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8. I have gone through die pleadings in the written statement filed by the 1st defendant and her deposition. I do not find any pleadings in the written statement of the 1st defendant claiming that there is a custom by which daughters in her it the self-acquired property of their father in exclusion of me widow. I have gone through the oral evidence adduced by her. Nowhere it is stated about any custom that excludes widow from inheriting the property of her husband. In the absence of any special custom pleaded and proved Mitakshara law shall be treated as the customary law. Since the parties are Thiyyas of Kozhikode Taluk, the law governing them is custody law known as "Makkathayam". If there is any custom which is inconsistent with the law it is for the person who sets up such custom to prove the same by positive evidence.

9. Thiyyas of former Calicut Taluk are governed by the customary law known as makkathayam. In order to know the rule of law governing them on the question of succession one should know what is the rule of customary law followed by them in that matter. The question will have to be decided with reference to the pleadings and evidence of custom followed by the community. In the absence of satisfactory evidence to show what exactly is the rule of the customary law on any particular point, the rule of customary law to be applied is the Mitakshara Law. The makkathayam rule of inheritance as established by well settled decisions of courts in the facts of this case is that the widow and daughters (in the absence of son/sons) succeeded to the self-acquired property of the deceased. The contention of the 1st defendant that daughters alone inherit in exclusion of the widow is a special custom neither pleaded nor proved. According to the counsel for the appellant custom in question to the exent relevant to the facts of this case is well settled by judicial pronouncements and treatise in Hindu Law.

10. The Supreme Court in Kelukutty and Ors. v. Mammad and Ors. reported in 1972 KLT 725 following Imbichi Kandan and Ors. v. Imbichi Pennu and Ors. ILR 19 Madras 1 held that Thiyyas of former Calicut Taluk were governed by the customary law known as Makkathayam. As per the Makkathayam rule of inheritance an undivided brother of a deceased person succeeded to the self-acquired property of the deceased in preference to the wife and daughter of the deceased. It that is so the daughter's son who comes after them under the general Hindu Law cannot have a superior claim unless a custom to that effect is pleased and proved. In Imbichi Kandan and Ors. v. Imbichi Pennu and Ors. ILR 19 Madras 1 the Madras High Court have considered the question in which it held that on the death of a Thiyyan of South Malabar following the Makkathayam rule of inheritance, his mother, widow and daughter are entitled to succeed to his property (acquired by himself and his father) in preference to his father's divided brothers. The lower appellate court overlooking the law of succession that in the absence of proof of custom Mitakshara Law will be presumed to apply, and without correctly comprehending the judicial pronouncements held that widow is not entitled for any share. There was no attempt to establish any independent evidence by the 2nd respondent to show that widow is not entitled to a share under customary law. The interested testimony of D.W.I which runs counter to judicial precedents ought not have been relied as establishing the custom applicable to the Thiyyas of Calicut.

11. In Rohini v. Sethumadhavan 1978 K.L.T. 470 the Full Bench of this Court held that the law applicable to Thiyyas of Calicut is essentially customary law, that the burden is on the party setting up any particular rule of custom to prove the same, and that in the absence of proof of custom the Hindu Mithakshara Law will be presumed to apply. In Choyichi v. Raghavan 1988 (2) K.L.T. 67 this Court held that for the parties following Hindu Mitakshara Law the self acquired and separate properties will be taken by the heirs by inheritance as tenants-in-common. The properties involved in that suit are the self-acquired properties of the father and the heirs were his three sons.