JUDGMENT :- 1. The plaintiff in O.S.No.4/1984 of Sub Court, Irinjalakkuda is the appellant herein. The suit was one filed by the plaintiff for partition of the plaint schedule properties and allotment of her share in the plaint schedule properties with the following allegations: The plaint schedule properties originally belonged to deceased Velandi, Choyi Kunju and Ayyappan Kunju and they were their self acquired properties and ancestral properties. The parties belonged to Arayan community and as per the custom prevailing in the community of Arayans, if one person dies, his properties will devolve upon his sons and daughters equally. So the plaint schedule properties have to be divided into 13 equal shares and plaintiff and defendants 1, 2 and 6 to 13 are entitled to get one such share and defendants 3 and 4 are entitled to get one such share, which their predecessor Gopalakrishnan is entitled to. The 1/13th share of the 9th defendant (wrongly mentioned as 13th defendant in the plaint) has to be allotted to the 14th defendant as he had obtained the right of the 9th defendant in OS.No.8/1979 of Sub Court, Alleppey. Though the plaintiff approached the defendants for partition, they were not amenable for the same. Thereafter she sent a lawyer notice on 6.7.1979 requesting the defendants to partition the property and allottment of one such share to her. But the defendants sent a reply with false allegations and also contended that there was an earlier partition and by virtue of the partition, the plaintiff or other defendants were not having any separate share and supporting defendants are not entitled to get any relief. So the plaintiff filed the above suit for partition of the plaint schedule properties and allottment of 1/13th share to her with past and future profits from the defendants. 2. Defendants 1 to 4 filed a joint written statement contending as follows: The suit is not maintainable. The plaintiff is not entitled to get any right or share in the plaint properties. The aforesaid Velandi, Choyi Kunju and Ayyappan Kunju were the sons of deceased Ayyappan and Ayyappan had got five daughters also by name Chakkipennu, Kurumbakutty, Kunhipennu, Kochukarumba and Kothakutty. On the death of Ayyappan, his properties devolved on his three sons only and daughters of Ayyappan did not get any right in his properties. The daughters of Ayyappan are not the members of Kozhikparambil Tharavadu. On the death of Ayyappan, his properties devolved on his three sons only and daughters of Ayyappan did not get any right in his properties. The daughters of Ayyappan are not the members of Kozhikparambil Tharavadu. The parties to the suit was Arayans and the law applicable to them is Hindu Mitakshara Law. Before coming into force of Hindu Succession Act, 1956, the aforesaid three sons of Ayyappan died and defendants 1 and 2 and deceased Gopalakrishnan, the husband of the 3rd defendant, and father of the 4th defendant are the sons and defendants 11 to 13 are the daughters of Choyi Kunhu. Deceased Ayyappan Kunhu got four sons, who are defendants 5 to 8, and two daughters, who are the plaintiff and the 9th defendant. Since Hindu Mitakshara Law is applicable to the parties to the suit, defendants 1 to 8 effected partition of the properties as per Partition Deed No.77/1972 dated 6.1.1972 and defendants 1 to 4 formed themselves a sub tharavadu. Thereafter defendants 1 to 4 were individually separated as per the partition effected between them. The parties to the partition deed of 1972 have taken possession of the properties and the plaintiff and the 9th defendant were aware of these facts. Defendants 1 to 4 effected partition as per Partition Deed No.1884/1972 dated 11.12.1972 and their properties were partitioned. The suit properties did not belong to said Velandi, Choyi Kunhu and Ayyappan jointly. The suit properties are properties of the tharavadu. The daughters did not get any right over the properties of their parents as far as the Arayan community is concerned. So the plaintiff is not entitled to question the legal validity of the partition deed effected in the year 1972 and properties cannot be re-partitioned. The 14th defendant did not get any decree against the 9th defendant as alleged in the plaint. When the 14th defendant alleged that he was in possession of the some of the properties, defendants 2 and 4 filed OS.No.217/1981 before the Sub Court, Irinjalakuda against the present 14th defendant and obtained injunction decree against him. The 14th defendant is the brother of the husband of the plaintiff. The plaintiff has no cause of action to file the suit against the defendant. The suit properties are not available for partition. The right, if any, of the plaintiff is barred by adverse possession, limitation and ouster. The 14th defendant is the brother of the husband of the plaintiff. The plaintiff has no cause of action to file the suit against the defendant. The suit properties are not available for partition. The right, if any, of the plaintiff is barred by adverse possession, limitation and ouster. The defendants effected improvements in the property spending more than Rs.5 lakhs. They prayed for dismissal of the suit. 3. The 5th defendant filed a separate written statement contending as follows: The suit is not maintainable. The plaintiff has no right over the suit properties. The defendants have effected valuable improvements to the tune of Rs. One lakh in the properties allotted to him. He supported the contentions raised by defendants 1 to 4 in their written statement and prayed for dismissal of the suit. 4. The 7th defendant also filed a separate written statement practically adopting the contentions of defendants 1 to 5 and prayed for dismissal of the suit. 5. The 10th defendant filed a written statement supporting the case of the plaintiff and seeking for partition of the property and remitted necessary court fee for that purpose. Defendants 11 to 13 filed a joint written statement and they practically supported the contentions of defendants 1 to 4, 5 and 7. They also prayed for dismissal of the suit. The 14th defendant filed written statement and supported the case of the plaintiff. According to him, he is entitled to get 1/13th share of the 9th defendant. So he is entitled to get one by thirteenth share in the property. Defendants 6, 8 and 9 remained ex parte. 6. On the basis of the pleadings, the following issues were framed by the trial court for consideration: (i). Is the plaintiff entitled for partition and to get any share in the schedule properties? If so, what is her share? (ii). Is the suit barred by limitation? (iii). Whether the right of the plaintiff lost by adverse possession and limitation? (iv). In case of partition, are defendants entitled for any value of improvements? If so, to which defendants and what is the quantum thereof? (v). Is the plaintiff entitled for any mesne profits? If so, what is the quantum? (vi). Reliefs and costs? 7. PWs 1 to 6 were examined and Exts.A1 to A9 were marked on the side of the plaintiff. If so, to which defendants and what is the quantum thereof? (v). Is the plaintiff entitled for any mesne profits? If so, what is the quantum? (vi). Reliefs and costs? 7. PWs 1 to 6 were examined and Exts.A1 to A9 were marked on the side of the plaintiff. Dws 1 to 4 were examined and Exts.B1 to B16 were marked on the side of the defendants. DW2 was partly examined by the Advocate Commissioner appointed by that court. 