Judgment :- 1. The 9th defendant is the appellant. The plaintiff is a female belonging to the blacksmith community. Her case was that the plaint property, which belonged to her father's original family, was, along with other properties, divided by virtue of the decree in O.S. 206 of 1103 of the District Court, Anjikaimal and also of the decree in A.S. 9 of 1110 of the High Court. This property fell to the share of the defendants in that case. The plaintiff and defendants 1 to 8 were the members of that group. Her father was one Chanji. Chanji had a son by name Cheriyathu, (Junior) who died in 1113, unmarried. On the death of Cheriyathu, the share of Chanji and Cheriyathu in the family property had devolved on the plaintiff. Under the decree in O.S. 206 of 1103, the deceased Cheriyathu (Senior) Chanji, Sankunny and Kuttappan formed one branch, that is the group consisting of the defendants in that case. As the sole surviving heir of the deceased Chanji, the plaintiff was entitled to one-fourth share of the family property. The plaintiff and defendants 1 to 8 follow the Makkathaya system of inheritance. The 9th defendant had taken an assignment of the plaint schedule property in 1114 and she was in possession of the same. This deed was invalid so far as the plaintiff's one-fourth share was concerned, as she was not a consenting party to the same. The plaint property would yield an annual income of Rs. 200/-. The plaintiff was entitled to her share of the income for the past 3 years and also till the property was divided and she was put in possession of her share. She had also claimed compensation for certain waste, said to have been committed by the 9th defendant. 2. Defendants 5 and 6, two females, are similarly placed like the plaintiff. They are the wife and daughter of deceased Kannan, one of the sons of the deceased Sankunny, mentioned in O.S. 206 of 1103. They supported the plaintiff and claimed one-fourth share to which the deceased Sankunny was entitled. They also contended that the assignment in favour of the 9th defendant was invalid as they were not parties to the same. 3. The contention of the 9th defendant was that the plaintiff and defendants 1 to 8 did not belong to the same family or branch. They also contended that the assignment in favour of the 9th defendant was invalid as they were not parties to the same. 3. The contention of the 9th defendant was that the plaintiff and defendants 1 to 8 did not belong to the same family or branch. The plaintiff had already been married. After the marriage, she did not get any right in her father's properties. The allegation that the plaint property had been allotted to the branch consisting of the plaintiff and defendants 1 to 8 was wrong. Neither the plaintiff nor defendants 5 and 6 had any right over the plaint property. The community to which the plaintiff belonged was governed by the Hindu Mitakshara law, according to which the plaintiff, a female member, would have no right over the family properties of her father after her marriage. At the time when the plaintiff's father died, he had a son by name Cheriyathu Kunju. After his death his share went to the other members of the family by survivorship. All the members of the family, who had rights in the property, had joined the document executed in her favour. The plaintiff was not entitled to any relief in this case. 4. The trial court found that the principles of justice, equity and good conscience are to govern the law relating to inheritance in the plaintiff's community, that the males and females were entitled to equal shares in their father's properties, that the plaintiff was, therefore, to get one-fourth of the property, that the waste alleged had not been proved, that the mesne profits will be only Rs. 30 a year and that the property was to be divided into 12 shares of which 3 shares were to go to the plaintiff, one share to defendants 5 and 6, and the remaining 8 shares to the 9th defendant. A sum of Rs. 408-8-0 discharged by the 9th defendant was allowed to be charged on the estate in favour of the 9th defendant to be contributed proportionately by the shares. 5. In appeal by the 9th defendant against this decree, the lower appellate court confirmed the trial court decree and dismissed the appeal with costs. 6. The second appeal is against that decree. 408-8-0 discharged by the 9th defendant was allowed to be charged on the estate in favour of the 9th defendant to be contributed proportionately by the shares. 5. In appeal by the 9th defendant against this decree, the lower appellate court confirmed the trial court decree and dismissed the appeal with costs. 6. The second appeal is against that decree. When the appeal came on for hearing before a Single Bench, the learned judge referred the case for decision by a Division Bench as the decision in this case was likely to affect the Law of Inheritance applicable to a fairly large section of people. The arguments of both sides were heard in extenso. 