Holding

Pattakkal is not a surviving branch of Pandambeli and therefore has no reversionary right to Kandangalam property; the Supreme Court will not re‑appreciate the factual findings of the lower courts absent a miscarriage of justice.

Summary

The plaintiff, a legal representative of a member of the Pattakkal tarwad, claimed a reversionary right to the properties of the extinct Kandangalam tarwad, asserting that Pattakkal was an undivided branch of the ancient Pandambeli tarwad. The lower courts dismissed the suit, holding that Pattakkal was not a branch of Pandambeli and that the property of the extinct branch had already been divided among the surviving branches. On appeal, the High Court affirmed the lower courts' findings, and the Supreme Court, hearing the matter under Article 136, examined whether the evidence could be re‑appreciated and whether Pattakkal could inherit the property. The Court held that there was no proof that Pattakkal was a surviving branch of Pandambeli, that the extinction of Pandambeli in 1906 and the subsequent division of its assets precluded any later claim, and that the Supreme Court does not re‑appreciate facts absent a serious miscarriage of justice. Consequently, the appeal was dismissed and each party was ordered to bear its own costs.

Issues considered

Whether Pattakkal tarwad is an undivided collateral branch of Pandambeli tarwad.
If Pattakkal is a branch, whether it is entitled to succeed to the assets of the extinct Kandangalam branch.
Who are the rightful heirs when a divided branch of a tarwad becomes extinct.
Whether the Supreme Court may re‑appreciate evidence on a special leave petition under Article 136.
Whether the claim is barred by limitation.

Legislation cited

Constitution of Indias. Article 136

Subjects

customary lawtarwadreversionary rightextinction of lineagesuccessionMarumakkattayamspecial leave petitionArticle 136limitationevidence re‑appreciation

Judgment

PATTAKKAL KUNHIKOYA (DEAD) BY LRS. A
v.
THOOPIKAL KOY A AND ANR.

DECEMBER 15, 1999

[S.B. MAJMUDAR AND UMESH C. BANERJEE, JJ.] B

Customary law: Laccadive Minicoy and Amindivi Islands-Pandambeli,
an ancient tarward became extinct in I 906-Pattakkal and Thoopikal,
branches of Pandambeli-Kandangalam, sub-branch of Thoopikal became
extinct in 1958-Plaintiff, a member of Pattakkal claimed properties of C
Kandangalam by rights of reversion-Suit filed by appellant before Tehsi/dar
for recovery dismissed-Appeal also dismissed-On appeal, High Court
remanded ·the case to Sub-Court for fresh disposal-Sub-Court disallowed
plaintiff's claim on the ground that Kandangalam was a sub-branch of
Thoopikal and properties should go to Thoopikal-Appeal io High Court D
dismissed-On appeal, Held: On extinction of Pandambeli properties were

.. divided amongst the three branches-As Pattakkal neither claimed nor
objected at that time, therefore, could not claim later-No evidence as to the
communality of interest of the Patta~l of Andhrot-No evidence as to the
continuation of relationship at Amini between Pattakkal and Pandambeli-
No proof of Pattakkal being a branch of Pandambeli-Plaintiff not entitled E
to the suit property.

Constitution of India, I 950 : Article 136-Concurrent findings offacts
by the courts be/ow-Appellant's effort to get the entire evidence re-
appreciated under appeal by special leave-Held, normally Supreme Court F
does not re-appreciate evidence for the purpose of examining whether finding
offacts arrived at by the Courts below is correct or not-Re-appreciation of
facts allowed only in cases of serious miscarriage of justice.

The plaintiff-appellant herein, a member of the Pattakkal tarwad in
Lakshdweep Island, filed a suit before the Tahsildar claiming his entitlement G
to the properties of Kandangalam tarwad on the extinction of the said tarwad
in 1958 and prayed for recovery of possession. The plaintiff asserted that
Pattakkal tarwad was an undivided branch of Pandambeli tarwad of which
Kandangalam was another branch and as such on the extinction of
Kandangalam tarwad, Pattakkal tarwad of which the plaintiff is a member is H
371
372 SUPREME COURT REPORTS [1999) SUPP. 5 S.C.R.

. A the sole surviving undivided unit of the original Pandambeli tarwad and is
thus entitled to succeed to all the properties and the assets of Kandangalam
by rights of reversion. Pandambeli is an ancient tarwad in Amindivi Island
and admittedly became extinct in 1906. A female member of Pandambeli had
gone to Androth earlier and one of her daughters Beeashabi returned to
B Amindivi with her. children in about 1853 or 1859 under very strained
situation when damage was caused in Androth due to floods and the Karnavan
of Pandambeli gave them some of the tarwad properties. It is Beeashabi through t•
whom the plaintiff descended lineage. The plaintiff contended that tbe tarwad
properties were given to Beeashabi towards their share whereas the defendant
contended that the properties were given to them as an act of charity only.
C The said suit was dismissed and even an appeal against the said decision was
also dismissed by the Appellate Authority. Further appeal to the High Court
was allowed by setting aside the order of the Tahsildar. However, the matter
was remitted to the Sub-Court, Kavaratti for fresh disposal on merits. The
Sub-Court held that Pandambeli, the parent tarwad ofKandangalam was not
in existence even after 1906 and hence there was no question of the properties
D of Kandangalam tarwad being reverted to Pandambeli and such the plaintiff
cannot lay any claim to those properties. It was also found that Kandangalam
was a sub-branch ofThoopikal branch of Pandambeli tarwad and it alone was
entitled to the properties on the principle that the properties of the extinct
branch must go the tarwad from which it separated itself. It was also concluded
E that the plaintiff had not been able· to establish that Pattakkal is collateral
undivided branch of Pandambeli having any interest in the properties of
Kandangalam tarwad being reverted to Pandambeli. Appeal to the High Court
was dismissed. Hence the present appeal.

The issues requiring adjudication in the present appeal were whether
F Pattakkal was a branch of Pandambeli tarwad and if so, whether they could
claim properties of Kandangalam branch which stands extinct in 1958.
Further, when a divided branch becomes extinct who could be heirs to inherit
its property obtained from the common and parent tarwad.

