JUDGMENT : P. HABEEB MOHAMED, J. 1. The appellant is the plaintiff. 2. The suit is for partition. The plaintiff, 2nd defendant and their father-1st defendant constitute an undivided Ezhava tarwad following Makkathayam system of inheritance. The 3rd defendant, is a creditor who purchased the plaint properties in court auction, in execution of Exts. XI and XIX, decrees based on Exts. IX and XVIII, hypothecation bonds, executed by the 1st defendant. The plaintiff sought to recover his 1/3 share in the properties, after setting aside Exts. IX and XVIII hypothecation bonds and the decree and execution proceedings based thereon. Exts. IX hypothecation was in favour of the 3rd defendant himself and he filed a suit on this document and obtained Ext. IX decree. Ext. XVIII hypothecation was in favour of one Pappy Parvathy and she obtained Ext. XIX decree. Under these two decrees all the plaint properties were sold in court auction. At the time of delivery under these court sales, there were some disputes between Pappy Parvathy and 3rd defendant. The 3rd defendant subsequently obtained the right of Pappy Parvathy also under Exts. XIX decree and the court delivery following the decree. Thus the 3rd defendant obtained possession of all the plaint items through court delivery and assignment from Pappy Parvathy. After this, the 3rd defendant leased out items 1 to 3 to one Untia who is the brother of the 1st defendant under Ext. XXIX, registered lease deed dated 18.8.1101. O.S. 739 of 1107 out of which S.A. 374 of 1120 arises is the suit for recovery of the properties on the basis of Ext. XXIX lease deed. 3. In the partition suit, out of which the present second appeal (S.A. 391 of 1120) arises, the 3rd defendant contended that the plaintiff and the 2nd defendant have not right for the properties during the lifetime of their father, that Exts. IX and XVIII hypothecation bonds and the decrees (Exts. XI and XIX) and execution proceedings following item, are all valid and binding on them and that the plaintiff is not entitled to any share in the properties. 4. The trial court held that, the 3rd defendant not having proved consideration and necessity in respect of Exts. IX and XVIII transactions, these documents and the decrees based thereon, are not binding on the plaintiff and his share of properties. So the plaintiff was given a decree for partition. 4. The trial court held that, the 3rd defendant not having proved consideration and necessity in respect of Exts. IX and XVIII transactions, these documents and the decrees based thereon, are not binding on the plaintiff and his share of properties. So the plaintiff was given a decree for partition. The lower appellate court took a contrary view, and held that Hindu Mitakshara Law is applicable to the parties without any modification and that in the absence of anything to show that the debt is tainted by illegality or immorality, the sons are under a pious obligation to discharge the debt of the father. So the lower appellate court dismissed the suit. 5. When this second appeal was first heard, the learned Advocate for the appellant raised a contention that the doctrine of pious obligation under the Hindu Law is not applicable to the parties in the present case and that local custom has modified the Hindu Law to that extent. Accordingly he raised certain additional issues on this matter and remitted the case to the lower court for findings. Both the lower courts concurrently find that no local custom has been made out so as to exclude the applicability of the doctrine of ‘pious obligation’ to the appellants in the present case. 6. The only material question for decision is whether the pious obligation of the sons under the Hindu Law to be bound by the debts of their father is released in the case of the Ezhavas of Kunathunad Taluk. Plaintiff started with the case that the family is governed by Hindu Mitakshara Law. At the earlier stage of the case, the plaintiff did not set up any custom in variation of the law governing the family. So he is not entitled at a later stage, as a matter of right, to set up such custom overriding ordinary incidents of law. At any rate, the plaintiff who now sets up such custom, has a heavy burden to prove it by convincing and satisfactory evidence. But no documentary evidence is available to prove the custom. Execution of documents Exts. A to F by the father, with the junction of sons and other similar joint dealings in respect of the family properties do not prove or even suggest the existence of any custom set up by the plaintiff. But no documentary evidence is available to prove the custom. Execution of documents Exts. A to F by the father, with the junction of sons and other similar joint dealings in respect of the family properties do not prove or even suggest the existence of any custom set up by the plaintiff. Oral evidence let in by the plaintiff is not of any use either. P.Ws. 5 to 8 only give their opinion and do not refer to specific instances for custom. 7. The learned Advocate for the plaintiff would rely on the rulings reported in A.I.R. 1927 Mad. 877 and A.I.R. 1921 Mad. 74 at 75 (Kuttayatha Kutty v. Achuthan). These two cases relate to the Makkathayam Law governing the Thiyyas of Malabar. The question for decision in A.I.R. 1927 Mad. 877 was whether the property belonging to a Thiyya family following Makkathayam Law is impartible and not liable to be attached and sold in execution for the debt of one of the members of the family. The plaintiffs who contended that the property was impartible under the customary law of the parties did not let in evidence to prove the custom. Their Lordships observe thus: “The Makkathayam Thiyyas are governed by what is called the customary law, and when a question arises as to what is the rule of law governing them on any particular matter, what the court has to see is what is the rule of customary law obtaining amongst them