8. After considering the evidence on record, the trial court came to the conclusion that Arayan community in Malabar area are followers of Hindu Mitakshara Law, though not in strict principles but followed by customary law of the locality. After considering the decisions on this aspect and on the basis of the documentary evidence produced and also relying on Ext.B11 partition deed produced by the defendants came to the conclusion that there was a custom prevailing among Arayan community in that locality of providing share in the father's self acquired or ancestral properties to daughters and came to the conclusion that sons and daughters are equally entitled to share in their family property and directed partition of the plaint schedule property into thirteen equal shares and allotted one such share to the plaintiff. It was further held that only those properties available as per Ext.B9 alone are available for partition. Since the 9th defendant's share has been sold in court auction which has been obtained by the 14th defendant, the court below held that the 9th defendant is not entitled to get separate share and that share will be given to the 14th defendant and defendants 1 to 5 were entitled to get value of improvements effected by them and the plaintiff is entitled to get mesne profits from other sharers which shall be decided at the time of final decree. With the above directions, a preliminary decree for partition was passed. 9. With the above directions, a preliminary decree for partition was passed. 9. Dissatisfied with the same, defendants 1 to 4 and 7 filed AS.No.12/1990 before the District Court, Thrissur and the learned District Judge also came to the conclusion that Arayan community people of Malabar area are governed by Hindu Mitakshara Law followed in that locality by customary law and relying on Ext.B11, the partition deed effected between the children of Ayyappan came to the conclusion that the evidence will go to show that in Arayan community of Malabar area, female children are not entitled to get share in the self acquired or ancestral property of their father and the plaintiff being one of the daughters of Ayyappan Kunhu is not entitled to get any share and set aside the preliminary decree and judgment passed by the trial court and dismissed the suit. Dissatisfied with the same, the present second appeal has been preferred by the appellant/plaintiff before the trial court. 10. At the time when the appeal was admitted, this Court accepted the questions of law raised in the Appeal Memorandum, which reads as follows: (i). Having proved the custom prevailing in the community of the plaintiff by cogents items of evidence both oral and documentary, is it legal on the part of the first appellate court to set aside the finding without any item of evidence contrary that too on assumptions and presumptions? (ii). Is it not the principles of justice equity and good consciounce to be applied when either parties have failed to prove their respective claims on custom when a partition is to be effected. (iii). Is the appellate court legally justified in reversing the finding of the trial court in the absence of sufficient and cogent evidence unless the finding of the trial court is perverse? (iv). Is it legal to have a partition based on custom after the commencement of the Hindu Succession Act in respect of persons whose inteslate succession are governed by the provisions of Hindu Succession Act of1956? (v). It is legal to deny partition to females after the commencement of the constitution eschewing the principles of justice, equity and good consciounce? 11. Is it legal to have a partition based on custom after the commencement of the Hindu Succession Act in respect of persons whose inteslate succession are governed by the provisions of Hindu Succession Act of1956? (v). It is legal to deny partition to females after the commencement of the constitution eschewing the principles of justice, equity and good consciounce? 11. During the course of argument, learned counsel for the appellant made a submission and also filed a memo for formulating an additional substantial question of law and that was accepted and following additional substantial question of law was also formulated: “In view of the Hindu Succession Amendment Act 39 of 2005 brought in section 6 recognizing the daughters by birth as coparcenar and conferring the same right in the coparcenary property to the daughters also, will not be entitled appellant the share equivalent to others, son of Ayyappan Kunhu, Choyi Kunhu and Velandi in the properties in existence” 12. During the pendency of the appeal, the 9th respondent was removed from the party array as per order in IA.No.2931/2015, 10th respondent died and additional respondents 21 to 26 were impleaded as her legal heirs as per order in CMP.No.663/1999. The 11th respondent died and her legal representatives were impleaded as additional respondents 27 to 33 as per order in IA.No.2886/2010. The 12th respondent died and her legal representative were impleaded as additional respondents 34 to 37 as per order in IA.No.2387/2010. The 13th respondent died and additional respondents 38 to 43 were impleaded as her legal representatives as per order in IA.No.2768/2011. Additional 21st respondent also died and additional respondents 44 and 45 were impleaded as his legal heirs as per order in IA.No.132/2012. Additional 23rd respondent died and additional respondents 46 and 47 were impleaded as his legal heirs as per order in IA.No.136/2012. 13. Heard Sri. P.R. Venkitesh, learned counsel appearing for the appellant, Sri.R.Ramdas, learned counsel appearing for respondents 1, 3, 4, 15 to 20 and 40 and Sri.K.G. Balasubramanyan, learned counsel appearing for the 7th respondent and Sri.K.S. Bharathan, learned counsel appearing for the 14th respondent. 14. Learned counsel appearing for the appellant argued that it was conceded by both the courts that there was no authoritative precedents or books showing the exact manner in which inheritance is being followed in the case of Arayans of Malabar area. 15. 14. Learned counsel appearing for the appellant argued that it was conceded by both the courts that there was no authoritative precedents or books showing the exact manner in which inheritance is being followed in the case of Arayans of Malabar area. 15. Further there is no explanation given by the District Judge while reversing the finding of the trial court that the Arayans of Inrinjalakuda are following customary law which permits inheritance by daughters also in equal share with sons. The first appellate court also came to the conclusion that the evidence adduced is not so strong to come to the conclusion as to the nature of customary law that is being followed by Arayan community of Irinjalakuda in respect of inheritance. Further by virtue of amendment to section 6 of Hindu Succession Act by 2005 Amendment Act daughters were also given status of coparcenars in the ancestral property or self acquired property of the father and by virtue of that provision, the daughters of Arayan community, who are followers of Hindu Mitakshara Law, modified by customary law, are entitled to get share in the property and judgment of the first appellate court has to be interfered with. He had also argued that if for any reasons this Court feels that further evidence is required to prove custom among the Arayan community, an opportunity may be given by remanding the case to the court below. 