Judgment :- 1. These cases are heard and disposed of together, because the questions involved are the same and most of the parties are also the same. 2. The suits giving rise to the appeal (O. S. No. 139 of 1956) and the second appeal (O. S. No. 39 of 1958) were for cancellation of some alienations on the ground that they were not binding on the plaintiff in both the suits, who was a minor at the time of the alienations. The properties belonged to Velappan Asari; the father of the plaintiff. He obtained them in a family partition in 1108; and four years thereafter he died leaving his widow, Chinnammal, and the plaintiff, his only minor daughter. The widow had brothers, one of whom is a defendant in both the suits. He has a son, who is also a defendant in O. S. No. 39 of 1958. In 1121 the widow executed Ex. P-2 in O. S. No. 139 of 1956 in favour of a Nagappan Nair, whose widow and children are defendants 1 to 4 therein. Chinnammal's brother was also a party to the document because of an indemnity clause to indemnify the purchaser. The brother's properties were also included in the sale deed. The consideration for the document was Rs. 4,500, of which Rs. 500 are alleged to have already been paid as advance. The rest, Rs. 4,000, are recited to have been paid before the Sub-Registrar. The plaintiff sought to set aside this alienation on the ground that it was not supported by consideration and necessity; and the lower court has refused her prayer. The plaintiff has filed the appeal. 3. In 1122 the widow executed a dhananischayam deed (settlement), Ex. D-14, in favour of her brother's son, who was a minor then represented by his father. This document recites that the widow was entitled to a half right in the properties; and that she was settling that right on her nephew out of love and affection for him and since she had already decided to get her daughter married by him. In April 1950 a sale deed, Ex. D-2, was executed by the said nephew, his father and the widow for self and as guardian of her minor daughter in favour of defendants 1 and 2 in O. S. No. 39 of 1958, who are wife and husband respectively. The consideration was Rs. In April 1950 a sale deed, Ex. D-2, was executed by the said nephew, his father and the widow for self and as guardian of her minor daughter in favour of defendants 1 and 2 in O. S. No. 39 of 1958, who are wife and husband respectively. The consideration was Rs. 5,500, out of which Rs. 2,500, were paid before the Sub-Registrar and the rest, Rs. 3,000 were reserved with the vendees to be paid subsequently to the nephew for purchasing properties in the names of the plaintiff and himself. The cash payment was to make ornaments and to meet the expenses of the marriage of the plaintiff with the nephew, alleged to have been settled, and also for constructing a house for the residence of the couple after their marriage. The case of the alienees is that a sum. of Rs. 2,500 out of the reserved amount of Rs. 3,000 was later on paid, which was utilised for purchasing properties in the names of the plaintiff and her husband. The rest, Rs. 500, are admittedly not paid. The plaintiff claimed that her mother had no right in the properties under the law and custom applicable to them; that the alienations were not supported by consideration or necessity; and that they were consequently not binding on her. The trial court disallowed these contentions; but, the lower appellate court has accepted them and decreed the suit. The second appeal is by the alienees. It may be noted that there is an indemnity clause in this document as well; and properties belonging to the uncle of the plaintiff, who, it will appear hereinafter, was the prime mover in these transactions, were also included in the sale deed. 4. The plaintiff is admittedly a Hindu Kammala (carpenter). She claims that she is a Hindu Malayala Kammala; whereas, the alienees claim that she is a Hindu Pandi Kammala. The law applicable to Pandi Kammalas is pure Hindu Mithakshara law as applied to Hindus in South India; whereas, the law applicable to Malayala Kammalas is Hindu Mithakshara law modified by custom. Therefore, the first question for consideration is whether the plaintiff is a Malayala Kammala or a Pandi Kammala. 5. The first contention of the alienees is that the pleadings in the cases, especially in O. S. No. 39 of 1958, do not in clear words allege that the plaintiff is a Malayala Kammala. Therefore, the first question for consideration is whether the plaintiff is a Malayala Kammala or a Pandi Kammala. 5. The first contention of the alienees is that the pleadings in the cases, especially in O. S. No. 39 of 1958, do not in clear words allege that the plaintiff is a Malayala Kammala. There is not much substance in this plea, as rightly pointed out by the District Judge who disposed of the appeal, which has given rise to the second appeal. In the written statement of the first defendant in that case (one of the alienees) it is pleaded that the plaintiff was a Pandi Kammala and the law applicable to her was pure Hindu Mithakshara law. It is further pleaded that she was not following Hindu Mithakshara law modified by custom. It may be noted that in the plaint it is alleged that according to the law and custom followed by the plaintiff, she alone was entitled to the properties left by her father. On these pleadings a proper issue on the question was framed; and the parties went to trial adducing evidence thereon. There is thus no force in the plea that the allegations in the plaints are vague. 