JUDGMENT K. Sukumaran, J. 1. Has a daughter born in the Thiyya community of Trichur Taluk, a share in her patrimony prior to 1115 M. E.?, is the question which arises in the second appeal. The courts below have answered it in divergent ways, the Trial Court answering it in the affirmative and the lower appellate court in the negative. The second appeal at the instance of the plaintiff worsted in her litigation challenges the correctness of the view taken by the court below. 2. The facts are simple. Ayyappan, father of the plaintiff, who acquired the plaint schedule properties by virtue of the partition deed Ext, A4 dated 24-19-1097 and the assignment Ext. A3 dated 7-1-1103, died in 1108 M.E. He had four daughters - Paru, Kunchi, Sarada and the plaintiff - and one son. the defendant. Paru and Kunchi executed Ext. A5 dated 25-6-1109 releasing : rights in respect of the assets of their father after having received a sum of Rs. 100/- towards their share. Under Ext. A6 dated 7-5-1965 Sarada assigned her rights in respect of the plaint schedule for a consideration of Rs. 300; the document recites that Paru, Kunchi and the plaintiff were the sisters of the defendant and that they and the 1st defendant were the daughters and son born to Ayyappan. A reference is also made to Ext. A5 in the assignment deed Ext. A6. Claiming that the plaintiff remained in joint possession of the properties, she sent a lawyer's notice Ext. A1 on 28-6-1971 demanding a share in the property. The claim was repudiated by the reply Ext. dated 8-7-1971. The suit was, thereafter instituted on 5-8-1971. 3. In the plaint the claim was based on Hindu Succession Act. The evidence of the plaintiff consisted of Exts. A1 to A6, reference to which had already been made. She examined herself and one other witness on her side. P. W. 2 Varu, son of Vareed, is a neighbour. On the side of the defendant, one witness D. W. 2, Velayudhan, aged 81, was examined, apparently to establish the custom in the community in that area about a daughter not inheriting her father's property. 4. She examined herself and one other witness on her side. P. W. 2 Varu, son of Vareed, is a neighbour. On the side of the defendant, one witness D. W. 2, Velayudhan, aged 81, was examined, apparently to establish the custom in the community in that area about a daughter not inheriting her father's property. 4. The Trial Court decreed the plaintiff's claim on the basis of the Hindu Succession Act, for, obviously succession opened long prior to the coming into force of that enactment, even prior to the Cochin Makkathayam Thiyya Act of 1115. The law applicable is the law as it stood prior to 1115, when the latter enactment (Cochin Marumakkathayam Thiyya Act of 1115) came into force, which made -for the first time the statutory provision conferring rights on the daughters in the family. 5. The Trial Court, however, took the view that the custom alleged by the defendants had not been proved and that Exts. A5 and A6 contained an admission about a daughter having right or interest in the property left by her father. The Observations contained in the decision in Kochi v. Raman, 21 Cochin 1, were relied upon by that court to hold that the plaintiff was entitled to a share in the property of her father. That decision had also held that when custom is not proved, the principles of justice, equity and good conscience should be applied. Equality was equity in such a situation, and consequently a daughter was entitled to have the same share as a son. A preliminary decree granting 1/5 share in the plaint schedule properties was thus passed by the Trial Court. 6. The lower appellate court, on the other hand, took the view that Exts. A5 and A6 documents did not operate as an admission on the part of the . defendant about a daughter being; entitled to a share in her father's property. Nor were they sufficient to constitute the plea of estoppal. Relying on a later decision of this court in Kamalakshy v. Narayani, 1967 KLT 1051 , the appellate court took the view that when a custom had not been proved the Hindu Mitakshara Law had to be applied and so applied the plaintiff could not claim any share in the property. 7. Relying on a later decision of this court in Kamalakshy v. Narayani, 1967 KLT 1051 , the appellate court took the view that when a custom had not been proved the Hindu Mitakshara Law had to be applied and so applied the plaintiff could not claim any share in the property. 