shop if his family has none or if the shop of that family is not financially sound or if the bride's father's family so desires. Interest is allowed on them at the rate current in Rangoon adding it to the principal amounts and interest, is payable to the bride on demand during her lifetime and is taken by the children of the marriage if any are left when the bride dies and by her father's family otherwise.;
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