6. Now I shall consider the question on merits. Witnesses are examined on both sides in both the cases on this question. But, in my considered opinion, there is a clinching circumstance, which must be given more weight than the oral evidence. Ex. B-1 in O. S. No. 139 of 1956 (Ex. P-4 in the other case) is a partition deed of 1065 in the family of the plaintiff's paternal grandmother, Lakshmi Chempakakutty. The document recites that Lakshmi Chempakakutty was a Malayala Kammala. Evidently, the plaintiff's father, Velappan Asari, must have also been a Malayala Kammala, unless it is positively shown otherwise. There is no evidence in these cases to show that Lakshmi Chempakakutty was married to a Pandi Kammala. The District Judge who disposed of O. S. No. 139 of 1956 has accepted the suggestion of the counsel of the alienees that Lakshmi Chempakakutty might have been married to a Tamil Kammala. If so much is established, namely, that Lakshmi Chempakakutty was a Malayala Kammala, I do not know why the District Judge surmised that she might have been married to a Pandi Kammala. 7. If so much is established, namely, that Lakshmi Chempakakutty was a Malayala Kammala, I do not know why the District Judge surmised that she might have been married to a Pandi Kammala. 7. The oral evidence in the cases is naturally a little discrepant and inconclusive. The Subordinate Judge who disposed of O. S. No. 39 of 1958 considered the oral evidence and came to the conclusion that the plaintiff failed to establish that she was a Malayala Kammala. The District Judge in appeal has come to the conclusion that she is a Malayala Kammala. The Subordinate Judge failed to consider the effect of the recital in the partition deed of 1065; whereas, the District Judge has considered that also and has arrived at his conclusion. Therefore, the conclusion of the District Judge must evidently be nearer the truth than the conclusion of the Subordinate Judge. The result is the plaintiff is a Malayala Kammala. 8. The next question is: what is the law applicable to Malayala Kammalas? On this question there cannot be any dispute, because it is admitted that the law applicable to Malayala Kammalas is Hindu Mithakshara law modified by custom. Moreover, M. P. Joseph in his Principles of Marumakkathayam Law states at page 451 that the Kammalas are followers of Hindu law modified by custom: and that if a girl is married in the sambandhom form, she retains her right in her family properties, whereas, if she is married in the kudivaipu form with stridhanom, she loses her right in her natural family. In Kittu Eacharan v. Ouseph Ouseph 1948 TLR. 734 a case came up before a Division Bench of the Travancore High Court, wherein the question was whether the female members of a Malayala Kammala family had right in the ancestral properties. The learned judges approvingly quoted from M. P. Joseph's book and held that in that community the daughters had equal rights with sons in the family properties, unless they had been married in the kudivaipu form on payment of stridhanom. That the position is the same among the Kammalas of Cochin appears in Mrs. Lilly Mercilin Lewis v. Chanji Nani 1954 KLT. 631. In this connection reference may also be made to Parameswaran Asari Sanku Asari v. Kochumathevi Lekshmi 1957 KLT. That the position is the same among the Kammalas of Cochin appears in Mrs. Lilly Mercilin Lewis v. Chanji Nani 1954 KLT. 631. In this connection reference may also be made to Parameswaran Asari Sanku Asari v. Kochumathevi Lekshmi 1957 KLT. 1020, wherein also it has been held that among Malayala Kammalas married daughters except those married in the kudivaipu form are entitled to shares in their father's properties and that they are following the Hindu Mithakshara law modified by custom. 9. But, it is argued that in none of these decisions has it been held that the widow is not entitled to a share and that in the absence of a son the daughter is entitled exclusively to the properties excluding the widow. It is clear from the decisions cited that the daughter is entitled to share with the son and that she is to get a share equal to that of a son. There is also evidence in these cases that the daughters and sons share equally excluding the widow and the daughters married in the kudivaipu form with stridhanom. Ex. P-11 in O. S. No. 39 of 1958 (Ex. P-10 in O. S. No 139 of 1956) is the judgment in O. S. No. 1179 of 1107 and Ex. P-10 (Ex. P-9 in the other suit) is the copy of the plaint therein. The suit was for setting aside an alienation in so far as it related to an eighth share. It was held in that suit that sons and daughters were entitled to equal shares in the properties of their father; & pw. 4 proves these documents. The Subordinate judge says that Ex. P-11 was not on merits. I fail to see how this could detract from its force as an instance of a custom claimed and not disputed. There was no appeal against Ex. P-11. Exx. P-12 and P-13 are claimed to be copies of two partition deeds exhibited in O. S No. 1179 of 1107. Even otherwise, these documents show that sons and daughters took equal shares. Ex. P-2 is a partition deed in the family of P. W. 2, who deposes in support of the document. No property was allotted to his mother under Ex. P-2; and the witness states that no allotment was made to her, because she had no right in the properties. Ex. Ex. P-2 is a partition deed in the family of P. W. 2, who deposes in support of the document. No property was allotted to his mother under Ex. P-2; and the witness states that no allotment was made to her, because she had no right in the properties. Ex. P-6 is a copy of the judgment in A. S. Nos. 642 and 649 of 1105.