7. The issue would have merited perhaps a deeper consideration and by a larger Bench, had it not been for certain special features of this case. It appears that as regards the community in and around Trichur a custom about daughters not sharing the patrimony had been found to be established and judicially noticed at least from the year 1934 when a Full Bench of the then Chief Court of Cochin rendered a decision on 19-6-1934, Lakshmi v. Kunhikutty, 25 Cochin 584. That court noted the earlier Full Bench ruling in Kochi's case referred to supra. The following extract from that judgment will furnish a good background to understand the later decision of the Chief Court of Cochin: "These indications show that Hindu Law cannot be applied wholesale to the parties before us. But there is a much more vital reason why we must brush aside the Hindu Law rule as to daughters in dealing with the Ezhava community. It is that divorce is absolutely free among them. Under Hindu Law, a woman once married has an indefeasible hold on the family to which she is admitted by marriage, whereas the Ezhava can cut his wife wholly adrift at any time without any compensation whatsoever by merely divorcing her. It would be a manifest injustice to her if an Ezhava woman once married is thereafter to be entirely dependent upon charity, whether the charity be that of her husband or of her blood relations. Justice, Equity . and good conscience demand that one who is in constant peril of being forsaken by her husband should be held entitled to a share in her father's estate. It is a different question whether it is necessary to give a daughter the same share as a son in any Indian society. But we cannot, without assuming the functions of the Legislature, fix a fraction for the share of the daughter in relation to her brothers. Equality is the only equity that it is possible for us to apply to such a case". But we cannot, without assuming the functions of the Legislature, fix a fraction for the share of the daughter in relation to her brothers. Equality is the only equity that it is possible for us to apply to such a case". (Perhaps the sentiments by Varugis, C. J. are in tune with the observations of Sir Robert Megarry, V. C. when, in a different context, he made the following observations:) "Where.... there is nothing in the rules or anything else to indicate a different basis, the distribution should be on a basis of equality". See Re GKN Sports Club, 1982 (2) All ER 855 at p. 863.) 8. The decision in Laksmi's case referred to supra concerned an Ezhava family at Manalur in the Trichur Taluk. The Chief Court held that the decision in Kochi's case applied to a situation when there was no proof of a custom. The court 'thereafter proceeded to consider the case before it on the basis of the profuse documentary and oral evidence relating to custom. The court observed: "The Ezhavas of the State form a very ancient numerous and progressive community. The custom in question is in regard to a question of inheritance and succession which question, judging by its nature, must practically be a ratter of every-day occurrence. It is prima facie improbable that the community should not as yet have developed some rule of customary law in regard to such a matter. They live in the midst of their Hindu brethern, represented by the two main communities', viz., the followers of the Marumakkathayam, Law and those following the Hindu Law of the Mitakshara. The Ezhava are by profession and faith Hindus, and we are concerned here with Makkathayi Ezhavas. The rule of customary law set up is also the rule of Hindu Law upon the point. That appears to be also the rule of customary law recognised and enforced by the British Courts as applying to the Makkathai Ezhavas of the adjoining portions of Malabar. The circumstances would thus appear to have been eminently conducive to a development of a rule of customary law of the kind in question. That appears to be also the rule of customary law recognised and enforced by the British Courts as applying to the Makkathai Ezhavas of the adjoining portions of Malabar. The circumstances would thus appear to have been eminently conducive to a development of a rule of customary law of the kind in question. The evidence in support of the custom which has been carefully analysed by the lower court appears to be very considerable in point of both volume and weight", (emphasis supplied) More than forty five documents had been proved in that case in support of the custom. They spanned a period between 1051 M. E. to 1103 M. E. The effect of these documents was summed up as follows: "The importance of these documents is that daughters, sisters and other female members are rigorously excluded therefrom, and the partition uniformly proceed upon the footing the female members are not entitled to any shares". (emphasis supplied) The count thereafter considered oral evidence also. It observed: "........ there is reliable oral evidence to show that the custom and usages followed as binding by the Makkathayi Evhavas of the adjoining British parts are identical with those followed by the Makkathayi Ezhavas of the State (vide the evidence of D.W. 4, Mr. Ayyakutti and D. W. 8, Mr. C. Krishnan). In the nature of things also, such must every probably be the case". The effect of the oral evidence again was referred to" in the following words: "The defendants have examined 9 witnesseses including some of the most respectable members of the Ezhava community. Dw. 4 is Mr. Ayyakutty, a retired District Judge in the service of this State, and Dw. 8 is Mr. Krishnan, the representative of the Ezhavas of South Malabar in the Madras Legislative Council. The re-remaining witnesses, of whom Dw. 3 is none other than the husband of the first plaintiff herself, appear to be also man of means and of a respectable standing in the community. The general effect of their evidence is to show that the custom in question has, by the general consciousness of the community, been uniformly and continuously-accepted and acted upon as one binding upon it. For the most part, they speak also to particular instances of partitions and other transactions, where the custom was acted upon and given effect to". The general effect of their evidence is to show that the custom in question has, by the general consciousness of the community, been uniformly and continuously-accepted and acted upon as one binding upon it. For the most part, they speak also to particular instances of partitions and other transactions, where the custom was acted upon and given effect to". (emphasis supplied) The decision in Lakshmi v. Kunhikutty, 25 Cochin 584, has been referred to with approval in Krishnan v. Narayanan 29 Cochin 147. It is desirable at this juncture to make note of some of the social and legislative events that had taken place in the State and in the community, to have a clearer idea on the legal question. 9. It may be remembered in this connection that the decision in Sankaran v. Kailase Iyan, 12 Cochin 213 (12 Cochin 381, revised edition) adverted to the fact that the evidence regarding the custom showed that the data for the opinion expressed by the witnesses are exceedingly meagre. According to him, reason for such a situation was: "The community probably has not a long tradition as landholders". He further observed: ".... a rule can get established only in connection with land and after tradition has had time to stereo-type it". After the decision in Kochi's case, 21 Cochin 1, rendered on 29-9-1929, corresponding to 13-1-1105 there was an attempt at having a legislative provision to govern the personal law of this community. Mr. K. Ayyappan introduced a Bill in the Cochin Legislative Council Legislative Council in the year 1.108 (1933). The Bill was finally passed but did not become law, as the Maharaja vetoed the measure. 10. The decision in Lakshmi v. Kunhikutty, 25 Cochin 584, was understood as holding a view different from that in Kochi v. Raman, 21 Cochin 1. The sentiments, strong sentiments, in that regard appear to have been voiced on the floor of the Cochin Legislative Council by Sri V. K. Krishnankutty (who later served the judiciary of the State) who piolted the Cochin Makkathayam Thiyya Bill. The sentiments, strong sentiments, in that regard appear to have been voiced on the floor of the Cochin Legislative Council by Sri V. K. Krishnankutty (who later served the judiciary of the State) who piolted the Cochin Makkathayam Thiyya Bill. In a spirited speech while introducing the Bill, he remarked: "With regard to the law which is applicable to the Makkathayi Thiyyas of the State there is now either confusion or doubt, and the Judges of the High Court have been perplexed as to the exact law which is applicable to the Thiyyas especially in respect of inheritance and succession.... and as regards decisions of courts which form the case law applicable to Thiyyas they have been varying, and it has been held in 21 Cochin that the law applicable is the custom proved in a case. When no definite custom has been provided the law of equity, justice and good conscience prevails. That was the decision of Justice Mr. Varghese. In that case no definite visage or custom was proved and with the progressive ideas prevailing in the State a decision was arrived at that a daughter of a Thiyya is entitled to inherit equally with his sons. Subsequently another case came up and it was