G Dismissing the appeals, this Court

HELD. 1.1. It is an admitted fact that Pandambeli tarwad become extinct
in 1906 when the last surviving member Abdul Kadir Khazi died. It is in
evidence that on such extinction, the properties of tarwad were divided amongst
the members of three branches which separated from it and these three
H branches had been in undivided possession and enjoyment of property and the
PA TT AKKAL KUNHIKOY Av. THOOPIKAL KOYA 373
plaintiffs through Beeashabi did not choose either to object to put forward A
the claim as a co-sharer. While it is true that some assertions were made
in the year 1936 but ultimately the same did not succeed. There was, as a
matter of fact, no right as the coparcener of the entire tarwad-the right,
if any, got extinguished in 1906 and since there was no objection when the
properties were divided amongst three of the separate branches from the
extinct tarwad and as such question of entitlement would not arise. One B
branch, again assuming to be. part of the tarwad, excludes itself from the
common tarwad but subsequently asking for a right of inheritance is wholly
unwarranted. (381-C, D, E,)

1.2. The aftlux of time and the conduct of the Pattakkal people in not
enforcing their claim in Pandambeli tarwad properties run in favour of the C
defendants. When the last member of Pandambeli tarwad sought to convert
some of the properties for being included in his acquisition there was no
objection from Pattakkal group but from the three branches, namely,
Kadukiyam, Thoopiyakal and Kandangalam and in terms of the agreement
inter se amongst the parties the properties of Pandambeli were divided between D
the surviving three branches. No objection at any point was raised; neither
any claim made for the share therein and by reason of the sheer lapse of time
one cannot but come to a conclusion so as to negate the plaintiffs' right to
be a part of Pandambeli tarwad or to the properties thereof. Thus it clearly
emerges that there was total extinction of Pandambeli tarwad in 1906 and
till 1938 there was never any assertion of any right for less exercise of the E
right of ownership so far as Pattakkal tarwad is concerned vis-a-vis the
Pandambeli tarwad's property. (385-D, E; 392-A, BJ

1.3. Reversionary interest could be considered ifthat reversioner is in
the line of succession and not an ousted reversioner or otherwise briefly put F
an outed co-sharer cannot act and be termed to be a reversioner in interest
Entitlement to property ought to have its origin through some common
ancestors-the claim from Beeashabi by the plaintiffs, however, has not been
traced to common ancestor and there is no evidence on record on that score--
neither the.re is.any evidence on record that even Pattakkal of Andhrot had
any communality of interest in properties with Pandambeli or vice-versa. G
Beeashabi arrived at the Amindivi Island under a strained and an emergent
situation and unless some relationship with the ancestors having common
property interest is a available on record, the question of ascribing Beeashabi
with any entitlement would not arise. [381-E, F, G)

1.4. Assuming, however, that pattakkal tarwad family is a branch of H
374 SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.

A Pandamteli tarwad, even then admittedly Pattakkal tarwad is of Andhrot and
not Amini. Ifat any point ofiime Pattakkal was a part of Pandambeli then
in that event the subsequent shifting from Amindivi to Andhrot without any
specific evidence that they continue to maintain the same relationship, question
of continuation of relationship at Amindivi between Pattakkal and Pandambeli
does not and cannot arise. [381-H; 382-A-B)
B
2.1. As this appeal arises under Article 136 of the Constitution of
India, Judgment of the subordinate Court as also of the High Court wherein
concurrent findings of fact had been reached by both the Courts on
appreciation of evidence cannot be assailed by making an effort to get the
entire evidence re-appreciated as if this is a third appeal on facts. It is not
C the practice of this Court to re-appreciate the evidence for the purpose of
examining whether the finding of fact arrived at by the High Court and the
Subordinate Court is corrert or not. Exception can be taken in the event of
serious miscarriage of justice or manifest illegality but not otherwise. This
Court is not a regular Court of appeal to which every judgment of the High
D Court may be brought for a further scrutiny in regard to its correctness.
There must be some patent error of law which have resulted in the miscarriage
of justice, otherwise and in the normal circumstances this Court would not
be justified in interfering with the orders of the High Court.
(392-F, G, H; 393-AJ

E Bhawani Pillai v. Ammukutti Pillai, (1958) KLT 869; Velayudhan Nair
v. Janaki, (1957) KLT 222; Bhagwati v. Naraina Pillai, (1966) KLT 1160;
-Secretary of State v. Dugappa Bhandary, AIR (1926) Mad 921 and
Eramagappapalli Karappen Nair v. Clzenen Nayar, Madras High Court
Reports, (VI)-441, referred to.
p "A Short Account of Laccadive Islands and Minicoy" By R.H. Ellis,
referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3005 of
1983 Etc.
WITH
G
C.A. No. 8838 of 1983.
From the Judgment and Order dated l.6.1979 of the High Court ofKerala
in A.S. No. 213of1974.
T.R.G. Wariyar, A.S. Nambiar, T.L.V. Iyer, S. Balakrishnan, P.K. Manohar,
H Samad C.S., and S. Prasad for the appearing parties.
PA TT AKKAL KUNHIKOYA v. THOOPIKAL KOYA [BANERJEE, J.] 375
The Judgment of the Court was delivered by A
BANERJEE, J. These appeals by the grant of special leave arising out
of the judgments of Kerala High Court focus enforcement of certain ancient
customs prevalent in the Lakshadweep Territory. The dispute relates to certain
properties which belonged to a tarwad called Kandangalam which became
extinct on the death of its last member in the year 1958. B
Before proceeding with the matter any further on the factual score, be
it noted that the submissions of the parties were confined t~ three specific
issues raised in the matters: (i) whether Pattakkal is a branch of Pandambeli
tarwad; (ii) if so, can they claim properties of Kandangalam branch which
stands extinct in 1958; and (iii) when a divided branch becomes extinct who C
could be the heirs to inherit its property obtained from the common and
parent tarwad.

The plaintiff-appellant herein, a member of the Patakkal tarwad, instituted
an action before the Tahsildar, being the authority to decide civil disputes in
the Lakshadeep Islands claiming his entitlement to the properties of D
Kandangalam tarwad on the extinction of the said tarwad and prayed for
recovery of possession. The plaintiffs definite assertion in the plaint is that

- the Pattakkal tarwad is an undivided branch of Pandambeli tarwad of which
Kandamgalam was another branch and as such on the extinction of the latter
tarwad Pattak.kal tarwad of which the plaintiff is a member is the sole surviving E
undivided unit of the original Pandambeli tarwad and its thus entitled to
succeed to all the properties and the assets of Kandangalam by rights of
reversion.

Incidentally, this particular litigation has a chequered career. The Tehsildar
dismissed the suit in the year 1963 and an appeal before the Appellate F
Authority, namely, Development Officer of the L.M. & A. Islands in terms of
the provisions of Laccadive, Minicoy and Amindivi Islands (Civil Courts)
Regulation, 1965 came over to the file of the High Court at Kerala and the
appeal registered AS No. 409 of 1968 was allowed by the High Court by its
judgment dated 20th July, 1973. In its judgment the High Court set aside the G
order of the Tehsildar and the matter was however remitted to the Sub-Court
Kavaratti for fresh disposal on merits. The learned Subordinate Judge in terms
of the order of the High Court, however, came to the conclusion that the
plaintiff has not been able to establish that Pattakkal is a collateral undivided
branch of Pandambeli tarwad having any interest in the properties of
Pandambeli tarwad. It was held that Pandambeli, the parent tarwad of H
376 SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.

