Ramaswami, J. - (1.) THIS second appeal is preferred against the Decree and Judgment of the learned District Judge of Madurai in A.S. No. 116 of 1952, practically confirming the decree and judgment of the learned Subordinate Judge of Madurai in O.S. No. 182 of 1949.
(2.) THE facts are : The parties in this case belong to a small community known as Athangudi Chettiars who live in seven villages, viz., Navinipatti, Vellalapatti, Kottakudi, Keelur, Attapatti, Eriyoor and Mellakottai. They also appear to be known by the name of Elur Chettiars. One of the pretensions put forward was that these Athankudi Chettiars are a sub -sect of Nattukottai Chettiars but this has not been persisted in. In regard to these Athankudi Chettiars, in O.S. No. 436 of 1927, District Munsif's Court, Melur, a custom was set up that amongst them if a male who is divided from his coparceners dies without leaving a male issue, his pangalis, i.e., agnates will get his properties to the exclusion of the widow or daughters of the deceased and the pangalis are bound to provide for the maintenance of the widow and also of any daughters of the deceased till their marriage and they are also bound to get the daughters married and that even if the deceased left no properties, the pangalis are bound to maintain the widow and marry the daughters. Nothing was stated in the written statement, however, as to what would happen if the deceased had a daughter's son or a mother. During the course of the trial some instances were spoken to where the mother also had been excluded, just like the widow and the daughter. But no instance was spoken to where the deceased left a daughter's son also. One Alagappa Chetti, an Athankudi Chetti, died in January -February, 1917, leaving considerable properties and surviving him his widow Karuppayi Achi, the 5th defendant in O.S. No. 436 of 1927, and three daughters, viz., the plaintiff therein Settichi, the sixth defendant therein A.P.A. Karuppayi, and one Koothammai. This Koothammai died subsequently without issue. In these circumstances on 25th July, 1926, the perumpangalis of the deceased Alagappa Chetti, got a release deed executed by the widow Karuppayi Achi. The sum and substance of this document is that in accordance with this custom, which is not mentioned however in the document, on the death of Alagappa Chetti without any male issue these perumpangalis became entitled to the entire properties, that the widow was entitled to maintenance, that Karuppayi (daughter) was only entitled to stridhanam, that there were disputes between them in regard thereto when the perumpangalis attempted to get the entire properties, that by reason of a mediation in return for the perumpangalis giving the widow some properties for her lifetime and giving the daughter Karuppayi some properties as stridhanam for her lifetime, they were parting with all their rights in Alagappa Chetti's estate. The perumpangalis have executed a settlement deed, dated 25th July, 1926, giving, as already mentioned, some properties as stridhanam, to the daughter Karuppayi for her lifetime.
(3.) O .S. No. 436 of 1927 was instituted by Settichi, asking for a declaration that the maintenance release deed executed on 25th July, 1926, was not valid and did not confer any rights on defendants 1 to 4 therein, viz., the perumpangalis and for the appointment of a Receiver to manage the properties, etc. The learned District Munsif Mr. P.S. Chandrasekhara Ayyar, who went into the matter elaborately came to the conclusion that the custom alleged and on the foot of which the maintenance release deed had been executed was not made out. The learned District Munsif cited Mooka Kone v. Ammakutti, (1927) 54 M.L.J. 174 : I.L.R. 51 Mad. 1 for the well settled proposition that for a custom to have the force of customary law it should be ancient, invariable, continuous, notorious, not expressly forbidden by the Legislature, not opposed to morality or public policy and that as regards the instances in support of the custom they should be established by clear and unambiguous evidence and must be conclusive.;