decided in 25 Cochin. There the learned Judge came to a different conclusion that according to the custom which was proved in that case the daughter of a Thiyya is not entitled to any share of the paternal property, when the deceased has left a son also. So that what I submit is that the law has been varying and the Judges were also put to great difficulties in applying the law to the Thiyyas. The main reason for bringing this Bill is as I have stated the indefinite ness of the law which is to be applied to the Thiyyas". In his well studied speech he made references to the case law on the subject and and even went to the extent of challenging the views expressed on the floor of the Council by the Advocate General of the State. The extent of his feeling and conviction is evident from the following remarks made by him: "I expect the Government Advocate and Law Officer to be more exact on the point and I request that he will cite an authority on the point: I will cite several authorities against this" Mrs. The extent of his feeling and conviction is evident from the following remarks made by him: "I expect the Government Advocate and Law Officer to be more exact on the point and I request that he will cite an authority on the point: I will cite several authorities against this" Mrs. Thankamma N. Menon, the legislative member in the Council, understandably enough, welcomed the measure as it gave an equal right to the daughters in father's property. Another member Mr. Kochukunhan Kaimal showed an accusing finger to the uncertainty of the legal position. He said: "The law now applied is rather uncertain and uncertainty has been made more complicated by the decisions of the High Court. Now. each case is decided on its own merits by the Judges. In some cases they may say the Hindu law is applicable. In some cases they may say the custom is applicable, again in some cases there is the customary law and in the absence of all these there is the doctrine of justice, equity and good conscience; so that it has become impossible for the people in that community to understand what exactly is the law applicable to the Thiyyas". The helplessness of the situation was transparent in his concluding remarks: "What can the lawyers say when the law itself is so uncertain and the High Court is always ready to say that each case will be decided in its own merits, and sometimes on justice, equity and good conscience? And even equity, justice and good conscience vary with different individuals, with different standards of education and with different ideas, etc. so that it is very necessary that the law should be defined and placed on the statute book". See Cochin Legislative Council Proceedings , Fifth Series, Volume II, Parts 1 to 15, Legislative Session 1114, pages 870 to 879. It is not necessary to refer to further deliberations in relation to that Bill while considering the controversey in this case. It is sufficient to note that the Bill ultimately was passed by the Council. This time the Maharaja was pleased to affix His sign manual and ultimately the Cochin Makkathayam Thiyya Act came into force on the 1st day of March, 1940. 11. The problem cropped up again in the Travancore Cochin High Court. It is sufficient to note that the Bill ultimately was passed by the Council. This time the Maharaja was pleased to affix His sign manual and ultimately the Cochin Makkathayam Thiyya Act came into force on the 1st day of March, 1940. 11. The problem cropped up again in the Travancore Cochin High Court. A Division Bench of that court, Justice Subramonia Iyer and Justice M. S. Menon, "expressed agreement with the conclusion reached by the court below that according to the custom prevalent in the Ezhava community, the plaintiff as a daughter is not entitled to claim a share in the family property". The Trial Court in that case no doubt reached its conclusion on the basis of the evidence before it as also on the basis of the decision in Lakshmi v. Kunhikutty, 25 Cochin 584. An attempt made by counsel to rely on the decision in Kochi v. Raman, 21 Cochin 1, was unsuccessful. The following observation made by the Division Bench after adverting to 21 Cochin 1 appears to be significant: "The decision in 25 Cochin 584 which was rendered subsequently makes a difference in the situation as in that decision it has been found that there is a longstanding custom prevalent in the community in the Trichur taluk under which daughters are not sharers in the family property". (emphasis supplied) Sec Parvathi v. Karappan, 1954 KLT 217 . 