7. The main question for consideration in this case is whether Hindu law of inheritance governs the Kammala community in Cochin, to which the plaintiff belongs. The plaintiff, in paragraph 4 of the plaint, had stated that she belonged to a community which follows the Makkathayam system of inheritance. She is a Hindu by birth. 8. "The question who are governed by Hindu law is not easily answered by saying that all Hindus, are governed by it. For, there are classes of Hindus, who are governed by their customary laws and not by the Hindu law; for instance, those that follow the Marumakkathayam law in Malabar and the Aliyasantana law in Kanara and those Hindu communities in the Punjab, who are governed by their customary law. Subject to the above exceptions, Hindu law applies to all Hindus by birth as well as to Hindus by religion". Vide page 82 to Mayne's Treatise on Hindu law and Usage, 1953 Edn. (Commentaries by N. Chandra Sekhara Iyer). 9. The plaintiff in this case set up a custom by which the sons and daughters of a Hindu father of her community are stated to be entitled to their father's property in equal shares. This is a custom in derogation of the Hindu law and so, we have to see to what extent this custom has been established in this case. This is a custom in derogation of the Hindu law and so, we have to see to what extent this custom has been established in this case. As held by the Supreme Court in Gokal Chand v. Parvin Kumari A.I.R. 1952 S.C. 231, there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by customary law must prove that he is so governed and must also prove the existence of the custom set up by him. It was further laid down there that a custom in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" should not be strictly applied to Indian conditions, and that what was necessary to prove was that the usage had been acted upon in practice for such a long period and with such invariability as to show that it had, by common consent, been submitted to as the established governing rule of a particular locality. A custom to be valid in law must have four essential attributes, namely, (i) It must be immemorial, (ii) It must be reasonable, (iii) It must have continued without interruption since its immemorial origin and (iv) It must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect. See Avuseppu Rosa v. Avuseppu Anna, 27 T.L.R. 220 and Parvathi Aiyoo v. Naku Pitcha, 42 T.L.R. 140 and the Select Decisions of Cochin, Vol. IV, page 176 (Kunhiraman Vurmah Raja v. Kannappan). To establish a custom having the force of law, something more than regular and uniform conduct has to be proved. That is to say, it has to be further sown that the conduct had been the result of opinio necessitatis or a conviction on the part of those who had pursued it, that it was obligatory and not merely optional. Vide The Diwan of Travancore v. Gnanakon, 34 T.L.R. 93. 10. Bearing this in mind we have to examine the evidence adduced in this case. Vide The Diwan of Travancore v. Gnanakon, 34 T.L.R. 93. 10. Bearing this in mind we have to examine the evidence adduced in this case. The plaintiff in this case had stated that the plaint property was obtained by her father and others under the decree in O.S. 206 of 1103 of the District Court, Anjikaimal. Ext. II is copy of the plaint there. It was filed by seven male members against nine other male members of the same family. In paragraph 1 of that plaint it had been stated that the plaintiffs and the defendants were from time immemorial followers of Makkavazhi system of inheritance, that they were members of the same undivided family, that the females were not entitled to the family properties that they had only the right to maintenance, and that they would lose even this right when they were given in marriage. It would appear that none of the defendants had questioned this in their written statement. There was also an occasion in that case to decide whether the females would be entitled to a share in the family properties. One of the defendants in that case died and when the properties were sought to be delivered over to the plaintiff after partition, the widow of one of the defendants and a usufructuary mortgagee under her obstructed the delivery of possession on the ground that the widow was entitled to the share that was to go to her husband and that proceedings taken without bringing her on the party array were invalid. The execution court dismissed that petition after discussing the whole evidence in the case. Ext. III is copy of that order. In paragraph 5 of that order it was stated thus: "Besides the plaint alleges that women have no share in the property of the family. That has not been controverted in any of the written statements filed by the opposing defendants in the suit. That shows the consciousness on the part of the members of the first petitioner's community that women have no