A l(andangal_am was not in existence even after 1906 and hence there is no
question of .the properties of Kandamgalam tarwad being reverted to
Pandambeli and as such the plaintiff cannot lay any claim to those properties.
The learned Subordinate Judge also found that Kandangalam was a sub-
branch of Thoopikkal branch of Pandambeli tarwad and alone was entitled do
B the properties on the principle that the properties of the extinct branch must
go the tarwad from which it separated itself. Being aggrieved, however, the
matter came up before the High Court in appeal and the High Court also did
lend its concurrence with the findings of the learned Subordinate Judge and
dismissed the appeal without any interference and hence these appeals before
this Court.
c Before adverting to respective submission as adva11ced it would be
rather profitable to note certain historical data of the people of Androth and
Ameni islands. A lucid details whereof would appear from R.H. Ellies's account
of the Laccadive Island and Minicoy. Ellis noted:

"The religion is Muhammadan. Like the Mopalahs on the mainland,
D the islanders belong to the Shafi School of the Sunni sect and
acknowledge, besides the Koran, the authority of the Sunni or
customary Jaw as interpreted by Shafi. They are very strict in all their
religious observances and have earned a great reputation for orthodoxy
and piety among Muhammadans on the mainland. The men of Androth,
E particularly, pride themselves upon their religious knowledge and many
of the Koyas of this island travel through Malabar giving religious
instruction to the Moplahs and setting religious disputes."
On the people of Ameni Island Ellis has the following to state:-
"On Ameni the people are divided into four classes:- (1) Tarawad, (2)
F Tranakampranavar, (3) Kudiyatis and (4) Melacheries. About 5 per
cent of the population belong to the first, 35 per cent to 40 per cent
to the second, 5 per cent to the third, and the remainder to the last
class. The distinction between them appears to have been based
originally upon property. The Tarawad class consisted of the four
G original tarawad families, Pondambelli, Porakat, Beyamada and Thupekal
(now represented by the Poradan family), which alone in the early
days of the settlement had tenants. The Tanakampranavar, as their
name indicates, were those possessing independent property of their
own but with no tenants under them. The Kudiyatis were originally
the tenant class. The Melacheries were the landless tree climbers.
H Now, however, the Kudiyatis and even some Melacheries have acquired
PATT AKKAL KUNHIKOY Av. THOOPIKAL KOY A [BANERJEE, J .] 377

property of their own and all except the Melacheries have tenants. A
The first two classes can intermarry and intermarriage between them
and the Kudiyaties is allowed, but has very seldom taken place. The
women, however, of the Porakat family and its branches in remembrance
of an old insult offered to a Porakat lady by a Tanakampranavan do
not marry. Tanakampranavars, although a Porakat man will marry a
Tanakampranavan girl. Intermarriage for both classes with the B
Melacheries is strictly prohibited. In one case, a Tanakampranavan
who married a Melacheri girl was outcasted. Intermarriage between the
third and the fourth class is allowed.
Members of the Tarawad families emigrated to the Malabar Islands and
founded families there. Thus the extinct idiyyakal family at Kavarathi was a C
branch of the Pondambelli family, while the Arenakada and Pudiyedan families .
are branches of the existence Ameni family of pudian. So also the Pattakal
family at Androth is a branch of the Pondambelli, and the Manmel Tarawad
ofKalpani is a branch of the Trupekal family. The Ameni Tarawad families will
intermarry with these related families and also with the Karanavar class on the D
Malabar islands but not with other classes.

On chetalat Kiltan and Kadamath, with the exception of one family at
Kiltan the people are all Melacheries who have migrated either form Ameni
or from the coast. On these northern islands those Melache~ies who can read
the Koran are styled Mukris and do not climb trees. One family at Kiltan E
which emigrated from Agathi many generations ago is not regarded as Melacheri
and always holds the Khaziship of the island. On both Chetlat and Kiltan a
few of the leading families style themselves Koyas and dress in rather better
fashion but intermarry with the other Melacheri families. Their superior standing
is not recognised by the Ameni islanders and when they visit that island, they
have to conform to the custom regarding Melacheri dress." F
A brief reference to the factual matrix, would also be convenient and
useful at this juncture. Pandambeli is an ancient tarwad in Amini Island a~d
admittedly became extinct in 1906. A female member of Pandamebli had gone
to Androth earlier and one of her daughters Beeashabi returned to Amini with G
her children in about 1853. or 1859 under very strained situation when much
damage was caused in Androth due to floods and the then Karnavan of
Pandambeli gave them some of the tarwad properties. It is at this however that
the disputes arose between the parties; whereas the plaintiff contended that
• · the tarwad properties were given towards their share, the defendants contended
that the same to be given to them to be enjoyed as Veliasha (tarwad) properties, H
378 SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.

A so that they might survive in Amini. Properties were given to them not
because they had any right to Pandambeli properties, but only as an act of
charity. When, however. Pandamebli became extinct in 1906; the records depict
that the properties were shared by the two branches of the defendants and
Kandangalam who were the reversionary heirs. Pattakkal never objected to
that till 1936 when alone they filed CS 24/38 which was however dismissed
B being barred by limitation and also that the Pattakkal tarwad was not entitled
to the properties of Pandambeli tarwad. The Revenue Divisional Officer reversed
the findings of the Moneger and by his appellate judgment decreed the suit.
The defendants then took the matter in appeal before the Collector and the
suit was dismissed by him upholding the plea of limitation but without
C deciding the question of relationship and property rights claimed,by the
Pattakkal tarwad. Later in 195 8 the Kandangalam branch became extinct.

Incidentally, the High Court in the earlier remand order as noted above
held that the decisions in CS 24/38 do not operate as res judicata in
considering the question of the status claimed by the plaintiff and has further
D held as below :

"On the merits it goes without saying that the plaintiff would succeed

-
only if he establishes his title, namely, the fact that Pattakkal tarwad
is entitled to succeed to the assets of Kandangalam branch. It is not
sufficient if he simply establishes that Pattakkal tarwad was a collateral
E branch of Pandambeli tarwad. Something more has to be proved. Even
if plaintiff seems to be a member of a collateral tarwad that would not
be sufficient ipso facto to enable the plaintiff to get a decision. He
must show equal affinity with the other branches, if not closer (5th
0

page begins). These are matters which the court will certainly look
F into when matter goes back to it."

Two specific issues were raised for decision before the learned
Subordinate Judge which in fact would also answer the three questions raised
herein before in this judgment. The issues being.

(a) Whether Pattakkal is an undivided collateral branch of
G Pandambeli;

(b) Whether Pattakkal is entitled to succeed to the assets of
Kandangalam in preference to Kadukkiyam and Thoopikal who
are the reversionary heirs of Kandangalam?

