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PETITIONER: SARASWATHI AMMAL

       Vs.

RESPONDENT: JAGADAMBAL AND ANOTHER.

DATE OF JUDGMENT: 27/02/1953

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN

CITATION:  1953 AIR  201            1953 SCR  939  CITATOR INFO :  RF         1962 SC1493  (10)  F          1989 SC1359  (19)

ACT: Hindu  law-Succession-Dancing girls of  South  India-Whether dasi  daughter excludes married  daughters-Custom-Nature  of evidence   necessary   to  prove   custom--Hindu   law--Rule preferring maidens to married daughters, whether applies  to prostitute daughters.

HEADNOTE: The  evidence on record did not establish the  custom  which had been pleaded, namely that among the community of dasis 940 (dancing girls) in South India a dasi daughter succeeded  to her  mother in preference to the married daughters;  and  in the  absence  of such custom, succession to a dasi  must  be governed  by the rule of propinquity of Hindu law as a  rule of  justice, equity and good conscience and  dasi  daughters and  married  daughters  would  succeed  to  their  mother’s property in equal shares. A  rule  that degraded relations are preferential  heirs  to undegraded ones cannot be evolved merely on logical  grounds the  existence of such a rule can only be justified  on  the basis of established custom. Custom cannot be extended by analogy.  It must be establish- ed   inductively,   not  deductively,  and  it   cannot   be established  by a priori methods.  It cannot be a matter  of mere  theory  but must always be a matter of  fact  and  one custom cannot be deduced from another. Shanmugathammal  v.  Gomathi Ammal (6 M.L.J.  861),  distin- guished.    Narasanna  v.  Gangu  (I.L.R.  13   Mad.   133), Subbaratna  Madali  v. Balakrishna Naidu  (33  M.L.J.  207), Subbaraya  Pillai v. Ramaswami Pillai (I.L.R. 23 Mad.  171), Balasundaram  V. Kamakshi Ammal (71 M.L.J. 785),  and  Abdul Husein Khan v. Soma Dero (I.L.R. 45 Cal. 450: P.C.) referred to. The  rule of Hindu law by which a maiden is  a  preferential heir to her married sisters does not apply to daughters  who are  admittedly  married  to  an idol and  lead  a  life  of prostitution. Tara v. Krishna (I.L.R. 31 Bom. 495) referred to.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 105 of  1952. Appeal   from  the  Judgment  and  Decree  dated  the   16th September,  1949, of the High Court of Judicature at  Madras (Subba Rao and Chandra Reddi JJ.) in Appeal No. 162 of  1946 arising  out of Judgment and Decree dated the 30th  November 1945  of  the Court of the Subordinate Judge of  Tanjore  in Original Suit No. 34 of 1945. S.   Ramachandra Iyer, for the appellant. T.   R. Srinivasan, for the respondents. 1953.  February 27.  The Judgment of the Court was delivered by MAHAJAN  J.-One Thangathammal who was a dasi (dancing  girl) lived  in  the  Tanjore district in Madras  State  and  died possessed of some properties.  She left her surviving  three daughters, Saraswathi, Jagadambal and Meenambal.  Jagadambal filed the suit out of which 941 this appeal arises against her sisters for partition of  the movable  and immovable properties set out in the plaint  and for allotment of a third share to her therein.  She  alleged that  her mother was married to one Thyagaraja Pillai,  that the properties in suit were the stridhanam properties of her mother  who  died  intestate on 26th July,  1943,  and  that according to the law or custom of the community to which the parties belonged she and her sisters were entitled to  share equally the properties of her mother. Saraswathi Ammal, the 1st defendant contested the suit.  She pleaded  that her mother was not a married woman but a  dasi who  followed her hereditary occupation and was attached  to Shri  Saranatha Perumal temple at Tiruchurai in the  Tanjore district, that of the three daughters the plaintiff and  the 2nd  defendant married and lived with their husbands,  while she (1st defendant) was duly initiated as a dasi in the said temple and remained unmarried and that according to the  law and custom of the community, the mother’s property  devolved solely on her to the exclusion of the plaintiff and the  2nd defendant.  The 2nd defendant supported the 1st  defendant’s case.  The material issue in the suit was issue No. 1  which was in these terms:- "  Who  is  the  proper  heir  of  Thangathammal.    Whether according  to  custom as set tip by the plaintiff,  all  the daughters are heirs, or according to the custom put  forward by  the  1st defendant, -the unmarried daughters  alone  are entitled to inherit." The  Subordinate  Judge  dismissed  the  suit  holding  that Thangathammal  was  a  dasi and not a  married  woman,  that according  to  the  custom of the dasi  community  in  South India,  a dasi daughter is regarded as a nearer heir to  the mother  than a married daughter and that the  1st  defendant was entitled to remain in possession of the suit properties. Against this decision an appeal was taken to the High Court. The High Court reversed the decree of the Subordinate  Judge and held that the custom pleaded by the 1st defendant 942 was not proved and that the rule of propinquity of Hindu law as  a rule of justice, equity and good conscience,  governed the  succession  and  the married and  dasi  daughters  were equally  entitled to the inheritance.  It was  further  held that  a dasi daughter was not in the status of a  maiden  or unmarried daughter for purposes of succession to  stridhanam property.  Leave to appeal to the Supreme Court was  granted