12. Counsel for the appellant contended that the observation was indeed obiter in the light of the finding of the court about there being evidence relating to the custom in that particular case. May be it was obiter and there was nothing more than a collective zHomeric nod on the part of the court. It cannot, however, be overlooked that it was very powerful obiter nevertheless. It is difficult to avoid the impact of that decision on the controversy in question. Nearly thirteen years later the Kerala High Court also had to consider the same question, although the parties in that case hailed from Mukundapuram Taluk which touches the Trichur taluk. In that case too, this court upheld the custom that daughters are not 'entitled to share in the properties left by their father. See Kamalakshi v. Narayani, 1967 KLT 1051 at p. 1054. In that case too, this court upheld the custom that daughters are not 'entitled to share in the properties left by their father. See Kamalakshi v. Narayani, 1967 KLT 1051 at p. 1054. Although I have my reservations regarding the manner in which the two decisions, 21 Cochin 1 and 25 Cochin 584, have been understood in that case, it is not necessary to delve into the details of that controversy in this case in view of the conclusion I have come to regarding the existence of the custom. It is sufficient to note that the custom had been upheld in the decision in 1967 KLT 1051 too. 13. It must be noted that the custom which is to be established is one relating to the community. As pointed out by the Supreme Court in Saraswathi Ammal v. Jagadambal, AIR 1953 SC 201 , no doubt, a custom of a community in one District may not be the same in another District. But that contingency does not arise in the present case, for the custom which had been found to be established in 25 Cochin 584 is one in respect of the same Taluk and District. A custom so established had been substantively, if not exclusively, relied upon in the decision in 1954 KLT 217 . The establishment of a similar custom in the neighbouring Taluk found in 1967 KLT 1051 also is not without significance. It is true that in the present case such a custom had not been attempted to be proved, by very elaborate evidence as has been done in 25 Cochin 584. Of course, there is formal evidence about such custom in the testimony of D.W. 2- Is the court justified in accepting the custom established to the hilt by preponderance of acceptable documentary and oral evidence in 25 Cochin 584, in another case in respect of the members of the same community and in respect of the same area, without repetition of such documentary and oral evidence? The answer appears to be in the affirmative. The answer appears to be in the affirmative. The observations of the Privy Council as 'to how a native customary law is to be proved, in the decision Anou v. Atta, (1916) Gold Coast Privy Council Judgements, 1874-1928, 43, appear to be very apposite in this connection: ''As is the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs have, by frequent proof in the courts, become so notorious that the courts will take judicial notice of them". (emphasis supplied) The dictum was approved in the later Gold Coast case - Amissah v. Krabha, 1936 (2) U.A.C.A. 30 at p. 31 (P. C.). The proposition appears to have been widely followed in other territories, for example, Kigizi v. Lukiko of Buganda, 1943 (6) Ug. L.R. 113, at p. 117 See The Modern Law Review, Volume 20, 1957, at p. 247. There is a very informative article by A.N. Allott on The Judicial Ascertainment of Customary Law in British Africa in 1957, Vol. 20, Modern Law Review, at p. 244. The Privy Council has made similar observations in respect of Indian cases too. That the existence of a custom can be judicially noticed appears to be implicit in the decision in Jadu Lal Sahu v. Janki Koor, ILR 39 Calcutta 915 at p. 922. In Sri Raja Rao Venkata Mahipati Gangadara Rama Rao Bahadur v. Raja of Pittapur, AIR 1918 PC 81 , the Privy Council made the position explicit. The observation runs: "When a custom or usage, whether in regard to a tenure or a contract or a family right, is repeatedly brought to the notice of the Courts of country, the courts may hold that custom or usage to be introduced into the law without necessity of proof in each individual case. It becomes in the end truly a matter of process and pleading". The principle has been applied by the High Courts in India, of which the following are some illustrations: Lajpat Rai v. Kami Chand, AIR 1934 Lahore 830. Banarsi Das v. Sumat Prasad, AIR 1936 Allahabad 641. Suganchand v. Mengibhai, AIR 1942 Bombay 185. Jugal Kishore v. Bishnu Hari, AIR 1955 Calcutta 419. 