H The judgment as available on record contains a detailed analysis of the
PATTAKKAL KUNHIKOYA v. THOOPIKALKOYA [BANERJEE,J.] 379
practice and procedure also as regards the entitlement of the parties. We do A
record our appreciation therefore. It would thus be useful to record the
observations of the learned Subordinate Judge who had the opportunity of
going through the original records of the matter. The learned Subordinate
Judge observed :

"The main controversy js over the terms 'our Santhankarathi and B
given under Velliaezha right' According to the plaintiff the term
Santhankarathi means a female member of the tarwad and so what
Sainuddin had stated in Ext.P-3 is that "Beeashabi is that "Beeashabi
is a member of our tarwad", and "properties were given because of
her right in the tarwad". According to the defence, the term, C
"Santhanakarathi" means wife and what Sainuddin had stated is that
the properties were given to his wife Beeashabi to be enjoyed as
tarwad properties. The word "Santhanakarathi" is not found any where
else and the parties have not produced any other document in which
the word has been used, to understand its meaning, though DW-1 has
stated that he has seen many other documents in which the word, D
"Santhanakarathi had been used to mean the wife. It is patent that this
word has its origin from the word a common Malayalam word and that
"Santhanakarathi" means one who give "Issue". Whether Beeashabi
was described as the giver of 'Issue' for the Pandambeli tarwad or for
Sainuddin is the controversy".
E

That Beeashabi was referred to as one who would give offsprings for
the Pandambeli tarwad need not necessarily mean that she was treated
as a member of the tarwad which was inexistence in Amini when she
came from Androth, and was deemed to be a sharer of the properties F
of the tarwad. If she was considered as a member of the tarwad there
was no difficulty to describe her as a member of the tarward or of a
collateral branch of the tarwad or whatever status she had in relationship
to Pandambeli tarwad. This vague term of santhanakarathi must have
been used only to mean that she was not an absolute stranger to the G
tarwad but was one having Pandambeli blood in her, but a remote
connection. There is no evidence as to which predecessor of Beeashabi
went to Androth from Amini and how many generations ago. PW-I
has sworn that his information is that it was the mother of Beeashabi

- who went to Androth but it must be patently false. It must have been
some generations ago that Pandambeli people went to Androth H
380 SUPREME COURT REPORTS [199?1 SUPP. 5 S.C.R.

A because Ellis has said that Pandambeli people founded a family called
Pattakkal at Androth and that Pandambeli people will inter marry with
the related family. It is only reasonable to infer under the circumstances
that Beeashabi could have had only very remote connections with
Pandambeli and that she was not considered to be a member having
community of interest in property. She had her family house and
B tarwad properties in Androth at the time."

The right, if any, thus upon tracing the property in the hands of
Beeashabi will have to be ascertained vis-.a-vis the circumstances under
which the properties were given to Beeashabi. Androth Island had been the
C place of residence of Beeashabi and her coming to Amini under very special
circumstances, namely, flood occurring at Androth ought to be taken note of-
it is not that Beeashabi came to Amini for the purpose of assertion of her right
but to save her life and thus properties were made over for her bare subsistence.
The properties were to be enjoyed as Veliyasha properties so as to be enjoyed
by her group and not in lieu of her rights in Pandambeli tarwad properties.
D Pattakal people were never treated as having had anything to do with
. Pandambeli and the properties of that tarwad. It was in 1883 that Sainuddin
went to the Moneger to safeguard the interest of Beeashabi and her children
and in the decision of the Moneger, (Ext. 02) reference was made to several
branches of pandamebli but without any reference to the Pataakkal which the
E plaintiff claimed to l:>e an undivided branch. It is also seen from Ext. D4, that
Abdul Kader Musaliar of Pandambeli moved another petition in 1905 for
permission to convert some tarwad properties of Pandambeli into his Veliyasha
properties and Kandanglam Kunbi Pakki and Kadukkiyam Ammutty objected
· to that but nobody sought the concurrence of the Pattakkal people. If Pattakkal
was a collateral branch of Pandambeli they should have been the first to be
F consulted before converting tarwad properties into separate properties. As a
matter of fact Pandambeli people had not recognised Pattakkal as a branch
of that tarwad and that Pattakkal people never claimed to be so and much less
as having an interest in the properties given to Pattakkal Beeashabi by the
Pandambeli Karanvan when she came from Androth after the damages caused
G at Androth due to floods. The conferment of proprietary rights thus are not
in recognition of any rights of Beeashabi in the ·Pandambeli tarwad properties.

Incidentally at the time of the disposal of the appeal before the Kerala
High Court (A.S. No. 407/68) in terms of which the matter was remanded to
the Court of Subordinate Judge, the Appellate Bench of the High Court in
H paragraph 8 of the judgment recorded that the success of the plaintiff would
-
PATTAKKAL KUNHIKOYA v. THOOPIKAL KOYA [BANERJEE,J.] 381

only be there if plaintiff establishes his title namely, the fact that Pattakkal A
tarwad is entitled to succeed to the assets of Kandangalam branch. The High
Court observed that it is not sufficient if the plaintiff simply establishes that
Pattakkal tarwad was a collateral branch of Pandambeli tarwad but something
more had to be proved and even if the plaintiff be a member of a collateral
tarwad, that would not be sufficient ispo facto to enable the plaintiff to get
the decision. The plaintiff must show equal affinity with the other branches, B
if not closer. We also do feel it expedient to record our concurrence with the
observations of the High Court since mere factum of Pandambeli tarwad being
a collateral branch of Pattakkal tarwad would not be enough to sign a judgment
in favour of the plaintiff.
c
It is an admitted tact that Pandambeli tarwad became extinct in 1906
when the last ~urviving member Abdul Kadir Khazi died. It is in evidence that
on such extinction, the properties to the tarwad were divided amongst the
members of three branches which separated from it and these three branches
particulars of which would be dealt with immediately hereinafter, had been in D
undivided possession and enjoyment of the property and the plaintiff through
Beeashabi did not choose either to object or to put forward the claim as a
co-sharer. While it is true that some assertions were made in the year 1936
but ultimately the same did not succeed. There was, as a matter of fact, no
right as the co-parcener of the entire tarwad-the right if any, got extinguished
in 1906 and since there was no objection when the properties were divided E
amongst three of the separate branches from the extinct tarwad and as such
question of entitlement would not arise. One branch and again assuming to
be a part of the tarwad excludes itself from the common tarwad but
subsequently asking for a right of inheritance is wholly unwarranted.
Reversionary interest could be considered if that reversioner is in the line of
succession and not an ousted reversioner or otherwise briefly put an ousted F
co-sharer carinot act and be termed to be a reversioner in interest. Entitlement
to property ought to have its origin through some common anc~stors-the
claim from Beeashabi by the plaintiffs, however, has not been traced to
common ancestor and there is no evidence on record on that score-neither
there is any evidence on record that even Pattakkal of Andhrot had any G
communality of interest in properties with Pandambeli or vice versa. As
noticed above Beeashabi arrived at the Amini Islands under a strained and
an emergent situation and unless some relationship-with the ancestors having
common property interest is available on record, the question of ascribing
Beeashabi with any entitlement would not arise.
H
382 SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.