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under article 133 of the Constitution. After bearing the learned counsel for the appellant, we feel no  hesitation in concurring with the decision of  the  High Court.  It was contended that the High Court was in error in holding  that  the custom set up by the  defendant  was  not proved.   To  prove the custom that a dasi  daughter  was  a preferential heir and excluded her married sisters  reliance was placed on, the evidence of some members of the community and reference was also made to certain instancese same  kind of  evidence was led by the plaintiff support of  her  case. The evidence of both the parties on the the issue of  custom is of an unsatisfactory and inconclusive character and  from it no inference can be drawn of the existence of a  uniform, certain  and ancient custom prevailing in the  community  on this point. Out  of  the  defendant’s  witnesses,  the  first   witness, Rajagopal Pillai, deposed that his wife was the daughter  of dasi  Kamakshi  who  had six daughters of  whom  three  were married and three were dasis, that on Kamakshi’s death,  her dasi daughters alone would take the inheritance and that his wife,  would be excluded.  This statement does not hurt  him in  any way as his wife will not be bound by what  be  might state.  His bald assertion about the custom in the community is  not of much value.  He does not disclose any  source  of his  information.  In cross-examination he admitted that  he did not know a single specific instance where such a  custom was enforced . The second witness on the point is the  first defendant.  She stated that one Tulasi’s sister Mangalam got no  share  in  her mother Ammani’s  properties.   In  cross- examination  it was admitted that Mangalam died  about  fort years ago, 943 i.e.,  some time before the defendant was born.   She  could therefore   have  no  personal  knowledge   about   Ammani’s instance.    No  written  record  of  that  inheritance   is forthcoming.  Mangalams son Govindaswami Pillai appeared  as D.  W.  3.  He deposed that  Mangalam’s  mother  Ammani  had divided  her  properties between her dasi daughters  in  her lifetime.   The  instance  therefore  is  not  an   instance concerning  succession and cannot be treated as relevant  in this  enquiry.   The  1st defendant further  deposed  to  an instance  in  Srirangam when succession opened  out  on  the death of dasi Chellappa.  It was said that her property  was taken  by her dasi daughter Visalakshi to the  exclusion  of her  married daughters Marakatham and Rukmini and  that  the assets were worth a lakh of rupees.  One would have expected some written documents about that sucession if it took place in  the manner deposed to.  In the absence of  any  evidence from the descendants of Chellappa and in the absence of  any documentary   evidence  regarding  that  succession  it   is difficult to place any reliance on this so-called  instance. Defendant  No.  I stated that her knowledge of it  was  only from  hearsay,  and the requirements of section  32  of  the Evidence Act not being fulfilled, her evidence on this point cannot  be treated as admissible.  The third witness,  about whom reference has already been made, apart from deposing as to  Mangalam’s instance also deposed about the  instance  of dasi Meenakshi.  Her daughter Jeevaratnam is married to  the witness.  He said that Meenakshi’s dasi daughters  inherited her  property  and  that his wife was  excluded.   The  only property  alleged  to belong to Meenakshi was a  house,  the value of which is not known.  The succession is said to have occurred  over twenty years ago.  None of the  daughters  of Meenakshi  have been examined as witnesses in the  case,  to enable the court to find out the details about it and merely

