Judgment :- 1. A.S. 686 of 1961 is directed against the decree in O.S. 74 of 1956 of the Second Additional District Judge, Trivandrum, and is by the plaintiff. The suit was to set aside an order for the transfer of pattah of the properties of one Kochan Kani, upon his death in the year 1124. On the motion of defendants 1 and 2 who claimed to be his son by the first wife and his second wife respectively, pattah was ordered to issue to the former, in opposition to the claim advanced by his brother, the plaintiff, according to whom, Kochan Kani was a marumakkathayee and his properties devolved on him. The first defendant contended that Kochan Kani was a makkathayee and that he is therefore entitled to succeed to his properties. The Additional District Judge accepted his contentions and dismissed the suit. 2. A.S. 469 of 1964 is directed against the decree in O.S. 78 of 1959 of the Additional Subordinate Judge, Trivandrum, in which the defendant therein, who is the first defendant in O.S. 74 of 1956, is the appellant. That suit was by the plaintiff in O.S. 74 of 1956 as the first plaintiff and by his alienees as plaintiffs 2 to 5, for a declaration of their title and possession in respect of the properties in schedules A to E of the plaint, which belonged to Kochan Kani and were alleged to have devolved on the 1st plaintiff, and parts of which, comprised in schedules B to E, were alienated by him in favour of plaintiffs 2 to 5. The main contention of the defendant was, that Kochan Kani was a makkathayee and not a marumakkathayee as alleged and that the alienations were not valid. The Subordinate Judge held, that Kochan Kani was a marumakkathayee and that his properties devolved on the first plaintiff and came into his possession and decreed the suit. 3. S.A. 356 of 1962 is directed against the decree in A.S. 288 of 1955 passed in appeal by the Additional Subordinate Judge, Trivandrum against the decree of the Additional Munsiff, Neyyattinkara in O.S. 436 of 1124, a suit instituted by the defendants in O.S. 74 of 1956 as the two plaintiffs, for eviction of one Israel Nadar, the defendant therein, who was holding the property in suit as a lessee of Kochan Kani. The latter contended that the plaintiffs therein had no right to the properties of Kochan Kani. This contention prevailed with the two courts below and the second appeal has been preferred by the second plaintiff, who is the first defendant in O.S. 74 of 1956. 4. Though the three suits were tried and disposed of separately by different courts, on the arguments addressed before me in these appeals, only a common question arises, which is, whether Kochan Kani was a follower of the marumakkathayam or of the makkathayam system of inheritance. For the sake of convenience, the parties in these appeals, except the defendant in O.S. 436 of 1124, may be referred to as they are in O.S. 74 of 1956. The documents have been, for the most part, exhibited in O.S. 74 of 1956 and may be referred to as such. 5. I am satisfied that the pleadings in O.S. 74 of 1956 & in O.S. 78 of 1959, are sufficient to raise pointedly the question posed above, that is, whether Kochan Kani was a follower of the marumakkathayam system or not. He was a member of a hill tribe called Kanikkars, who inhabit certain villages in Neyyattinkara and other Taluks. The evidence on the point consists of documents executed by Kochan Kani or taken by him, and of his depositions and affidavit, in addition to documents executed by other Kanikkars pointing to the system of inheritance by which they are governed. To mention the documents in which Kochan Kani took part in their chronological order, Ext. D18 of the year 1099 the earliest, is a lease deed executed by him, in which he described himself as the "ananthiravan" of Mathevan. Ext. P4 of the year 1100 is another lease deed of the same description which recited, that the property concerned was registered as 'Kanipattu' in favour of his ancestor, that his karnavan had been in possession, and that after the latter's death, he came into possession. Ext. D22, a release deed taken by Kochan Kani in the year 1103, Ext. D27, a sale deed taken by him in the year 1106, and Ext. D26, another sale deed of the year 1125, all described him as Mathevan's "Ananthiravan". Though in Ext. D27, the Executant Kochappi Kani described himself as the son of Malan Kani, in Ext. Ext. D22, a release deed taken by Kochan Kani in the year 1103, Ext. D27, a sale deed taken by him in the year 1106, and Ext. D26, another sale deed of the year 1125, all described him as Mathevan's "Ananthiravan". Though in Ext. D27, the Executant Kochappi Kani described himself as the son of Malan Kani, in Ext. D26 it was recited, that the executants, who were also Kanikkars, obtained the property sold from their karnavars and grandkarnavars. 