16. On the other hand, learned counsel appearing for respondents 1, 3, 4, 15 to 20 and 40 and 7th respondent vehemently argued that it is an admitted fact that Arayan community people are not followers of Marumakkathayam Law and they are followers of Makkathayam and Ext.B11 partition deed entered into between the children of Ayyappan, the predecessor of the plaintiff will go to show that the daughters were not given share and excluding daughters, the property was partitioned. Further the documents produced by the plaintiff where the partition was effected among Arayan community people of Travancore area are all of post Hindu Succession Act. So giving share in the father's property is recognized after coming into force of Hindu Succession Act, 1956 and so, that cannot be helpful to prove the custom. Further the documents produced by the plaintiff where the partition was effected among Arayan community people of Travancore area are all of post Hindu Succession Act. So giving share in the father's property is recognized after coming into force of Hindu Succession Act, 1956 and so, that cannot be helpful to prove the custom. Further the Apex Court has categorically held that section 6 of the Amendment Act will not be applicable to persons where the father and the daughter were not alive as on the date of coming into force of the Act and as such, there is no much change by virtue of section 6 of the amendment Act, 2005 as far as this case is concerned and according to the learned counsel, the first appellate court was perfectly justified in dismissing the suit. Learned counsel for the 14th respondent supported the case of the counsel for the appellant as he is only claiming the right of the 9th respondent which he obtained in court sale. 17. It is an admitted fact that the parties in this case belonged to Arayan Community of South Malabar Area (Irinjalakuda). The case of the plaintiff in the plaint itself is that plaintiff and defendants 5 to 9 are the children of Ayyappan Kunju, who is the son of Ayyappan. Admittedly, Ayyappan Kunju died in 1949. The case of the plaintiff in the plaint was that in the Arayan Community, there is a custom of inheritance that daughters also entitled to get right in the property of the father either self acquired or ancestral property equal to the share of sons. There is no precedent relating to the inheritance of property belonged to Arayan Community, as the persons having property in the community are very less. In the book written by Edgar Thurston and K.Rangachari by name “Castes and Tribes of Southern India”, Volume VII deals with communities by name Valan. It is seen from that book that Valan and Katal Arayan are fishermen castes of Cochin State. It is also mentioned therein that as far as Valan community are concerned in respect of inheritance, the Valans follow a system, which partakes the character of succession from father to son, and from maternal uncle to nephew. The self acquired property is generally divided equally between brothers and sons while the ancestral property, if any, goes to the brothers. It is also mentioned therein that as far as Valan community are concerned in respect of inheritance, the Valans follow a system, which partakes the character of succession from father to son, and from maternal uncle to nephew. The self acquired property is generally divided equally between brothers and sons while the ancestral property, if any, goes to the brothers. In the same book it is mentioned the Katal Arayans, or sea Arayans, who are also called Katakkoti, are lower status than the Valans, and, like them, live along the coast. There are four sub-divisions, Sankhan, Bharatan, Amukkuvan and Mukkuvan, and they have four illams, namely, Kattotillam, Karotillam, Chempotillam and Ponnotillam. It is also mentioned in page 293 of that book that succession is in the male line. There is not much treaties regarding the manner in which succession is being followed in such cases except certain inferences drawn by the authors from the particulars gathered by them for the purpose of authoring the book on their customs relating to marriage, life style and inheritance. This will only give an inference as to how they were following the customs in certain aspects like marriage, inheritance etc. It is clear from the observations made by the author in the book that they are following Hindu law and the line of succession is on male line and the daughters were having no right in the property. So we will have to first consider as to whether there is a rule of customary law that they are following for this purpose. 18. In the decision reported in Narayani Amma (Ist plaintiff v. Sankara pillai(3rd Defendant) 1960 KLT 1195 , the question as to whether what is the law of inheritance followed by Sree Bhandara Chettis was considered. They are minority community of considerable numerical strength in the Thiruvananthapuram District. In that case, the Full Bench has held that the law of inheritance applicable to Sree Bhandara Chettis is the rule of Hindu Law have to be applied, unless it is shown that there is a custom modifying the same. The custom modifying Hindu Mithakshara law, pleaded by the plaintiffs has to be proved by them and if it is not proved then, it is presumed that they are governed by Hindu Mitakshara law. 19. The custom modifying Hindu Mithakshara law, pleaded by the plaintiffs has to be proved by them and if it is not proved then, it is presumed that they are governed by Hindu Mitakshara law. 19. In the same decision it has been held that, “It is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends”. 20. In the decision reported in Dharmodayam Company v. Balakrishan 1962 KHC 172 = 1962 KLJ 1004 , the Division Bench had an occasion to consider the law applicable to Thiyyas of Calicut. The High Court has relied on the decision reported in (Parambarathil) Pattukkayal Chakutti and others v. Kothembra Chandukutti AIR 1927 Madras 877, wherein the Madras High Court held that, Makkathayam Thiyyas are governed by what is called the customary law and that when a question arises as to what is the rule of law governing them on any particular matter, what we have to see is what is the rule of customary law obtaining amongst them in that matter and in cases which are not sufficiently governed by prior decisions, the question will have to be determined with reference to the evidence in the case. In the absence of any satisfactory evidence to show what exactly is the tub of the customary law on any particular point, the rule of Hindu law on that point must, we think, be presumed and adopted to be the rule of the customary law obtaining amongst the community on that point. The presumption is not that the Hindu Law as such is the law governing them in all matters; if that be the presumption a person who alleges the rule of customary law at variance with it will have to prove it as a custom in derogation of the law. The presumption is not that the Hindu Law as such is the law governing them in all matters; if that be the presumption a person who alleges the rule of customary law at variance with it will have to prove it as a custom in derogation of the law. The presumption is simply that the rule of the Hindu Law is also the rule of the customary law obtaining amongst them, so that if any person alleges that the rule of the customary law on any particular point is something different, the evidence that he adduces in support of his allegation ought not to be subjected to those well known tests which are applied to the case of an alleged custom contrary to or in derogation of the law, but should be viewed simply as evidence adduced to show what is the rule of the customary law itself. The presumption therefore will be useful and will hold good only if satisfactory evidence is not forthcoming as to what is the rule of the customary law and held that the rule of impartibility should not be invoked in the case of the Thiyyas of Calicut, unless it was established by the evidence in a given case. Relying on this decision it has been held that rule of Hindu law is the rule of customary law and the person alleging that the customary law is different should adduce the evidence as to what is the rule of customary law itself. It cannot be said that the incident of impartibility has been recognised in judicial decisions so as to dispense with proof. Party setting up the incident of impartibility that it exists in the community or in the families in question has to be proved by him. It is further held in the same decision that applicability of doctrine of pious obligation will give currency in the community that recognise more husbands that one is doubtful no son is under pious obligation to pay the debts of their father. 