A Assuming however that Patakkal tarwad family is a branch of Pandambeli
tarwad, even then admittedly Pattakkal tarwad is of Andhrot and not Amini.
If at any point of time Pattakkal was a part of Pandambeli then and in that
event the subsequent shifting from Amini to Andhrot to without any specific
evidence that they continued to maintain the same relationship, question of
B continuation ofrelationship at Amini between Pattakkal and Pandambeli does
not and cannot arise. It is significant to note that the distance between
Pattakkal and Pandambeli is also far too long so as to attribute any commonness
to them. Ellis at the beginning of his account (supra) stated that Pandambeli
people founded a family called Pattakkal at Andhrot and that inter-marriages
are permissible between Pattakkal and Pandambeli people. Ellis, however
C further stated that inter-marriages between the same tarwads are not permissible
and since there is no marriage and Beeashabi's common ancestor has not
been traced out the question of having a common ancestor and a corresponding
claim by reason therefore would not arise.

It has been contended in support of the appeal that "attaladakkam"
D which is the Malayalam equivalent of ,. succession on extinction'' is only a
Rule of succession by "Virtue of distant relationship". Community of Interest
in the property of the unit that became extinct is not at all necessary or even
relevant. If the succeeding heir had a subsisting right in the property of the
extinct branch, the latter cannot become extinct at all but would continue to
E be the same br::mch with the survivors as the members since the name
"branch" includes all persons having an interest in the property.

Referring to the evidence of DW I Thoopikal Koya who happened to
be the only witness examined by the defendants wherein the latter says that
so far .as Pandambeli properties were concerned, the members of Kadukiyam
F Thoopiyakal and Kandangalam were the death heirs and relying thereon it has
been contended that when all the members living in Pandambeli died, the 3
branches then present shared the properties only in their capacity of "Death
heirs" or inherited the property as "successor" on the death of the members
as living in Pandambeli. It is not by virtue of any pre-existing right over the
G Tarwad property but only by succession. The pre-existing right as members
of the Tarwad had come to an end when they initially took their share and
separated. The fact that Pattakkal branch did not claim their due share
disentitled them from claiming shares from the assets of the extinct unit of
Pandambeli by the law of Limitation. But their affinity to the other units is not
extinguished by any principle of law. No such principle of customary Law is
H pleaded or proved. It has been further contended that membership of a tarwad
PATT AKKAL KUNHIKOY Av. THOOPlKAL KOY A [BANERJEE, J .] 383

is a right by birth or where permissible by adoption. Membership or affinity A
is not lost by failure to claim right for long periods. The rule of customary
law has not been examined or applied at all either by the Subordinate Judge
or even by the High Court and as a matter of fact there cannot be any
question of applicability of law of Limitation in the islands at all. The learned
senior Advocate in support of the appeal further contended that the existence B
of 'Community of Interest' between the branch which claims to succeed and
the extinct branch is not a qualification necessary for succession to the
extinct branch. Such a requirement has not been pleaded or proved to be a
part of the customary law. The parties are governed by customary law. The
oral and documentary evidence on record do not even suggest such
requirement being necessary to succeed as an heir. What has to be done is C
only to apply the customary law which, if disputed wi:t have to be proved
in the same manner in which a custom is to be established. A custom
disentitling a surviving branch from succeeding to an extinct branch has not
been pleaded or established. The precedents or evidence in the case do not
justify such a contention being raised for the first time before this Court. In
fact, the entitlement of a surviving branch to succeed is admitted. even in the D
evidence of DWI. Such a plea, if allowed to be r~.ised in spite of the admissions
in this case, will have to be tried and evidence will have to be taken. There
is no application for amending the written statement. Even the remand order
in A.S. 407 of 1968 does not cover such a plea. It is submitted that the
respondent's counsel did not even argue that Pattakkal is not a branch of E
Pandambeli tarwad. The claimants are the descendants of Beeayisha who is
mentioned in Ex. P3 to P5 and other documents. The plaintiffs-Appellants are
thus entitled to succeed.

It was further contended that some ancestral property of Pandambeli
tarwad was given for maintenance of Beeayisha and children without objection F
from anyone is enough to establish that their branch was a branch of the
Pandambeli tarwad. Membership of tarwad is a matter of right by birth and
such a branch can never cease to be branch of the tarwad by lapse of time
as stated by the Subordinate Judge. Their status as a branch continues and
that alone is relevant for succession to another extinct branch according to G
the Rule of Customary Law as stated even by the defendants. The remand
order in AS No. 407 of 1968 also precedes on the basis that Pattakal people
from a branch of Pandambeli.

The defendants being the respondents herein relying on the issue of
re-marriage contended that the trial court had found that inter-mruTiage between H

..
I
384 SUPREME COURT REPORTS [1999) SUPP. 5 S.C.R.

A. Padambeli and the Pattakkal families was possible and that was a ground for
holding that Pattakkal did not constitute a branch of the Padambeli family.
This finding was not challeng~d in the appeal. The only gPound taken in the
memorandum of appeal in the High Court was that the trial ~ourt was in error
in assuming that in a Marumakkathayam family there cannot be inter-marriage
among the members of the family-a ground which was never sought to be
B established and which is opposed to the concept of Marumakkathayam law.
When this is position, and since inter-marriage between Pattakkal and
Pandambeli families was possible, it is conclusively established that th~se two
families are separate without any common bond between them. Assuming that
Pattakkal was a branch of Pandambeli, at some ancient time in the absence
C of any evidence or any case of any community of interest being established
at any point of time, it has to be presumed that the bond if any that existed
previously had not survived.

The learned senior Advocate for the respondents also contended that
as a matter of fact the Pattakkal group had not been claiming any right over
D Pandambeli properties and vice-versa and the fact that they have no such
rights has been accepted by PWl in his evidence wherein he has said :

"In my knowledge Pattakkal people in Androt have not put forward
any right regarding properties of Pap.dambeli or other Sakhas. Androth
people have no right in the property which was given to beeayisha
E and her children from Pandambeli and they have put no claim for it.

Androth people also are branch of Pandambeli. I cannot say whether
they have any community of interest (The translation of "former
relation is wrong". The correct translation is indicated above.")

