Judgment :- 1. The Second Appeal illustrates the mischief contemplated in the Circular of this Court dated 4101968 for the guidance of the subordinate courts when admissions or concessions are made by advocates in the course of proceedings in court. 2. The 1st defendant is the appellant and he is the son of one Unnooli who had another son by name Kunhikanaran and a daughter by name Thirumala. The daughter of Kunhikanaran is the plaintiff and the children of Thirumala are defendants 2 to 4, the only survivor among the three children of Unnooli being the 1st defendant. The plaintiff, who is the grand-daughter of Unnooli, claimed a share in the property of her grand-mother on the footing that according to the customary law which governed the parties who are Thiyyas of Quilandy she was entitled to such share. Defendants 2 to 4 do not appear to have contested the suit or claimed a share. The 1st defendant pleaded that there was no custom as set up by the plaintiff and that the Hindu Mithakshara law applied to the parties on the basis of which he alone was entitled to inherit the estate of Unnooli. Thus, the main issue was as to whether the plaintiff was entitled to inherit on the basis of the customary law applicable to the parties. The trial Court decreed the suit on the basis of a concession alleged to have been made by the 1st defendant's advocate. The learned Munsiff observed: "As per Makkathayam Law modified by custom, the children of predeceased children of Unnooli. will get rights over the plaint property. The learned counsel for the 1st defendant has conceded the proposition of law that the plaintiff and defendants 2 to 4 will get rights over the plaint property after the death of Kunhikanaran and Thirumala." If this concession were correct and the parties were governed by the rule of custom as set out by the plaintiff and assented to in the concession of the 1st defendant's advocate, the decree of the trial Court is impeccable. However, an appeal was carried to the Sub Court, Badagara, where counsel for the appellant-1st defendant repudiated the alleged concession and produced an affidavit of the advocate who appeared for the 1st defendant in the trial court stating that he had made no such concession. However, the appellate Court, relying upon the ruling reported in AIR. 1964 SC. However, an appeal was carried to the Sub Court, Badagara, where counsel for the appellant-1st defendant repudiated the alleged concession and produced an affidavit of the advocate who appeared for the 1st defendant in the trial court stating that he had made no such concession. However, the appellate Court, relying upon the ruling reported in AIR. 1964 SC. 377, held that the party was bound by the concession and dismissed the appeal. In that Court's view "whether there was such a custom or not is not a question of law, but one entirely based on facts and circumstances. That being so, the concession was made upon a point of fact but it was unhappily worded as a proposition of law by the lower Court." In this view, the appellate judge had no hesitation to overrule the contention of the appellant and affirm the decree already passed. 3. It is contended before me that what applies to the parties is customary law. It is indubitable that it is not Hindu Mithakshara law as such that applies to the parties but customary law and the burden of proving the rule of custom lies on the plaintiff. In the absence of proof of custom, the Hindu Mithakshara law applies qua custom. This proposition being unchallengeable, the question is what is the customary law that applies to the parties. On this, counsel for the 1st defendant is alleged to have made the concession mentioned above. To my mind it is clear that such a concession is on a point of law, as has been pointed out in a Division Bench ruling reported in AIR. 1945 Lahore 336. The head-note of that case sufficiently brings out the point decided: "An admission by a lawyer on a question of law and fact, is not binding on the client. The question whether the mother under the Customary law (Punjab) could have alienated the property of her minor sons is a question of law or at least a mixed question of law and fact. It does not become a question of fact merely because the Court has to ascertain the rule of custom which would govern the parties." Indeed, the learned Munsiff described the concession as one made on a point of law. It does not become a question of fact merely because the Court has to ascertain the rule of custom which would govern the parties." Indeed, the learned Munsiff described the concession as one made on a point of law. But the learned Subordinate Judge observed on this aspect of the learned Munsiff's usage of words "it was unhappily worded as a proposition of law by the lower Court". I am unhappy that the learned Subordinate Judge has fallen into a fallacy by thinking that because a custom has to be proved by evidence, therefore the customary law that applies to parties is not a point of law. I am clear in my mind that the concession made by the advocate in this case is on a question of law and, therefore, the party cannot be held bound to it if it is found to be wrong. Customary law is law notwithstanding that the proof of custom involves evaluation of evidence. 4. If concessions on vital questions are made by counsel, Courts must be careful to see that they are recorded appropriately. In the present case, the plaintiff set up a custom, the proof of which alone would have entitled him to a decree. The 1st defendant in his written statement denied that custom and had he not denied it a decree against him was inevitable. When such a crucial question is stated to be covered by a fatal concession by counsel, courts will do well to adopt the wholesome guidance given by Circular No. 28/68 which runs as follows: - "The High Court has. not infrequently, come across statements in judgments and orders of subordinate courts such as 'this issue was not pressed by counsel', 'this was conceded', 'it is admitted by counsel', 'the only point urged before me'. As often as not, the veracity of such statements has been challenged in appeal or in subsequent proceedings. At times these challenges are sought to be buttressed by affidavits from counsel who appeared before the subordinate courts or by affidavits by the party affected. And cases have not been wanting where these affidavits of counsel or party are controverted by other affidavits of either the opposite party or his counsel. The High Court is of the view, for obvious reasons, that such controversies should be avoided. And cases have not been wanting where these affidavits of counsel or party are controverted by other affidavits of either the opposite party or his counsel. The High Court is of the view, for obvious reasons, that such controversies should be avoided. And it feels that this can be achieved if the presiding officer gets counsel making a concession on a point canvassed by the pleadings or the memorandum of appeal to record the concession either in the issue paper or in the memorandum or on a separate paper under his signature. This record must be initialled and dated by the presiding officer and must be available among the case records." The affidavit of the conceding advocate is not contradicted by that of the opposing advocate and an admission on a question of law made by counsel cannot choke a party or bind him down. I hold that the judgment and decree of the courts below deserve to be set aside. I hereby do so. 5. But counsel for the respondent is perfectly right in saying that automatically the Hindu Law should not be applied. His client did not lead evidence regarding custom because counsel for the 1st defendant had conceded the position. It is just and proper that a full opportunity is given to the plaintiff to establish the rule of custom relating to the point in controversy. I, therefore, set aside the decree of the Courts below and send back the case for fresh trial by the Munsiff's Court, Quilandy. Costs will be costs in the case.