share in the family property". For this and other reasons, the petition had been dismissed. Ext. IV is copy of the judgment in Ext. II case. This allowed shares only to the males and no females had come forward to claim a share of the properties in that case except at the time of the execution. For this and other reasons, the petition had been dismissed. Ext. IV is copy of the judgment in Ext. II case. This allowed shares only to the males and no females had come forward to claim a share of the properties in that case except at the time of the execution. Thus we start with a suit of 1103 by the male members of a family for partition of the property, obtained by the defendants in that case. By virtue of the decree there, the plaintiff was not in a position to put forward a claim to a share in the property. The conduct of the 16 male members of the family is very significant. 11. The plaintiff's father was one Chanju. He was dead even before that suit was filed. If the sons and daughters inherited equally to the father's property, this plaintiff, who was an adult then, should also have got herself impleaded in that case. That was not done. That is a circumstance very much against the custom set up by the plaintiff. There is a book called "The Cochin Tribes and Castes' by one L.K. Ananthakrishna Ayyar, B.A., L.T., the Superintendent of Ethnography of the Cochin State. That was published for the Government of Cochin in the year 1909. In Chapter 18, page 347 of Vol. I of that book he has dealt with the inheritance among Kammalans. He has mentioned thus:- "Among the Kammalans, the law of succession to property is in the male line, that is, from father to son. Women have no share in the family property; but, in the event of any partition being effected in a family, the unmarried daughters have each a share and none at all when they marry". He had compiled this work under orders of Government and he had expressed his opinion after some investigation. The opinions thus expressed by an officer as a result of his intimate knowledge after investigation on the subject, are certainly entitled to weight. This will vary with the circumstances of each case and when the compiler bases his conclusion on his investigation, it has to be given due weight as pointed out in 1952 S.C. case already referred to at page 235. 12. The evidence in this case as to custom is not sufficient. P.W. 1, who was cited to prove a partition deed Ext. 12. The evidence in this case as to custom is not sufficient. P.W. 1, who was cited to prove a partition deed Ext. A of 1067 by which a brother gave a portion of the family property to his cousin sister, says that he knows of instances where females in the family were disregarded at the time of the partition of the family properties. He would say that married females will have rights to the properties of the family of their birth and of the family to which they are married. He admitted that he had not come across any other document or decision of a court where the sons and daughters were declared to be entitled to the father's properties. He admitted that, when the family properties of his mother's father were divided after the death of that father, his mother had not joined as an executant in that partition deed. The only partition deed he could point out where this custom was followed was Ext. A, which had been executed long before the witness himself was born. 13. P.W. 2 stated that sons and daughters inherited the father's properties. He had not seen any document in support of this. He is an uncle (CtpV]C) of the plaintiff. He stated that he had four brothers and a sister and that the property obtained from his father had been divided. When pressed further, he would say that he did not remember whether his sister had been made a party to the partition deed. Evidently, therefore, that sister had not been made a co-executant of the partition deed. If there was such a document, the witness could have easily produced it. At any rate, this witness says that he had not seen any document to show that a daughter was given a share in the father's properties. He would say that his father's father had six sons and two daughters and that grand-father's properties had been divided. His memory is that the division was effected only between the sons. He had produced a document Ext. B of 1095 and in that, certain females were seen to have joined in executing a document belonging to the deceased ancestor. It was stated by those females that their joint right to the property and their right to maintenance were thereby surrendered. It is not clear which all females have the right to maintenance. B of 1095 and in that, certain females were seen to have joined in executing a document belonging to the deceased ancestor. It was stated by those females that their joint right to the property and their right to maintenance were thereby surrendered. It is not clear which all females have the right to maintenance. Besides, the document was executed in favour of the witness, who is a very near relation of the parties. This is all the evidence in the case to prove the custom. P.W. 3 had been examined to prove Ext. C which is a document that came into existence after this suit was filed and so it has no evidentiary value. 