F It has been contended that the absence of any claim by Pattakkal was
evidently because they were not members of the Pandambeli tarwad with a
right to claim a share in its properties or of any of its branches. As already
stated the permissibility of inter-marriage between these two families is a
strong indication that they were not having any common bonds at all.
G Exts. P3 to P5 and the use of the word Santhankarathi are stressed in
support of the plaintiffs case. Santhankarathi means the progenitor of off-
spring i.e. wife. There is no further to go into the genesis or the meaning of
this term, as it is evidence from Ext. P3 to P5 that the properties were given
to be Beayisha as a matter of charity and not because of any right when she
H came from Androth in distress. The document giving the property is not
PATT AKKAL KUNHJKOY Av. THOOPIKAL KOY A [BANERJEE, J .] 385

produced. There _is only the hear-say statement of Sainudin in Ext.P3. Ext.P3 A
is only an objection by Sainudin before the Moneger. The issue for decision
in Ext.P3, Petition was not whether Beayishabi was a member oftarwad or not.
The question was whether Hussain kutty who retained an item of property
could do so or not. It was in that context that Sainuddin was called upon to·
make oath on certain matters. There was no adjudication in those proceedings
about the nature of the properties given to Beayishabi etc. Nothing, therefore, B
tenns on Ext.P3 to PS.

Thirty two years after the Pandambeli tarwad became extinct, a claim
was made for the first time by a member of Pattakkal group to its property.
The claim was dismissed by the proceedings Ext.812 of the Moneger. It was C
allowed by RDO by Ext.Pl. The Collector, however, set aside Ext.Pl and
dismissed the Pattakkal claim as barred by limitation. He did not express his
opinion on the merits of the claim. Therefore, Ext.Pl on which reliance is
placed by the appellant does not survive and the findings therein cannot
constitute res judicata or even be of any evidential value.
D
The afflux of time and the conduct of the Pattakkal people in not
enforcing their claim in Pandambeli tarwad properties run in favour of the
-defendants. When the last member of Pandambeli tarwad sought to convert
some of the properties for being included in his acquisition there was no
objection from Pattakkal group but from the three branches, namely, Kudukiyam,
Thoopiyakal and Kandangalam and in terms of the agreement inter se amongst E
the parties the properties of Pandambeli were divided between the surviving
three branches as noticed above. No objection at any point was raised neither
any claim made for the share therein and by reason of the share, lapse of time
one cannot but come to a conclusion so as to negate the plaintiffs right to
be a part of Pandambeli tarwad or to the properties thereof. p
While the plaintiff has not been able to place any near relationship to
Pandambeli, Ext. D-II, the decision of the Moneger traced the genealogy of
Pandambeli family and its branches to 120 years prior to 1886 (i.e. from 1766).
A reference in this context be made to the decision of Moneger as noticed
and which reads as below:- G
"On consideration of the statement of the parties and after examining
the Muktassers, it is seen that the Petitioner's tarwad is the Pandambeli
house where the Defendant is residing. (Mariya)? Mardiya, a lady of
Pandambeli had three daughters approximately 120 years ago. From
among them, "Adabi" was made to reside in Thooppiyakkal house. H
'
1--

386 SUPREME COURT REPORTS [1999) SUPP. 5 S.C.R.

A Mardiya stayed on in Pandambeli. The assets obtained from the
former Thoopiyakkal, when _she was made to reside in Thoopiyakkal,
was given to her for maintenance. Like this, the residents in that
house (Thoopiyakkal) were looking after the properties available there
and were maintaining themselves with these assets. Subsequently,
when all the family members in Pandambeli died, there were no women
B to look after their grandchildren. Therefore, Adabi, who had earlier
tone to Thoopiyakkal from Pandambeli, was brought and made to stay
in Pandambeli. When the children were grown up. Ummathumma, the
lady who was brought from Thoopiyakkal, were given properties from
Pandambeli tarwad by the then Karnavan and she was given a house
c called Kandangalam. This was about 70 to 80 years back. Tha,t lady
continued to reside in that house. Aforesaid Ummathumma is the
direct elder sister of the Petitioner. Assets have thus been given to
Kandangalam about 70 years ago. The present Mukhtiyar, the
Defendant gave some more property from Pandambeli to the Petitioner."

D The tracing back for 120 years signifies that Kandangalam was a sub-
branch of Thoopiyakkal being founded by one of its members, Ummathumma.
Pattakkal was never treated as a branch of the Pandambeli family with any
right or communality of interest in his property or in any one of its branches.
It is on this score that the Learned Advocate for the Defendant very strongly
E contended that by reason of complete absence of evidence of any such
relationship-distant or otherwise and by reason of the factum of there being
no trace of common ancestors between Pandambeli and Pattakkal, the question
of entitlement to any relief in the suit does not and cannot arise and as such,
it has been contended, that both the Subordinate Judge and the High Court
were right in rejecting the contentions of the plaintiff and consequently
F dismissing the suit. The Bench of the High Court, upon reliance on Exhibit
P-III being the certified copy of a petition dated 30th July, 1883, filed by
Pandambeli Sainudin before the Moneger, observed as below:-

"It is stated by Sainudin in that petition that when Beeashabi (who
is described therein as Friday property came over to Amini Island from
G
Androth consequent on the floods at the latter place some properties
had been given to them by him on ...... " In our opinion, the Court
below is perfectly right in holding that the expression "one through
whom children are born sandanam karti" cannot be understood as
denoting a member of Sainudin 's tarwad having community of interest
H in the tarwad properties. In our opinion, it will be reasonable to
PATTAKKAL KUNl-llKOYA v. THOOPIKAL KOYA [BANERJEE, J.) 387

understand that expression as connecting a spouse as contended by A
the defendants-respondents. However that may be, the case of the
plaintiff that the Pattakkal branch of Androth had been founded by
the Migration from Amini of Beeashabi's mother cannot be accepted
as correct."

The High Court after relying upon the Eilis's Book 'A Short Account B
of the Laccadive Islands and Minicoy" came to a conclusion:

" ............... that the Pattakkal family at Androth had been in existence
for a long time prior to 1924 and that though the original of Pattakkal
tarwad could be traced to Pandambeli there were intermarriages between
the members of the two tarwads, namely, Pattakkal of Androth and C
Pandambeli of Amini. If Pattakkal was an undivided branch of
Pandambeli, it is inconceivable, according to the custom in the Islands,
that much intennarriages would have been pennitted. P.W.1 has admitted
that his family people are known as Pattakkal, that as members of
Pattakkal tarwad they have properties and house at Androth, two D
tavazhies of the said tarwad being still based in Androth Island. In
his cross-examination before the Tahsildar, P. W. l had further stated
that the children of two sisters of Beeashabi are settlers in Androth
Isl?nd. As rightly pointed out by the learned Subordinate Judge if
Beeashabi was a member of the Pandambeli tarwad of Amini and was
entitled to a share as of right her two sisters would have been also E
members of the Pandambeli possessing similar right in the Pandambeli
tarwad properties. P. W.1 has, however, deposed that he could not say
whether the Androth Pattakkal people have any rights in the suit
properties and at a later stage in his testimony, he has positively
asserted that the Androth Pattakkal people had no right in the F
properties of Beeashabi and her children from Pandambeli tarwad.
This lends support to the inference that the settlement of properties
on Beeashabi and her children and sainuddin was not in recognition
of any pre-existing right which they had by virtue of their being
members of an undivided branch of Pandambeli tarwad but only by
way of ex-gratia charity or generosity." G
Incidentally, there was a suit between Sainudin and one Kunhipakki of
Kadukiyapura branch which dispute, as a matter of fact, culminated in the
decision as rendered by the Moneger as noticed above. It is rather significant
to note that in the decision of the Moneger, reference has been made to
several branches of the Pandambeli · Tarwad but for whatever may be the H
388 SUPREME COURT REPORTS [1999) SUPP. 5 S.C.R.