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on the statement of this witness the instance cannot be held proved.   The fourth witness for the defendant is  her  non- contesting sister.  She said nothing on the on the  question of custom.  She, however, stated 944 that  she was not entitled to a share in the assets  of  her mother.   When asked why she was making that statement,  she said  that she was saying so because her husband  and  some. elders  (whose names were. not disclosed) had told  her  so. Evidence of this character on the question of custom  cannot be   seriously   considered.   Venugopal   Pillai   is   the fifth,witness  for the defendant.  He is the husband of  the second  defendant.  His evidence regarding the  instance  of Chellappa is purely, hearsay.  He deposed that he had learnt that  a dasi’s married daughter is not entitled to  claim  a share  as  she  is not her heir in the presence  of  a  dasi daughter and therfore he told his wife not to claim a share. He  did not disclose the source of his information.   Janaki Ammal,  the sixth witness, is a dasi.  She deposed that  she has  five daughters of whom two are married, one is  a  dasi and  the  other two are young girls and  that  according  to their caste custom her properties on her death would devolve on  her dasi daughters and that the married  daughters  must remain  content with the presents given at  their  marriage. In  cross-examination  she admitted that  she  was  deposing about  the  caste custom not from any specific  instance  in which  the  custom was observed but at the  request  of  the defendant,  and that she bad heard of this custom  from  her elders  whose  names  she did  not  disclose.   She  further admitted  that she had an uncle living but she did not  even ask  him about the custom.  The witness, it  appears,  knows nothing about the custom and is giving evidence in order  to oblige  the defendant.  The next witness ’Who gave  evidence on the issue is D. W. 8, Kamalathammal, a dasi.  Her  mother was  also a dasi.  She deposed that her mother’s  properties were divided between her and her other dasi sister and Amba, her  third sister, who was married, was not given  a  share. In cross-examination she admitted that Amba never asked  for a share.  Neither was Amba produced, nor any written munici- pal records showing that the witness actually inherited  the property  of  her mother to the exclusion of  Amba.   It  is difficult to hold this incident proved merely on the 945 vague  testimony of this witness.  Pappathi Ammal, the  next witness  in the case, is also a dasi.  She deposed that  her father’s   mother’s  property  devolved  on  her  two   dasi daughters  on  her  death  and that  there  was  no  married daughter  in  existence.   This- evidence is  of  a  neutral character  and is not of much use on the question of  custom pleaded  in  the case.  Apart from asserting  that  in  this community dasi’s property devolves on her death only on  the dasi  daughters to the exclusion of married  daughters,  she cited  the instance of Chellappa, a dasi of  Srirangam.   It was  elicited  in cross examination that  Chellappa  left  a house and landed properties.  No explanation is  forthcoming why  documentary  evidence  of revenue  records  about  this instance has been withheld.  Oral evidences as to  instances which can be proved by documentary evidence cannot safely be relied  upon  to  establish  custom,  when  no  satisfactory explanation  for  withholding the best kind of  evidence  is given.   The  last witness in the case  is  Rajamani  Ammal, another dasi who does service in Sri Ranganathaswami temple. She  also referred to the instance of Chellappa.   She  said that her jewels which were worth Rs. 1,000 would pass on her death  to  her  dasi daughter.  She went to  the  length  of