21. In the decision reported in Saraswathi Amma v. Anantha Shenoi 1965 KLT 141 it has been held that, “A Mitakshara father has absolute right of disposition over his self acquired property to which no exception can be taken by his male descendants. 21. In the decision reported in Saraswathi Amma v. Anantha Shenoi 1965 KLT 141 it has been held that, “A Mitakshara father has absolute right of disposition over his self acquired property to which no exception can be taken by his male descendants. The property of the grandfather himself can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his life time. On both these occasions the grandfather's property comes to the father by virtue of the latter's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands. There can therefore be little doubt that the properties inherited by the sons of a Hindu are ancestral or joint family properties in their hands” 22. It is further held that, The Hindu law as administered in Travancore was in certain respects not the same as that was prevalent in the Madras State. The principles of Hindu Law by Mulla made little reference to the laws and customs current in the state of Travancore or Cochin. General Observations made by that learned author on the basis of the practice in Madras cannot therefore be taken as reflecting the Hindu Law in practice in the above mentioned States. It follows that, in the absence of precedents of the High Court of Travancore or Cochin reference has to be made to the law laid in the original texts themselves. 23. Further in the same decision, it has been held that “According to the Mithakshara, the widow is entitled to a share of the joint family properties at a partition thereof among her sons, equal to that of a son or a moiety thereof as the case may be. The normal right of a Hindu widow is to maintenance out of the income of the whole of the joint family estate; but when the joint family estate is divided she is entitled to a share of the estate in lieu of her right of maintenance. Her right to the share arises on partition among the sons, and then only. Under the preliminary decree in this case the sons and the grandsons of a late son became separated individually; and therefore the widow has become entitled to a share in the suit properties. Her right to the share arises on partition among the sons, and then only. Under the preliminary decree in this case the sons and the grandsons of a late son became separated individually; and therefore the widow has become entitled to a share in the suit properties. The scope of Section 14 of Hindu Succession Act, 1956 was also considered in this case and held that Section 14(1) covers “interests acquired before or after the commencement of the Act. An interest acquired after the Act cannot be possessed on the date of the Act. The interest of the appellant (widow) in the present case was acquired on the date of the preliminary decree dated January 2, 1958. Till then it was not her property. She had only a right of maintenance out of the income of the joint family estate. But, with the passing of the preliminary decree she acquired property and that in possession. The word 'possessed' in S.14 is used in a broad sense and in the context means the state of owning or having in one's power. So the present case is clearly within the ambit of S.14(1) of the Act. The operation of S.14(2) does not arise in this case where the question is of the propriety of the imposition of a restriction, and not the effect of it. A decree within the meaning of S.14(2) cannot be a decree which is under appeal, but only a decree become final. If the object of S.14(1) is to convert the interest of the Hindu female, which under the Sastric Hindu law, would have been a limited interest, into an absolute interest, and by the Explanation thereto, the expression, 'property' was given the widest connotation to include property acquired “at a partition or in lieu of maintenance' the imposition of the condition of reverter would be defeat the legislated provision”. 24. In the decision reported in Nanu Kuttan v. Nanu Neelakandan 1966 KLT 790 a Single Bench of this Court had occasion to consider the law applicable to Valans in Travancore area. In the decision it has been held that Arayans, Marakkans, Mukkuvans and Valans are the fishermen communities and most of them follow Makkathayam and some of them a mixture system of Makkathayam and Marumakkathayam. None of them said to follow Marumakkathayam alone. Valans follow Makkathayam and probably a mixture system of Makkathayam and Marumakkathayam. In the decision it has been held that Arayans, Marakkans, Mukkuvans and Valans are the fishermen communities and most of them follow Makkathayam and some of them a mixture system of Makkathayam and Marumakkathayam. None of them said to follow Marumakkathayam alone. Valans follow Makkathayam and probably a mixture system of Makkathayam and Marumakkathayam. In the decision reference has been made regarding the decision reported in Piley Thomman v.Ayyappankutty Kochunny [ 1955 KLT 564 ] which relates to valans of Cochin, there it has been held that the Valans of Cochin follows a mixture form of inheritance while Arayans observe Makkathayam. It was based on certain observations made in Cochin State Manual, the Cochin Tribes and Castes and the Castes and Tribes of Southern India. By relying on the book Cochin Tribes and Castes by Ananthakrishna Iyer Vol.I, page 231, it has been observed that Valans follows a system of inheritance partaking of character of succession from father to son and from maternal uncle to nephew that is a mixed system of inheritance. Again it says that among the Valans of Cochin self acquired property generally equally divided between brothers and sons while ancestor property goes to brothers. That amongst Arayans succession is in male line that the son succeeds the property of their father and the case of Mukkuvans also succession is in the male line in Cochin and South Malabar, in female line in North Malabar. Sundra Ayyar in his Malabar and Aliyasantana law has appended list of caste governed by Makkathayam and Marumakkathayam system of inheritance as Appendix A at page 327. Among the Makkathayam caste the author has included the Mukkuvans in the south land law and he has included among Marumakkathayam caste also Mukkuvans in the south. It appears to be a mistake Mukkuvans in the South follow Makkathayam, whereas Mukkuvans in the North follows Marumakkathayam that is what Ananthakrishna Iyyer has stated in his work already referred to and that appears to be the correct position. 25. Another work which may ease fully referred to in this connection in the History of Kerala by Padmanabha Menon. In Vol.III, the author says that Mukkuvans are fishermen by profession and that classes akin to this are the Valans and Arayans. The author also observes that some of the Mukkuvans go by name of Marakkans and that while Valan follow a mixed form of inheritance. In Vol.III, the author says that Mukkuvans are fishermen by profession and that classes akin to this are the Valans and Arayans. The author also observes that some of the Mukkuvans go by name of Marakkans and that while Valan follow a mixed form of inheritance. Arayans observe Makkathayam. The Travancore State Manual by Vellupillai Vol.I. page 837 says that Aryayans are fishing community and closely allied to them are the Marakkans, Mukkuvans, Nulayans and Valans, who are all fishermen caste. This work also says these caste also follow Makkathayam. 26. Castes and Tribes of South India by Edgar Thurston relying on Ananthakrishna Iyar's work says that inheritance among Valans partakes the character of succession from father to son and from maternal uncle to nephew, the self acquired property being divided equally between brothers and sons and while the ancestral property going to brothers. I am also in conclusion referred to census report of 1931 Part I, Vol.XXVIII at page 380, it is stated that Arayans follow Makkathayam, at page 383 Marakans of Karunagappally are said to follow Makkathayam while those in Cherthala are said to follow Marumakkathayam, at page 384 Mukkuvans are said to follow mixed system of Makkathayam and Marumakatahyam, at page 384 again. Nulayans are said to follow Makkathayam and page 386, Valans are said to follow mixed system of Makkathayam and Marumakkathayam. 