1. The question that arises in this second appeal is whether before the cochin makkathayam thiyya act (act xvii of 1115) became law the unmarried daughters of a thiyya (ezhava) male dying intestate, Leaving no sons, Excluded the married daughters from succeeding to his estate. One kunjan who belonged to the talappilly taluk died in 1100 leaving a widow and 4 daughters. The two elder daughters were already married at that time. The plaint schedule proeprty was the only asset left behind by kunjan on his death. There was a simple mortgage over it in favour of the father of defendant 1. On his father's death defendant 1 put the mortgage in suit in o. S. 120 of 1102 on the file of the vadakancherry district munsiff's court and in execution of the decree passed therein the mortgaged property was brought to sale and defendant 1 himself purchased it. The widow and the two unmarried daughters were alone made parties to the suit. Persuant to the sale certificate issued in his favour defendant 1 obtained possession of the property through court on 16. 7. 1118. Soon afterwards on 27. 7. 1118 the present plaintiffs applied for re - delivery. Plaintiff 1 is kunjan's 2nd daughter and plaintiff 2 is the eldest daughter's only daughter. The eldest daughter had died by the time of the delivery of the property to defendant 1. The court dismissed the re - delivery application on the ground that the petitioners thereto were not shown to have possession of the proeprty. This was on 16. 11. 1120 and within one year thereof, To be exact, On 15. 11. 1121 the suit giving rise to the present second appeal was brought by them for cancellation of the order dismissing the application for re - delivery and for recovery of possession of the property together with mesne profits.
2. Their case was that on kunjan's death all his daughters became equally entitled to the property, Each of them taking a one - fourth share. According to them after kunjan's death his four daughters were in joint possession of the property and as the two elder daughters were not parties to the decree, The decree and the execution sale persuant thereto did not bind the daughters so omitted. Their further case was that as co - owners they were entitled to retain possession of the entire property notwithstanding the execution sale and that the only right defendant 1 had as the purchaser of the rights of some co - owners was to bring a suit for partition and delivery of their share to him.
3. It is well settled by a series of decisions of the cochin high court that before the enactment of the cochin thiyya act, The makkathayam thiyyas (commonly known in the state as eazhuvas) were governed by custom or usage and not by the strict principles of hindu - mithakshara law. If custom was not proved in a particular case courts used to decide questions of inheritance etc. Arising in the case of such parties, According to principles of justice, Equity and good conscience. Practically all the decisions bearing on the point are referred to in 1124 (xl) cochin 179 at 189 (f. B.). In the present case the trial court found that the plaintiffs had not succeeded in proving that according to the customary law governing them in the absence of sons, The married and the unmarried daughters of an ezhuva male dying intestate took equal shares in his properties. All the same time applying the principles of justice, Equity and good conscience the learned district munsiff held that the married and the unmarried daughters must be held to have equal shares in their father's estate and that as the two elder daughters were not parties to the mortgagee's suit, The decree and the execution sale cannot bind them or their heirs, As the case may be. It was further held that as only the shares of some among the co - owners and passed to the decree - holder - purchaser his remedy was to bring a suit for partition. Accordingly the plaintiffs were given a decree substantially in terms of their plaint. The order refusing re - delivery was cancelled and the proeprty was directed to be re - delivered to the plaintiffs together with mesne profits at the rate claimed in the plaint viz., Rs. 20/ - per year.
4. Defendant 1 appealed against the decree before the trichur district court and the learned judge allowed the appeal and dismissed the plaintiffs' suit with costs in both the courts. The plaintiffs have brought this second appeal against that appellate decree.
5. We find considerable difficulty in appreciating the reasoning adopted by the leaned judge to reverse the trial court's decree. While agreeing with the learned district munsiff that no rule of customary law entitling the married daughters to claim an equal share, Or any share whatever, In their father's estate along with their unmarried sisters was established in the case, The judge went on to say that the equities of the case demanded that the married daughters should be held to have no right or interest in their father's estate. The discussion is concluded thus: -
"the conduct of the parties and the very poor circumstances of the family afford great support to the argument of the appellant that in the case of this particular family it is only equitable to hold on the strength of the decision in 25 cochin that the plaintiffs did not believe in their rights in the plaint property and the law that should be applied to these parties is in terms of the contentions of the appellant viz., As between married and unmarried daughters, The latter has to be preferred for heirship"
. The case in 25 cochin referred to in the above extract is reported at page 584 of the volume. That related to a case where the intestate had left behind both sons and daughters and it was found there that there was a rule of customary law obtaining in the community that married eazhuva woman had no right to claim any share in the property owned, Or left by their father, Or belonged to the family of their birth, As against their brothers. It is unerstandable how that case should be held to apply or to govern a case where the intestate had left only daughters and no sons. It is inexplicable how the learned judge could have evolved a rule of justice, Equity and good conscience to be applied to this particular family. Suffice it to say we cannot agree with the learned judge's view that even in the absence of proof of custom unmarried daughters should be held to exclude married daughters from succession in a case where the intestate had left no sons. When no custom is proved the court can only apply some recognised rule of justice, Equity and good conscience and not evolve a rule of tis own for each particular case.