6. Important in the next category of documentary evidence is Ext. P7, the deposition of Kochan Kani in a summary case given on the 6th Dhanu,1119, in which he described himself as "marumakkavazhi" and referred to the property "Vilangumalakani" of 110 odd acres, as having been acquired by his grand karnavan and come into the possession of his karnavan in the year 1062 and into his possession after the latter's death. He said, that in continuity with the improvements made on that property by his karnavars, he has effected improvements. He definitely said, that he and others are marumakkathayees. In Ext. P9 dated the 23rd Makaram,1113, another deposition, he described himself as a follower of the "marumakkavazhi" system of inheritance. In Ext. D9, a third deposition of Kochan Kani of the year 1118, he said, that "Vilangumalakani" is in his possession and in the possession of his brother the plaintiff, that it was registered in the name of one of his prior karnavars, and that he obtained the registry in the year 1092 or 1093 with tarwad income. Ext. D21 dated the 7th Vrischigom,1122, is his affidavit in O.S. 39 of 1107 in which he described himself as following the "marumakkavazhi" system of inheritance. The documents executed by other Kanikkars are, Ext. D15 of the year 1092, Ext. D10 of the year 1097, Ext. D17 of the year 1101, Ext. D23 of the year 1102, Ext. D11 of the year 1107, Ext D12 of the year 1112, Ext. D19 of the year 1117, Ext. D13 of the year 1121, Ext. D14 of the year 1123, Exts. D16, D 25 and D24 of the year 1125 (1950 A. D.), being release deeds, lease deeds, sale deeds and mortgage deeds, in which the executants described themselves with reference to their uncles. In Ext. D19 of the year 1117, Ext. D13 of the year 1121, Ext. D14 of the year 1123, Exts. D16, D 25 and D24 of the year 1125 (1950 A. D.), being release deeds, lease deeds, sale deeds and mortgage deeds, in which the executants described themselves with reference to their uncles. In Ext. P6, the written statement filed in O.S. 259 of 1122 of the second defendant in O.S. 74 of 1956, she said that she has been following "marumakkavazhi" for a long time and that the property involved is her tarwad property. 7. As against these, the defendant relied on the following documents. Exts. D32 and D31 are the plaint and the replication filed by Kochan Kani in O.S. 39 of 1107, in which he described himself as "misravazhi'; this was not the case of the defendant either. That litigation concerned the same property, to which reference was made in Exts. P-7 and P-9. The defendant in O.S. 78 of 1959 as DW. 7 said, that the description "misravazhi" in Exts. D31 and D32 in relation to Kochan Kani is not correct. Ext. D34 of the year 1118 is an otti deed executed by Kochan Kani in which he described himself as no point had been made of this at the trial, nor was it ever suggested that Kochan's father was Mathevan. Viewed in the light of the other documents, this lone description has to be treated as discrepant or in any event as of no material importance. Ext. D30 of the year 1107 is a sale deed taken by Kochan Kani describing himself as Mathevan's "ananthiravan". It was executed by one Thevi and others, who apparently had inherited the property from Thevi's father. Exts. D44 and D45 of the year 1123, are two partition deeds of father's properties in which D.Ws. 2 and 3 had taken part. Ext. D35 of the year 1120, is an otti and kuzhikanom executed by one Velayudhan Kani for a property which he inherited from his father. These documents no doubt suggest, that among some of the Kanikkars, whether of a particular locality or not the children also inherited the properties of the father, but whether they did so to the exclusion of the nephews, is not clear. 8. These documents no doubt suggest, that among some of the Kanikkars, whether of a particular locality or not the children also inherited the properties of the father, but whether they did so to the exclusion of the nephews, is not clear. 8. The defendant as D.W.1 in O.S. 74 of 1956 deposed, that Kanikkars used to describe themselves in documents, as "makkavazhi", or "marumakkavazhi", or "misravazhi", but that despite these descriptions they all followed "makkavazhi". As D.W. 7 in O.S. 78 of 1959 he said, that Kochan Kani had stated in some documents, that he followed "makkavazhi", and in others "marumakkavazhi". Not one document has been adduced, in which Kochan Kani described himself as "makkavazhi'. Although Kanikkars are Hindus, in my opinion, the following observations in relation to Pulayas in Varki v. Ouseph 22 TLJ.1239 at 1242 apply with equal force to Kanikkars: "According to the 1st defendant, Itty was a Marumakkathayee. The courts below hold no doubt that Itty was a Makkathayee. Their views however rest upon a general presumption that Hindus as a rule should be taken as governed by the Mitakshara Law and not on an estimate of the evidence and circumstances of this case. The learned vakil for the plaintiff brought to our notice two unreported rulings of this court in support of his contention that the Pulayas are Makkathayees. Those cases related to Pulayas in other localities than the one in question in this case. In view of the prevalence of the Marumakkathayam Law in total or partial displacement of the general Hindu Law among many communities like the Nanjinad Vellalas and Eazhavas, who but for the impact of the Marumakkathayam system ought to have been strict followers of the Makkathayam system, any such general presumption as has been relied on by the courts below cannot but be so weak as to yield to evidence and circumstances in conflict with it". The prefixtures of uncle's names, in that case, was also considered to be a potent indication that the parties followed the Marumakkathayam system of law. The evidence discussed above shows, that in some sections of Kanikkars, or clans, the father's properties were also taken by the children. No adequate foundation has been laid in the case, for giving effect to the suggestion of learned counsel for the plaintiff, that this distinction was based on geographical considerations, though Exts. The evidence discussed above shows, that in some sections of Kanikkars, or clans, the father's properties were also taken by the children. No adequate foundation has been laid in the case, for giving effect to the suggestion of learned counsel for the plaintiff, that this distinction was based on geographical considerations, though Exts. D.44 and D.45 no doubt concerned properties in another Taluk or Village. At the same time, the evidence adduced is ample for holding, that among the Kanikkars including Kochan Kani, inheritance was in the marumakkathayam line; nor is it a case of Kochan Kani's family striking a departure from the normal rule of inheritance governing his community, as is apparent from documents executed by other Kanikkars. 