27. From the above discussions, the Single Judge of this Court in the above decision had derived principle that what appears from the above said works is that Arayans, Marakkans, Mukkuvans, Nulayans and Valan are fishermen communities and most of them follow Makkathayam and some of them a mixed system of Makkathayam and Marumakkathayam. None of them is said to follow Marumakkathayam alone as claimed in the present case. So it is clear from the above decision also that Arayans normally follow Makkathayam, which is the principle of Mitakshara law and in some area by custom they follow Marumakkathayam and in such cases evidence of customary law on this aspect has to be established. 28. The decision reported in Kalipennamma v. St.Pauls Convent 1972 KLT 12 deals with the law applicable to Valans. 28. The decision reported in Kalipennamma v. St.Pauls Convent 1972 KLT 12 deals with the law applicable to Valans. The question arose as to whether the widow will get a right in the estate of deceased husband and came to the conclusion that widow of Valan community will not get any share in the estate of her deceased husband and does not even get a right of residence. But a contra view taken by Justice M.U.Issac and his lordship had observed that she will entitled to get a share of her deceased husband's property equally along with her son but ultimately the second appeal was dismissed on other grounds. 29. In the decision reported in Arakkal Rohini and Another v. Arakkal Koottappanakkal A.K.Sethumadhavan, Kozhikode and Others (AIR 1978 Kerala 119), it has been held that, “The burden is on the party setting up any particular rule of custom to prove the same. In the absence of proof of custom, the Hindu and mithakshara law will be presumed to apply to 'thiyyas' of Calicut”. 30. In the same decision it has been further held that, “In the absence of any rule of custom, Hindu law doctrine of pious obligation must be presumed to apply to 'thiyyas' of Calicut, this would be so even, if it is assumed that the custom of poliyandry was prevelant among 'thiyyas'. Contrary view in Dharmodayam Company v. Balakrishnan ( 1962 KLT 712 ), was held to be obitor and over ruled”. 31. It is clear from the above dictums that, when a party claims a particular rule of custom, the burden is on that party to prove the same. In the absence of such proof, then the law applicable to that community prevailing in that area will be presumed to be Hindu law or particular law applicable to those persons. In the decisions reported above, which deals with custom regarding 'thiyyas' of Calicut, it was held that in the absence of any rule of custom, the presumption is that, they are presumed to be following Hindu Mithakshara law for all practical purposes. In the decisions reported above, which deals with custom regarding 'thiyyas' of Calicut, it was held that in the absence of any rule of custom, the presumption is that, they are presumed to be following Hindu Mithakshara law for all practical purposes. As regards the velan community of Travancore-Cochin area is concerned, it was held that, they are normally presumed to be followers of Hindu Mithakshara law known as 'makkathayam' in this area and in some places it will be modified by custom and it is for the person who are pleading such custom has to prove that as far as that area is concerned, the custom contrary to pristine Hindu Mithakshara law will be applicable to those areas. It is also clear from these decisions that a particular type of custom prevailing in one area cannot be taken as a precedent or custom applicable to another area, unless it is proved that such type of custom is being followed in that area also among such communities. Though there is no precedent as to the law applicable to arayan community, in the decisions discussed above, and also on the basis of the treaties by authors on caste and custom in south India referred to above, it is inferable that arayans belong to fishermen community such as valan also and they are followers of Hindu Mithakshara law, unless it is proved that in particular area rule of custom modified the mithakshara law is being followed by such persons. It is also clear from the discussions above that in some areas even fishermen community people are following mixed custom of 'mithakshara law' and 'marumakkathayam law', but it has to be proved by evidence, that such a custom is being followed in antiquity among the members of that particular community in that particular area so as to apply that rule of custom to such persons. In the absence of any evidence regarding such rule of custom, then it has to be presumed that the Hindu Mithakshara law will be applicable to such community in that particular area. So everything will have to be decided on the basis of evidence available in this case on this aspect, which can be discussed later after considering the question regarding the impact of amendment to Section 6 of Hindu Succession Amendment Act, 2005 in respect of coparcenary properties. 32. So everything will have to be decided on the basis of evidence available in this case on this aspect, which can be discussed later after considering the question regarding the impact of amendment to Section 6 of Hindu Succession Amendment Act, 2005 in respect of coparcenary properties. 32. Section 6 of Hindu Succession Act, 1956 has been amended by Amendment Act, 39 of 2005, which came into effect from 09.09.2005, which reads as follows:- [6. Devolution of interest in coparcenary property.- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, - (a). by birth become a coparcener in her own right in the same manner as the son; (b). have the same rights in the coparcenary property as she would have had if she had been a son; (c). be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and, - (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a predeceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child or such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a predeceased son or a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect- (a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be, or (b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation- For the purpose of clause (2), the expression 'son', 'grandson' or great-grandson' shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. 33. So by virtue of the amendment, a vast change has been made in regard to succession regarding coparcenary property, whereby a right has been given in the coparcenary property to the daughter as well equal to that of a son. 34. In the decision reported in Narayanan v. Meenakshi ( 2006 (1) KLT 210 ), it has been held that, “Section 23 of the Hindu Succession Act, 1956 would apply even if the deceased is survived by only one male heir along with female heir or heirs, the object is to prevent fragmentation or disintegration of family dwelling house at the instance of a female heir to the prejudice of male heirs”. 35. 35. In the same decision, it has been further held that, “The expression used in Section 23 of Hindu Succession Act, is “includes a dwelling house only occupied by members of his or her family”, if the stranger is inducted in the dwelling house, it must be taken that the male heir had lost his animus posidandi”. 