A reason, there is no mention at all therein of Pattakkal Tarwad which the
plaintiff claims to be a part of Pandambeli. In 1905, Abdul Qadir Musaliar, who
was the last surviving member of Pandambeli, filed an application before the
Moneger praying for permission to convert two items of the properties into
his personal properties. The application was objected to by the members of
Kandagalam Thoopiyakkal and Kadukkiyan. The Pattakkal branch was nowhere
B there. Be it noted, however, that Abdul Qadir was permitted to convert the
properties into his personal properties. The records depict that after the death
of Abdul Qadir, his branch became extinct and subsequently, the properties
were divided as between Thoopiyakkal Kandagalam and Kudukkiyam branches.
Needless to record that there exists no dispute as regards the factum of Abdul
C Qadir, being the last of the surviving members ofPandambeli Tarwad. In 1936
also, as the records depict, the last surviving member of Kandagalam applied
to the Authority for permission to convert some properties as his personal
properties. The application, however, was opposed by the members of
Thoopiyakkal and Kadkkiyam and it is for the first time that Pattakkal Tarwad
in the year 1930 objected to the conversion which however was rejected by
D the Moneger after express recording of the fact that the Pattakkal Tarwad had
no right to object. Even though the order of the Moneger was set aside by
the Revenue Divisional Officer, Mangalore by his proceedings dated 20th
November, 1939 and having an appeal filed by Pattakkal Tarwad, the order of
the Appellate Authority was reversed by the District Collector in second
E appeal whereby it was held that the Pattakkal Tarwad's claim was barred by
limitation as detailed herein before in this judgment more fully.

Be it noted that while in a Mitakshra Joint family, the members claim
their descent from a common ancestor, the members of the family constituting
a marmakatyam Tarwad had descended from a common ancestress. Incidentally,
F Marumakkattayam Law, as administered by the Courts, is a body of customs
and usages which have received recognition and may be taken to be well
settled on most matters. While it is essentially a customary law, as regards
the issue of succession, Mayne's Hindu Law and Usage' (Edition) has this
to state:
G
"Next as to the system of inheritance among those governed, by the
Marumakkattayam law, questions of inheritance can only arise as to
individual property or in respect of property left by an extinct tarwad.
As early as 1864, the question of the devolution of the self-acquired
property of a male member of a tarwad came before the Madras High
H Court and it was held that, by the law of Malabar, all acquisitions of

-
PATT AKKAL KUNHIKOY Av. THOOPIKAL KOY A [BANERJEE, J.] 389
any male member of a tarwad, which he had not disposed of in his A
lifetime, lapsed to the tarwad, on his death and fonned part of its
property. The right of the acquirer to mortgage or sell his self-
acquisition was also recognised. (Kallati Kunju Menon v. Pa/at
Erracha Menon, (1864) 2 MHCR 162)."

Incidentally, the decision of the Madras High Court in Kallati Kunju 's B
case (supra) stood affinned by a Full Bench judgment in the case of Govindam
Nair v. Sankaran Nair, (1908-(32) Madras 351). Subsequently, however, the
same High Court in another Full Bench Judgment sounded a different note
as regards the self-acquired property of a female to the effect that it descends
to her own issue. C
Mayne's Hindu Laws further states:

"Under the Aliyasantana law, there is no such distinction as regards
the devolution of self-acquired property belonging to a member of the
tarwad; such property whether of a male or female goes to the nearest D
branch, and, where there are more branches than one standing in the
same degree of relationship, they inherit jointly Managappa Ajei v.
Marudai, (1916) 39 Mad 12; Antamma v. Kaveri, (1884) 7 Mad 575 and
Timma v. Daramma, (1887) 10 Mad 362. The Madras Marumakkattayam
Act has altered the law as laid down by the Full Bench decisions in E
Govindan Nair v. Sankaran Nair and in Krishnan v. Dmodaran,
(1908) 32 Mad 351 FB; Krishnan v. Damodaran, (1915) 38 Born 48 FB.
So far as Marumakkathayi Hindus are concerned. Similarly, the Madras
Aliyasanthana Act, 1949 (Chapter IV) has altered the law of intestate
succession among Hindus, other than Jains, governed by the
Aliyasanthana law of inheritance." F
These statutory changes, however, do not have much bearing on the
matter in issue and as such we refrain ourselves from dilating further on the
issue more as by reason of this fact that the learned Advocates appearing
for the parties did not also proceed on that score.
G
Mr. Wariyar, the learned senior advocate, appearing in support of the
appeal placed very strong reliance on a decision of the Kerala High Court in
the case of Bhawani Pillai v. Ammkutti Pillai, (1958) KLT 869. The High
Court, in paragraph 6 of the report, observed as below:-

"When the properties which originally belonged to Krishnan H
390 SUPREME COURT REPORTS (1999] SUPP. 5 S.C.R.

A Parameswaran's branch devolved after the extinction of that branch
on the surviving branches, the surviving branches could have taken
those properties only as tenants-in-common, with each branch having
separate rights, and not as an undivided tarwad comprised of all the
surviving branches. Likewise after the subsequent partition between
the members of the plaintiffs branch, any common property left out
B of the partition would belong thereafter not to the branch as a whole
and as constituting and undivided tarwad with respect to such
property, but to the individual members or units of the branch as
tenants-in-common and with each divided member or unit having
separate rights to the property. As has been pointed out in Velayudhan
C Nair v. Janaki, (1957) KLT 222, when once a Marumakkathayam
tarwad becomes divided there will be no tarwad on behalf of which
a divided member can sue."