9. There are a number of books which deal with these tribal communities, but no statement of a uniform rule of inheritance applicable to Kanikkars in general, can be found in any of them. In Nagam Aiya's Travancore State Manual, Vol. II at page 411, it is stated, that among Kanikkars, movable property was held to descend to nephews, but there was little scope for inheritance in respect of immovable property, and generally speaking a half share of the property descended to nephews and the other half to sons. In Dr. Kunjan Pillai's Census Report, 1931, Vol. XXVII, part I, page 405, in this community, a man's property was said to devolve on his sons and sister's sons, in the absence of nephews, the sons took the property, but he also said: "Descent is reckoned through the female line and children belong to the clan of the mother". K.P. Padmanabha Menon said in his History of Kerala, 1933 edition, Vol. III, page 546, that the Kanis who lived in the interior of the hills followed makkathayam, but not makkathayam pure and simple, while in the case of those who lived near the plains, the self-acquired property was distributed equally between the sons and the nephews. In Travancore State Manuel, Vol. I, page 872, T.K. Velu Pillai said thus about Kanikkars: "The law of inheritance is not uniform. What generally obtains is makkathayam. In many cases what belongs to a deceased man is divided between sons and nephews equally. Marumakkathayam is also met with. Sometimes different clans forming the same tribe follow different systems of inheritance". In Travancore State Manuel, Vol. I, page 872, T.K. Velu Pillai said thus about Kanikkars: "The law of inheritance is not uniform. What generally obtains is makkathayam. In many cases what belongs to a deceased man is divided between sons and nephews equally. Marumakkathayam is also met with. Sometimes different clans forming the same tribe follow different systems of inheritance". A "clan" as defined in the Dictionary is, "a tribe or collection of families subject to a single chieftain, commonly bearing the same surname, and supposed to have a common ancestor." Though the books do not lay down a uniform law as applicable to Kanikkars in general, there is enough in them, particularly in the latest of them all by T.K. Velu Pillai, to support the view, that the marumakkathayam system is not entirely foreign to the Kanikkars. It will therefore be a matter depending on the evidence and circumstances to decide, whether the Kanikkars in a particular case are governed by the marumakkathayam or the makkathayam system of inheritance. On the evidence adduced, I have little difficulty in coming to the conclusion, that so far as Kochan Kani was concerned, he belonged to that section or clan of Kanikkars, who followed the marumakkathayam system of inheritance. 10. On the above, it has to be held, that the title to the properties of Kochan Kani vests in the plaintiff in O.S. 74 of 1956 and the alienations made by him in favour of plaintiffs 2 to 5 in O.S. 78 of 1959 are valid. If this is so, learned counsel for the defendant stated before me, that he does not contest the finding as to possession which has been entered in favour of the plaintiffs in O.S. 78 of 1959 by the Subordinate Judge. The plaintiffs there had a case, that during the lifetime of Kochan Kani, the plaintiff in O.S. 74 of 1956 was jointly in possession of the properties with him; this has been negatived; by the judge who held, that the plaintiff came into possession upon the death of Kochan Kani. This is consistent with the finding on title and I see no reason to disturb it. 11. In the second appeal it has to be stated, that the plaintiffs therein, who are defendants 1 and 2 in O.S. 74 of 1956, have not succeeded in proving that they are the heirs of Kochan Kani. This is consistent with the finding on title and I see no reason to disturb it. 11. In the second appeal it has to be stated, that the plaintiffs therein, who are defendants 1 and 2 in O.S. 74 of 1956, have not succeeded in proving that they are the heirs of Kochan Kani. Even the text books do not show conclusively that the son inherits his father's properties, in all cases. Anyhow such proof is lacking in the present case. It has also been found in the other two cases, in which the entire evidence has been adduced, that the brother of Kochan Kani succeeded to his properties. In second appeal, the findings are concurrently against the appellant and I see no ground for interference. 12. The result is, that A.S. 469 of 1964 and S.A. 356 of 1962 are dismissed with costs. A. S.686 of 1961 is allowed the suit is decreed in terms of the plaint with costs in the lower court, and in this Court the parties shall bear their costs. The memorandum of cross-objection in A.S. 686 of 1961 is dismissed but without costs.