36. The protection under Section 23 is not indefeasible. Section 23 curtails the right of female heirs to claim partition until the male heirs choose to divide their respective shares only in the contingencies mentioned in Section 23. Section 23 is an exception to the general rule that class one heirs are entitled to partition of their shares in the property of their predecessor. The exception is with the conditions mentioned in Section 23. Section 23 must be strictly construed. The male heirs can claim the benefit only if they fully satisfy all the conditions laid down in Section 23. The defendant admittedly having inducted a stranger in a portion of the dwelling house wherein that stranger is conducting business, the defendant is not entitled to claim any protection under Section 23 of Hindu Succession Act. 37. Further in the same decision, it has been held that, the right of a male heir to resist partition invoking Section 23 is absolutely personal to such male heir and it is not heritable or alienable. Further the scope of amendment Act, 39 of 2009, where Section 23 of Hindu Succession Act was omitted, has been considered and held that, as per Section 4 of Hindu Amendment Act, 2005 (Act 39 of 2005), Section 23 of Hindu Succession Act 1956 is omitted. The question is whether, the omission of Section 23 of Hindu Succession Act in view of the commencement of Act 39 of 2005 during the pendency of a suit for partition or a second appeal there from has relevance in deciding the question. Whether the male heir or male heirs could resist the suit for partition under Section 23 of the Act. The right to claim the benefit of Section 23 is personal to the male heirs of the Hindu intestate, such right is not heritable or alienable. Therefore, it cannot be said that cessation of such personal right during the pendency of the suit for partition would not entitle the female heirs to claim partition taking note of the subsequent events. The right to claim the benefit of Section 23 is personal to the male heirs of the Hindu intestate, such right is not heritable or alienable. Therefore, it cannot be said that cessation of such personal right during the pendency of the suit for partition would not entitle the female heirs to claim partition taking note of the subsequent events. If the contention that the state of affairs as on the date of the suit alone will be relevant is to be accepted, then it would have the effect of indirectly holding that, the personal right of a male heir to resist partition could be continued by his legal representatives in case such male heir dies during the pendency of the suit. The personal right of the male heir cannot be claimed by legal heirs. Therefore whenever the personal right of a male heir under Section 23 comes to an end, the right of female heir to claim partition cannot be defeated, in other words a defeasible right of a female heir would get defeated the moment his personal right ceases, such personal right of a male heir is taken away by the omission of Section 23 of Hindu Succession Act, 1956, by the Hindu Succession Amendment Act, 2005. The effect of such omission would be retroactive. The omission of Section 23 of the Hindu Succession Act, 1956 by the Amendment Act, 39 of 2005 would have retroactive effect and the changed law would be taken note of and applied in pending litigations. By omission of Section 23 of Hindu Succession Act, 1956 as per the Hindu Succession Amendment Act, 2005, the right of the male heir to claim benefit of Section 23 would get defeated even in pending litigation. 38. In the decision reported in Sheela Devi and Others v. Lal Chand and Another (2006) 8 SCC 581 ), it has been held that, “As per a mithakshara law in usage prior to the commencement of 1956 Act, once a son was born, he acquired an interest in the coparcenary property as an incident of his birth. Hence a son having been born prior to the commencement of 1956 Act could retain a share in the property as a coparcenor, even after the commencement of 1956 Act, while the fathers shall devolve upon his heirs including the provisions of 1956 Act”. 39. Hence a son having been born prior to the commencement of 1956 Act could retain a share in the property as a coparcenor, even after the commencement of 1956 Act, while the fathers shall devolve upon his heirs including the provisions of 1956 Act”. 39. It is further held that, so long as the property remains in the hands of a single person, though it be inherited coparcenary property, it would be treated as a separate property. But once a son is born the concept of the property being coparcenary property in terms of mithakshara law is revived. 40. In the decision reported in G.Sekar v. Geetha and Others (2009) 6 SCC 99 ), it has been held that, “Whether a statute having prospective operation will affect the pending proceedings would depend upon the nature as also text and context of the statute. Although omission of a provision, operates as an amendment to the statute whether the litigant has obtained a vested right as on the date of institution of the suit which is sought to be taken away by operation of a subsequent statute will be a question which must be posted and answered. Section 6 of General clauses Act, 1897, whereupon reliance has been placed could have been applied provided the amendment in question takes away some bodies vested right. The restrictive right contained in Section 23 of Hindu Succession Act, 1956 is merely a disabling provision which cannot be held to remain continuing despite of Hindu Succession Amendment Act, 2005. A right in terms of Section 23 of 1956 Act, to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. A right of a son to keep the right of the daughters of the last male owner to seek partition of a dwelling house is being a right of the male owner to keep the same in abeyance till the division takes place is not a right of enduring nature. It cannot be said to be accrued right or vested right, such a right indisputably can be taken away by operation of the statute and/or right removing the disablement clause. Such a right could be enforced if a cause of action therefore arose subsequently. Once the right (of a daughter) becomes enforcible, the restriction must be held to have been removed”. 41. Such a right could be enforced if a cause of action therefore arose subsequently. Once the right (of a daughter) becomes enforcible, the restriction must be held to have been removed”. 41. It is further held in the same decision that Section 23, restrictions become operational, only at the time of partition of property be metes and bounds. It is further held in the same decision that, restrictions imposed on a right must be construed strictly in the context of restrictive right as contained in Section 23 of 1956 Act. It must be held that, such a restriction was to be put in operation only at the time of partition of the property by metes and bounds as a grant of preliminary decree would be dependent on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed declaring each co-sharer to be entitled to his share, thereon in terms of Section 8 of the Act, they cannot be divested of said right at the restriction and enjoyment of right by seeking partition by metes and bounds is removed by Section of 2005 Act. 42. In the decision reported in Janardhanan v. Rugmini (2010(3) KLT 7), it has been held that: “Suit filed by female heirs before Amendment Act 39/2006 for partition of dwelling house is not barred. What is barred is only actual partition by metes and bounds and not passing a preliminary decree declaring the entitlement of each co-sharer as per the rules of succession. Application of the Amendment Act 39/2005 is prospective”. 