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saying that if a dasi leaves an only child who is a  married woman,  even  then her properties will pass to a  next  heir such  as a cousin and not a married daughter.  This  is  all the evidence led by the defendant to prove custom.  On  this meagre  and unsatisfactory material we cannot hold that  the custom pleaded is proved.  The opinion evidence is not of  a convincing  character and evidence as to specific  instances in support of the custom is really nil. Our  attention  was also drawn to a decision of  the  Madras High  Court in Shanmugathammal v. Gomathi Ammal(l)  In  that case the plaintiff, a member of the dasi community,  claimed to  succeed to her deceased maternal aunt and  pleaded  that the  three  surviving  sisters  of  the  deceased  who  were impleded as defendants were not entitled to inherit  because one of them (1)  67 M.L.J. 861. 122 946 had  been adopted by another dancing girl and the other  two had  become  married.   The issue raised  in  the  case  was whether  the  custom  set up by  the  plaintiff  that  among dancing  women  married women are excluded by  a  woman  who continues  to  be’ a dasi is true,  valid  and  enforceable. Certain  dasis gave evidence in support of the  custom.   No evidence  whatever was given to the contrary and the  custom pleaded  was held proved in the circumstances of that  case. Emphasis was laid on the circumstance that there was no evi- dence whatsoever against the plaintiff and defendants 2  and 3  who denied the existence of the custom in  their  written statements did not venture to deny it on oath in the witness box.  The dasi community concerned in that case was a  small one  consisting  originally of twenty houses of  which  only seven or eight were then in existence and in that  situation it was said that the custom might well be one that was  well recognized  and so much a part of the consciousness  of  the community, that any dispute like the present dispute amongst so  small  a  body  of women  would  be  an  extremely  rare occurrence  and therefore impossible of proof and  that  the plaintiff  could  not reasonably be expected to  search  the presidency for witnesses to speak to some similar dispute in other  places.   In  our opinion,  that  decision  does  not furnish  a good judicial instance in respect of  the  custom pleaded in the present case.  There is no evidence that  the customs  of that small community of dasis are applicable  to the  community  of dasis in the present case  which  form  a considerable community in this district.  Moreover, the case was  decided on the peculiar circumstances of that  case  on very  meagre  materials  and did not lay  down  any  general custom of dasis on this point. It  is  unnecessary to examine the plaintiff’s  evidence  in detail.   Suffice it to say that it is more than  sufficient to   rebut  the  evidence  led  by  the  defendant  and   it neutralizes its effect, if any.  In the absence of proof  of existence  of a custom governing succession the decision  of the  case  has to rest on the rules of justice,  equity  and good conscience because admittedly no 947 clear  text of Hindu law applies to such a case.   The  High Court  thought  that  the  just rule to  apply  was  one  of propinquity to the case, according to which the married  and dasi  daughters  would take the mother’s property  in  equal shares.  No exception can be taken to this finding given  by the  High Court.  No other rule was suggested to us  leading to a contrary result. It was argued that the dasis have a distinct status in Hindu

