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TMI Blog1921 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the ordinary Hindu Law of the Mitakshara, upon the death of the father and a subsequent partition, the five children of the two marriages would each take an equal share, and that if there were a partition during the father's lifetime, he would count as one with the five, so that the shares would be in sixes. 3. The appellant has contended before their Lordships that by the usage and custom of the sub-caste to which he belongs, the children of each wife take as a unit and sub-divide their share among themselves, so that he as the only son. of the first marriage would, if his father were dead, be entitled to half, and each of the four half-brothers to an eighth. Applying this principle to partition during the father's lifetime, he now claims to divide the property into three shares, and take one for himself, leaving one-third for his four half-brothers, and one-third for his father. In addition, before the property was divided he claimed the sum of ₹ 600 as a first charge in his favour on the whole property as representing the moopu provided according to the caste custom for a first wife when her husband married a second time, and descending from her to her son ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, and that what the Court was asked to decide was whether the caste custom as to division after the father's death was or was not a proved and binding custom; and that the mode of partition during the lifetime of the father was treated as consequential upon the custom, so that the plaintiff would not be precluded by the language of his plaint from proving the custom which would operate upon the death of the father by reason of his having carried his claim too far and endeavoured to reduce the father's interest upon a partition in his lifetime to one of maintenance only. The Subordinate Judge who had control of the matter and could have allowed an amendment in the pleading, if it were necessary, and if no injustice was thereby done, stated among others the following issues: (1) Whether the custom set up by the plaintiff is true and valid; (8) To what share is the plaintiff entitled? 9. He found the first issue in the affirmative, and as to the eighth issue he said: th issue.--The division is as per number of wives having sons. This will naturally be after the husband's death. In some cases to which plaintiff's exhibits relate, the husband has made a divisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese writers agree that there might be such a custom, and that it would support the Pundit's opinion. 14. Strange himself, in the first volume of his book, the first edition of which was in 1825 and the second in 1830, speaks of the two modes--patnibhaga, or division by wives, and putrabhaga, or division by sons. He speaks of the first as an un natural division, and says it: is therefore allowed only among Sudras, nor among them but where there is a custom for it, which must, of course, be strictly proved, though it is said to prevail in the southern territories of India as much as did formerly the custom of gavelkind in Kent, thus to a certain extent but still in the Sudra class only superseding the law of the Sastras; and to this opinion the frequency with which references of the kind appear to have been made in the Courts of the company in the Peninsula seems to give countenance. (Vol. I, 1830 Edn., pp. 205, 206). 15. There being this divergence of thought, it is not wonderful, that in a land where there are so many customs, appropriate to certain, areas of territory, families, or castes, though, the prevailing law is that of putrabhaga there should be in certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Smritis, and were obliged to permit many inveterate practices to continue... 21. It is possible that the matriarchal theories of the earlier inhabitants of Southern India may have led to the prevalence of this custom and caused the difficulty in the way of its being extirpated by the Brahmans. If this theory were sound it would naturally lead us to expect that the extirpation of the custom would be less effective in the lower castes. 22. In the case of Temmakal v. Subbammal (1861) 2 M.H.C.R., 47, decided in 1864, it was held to be within the power of a guardian to refer to the panchayat the question which of the two principles of division should apply. Incidentally it may be mentioned that the panchayat held that the division should be by mothers. 23. Their Lordships therefore have to approach the evidence in this case with a knowledge that such a custom does exist, and was not an improbable one in the particular case, the parties coming from Southern India and belonging to the sub-caste of Chettis. The Chettis are generally deemed to be Sudras. The judgment in the High Court in this case describes the parties as Vaisyas, but apparently without any foundation for this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the first wife and the other moiety to the second. 26. The last document is Exhibit B, in 1900. Here the first wife had no children, and it is provided that there should be certain lands for her moopu, that should she have a male child, the land shall be appropriated for moopu, which apparently means that her son would succeed to it, and that the issues of the two marriages should take the properties remaining after excluding the moopu lands, in equal shares. 27. Various comments were made upon these documents by counsel for the respondents. It was suggested that several of them were mere agreements, and that it did not follow that they had ever been carried out: that where there was no son by the first marriage, the father, if at the moment separate from his family, was dominus of his property, and could arrange to placate his first wife by providing for her possible issue; it did not however appear that the father was separate from the other members of his family and in some cases he certainly was not. Then it was suggested that the very existence of these agreements proved that there was no legal custom, that it was a mere social usage and matter of propriety among the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some of the positive evidence given on both sides. Weight was also attached, by them to a document drawn up in 1893 called an agreement between the Nagarathars of the seven villages, stating various matters of conduct and of business on which they desired to come to an agreement among themselves, such as that they would refer all their disputes to the Nagarathars and not have recourse to the magistrates or even to the village panchayat. One provision is thus expressed: Should any wish to take a second wife during the lifetime of his first wife, he shall do so after informing the Nagarathars of his village and after making sufficient provision for maintenance of his first wife. Any violation of this rule shall be communicated by the Nagarathars of that locality to the Nagarathars of all seven villages who shall all assemble at Navinapatti, and the party shall abide by their decision. 32. This no doubt does not state the custom now sought to be proved; but the document is not a record of laws, but a provision de futuro as to social conduct; and one of the witnesses says that the rules as to moopu and division were so well known that it was not necessary to express them. 33. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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