43. In the decision reported in Prema v. Nanje Gowda ( 2011(6) SCC 462 ), it has been held that: “By the preliminary decree, shares of the parties were determined but the actual partition/division had not taken place. Therefore, the proceedings of the suit instituted by Respondent 1 cannot be treated to have become final so far as the actual partition of joint family property is concerned. As on 30.7.1994 when Section 6-A Hindu Succession (Karnataka Amendment) Act, 1990 came into force the final decree proceedings were pending. Therefore, the proceedings of the suit instituted by Respondent 1 cannot be treated to have become final so far as the actual partition of joint family property is concerned. As on 30.7.1994 when Section 6-A Hindu Succession (Karnataka Amendment) Act, 1990 came into force the final decree proceedings were pending. The appellant had every right to seek enlargement of her share by pointing out that the discrimination practiced against the unmarried daughter had been removed by the legislative intervention and there is no reason why the court should hesitate in giving effect to an amendment made by State Legislature in exercise of the power vested in it under Article 15(3) of the Constitution. The trial court and the Single Judge were clearly in error when they held that the appellant was not entitled to the benefit of Karnataka Act 23 of 1994 because she had not filed an application for enforcing the right accruing to her under Section 6-A during the pendency of the first and second appeals or that she had not challenged the preliminary decree by joining defendants 1, 4 and 5 in filing the second appeal”. 44. That was a case where the question arose as to whether Section 6-A of Karnataka Amendment Act to Hindu Succession Act will have any impact regarding pending matters in final decree for partition and the Apex Court has held that till the final decree is passed, parties are at liberty to exercise their right to get enlarged share on the basis of the amendment. 45. In the decision reported in Ganduri Koteshwaramma and another v. Chakiri Yanadi and another ( 2011 (9) SCC 788 ), it has been held that: “The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 9.9.2005. The legislature has now conferred substantive right in favour of the daughters. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from 9.9.2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from 9.9.2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshra law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in Section 6(1) proviso. For the purposes of new Section 6, it is explained that “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court. In the light of a clear provision contained in the Explanation appended to Section 6(5) for determining the non-applicability of Section 6, what is relevant is to find out whether the partition has been effected before 20.12.2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. The preliminary decree passed by the trial court on 19.3.1999 and amended on 27.9.2003 does not deprive the appellant daughters of the benefits of the 2005 Amendment Act since the final decree for partition has not yet been passed. It is true that final decree is always is required to be in conformity with the preliminary decree but that does not mean that a preliminary decree before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree”. 46. It is further held in the same decision that: “A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed.” 47. The Apex Court has further held that High Court was clearly in error in not properly appreciating the scope of Order 20 Rule 18 of the Code of Civil Procedure. After the passing of the preliminary decree, the suit continues until the final decree is passed.” 47. The Apex Court has further held that High Court was clearly in error in not properly appreciating the scope of Order 20 Rule 18 of the Code of Civil Procedure. The Code of Civil Procedure creates no impediment for even more than one preliminary decree if after passing of preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasize that the rights of parties in a partition suit should be settled once for all in that suit alone and no other proceedings. 48. In the decision reported in Babu v. Arunapriya ( 2012 (4) KLT 487 ) this Court has considered the scope of amended Section 6 of Hindu Succession Act of 2005 and held that: “The provision applies only to coparcenary property surviving as on the date of enactment of the amended provision of the Hindu Succession Act. In the State of Kerala after the enactment of Act 30/1976, coparcenary property ceases to exist and all the members of the coparcenary who till then were joint tenants become tenants in common as if a statutory partition had taken place among all the coparceners. Section 4 of the said Act provides that all members of an undivided Hindu family governed by the Mitakshara Law holding any coparcenary property on the day the Act comes into force shall be deemed to hold it as tenants in common, as if a partition had taken place among all the members of that undivided Hindu family. Therefore, on the day on which the Hindu Succession Amending Act No.35/2005 came into force, there was no coparcenary property existing within the State of Kerala consequent to the passing of Act 30/1976”. 49. Further in the decision reported in Rohit Chauhan v. Surinder Singh and others ( 2013 (9) SCC 419 ), it has been held that: “Property falling in share of a single coparcener would be treated as his separate property vis-a-vis his relatives and he would be competent to alienate/deal with it in any manner he would like. 49. Further in the decision reported in Rohit Chauhan v. Surinder Singh and others ( 2013 (9) SCC 419 ), it has been held that: “Property falling in share of a single coparcener would be treated as his separate property vis-a-vis his relatives and he would be competent to alienate/deal with it in any manner he would like. But upon his marriage subsequently when a son is born (and after the 2005 Amendment to Hindu Succession Act, 1956, also a daughter), property in his hand would be treated as coparcenary property in which sons/daughters as coparceners would get shares. Hence after birth of a child, he could dispose of that alienations of such property by way of sale and gift after he was born, having not been made by his father as Karta for any legal necessity, were null and void, deserved to be decreed. However, in respect of property which would have fallen in share of his father at the time of execution of sale and release deeds, parties can work out their remedies in appropriate proceedings”. 50. In the decision reported in Prakash v. Phulavati ( 2016 (2) SCC 36 ), the Apex Court has considered the scope of Section 6 substituted by Hindu Succession (Amendment) Act, 39 of 2005 and held that: “It is not retrospective in operation and applies only when both the coparcenr and his daughter were alive on date of commencement of Amendment Act i.e., 9.9.2005 irrespective of date of birth of daughter and coparcener who died thereafter. By virtue of proviso to sub-section (1) and main subsection (5) of amended Section 6, disposition, alienation or partition which had taken place before 20.12.2004 under unamended provision would remain unaffected and transaction of partition effected after that date would be governed by Explanation to Section 6(5) as introduced by Amendment Act by reading Explanation harmoniously with main sub-section (5)”. 51. So it is clear from the above dictum that the Act will have only prospective in operation and for the purpose of applying the present Section 6, both the living daughters of living coparcener as on 9.9.2005 must exist irrespective of when such daughters were born. So for the purpose of applying Section 6 of the Amendment Act both the coparcener and the daughter must be alive as on 9.9.2005 when the Amendment Act came into force. So for the purpose of applying Section 6 of the Amendment Act both the coparcener and the daughter must be alive as on 9.9.2005 when the Amendment Act came into force. This decision will answer the additional substantial question of law raised in this appeal and the benefit of this provision will not be available to the plaintiff. Further by virtue of the dictum laid down in the decision reported in Babu v. Anupriya (2012 (4) KLT 486), there is no impact of Section 6 of the Amendment Act of Hindu Succession Act as far as Kerala is concerned as there exists no coparcenary property in Kerala after the coming into force of Kerala Joint Family Abolition Act, 1977. So in that way also the amended Section 6 of Hindu Succession (Amendment) Act, 2005 has no impact as far as properties in Kerala are concerned. So the additional substantial question of law raised on the basis of the Amendment Act 39 of 2005 is answered accordingly against the appellant. 