14. Thus, it could be seen that the custom set up by the plaintiff in this case had not been proved. The decision in Kochi v. Raman 21 Cochin L.R. 1, and Lekshmi v. Kunhikutty, 25 Cochin L.R. 584 relate to Makkathayam Ezhava law and they are not helpful to decide the law of inheritance. It was mentioned in Kochi v. Raman, 21 C.L.R. 1, that, in the absence of proof of any special custom obtaining in the community, an Ezhava female is entitled equally with her brothers to a share in the State of her deceased father. It was further mentioned there that, when a question of inheritance was before court, it was bound to declare the law applicable to the parties, that failure to prove a custom was no ground for non-suiting a plaintiff, and that in the absence of an established law governing inheritance or a custom having the force of law courts had to decide in accordance with the principles of justice, equity and good conscience. In Lekshmi v. Kunhikutty, 25 C.L.R. 584 the earlier decision in 21 Cochin L.R.1 was referred to and it was stated that the said decision was not conclusive as regards the custom obtaining in the Ezhava community regarding the rights of married daughters to succeed to the property left by their father, that in the absence of any satisfactory evidence to show what exactly was the rule of customary law on any particular point, courts would apply the principles of equity, justice and good conscience and that as regards the standard of proof required to establish any rule of customary law, it need not come up to the standard required for making out a custom in derogation of a known body of antecedent law postulated to be legally binding such as the Hindu of Mohammedan law. It was further mentioned that all that was required was such reasonably clear proof as the court would in the circumstances of each case insist upon for proving any other matter of fact. 15. These decisions are not of much help in this case. In Odan Sanku v. Moorthy, 23 Cochin 88 which dealt with case of Odans, it was held that Odans being Hindus following the Makkathayam law, it must be presumed that they are governed by the Hindu law as laid down by the author of Mithakshara, in the absence of proof of any custom modifying the principles of that system of law. If this principle is applied to the facts of the present case it would be seen from the allegation in paragraph 4 of the plaint that the parties are Hindus following the Makkathayam law and that, therefore, it is the principles of Mithakshara Law that have to be applied, unless a custom to the contrary is proved. Raman v. Chinnakuppan, 24 C.L.R. 513 relates to the inheritance of Otta Naickens. As they are Hindus, it was held that they were governed by the Hindu Mithakshara law. In Kunhi Kutti v. Raman, I.L.R. 46 Mad. 597, it had been held that the Thattans of North Malabar, who followed Makkathayam law, were governed by the ordinary Hindu law and that hence amongst them joint family property was partible until a valid custom to the contrary was proved. 16. In the present case the plaintiff has to be taken to be a Hindu governed by Hindu Mitakshara law. 16. In the present case the plaintiff has to be taken to be a Hindu governed by Hindu Mitakshara law. Being so she is not entitled to a share of the family properties of her father as she had been already married away, admittedly during the lifetime of her father. No acceptable proof of any custom to the contrary is forthcoming and so, she had not proved her title to the property. 17. An argument was advanced that the finding on the existence of the custom was concurrent and so this court is not to interfere in the second appeal. The existence of a custom is a mixed question of fact and law was held in Adicha Valliamma v. Eravi Padmanabhan,15 T.L.R. 14, Pandara Nadan v. Subramonia Nadan, 6 T.L.J. 243, Narayana Menon v. Kunchu Menon, 29 C.L.R. 385 and the Privy Council decision in Palaniappa Chetty v. Sreemath Devasikamony Pandara Sannadhi, I.L.R. 40 Mad. 709. If the courts below had acted perversely without any due regard to the standard of acceptable evidence, the High Court would be competent to interfere in second appeal. 18. We hold, therefore, that the custom set up by the plaintiff in this case has not been proved. Being so, herself and defendants 5 and 6 are not entitled to a share in her father's properties, as she had been married even during the father's lifetime. We set aside the decrees passed by the courts below so far as they relate to the 9th defendant's rights and dismiss the plaintiff's suit with costs throughout to the 9th defendant. Allowed.