6. We are also not able to see eye to eye with the learned judge in thinking that even if the married daughters had a share their mother validly represented them in the suit. This is another reason given by the judge to hold that the plaintiffs were bound by the decree and the execution sale in o. S. 120/1102. On this question the learned judge recognises the rule that ordinarily one co - owner cannot represent another in a legal proceeding, But went his own way to decide this case. There was no allegation, Much less proof, That the widow was the manager of the family or that she validly represented the absent co - owners also in the suit. The only case defendant 1 put forward was that the married daughters when they co - exist with unmarried daughters did not inherit their father's proeprty even in the absence of sons. As on the question of succession the judge has evolved a rule of his own for application to this particular case. He has observed: - "i don't think there is any objection to hold that the decree is binding upon the estate. " a judge's function is to decide the case before him according to law and not make law in this fashion. Nor is it competent for the judge to make out a case for the party which he himself never had.
7. Yet another reason mentioned for upholding the binding character of the decree and the execution sale as against the two elder daughters of kunjan is that the debt was a binding one on the estate and that the sale was for proper price. We feel constrained to observe that the whole approach of the learned judge to the case is that of a lay - man and not of a lawyer or a judge. When the defendant had no case there was any particular family custom the judge found one. That is what his finding amounts to; there cannot be a rule of equity applicable to a particular family alone. When defendant 1 did not set up that the widow validly represented the daughters not impleaded in the suit, The learned judge found such a case for him. If the mother was the manager, We wonder why the younger daughters were impleaded in the suit. Again the judge was prepared to find the decree and the sale valid even if the elder daughters had each a share and they were not represented in the suit on the ground the debt was one binding on the estate and the sale was for a reasonable price. When a co - owner is omitted to be impleaded in a suit the fact that the debt was binding on him or that the proeprty was sold for a fair price has no bearing on the question of the validity of the decree or of the execution sale, As the case may be.
8. Once it was found that no rule of customary law in favour or against the plaintiffs was proved the only thing the learned judge had to do was to proceed on the lines the learned district munsiff did, Namely, To apply some known rules of justice, Equity and good conscience and decide the question of succession in the case accordingly. In the case of communities governed by customary law, When the court found that the custom set up was not established, The invariable practice in cochin in matters of succession and inheritance had been to apply the rules embodied in the indian succession act. That was what was done regarding makkathayam ezhuvas in the cases reported in 18 cochin 88 and 21 cochin 1. In 1124 (xl) cochin 179 (f. B.) at page 189 sir c. V. Ananthakrishna iyer, C. J., Observed: -
"in the absence of sons, Justice, Equity and good conscience would suggest that the properties left by deceased should go to his daughters even though married."
the question did not directly arise there nor did the case of competition between the married and unmarried daughters receive any consideration. If we are to follow the rules of the indian succession act, On the death of kunjan his widow become entitled to a third share and the residue had to be shared equally by the daughters, Whether married or unmarried.
9. In a decision reported in 34 cochin 533 (f. B.) in the matter of a succession that opened in the christian community before the enactment of the cochin christian succession act, (act vi of 1097) the high court adopted the rules contained in that enactment in preference to the provisions of the indian succession act on the ground that the rules embodied there reflected the sense of the community as to the rules of succession that should govern them better than the rule of the indian succession act. We may with advantage adopt the same course here and decide what shares the daughters of kunjan got in his property according to the rules laid down in the cochin makkathayam thiyya act. This is law passed by the cochin legislature, No doubt 15 years after kunjan died, But in administering the law in the state, The rules embodied there would appear to us to be more in consonance with the consciousness of the community regarding pre - existing law rather than the rules embodied in the indian succession act.
10. Reading ss. 30,31 and 39 of the cochin makkathayam thiyya act together it will be seen that if a makkathayam thiyya died intestate leaving no sons, But only a widow and daughters, The widow and the daughters whether married or unmarried, Would get equal shares in his estate. Therefore, Adopting that as the rule of equity, Justice and good conscience applicable to the case the widow and the four daughters of kunjan were each entitled to a one - fifth share. Three of the sharers were parties to the decree and the execution proceedings which resulted in the sale. Those 3 shares had, Therefore, Unquestionably passed to defendant 1. The other 2 shares continued to vest in the plaintiffs. We, Therefore, Hold that the plaintiffs are entitled to two - fifth of the proeprty.
11. The next question is whether the plaintiffs should be allowed to recover the entire proeprty now and defendant 1 relegated to a suit for partition to recover the shares that passed to him by the sale. That is what the learned district munsiff did and that is in conformity with the decisions of the cochin high court which have since been followed in this court in a. I. R. 1952 travancore - cochin 208. Regard being had, However, To the long period of time that has elapsed since the mortgage transaction in favour of the father of defendant 1 came into existence we think it proper to have the partition effected in this suit itself. We accordingly pass a preliminary decree for partition between the plaintiffs on the one hand and defendant 1 on the other, The former to get two - fifth share of the proeprty and the latter the remaining three - fifth. The case is remitted to the court of the district munsiff, Vadakkancherry to pass the final decree for partition.
12. Two further questions remain for decision. One is the claim for mesne profits and the other relates to costs. The trial court had allowed the plaintiffs to recover the entire property with mesne profits at rs. 20/ - per year, The rate claimed by them. The lower appellate court had found that the proeprty would not yield any income. That is on a par with its other conclusions. We restore the trial court's finding as to the rate of mesne profits and hold that the plaintiffs shall have a decree for their two - fifth share viz., Rs. 8/ - per year from 16. 7. 1120; the date of dispossession. They will be entitled to such profits until the expiration of 3 years after the passing of the final decree or till the date of recovery of their share, Whichever event happens first.
13. In the circumstances of the case we direct both sides to bear their costs throughout. Allowed.