52. It is an admitted fact that the plaint schedule property belonged to Ayyappan, the predecessor of the plaintiff and the defendants. It is also in a way admitted that the plaintiff and defendants belonged to Arayan community of Irinjalakuda which is part of South Malabar. The evidence adduced on the side of PWs 1 to 6 along with Exts.A1 to A8 produced by the appellant are not helpful to come to a definite conclusion regarding the nature of customary law that is being prevailing among the Arayan community people. Further it will be seen from the evidence that Exts.A1, A3, A4 and A9 relate to the area of Travancore and Cochin and the rule of inheritance among the Arayan community in former British Malabar is different from that of Travancore Cochin area. Further Exts.A2, A6 and A7 are partition deeds effected after Hindu Succession Act came into force and after the coming into force of Hindu Succession Act, the female children of a coparcener is entitled to get a share in the property. Further it will be seen from the evidence that it was made on the basis of some mediation among the members as well. Further it will be seen from the evidence that it was made on the basis of some mediation among the members as well. So under such circumstances, the trial court as well as the lower appellate court have rightly come to the conclusion that Exts.A1 to A9 and the evidence of PWs 1 to 6 are not helpful to come to a conclusion that Arayan community of British Malabar are governed by the customary law of Mitakshara Law whereby the female children are also entitled to get a share. So in the absence of such evidence and as discussed in the decisions mentioned above, it can only be presumed that the Arayan community people are followers of Mitakshara Law and female member will not get any right in the property. 53. Ext.B11 is the document executed in 1913 whereby the properties were partitioned among Ayyappan, his male children and his nephew Kunhiparan and the properties partitioned belonged to Kunhiparan senior (father of Ayyappan) and grandfather of Kunhiparan namely Ayyappan. Further self acquisition of Ayyappan were also put into the hotch-pot and it was partitioned among the male members only. It was brought out in evidence that there were female children for Ayyappan at that time and they were not included in Ext.B11. Further the female children of Ayyappan and their legal representatives were not made parties in the present suit as well. Ayyappan's three male children namely Velandi, Choyi Kunjhu and Ayyappan Kunjhu alone were made parties to the Partition Deed of 1913 evidenced by Ext.B11. If really the family members of the plaintiff were following the Mitakshara Law modified by the customary law providing share to the female children, then normally the female children also would have been included in the partition deed and they would have been given share in the property. But that was not done in the case. Further the plaintiff had no case that Ext.B11 is not a valid document as well. So that reflects the custom prevailing in the family of the plaintiff that they are following Hindu Mitakshara Law and not customary law prevailing in that area. 54. But that was not done in the case. Further the plaintiff had no case that Ext.B11 is not a valid document as well. So that reflects the custom prevailing in the family of the plaintiff that they are following Hindu Mitakshara Law and not customary law prevailing in that area. 54. Further Ext.B9 document, that has been relied on by the trial court for the purpose of coming to the conclusion that female children were also given share and thereby there is a custom prevailing among the Arayan community that the female children also given share in the property. But it may be mentioned here that it was a partition among defendants 1 to 8 in the year 1972 and defendants 1 and 2 and deceased Gopalakrishnan and defendants 5 to 8 were the male children of Velandi, Choyi Kunhu and Ayyappan Kunhu and defendants 3 and 4 were legal heirs of Goplakrishan who joined in Ext.B9 document as legal heirs of Gopalakrishnan. There also the share of Gopalakrishnan were given to defendants 3 and 4, who are his wife and daughter. Admittedly Gopalakrishnan died after coming into force of Hindu Succession Act, 1956. So that may be the reason why the wife and female children were given share as provided in Section 6, then it stood of the Hindu Succession Act. So that cannot be taken as a ground to come to a conclusion that the female children also entitled to get share in the property as observed by the trial court. 55. Further Exts. B7 and B8 will go to show that the 14th defendant had no right in the property and the 14th defendant had not filed any appeal against the same. Further the evidence of Dws 1 to 3 will go to show that there is no custom prevailing in the Arayan community of South Malabar providing share to female children and they are following Hindu Mitakshara Law and as such, the plaintiff is not entitled to get any share in the property belonged to their father who died long ago. Further the evidence of Dws 1 to 3 will go to show that there is no custom prevailing in the Arayan community of South Malabar providing share to female children and they are following Hindu Mitakshara Law and as such, the plaintiff is not entitled to get any share in the property belonged to their father who died long ago. So under such circumstances and on the basis of the evidence available on record, it can only be presumed that Arayan community of South Malabar erstwhile British Malabar were followers of Hindu Mitakshara Law and female members are not entitled to get any share in the ancestral or self acquired property of the father and as such, the plaintiff is not entitled to get any share in the property as observed by the first appellate court. So it can be held that the evidence available on record is not sufficient to come to the conclusion that there is a custom prevailing in Arayan community of South Malabar following customary law modifying Hindu Mitakshara Law providing share to the female children. But on the other hand, in the absence of such evidence, it can only be presumed that they are followers of Makkathayam and female children are not entitled to get any share in the ancestral property of their predecessor and as such, they are not entitled to get any share in the plaint schedule property on partition. So the lower appellate court was perfectly justified in coming to the conclusion that the plaintiff is not entitled to get any right of partition and rightly dismissed the suit setting aside the preliminary decree and judgment granting a decree for partition by the trial court. There is no illegality committed by the first appellate court in passing the judgment. The substantial questions of law raised are answered accordingly against the appellant. The appeal lacks merits and the same is liable to be dismissed. In the result, the Second Appeal fails and the same is hereby dismissed. The decree and judgment passed by the appellate court dismissing the suit is hereby confirmed. Considering the circumstances of the case, parties are directed to bear their respective costs in the second appeal. Interim order, if any, passed is vacated. Interim applications, if any, pending are dismissed.

Sathiabhama, Shertallai Taluk v. Velandy, Chavakkad Taluk