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society  and,  that  a rule has  been  evolved  by  judicial decisions  under  which the state of degradation  by  itself furnishes  a  rule of preference in a  competition  -between dasi   daughters  and  married  daughters.   The   juidicial decisions  referred to concern the community of  prostitutes and  the rule evolved concerning them has been abrogated  by later decisions.  It was contended that though the said rule had  been  abrogated and was no, longer applicable  to  that community  concerning  which it was evolved,  it  should  by analogy  be  applied  to  cases  of  succession  to   dasis. Narasanna  v. Oangu(1) was the first case cited.  There,  an adopted niece of a prostitute dancing girl was preferred  to a  brother remaining in caste.  It was said that  the  legal relation   between  a  prostitute  dancing  girl   and   her undegraded relations remaining in caste becomes severed  and they  are therefore not entitled to inherit the estate.   In Subbaratna  Mudali v. Balakrishnaswami Naidu(2),  the  next, case  cited,  the facts were that a  deceased  woman  Palani inherited the property in dispute from her mother Nagu,  who inherited  it from her mother Mottai who again inherited  it from  her father Arunachalam.  Arunachalam had two  brothers Ramaswami and Mathurbutham and the question in that case was whether  Mathurbutham’s  daughter  Seethai  or   Ramaswami’s daughter’s  son Marudamuthu Mudali was the heir  of  Palani. The  learned  judges held that Mathurbutham’s  daughter  was preferential  heir  to Ramaswami’s daughter’s son.   It  was pointed out that the rule of preference based on degradation was no longer good law.  It was, however, (1) I.L.R. 13 Mad. 133. (2) 33 M.L.J. 207. 948 added that in cases of dancing girls the law remained as  it was  before.   Our  attention  was  also  drawn  to  certain observations  in Subbaraya Pillai v. Ramaswami Pillai(1)  at page  177, and to the decision in Balasundaram  v.  Kamakshi Ammal(2).   In the former case the learned  Judges  rejected the  broad  proposition  that  Degradation  of  a  woman  in consequence of her unchastity entails in the eye of the  law cessation of the tie of kindred between her and the  members of  her natural family and also between her and the  members of  her  husband’s family.  We think that decision  on  this point is sound in law.  Degradation of a woman does not  and cannot sever the ties of blood and succession is more  often than  not  determined  by ties of blood than  by  the  moral character of the heir. In  Balasundaram v. Kamakshi Ammal(2) it was held  that  the property acquired by the mother had been acquired by her  as a married woman and notwithstanding    her    lapse     into unchastity,  it     devolved  on her daughters clothed  with the  ordinary  character  of property acquired  by  a  Hindu female, that is to say, the daughters took a life estate  in it. The  learned  counsel attempted to persuade us to  hold  the custom  pleaded proved by the assistance of decisions  given in  analogous  cases and by applying the principles  of  the rules said to have been, enunciated in some of them.   Those cases were decided on their own facts and in some of them  a rule  was  enunciated that degraded people are  a  class  by themselves  and  their degraded relations  are  preferential heirs  to the undegraded ones.  As already said,  we  cannot subscribe  to  the view that any such rule  can  be  evolved merely  on  logical  grounds.  Its  existence  can  only  be justified   on   the  basis  of  established   custom.    No trustworthy evidence has been led in this case to  establish that the daughters of a dasi by marriage lose their right of

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inheritance  and  form a separate  community.   The  correct approach to a case where a party seeks to prove a custom  is the one pointed out by their Lordships of the (1) I.L.R. 23 Mad. 171. (2) 71 M.L.J. 785. 949 Privy Council in Abdul Hussein Khan v. Soma Dero(1).  It was there  said  that it is incumbent on a party  setting  up  a custom to allege and prove the custom on which he relies and it  is  not any theory of custom or  deductions  from  other customs  which can be made a rule of decision but  only  any custom  applicable to the parties concerned that can be  the rule  of decision in a particular case.  It is well  settled that  custom  cannot  be extended by analogy.   It  must  be estabished  inductively,  not deductively and it  cannot  be established  by  a priori methods.  Theory  and  custom  are antitheses,  custom  cannot be a matter of mere  theory  but must  always  be a matter of fact and one custom  cannot  be deduced from another.  A community living in one  particular district may have evolved a particular custom but from  that it  does  not follow that the community  living  in  another district is necessarily following the same-custom. The  last point taken by the learned counsel was that  under Hindu  law  the 1st defendant as a maiden  was  entitled  to preference  over her married sisters.  Defendant No.  I  was admittedly  married to the idol and she has been on her  own show.  living  a  life of prostitution.   The  text  of  the Mitakshara  dealing  with the case of a virgin can.  not  be applied  to  her  case. [Vide Tara v.  Krishna(1)].   It  is inconceivable that when the sages laid down the principle of preference  concerning unmarried daughters they  would  have intended  to include a prostitute within the ambit  of  that text. For  the reasons given above we see no force in this  appeal and it is dismissed with costs. Appeal dismissed, Agent for appellant: S. Subramaniam. Agent for respondent No. I : M. S. K. Aiyangar. (1) I.L.R. 45 Cal. 450 (P.C.)    (2) I.L. R. 31 Bom. 495, 123 950