in that matter, and in cases which are not sufficiently covered by prior decisions the question will have to be determined with reference to the evidence in the case. In the absence of any satisfactory evidence to show what exactly is the rule of the customary law on any particular point, the rule of Hindu Law on that point must be presumed and adopted to be the rule of the customary law obtaining amongst the community on that point. The presumption is not that the Hindu Law as such is the law governing them in all matters. The presumption is not that the Hindu Law as such is the law governing them in all matters. The presumption is simply that the rule of Hindu Law is also the rule of the customary law obtaining amongst them, so that if any person alleges that the rule of the customary law on any particular point is something different the evidence that he adduces in support of his allegation ought not to be subjected to those well-known tests which are applied to the case of an alleged custom contrary to, or in derogation of the law, but should be viewed simply as evidence adduced to show what is the rule of the customary law itself. The presumption therefore will be useful and will hold good only if satisfactory evidence is not forth-coming as to what is the rule of the customary law”. 8. It was held in that case that in the absence of evidence regarding the custom of impartibility, the Hindu Law rule of partibility has to be presumed to be the customary law of the family. Apart from the observation regarding the method of approaching or proving the custom, this ruling does not support the plaintiff’s case. Balakrishnan v. Chittoor Bank (A.I.R. 1936 Mad. 937) is a case similar to the present one and the question was whether the Ezhavas of Palghat who follow Makkathayam Law are liable for father’s debt. The decision in A.I.R. 1927 Mad. 877 (LIII M.L.J. 368) also came up for consideration in that case. Mr. Justice Varadacharier says at page 938, “In 53 M.L.J. 368 to which Mr. Krishna Iyer invited our attention, the learned Judges were dealing with a Thiyya family and not an Ezhava family. The case in 22 Mad. 297 itself draws a distinction between the two communities but it is noteworthy that even in dealing with the Thiyya Community the learned Judges recognised that in the absence of evidence to the contrary as to the customary law applicable to any particular community the ordinary rule of Hindu Law will apply”. It was laid down in that case that “there is no warrant for introducing one portion of the Hindu Law in governing certain community without taking along with it the other portions which form an integral part of the whole system”. 9. It was laid down in that case that “there is no warrant for introducing one portion of the Hindu Law in governing certain community without taking along with it the other portions which form an integral part of the whole system”. 9. XXIII T.L.J. 481 and XXIV T.L.J. 551 are some of the rulings of this court relating to the customary law among some of the sub-sections of the Hindu Community. XXIII T.L.J. 481 relates to Barbers, XXIV T.L.J. 551 case relates to the law governing Malayala Thattans. In these cases it is held that these communities are followers of Hindu Mithakshara Law and that any custom in variation of that law, has to be proved by them. The same view has to be held in respect of the Ezhavas in the present case. His Lordship Justice Sadasiva Iyer observes in A.I.R. 1921 Mad. 74 at p. 75: “I think it must be taken as settled law that a person who admittedly belongs to the Hindu community and is domiciled in Southern Indian is ordinarily governed by the Hindu Law of the Sashtras as expounded by the Southern commentators. Of course where there are very wide and well known exceptions as in the case of the Nair community in Malabar, such ordinary Hindu Law does not apply but the well known Marumakkathayam system of law. But, as I said, we do start with the presumption that the general prevailing law of the Mitakshara applies to every Hindu”. The question for decision in that case was whether, under the customary law of parties, a married Thiyya daughter has right to reside in the house of her father. His Lordship held in the same case that, “Prima facie the ordinary Mitakshara System of Hindu Law applies to the Thiyyas of South Malabar and the burden of proving a custom opposed to Hindu Law is on the party alleging such custom. Thus a daughter with her husband alive, claiming a right of residence in her father’s house, must prove the custom”. “Opinion-evidence is some evidence on the question of custom, but unless the evidence establishes that the claim in dispute can be put forward as one which the community recognises as enforceable by law, it will be useless. Thus a daughter with her husband alive, claiming a right of residence in her father’s house, must prove the custom”. “Opinion-evidence is some evidence on the question of custom, but unless the evidence establishes that the claim in dispute can be put forward as one which the community recognises as enforceable by law, it will be useless. It may amount to no more than that such a claim is a moral claim recognised by practice or convention and honoured by respectable people among the community. In such a case no custom can be recognised.” 10. Thus it is well-settled that when any section of the Hindus admittedly governed by Hindu Law, relies on any custom in derogation of that law, the burden is heavy on them to prove such custom. In the present case the plaintiff has not made out the alleged custom relied on by him. The rulings in A.I.R. 1936 Mad. 937 and A.I.R. 1921 Mad. 74 support the view that the Ezhavas who follow Hindu Mitakshara Law are bound by the pious obligation to pay the debts of their father. In the result, the appeal fails and we dismiss it with costs throughout. S. Krishna Pillai, C.J.:- I agree. Appeal dismissed.