Similar is the view expressed by Learned Single Judge of the Kerala
High Court.in the case of Bhagwati and others v. Naraina Pillai, (1966 KLT
D 1160) and relying thereon, the learned senior advocate contended that a
divisible one-third or at least one-fourth share should be made available to
the plaintiff and the total rejection of the claim thus was not justified. On this
score, the issue arises as to whether Pattakkal can be termed to be a survived
tarwad. As noticed above, documents dating back to about 120 years do not
E suggest the same. In the event of an extinction, it should be read as eligible
surviving branch and not otherwise. This is, of course, on an assumption that
Pattakkal, at some point of time, belonged to some particular part of Pandambeli
Tarwad. In the contextual facts in our view, thus the two decisions noted
above do not lend any support to the appellant's contentions. It should be
competent and eligible in order to come within the ratio decendi of the two
F judgments noticed above. Unless some relationship with ancestors having
common property interest is shown, the question of ascribing Beeashabi with
the ownership or entitlements on a part of Pandambeli Tarwad does not and
cannot arise. A reference can made to a decision of the Madras High Court
wherein in the case of Secretary of State v. Dugappa Bhandary, AIR ( 1926)
G Madras 921, the Madras High Court stated as below:-

"Under Hindu Law heirs must come within 14 degrees of the deceased
and similarly there must be some limit to the remoteness of relationship
in Aliyasantana families, and it is unlikely that heirship would extend
to a remote relation who did not observe pollution. In the present case
H it is in evidence that Anthaya Shetti of Choradi family was divided off
PATTAKKAL KUNHIKOYA v. THOOPIKAL KOYA [BANERJEE,J.) 391
from the Kavanjur family, and it is alleged that they both originally A
formed one family jointly with the Haladi family. Inasmuch as the claim
of the Kavanjur family has been negatived by the decision of the
District Court, prima facie the Choradi family which was a branch of
the Kava.njur family would be disentitled to succeed. In these
circumstances, Government must be held to have adduced sufficient
evidence to make out a prima facie case that Durgi Shettithi died B
without heirs. If the defendants which to in negative this contention,
it lies upon them to prove that this Anthaya Shetti, or any other
person whom they may choose to set up was actually an heir to Durgi
Shettithi. For proving this, they merely rely on the fact that the
Government dropped the escheat proceedings in 1905 and on the C
evidence of P.Ws. Nos. 3 and 12, that the Haladi family and Anthaya
Shetti's family divided long ago, but both these witnesses couple this
admission with a statement that Durgi Shettithi had not any heirs,
thus showing that in their opinion, the relationship was too remote to
constitute heirship. It is, therefore, unnecessary in this case to decide
a point which has been urged at some length, viz., the exact nature D
of kinship which would constitute a person an heir under the
Aliyasantana Law. On this point, therefore, I find that Durgi Shettithi
died without heirs and that the property escheated to Government."

The observations of the Madras High Court in one of its very early
Judgments seem to be rather aposite and more or less on a similar situation. E
The Madras High Court observed in the case of Eramgappa/li Korappen
Nayar v. Chenen Nayar, (Madras High Court Reports (VI)-411) as below:

"It seems to me that the evidence shows precisely the case of
severance which I have described. One of the several branches having F
become better off than another, that other, by virtue of the ambiguity
of a word, is seeking to reap that which it has never sown, and to
which on the true understanding of the customs of the people, it is
wholly unentitled. I would declare that the plaintiffs and defendants
were originally of the same tarwad, but that there has ceased to be
community of rights of property between them. The plaintiffs should, G
I think, pay the costs throughout."

The discussion above in our view does not lend any concurrence to the
submissions of the Appellant as regards the entitlement to inherit the property.
Ancestral history there has none and assuming that there was some total
exclusion from 1906 onwards cannot but lead to a situation in acceptance with H
392 SUPREME COURT REPORTS [1999] SUPP. 5 S.C.R.

A the respondent's point of view. A right shall have to be established and that
it is incumbent upon the plaintiff to prove the contention of the existence of
some right through the years. On an analysis of the factual situation, it clearly
emerges that there was total extinction of Pandambeli tarwad in 1906 and till
1938 there was never any assertion of any right for less exercise of the right
B of ownership so far as Pattakkal tarwad is concerned vis-a-vis the Pandambeli
tawad's property. We are, therefore, unable to record our concurrence with the
submissions of Mr. Wariyar.

A faint attempt was made in support of the appellant's contention by
reason of the appointment of Koya of Pattakkal to the post of Qazi by virtue
C of his belonging to Pandambeli tarwad and as such, there had been a recognition
of Pattakkal tarwad being a part of Pandambeli tarwad. The High Court has
dealt with the issue in the following manner:

"It may be that for the purpose of Kazihood the elders of the Islands
considered the Koya of Pattakkal as an eligible candidate by virtue of
_D the ancient connection which Pattakkal is said to have originally had
with Pandambeli before the former's migration to Androth several
generations ago but the said fact does not, in our opinion, constitute
acceptable evidence that Patakkal tarwad of Androth continued to be
an undivided branch of Pandambeli at the relevant point of time".

E We do record our concurrence to the observations of the High Court
and as such, we need not detain ourselves on that score except recording that
right to succeed to the post of a Qazi does not by itself confer a property-
interest over the lands of Pandambeli tarwads.

In any event, while dealing with the appellants' grievances it is necessary
F to keep in view the limited scope of the present proceedings. As this appeal
arises under Article 136 of the Constitution of India, judgment of the learned
Subordinate Judge as also of the High Court wherein concurrent findings of
fact had been reached by both the courts on appreciation of evidence cannot
be assailed by making an effort to get the entire evidence re-appreciated as
G if this is a third appeal· on facts. It is not the practice of this Court to re-
appreciate the evidence for the purpose of examining whether t..li.e finding of
fact arrived at by the High Court and the Subordinate Court is correct or not.
Exception can be taken only in the event of serious miscarriage of justice or
manifest illegality but not otherwise. We had occasion to decide clearly the
law on this score and as such no further dilation is called for but we only
H emphasise it once that the Supreme Court is not a regular court of appeal to
PATT AKKAL KUNHIKOY Av. THOOPIKAL KOY A [BANERJEE, J.] 393
which every judgment of the High Court may be brought for a further scrutiny A
in regard to its correctness. There must be some patent error of law which
have resulted in the miscarriage of justice as noticed above, otherwise and
· in the normal circumstances this Court would not be justified in interfering
with the orders of the High Court. The two Courts at an earlier stage of the
proceeding did rely upon unimpeachable documentary evidence and we do
not see any reason to come to a different conclusion than what is on record. B
In that view of the matter, we do not find any merit in this appeal. The
appeal, therefore, fails and is dismissed. Each party has to pay and bear its
own costs.

CA No. 8838of1983
c
The cross objection filed in the matter being Civil Appeal No.8838 of
1983 was not seriously pressed. In view of the finding in CA No. 3005 of 1983
no further order need be passed in CA No.8838 of 1983 and the same stands
disposed of on the basis of the judgment as above.

RC.K. Appeals dismissed.