- P. W. 3 was the plaintiff appellant; and she swears that when a Malayala Kammala dies, his sons and daughters are entitled to equal shares in his properties. It was held in Ex. P-6 that P. W. 3 was married in the sambandhom form and therefore she was entitled to a share in the properties of her parents. This is only in consonance with the view expressed by M. P. Joseph in his book. If the sons and daughters are entitled equally to the ancestral properties excluding the widow, it follows that in the absence of sons the daughters will be equally entitled to the properties in exclusion of the widow. The only exception is that the daughters married in the kudivaipu form with stridhanom lose such right. The result is that the mother, who has no right to a share when there is a son. will have no right when there are daughters alone. 10. One initial error, which appears to have been committed by both the trial courts in apporaching the question, is this. They seem to think that a party who pleads that he is a follower of Hindu Mithakshara law modified by custom must establish the custom as ancient, continuous, invariable, etc. I would point out that there is distinction between a custom in derogation of an established principle of pure Hindu Mithakshara law and a system of Hindu Mithakshara law modified by custom. Both, in my considered opinion, are different. In the first the system of law applicable is Hindu Mithakshara law; and the party pleading a custom is pleading an exception to that. That is, he is pleading a custom in derogation of the settled law. In that case he must naturally establish that the custom he pleads satisfies the tests of antiquity, continuity, invariability, etc. In the second case the law applicable is a modified form of Hindu Mithakshara law and not Hindu Mithakshara law as such. That is, he is pleading a custom in derogation of the settled law. In that case he must naturally establish that the custom he pleads satisfies the tests of antiquity, continuity, invariability, etc. In the second case the law applicable is a modified form of Hindu Mithakshara law and not Hindu Mithakshara law as such. In fact, the law applicable in such a case is customary law, which is a modified form of Hindu Mithakshara law. Therefore, the quest in such a case must be for finding out that system of modified Hindu Mithakshara law or customary law. The enquiry should not be directed to see whether the custom pleaded satisfies the tests of antiquity, continuity, invariability, etc., so as to displace or dethrone the settled system of pure Hindu Mithakshara law. Communities such as the Thiyas and the Ezhavas of Malabar, the Makkathayam Ezhavas of Cochin and Travancore, the Kammalas, the Velans, etc. (communities considered to be low in the social scale), who are followers of Hindu Mithakshara law modified by custom, are really followers of customary law. They are not followers of pure Hindu Mithakshara law: vide Sundara Iyer's Malabar and Aliyasanthana Law, p. 239, where the learned author observes: "The presumption is not that the Hindu rule of law is applicable until displaced by proof of special custom in the sense of usage opposed to that law, acted upon invariably and uniformly, but the presumption does go to the extent that the rule of Hindu law is the usage applicable to any particular community of Hindus." (underlining is mine): Vide also Pattukkayal Chakutti v. Kothembra Chandukutti A. I. R.1927 Mad. 877. Kittu Echaran's case 1948 T. L. R.734 also appears to follow the same principle, because the learned judges do not apply the tests of antiquity, continuity, invariability, etc. to the custom sought to be proved before them. The principle of pure Hindu Mitakshara law is to be applied to such communities only on any question where there is no evidence of custom available. It is this wrong approach of the trial courts that has been mainly responsible for the error they have committed. X X X In the result, I set aside the decision of the trial court and allow A. S. No. 623 of 1960. The alienations are set aside. It is this wrong approach of the trial courts that has been mainly responsible for the error they have committed. X X X In the result, I set aside the decision of the trial court and allow A. S. No. 623 of 1960. The alienations are set aside. The alienees, respondents 1 to 4, will pay arrears of mesne profits for three years prior to suit and future mesne profits from the date of suit till recovery of possession at Rs. 300 per year. They will also pay the costs of the appellant in both the courts. In the second appeal, the decision of the lower appellate court is confirmed; and the second appeal is dismissed with costs of the first respondent. No leave.