14. The principle has been applied by the High Courts in India, of which the following are some illustrations: Lajpat Rai v. Kami Chand, AIR 1934 Lahore 830. Banarsi Das v. Sumat Prasad, AIR 1936 Allahabad 641. Suganchand v. Mengibhai, AIR 1942 Bombay 185. Jugal Kishore v. Bishnu Hari, AIR 1955 Calcutta 419. 14. Earlier in this judgment, I had indicated that the question would have merited a more detailed consideration, and if need be, by a larger Bench, had it not been for some special features of the case. The fact that a custom had been established in the very area from which the litigation has cropped up is one such feature. The question of succession is now already covered by statutory provisions applicable to virtually all sections of Hindus, and those provisions have been is vogue for over a quarter of a century. As regards the Thiyyas of Cochin, a binding statute, The Cochin .Makkathayam Thiyya Act of 1115, has been operative earlier. A similar controversy would arise only in cases Where the succession had opened more than forty years back. Only very sparingly are such questions likely to recur. An examination of early decisions with hindsight obtained over a century, may pose many doubts about assumptions made or reasonings projected in support of the conclusions of those early decisions. A survey of the decisions starting with Rarichan v. Porachi, ILR 15 Madras 281, rendered in the year 1891 in the Madras State, Paru and Another v. Madhavan, 2 Select Decisions 184, rendered in the year 1899 in the Cochin State and Ayyappan Kumaran v. Palavasan Chanthanmari Pillai 10 TLR 77, rendered in the year 1892 in Travancore, and ending with the Full Bench decision in Rohini v. Sethumadhavan, 1978 KLT 470 , may not, therefore, be necessary in the present case. The Full Bench decision in 1978 KLT 478 had overruled a Division Bench ruling reported in Dharmodayam Company v. Balakrishnan, 1962 KLT 712 . According to that decision, the observations of Krishnan Iyer, J. in Unnooli alias Kuttimalu and others v. Thayyu, 1969 KLJ 620 , had been refuted by the decision of the Supreme Court in Anthonyswami v. Chhmaswamy, AIR 1978 SC 223. Many relevant decisions having a bearing on the approach to the question do not appear to have been adverted to in the Full Bench decision in 1978 KLT 470 . Many relevant decisions having a bearing on the approach to the question do not appear to have been adverted to in the Full Bench decision in 1978 KLT 470 . In particular, mention may be made of the decision of Raghavan, J., as he then was, in Kamalakshy & Others v. Narayani, 1967 KLT 1051 . Even the decision in 21 Cochin 1 and 25 Cochin 584 which threw considerable light on the approaches to be made while dealing with such a question, and which have been discussed at length in 1967 KLT 1051 , do not appear to have been considered by the Full Bench. There are useful discussions on the topic in the decisions in Thankammal v. Madhavi Amma, 1966 KLT 181 , and Mundathidathil Kandathy and Others v. Kumbra madathil alias Puthanpurayil Kuttymammi, 1970 KLJ 599 . As stated earlier, in the light of the conclusion I have reached it is unnecessary to pursue this matter further. 15. In view of the above legal position , I am of the view that a custom as has found to be established among the members of the Ezhava community in Trichur Taluk must be accepted in the present case too without independent proof. It must be noted that the necessary pleading about such a custom had been clearly made both in the reply notice Ext. A2 sent on behalf of the defendants and in the written statement filed in the case. In that view of the matter, I have ineluctably come to the conclusion - a conclusion which I do not embrace with any enthusiasm - that the plaintiff has to be non suited. The plaintiff based her claim on the Hindu Succession Act which was inapplicable when succession opened; shaped her evidence in an attempt to make out a custom which did not measure up to the accepted standards of proof; she argued the matter on the basis of justice, equity and good conscience available in the absence of an established custom; she lost her way and her claim, unaided as she was by adequate enlightenment on the legal aspects of her claim and oppressed by the operation of the custom extent in her community and in her area until it was obliterated by statutory intervention on 1-3-1940. 16. The result is that the second appeal fails and is to be dismissed. It is accordingly dismissed. 16. The result is that the second appeal fails and is to be dismissed. It is accordingly dismissed. The circumstances do warrant that there shall not be any order as to costs.