Bejoy Gopal v. Pratul Oha.ndrct

S. Ramachandra Iyer, for the appellant. 'l'. R. Srinivasan, for the respondents. 1953, February 27. The Judgment of the Court was delivered by - MAHA.JAN J. - One Thangathammal who was a dasi (dancing girl) lived in the Tanjoro 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 • • •

8.C.R. SLTPREME COURT REPORTS 941 this appeal ari~es against her sisters for partition of the movable and immovable properties set out in the pbint and for allotment of a thin! share to her therein. 8he alleged that her mothor was maried 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 sistcrn were entitled to share equally the pro pertil's of her mother. 1953 Saraswathi Ammal v. J a.yadambal and Another, Mahajan:J. Saraswathi Ammal, the 1st defendant contested the snit. She pleaded that her mother was not a married womnn but n dnsi who followed her hereditttry occu pa,tion and w<1s att<1ched to Shri Saranatha Perurnal temple at 'riruchurai 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 h1w 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 the proper heir of Thangathammal. ·whether according to custom as set up by the plaintiff, all the daughters arc heirs, or according to the custom put forward by tbc 1st defendnnt, the unmarried daughters alone are entitled to inherit." ,.. ., .. The Subordinate Judge dismissed the suit holding that Thaugathammal was a dasi and not a mttrried woman, that according to the custom of the dasi com munity 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. Agninst this decision an appeal was taken to the High Court. The High Court reversed the decrne of the 8nbordinate ,Judge and held that the custom pleaded by the lst defendant • • J9fjJ Saraswat}u" Anunal v. J agadau1bal a,nd Another. 942 SUPREME COtJRT REPORTS [1953] was not proved and that the rule of propinquity of Hindu law as a rule of justice, equity and good con science, 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 <1 maiden or unmarried daughter for purposes of succession to stridhanam property. Leave to appe1tl to the Supreme Court was granted under article 1:33 of the Constitution. After hearing 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 Comt was in error in holding that the custom set up by the defendant was not proved. To prove the custom that a dasrdaughter was a preferential heir and exclud ed her married sisters reliance was placed on the evidence of some mem hers of the communitv and reference was also made to certain instances. Th~ same kind of evidence was led by the plaintiff in support of her case. The evidence of both the parties on the the issue of custom is of an unsatisfactory and incon clusive character and from it no inference can be drawn of the existence of a uniform, certain ancl ancient custom prevailing in the community on this point. that his wife was Out of the defendant's witnesses, the first witness, Rajagopal Pillai, deposed daughter of dasi Kamakshi who had six daughters of w horn 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 ex cluded. This statement does not hurt him in any way as his wife will not be bound by what he 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 ~ the point is the first defendant. She stated th1tt one Tulasi's sister Mangalam got no share in her mother In cross-examination it was Ammani's properties. adiuitted that Mangalam died about forty years ago, .... , . • • 1963 SaratJWathi Arnmat v. Jagadambal and Another. Mahajan J. . ., . , , •I - S.C.R. SUPREME COURT REPORTS 943 i.e., some tim~ before the defendant was born. She could therefore have no personal knowledge about Ammani's instance. No written record of that in heritance is forthcoming. Mangalam's son Govinda swami Pillai appeared as D. W. 3. He deposed that Mangalam's mother Ammani had divided her pro perties 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 pro perty 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 docu ments 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. 1 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 alreacly been made, apart from deposing as to l\fangalam's instance also deposed about the instance of dasi l\foenakshi. Her daughter Jeevaratnam is married to the witness. He said that Meenakshi's dasi daughters inherited her property and that his wife was exeluded. 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 Meemikshi have been examined as witnesses in the case, to enable the court to find out the details about it and merely 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, statecl • 1953 Saraswathi A1nn1al v. J agada-111 bal and Another. Mahajan J. 944 SUPREME COUH.T BEPORTS [19fi3] that she was not entitled to a share. in the assets \Vhen asked why sho was making of her mother. 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 seriouslr considered. Venugopal Pillai is fifth witness for the defendant. He is the husband of the second defendant. His evidence regarding the instance ef 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. Jan.aid 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 hut at the request of the defendant, and that she had 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 witnesB who gave evidence on the issue is D. W. 8, Kanrnlathammal, 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, In cross-examination she was not given a share. 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 mnrely on the ' • I· • -- • 1953 ScwaBwathi Animal v. Jagadamho.l and Anothe·J' MahajanJ. ·~ ! . • - S.C.R. SUPREME COURT REPORTS 945 that Chellappa instances which 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 ques tion of custom pleaded in the case. Apart from assert ing 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 left a house cross examination and landed properties. No explanation coming why documentary evidence of revenue instance has been withheld. records about Oral evidences as proved by documentary evidence cannot safely be relied upon to establish custom, when no satisfactory explanation for withholding the Lest kind of evidence is given. The last witness in the case is Rajamani Ammal, another dasi who does service in Sri Ranga nathaswami 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 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 evi dence led by the defendant to prove custom. On this meagre and unsatisfactory material we cannot hold th11t 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 lVIadras High Court in Shanmugathammal v. Gomathi Ammal(') 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 defen dants were not entitled to inherit because one of them (r) 67 'l.L.J. 861, U2 • 1953 SaraRwa.th.i A1nmal v. Jagndanibal r11vl A nothe1·, Mahajan J. • I • ' t - 946 SUPREME COURT REPORTS [1953] 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 exclud ed 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 In our opinion, that decision dispute in other places. 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 admittedl;v no ·:. S.O.R. SUPREME COURT REPORTS 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 he taken :N" o other to this finding givPn by the High Court. rule was suggested to a contrary result. leading to us • 19.53 Saraswathi A1n11u1.l \'. J(/gadarn.bal and Another. t.lf.ahajfln .J, It was argued that the dasis have a distinct status in Hindu society mid that a rule has b1wn evolved by judicial decisions under which the state of degradation hy itself furnishes a rule of preference in a competi tion between dasi daughters and married daughters. The juidicial decisions referred to concern the commu nity of prostitutes and the rule evolved concerning It was them has been abrogated by later decisions. contended that though the said rule had been abroga ted 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. N arasanna v. Gangu(') 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 thev are therefore not entitled to inherit the estate. In" Subbaratna Mudali v. Balakrishna swami Naidu('), the next case cited, the facts were that a deceased woman Palani inherited the property in dispute from her mother N agu, 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~ (r) I.LR. 13 ~[ad. IJ3. (2) 33 ~LL.J. 207, • • 1953 Sa1·a.swa,lhi Annna.l Jagadarnbal and Another. Mahajan J. 948 SUPREME COGRT REPORTS [1953] 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(') at page 177, and to the Q..eoision in Bala sundarani v. Ka.makshi Ammal('). In the former case the learned Judges rejected t.he broad proposition that degradation of a woman in consequence of her unchas tity 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 charli'cter of the heir. .( . I + In Balasundaram v. Kamakshi Ammal(') it was held that thc1 property acquired by the mother had been acquired by her as a married woman and notwithstanding her into unchastity, clothed with the ordinary character of property acquired by a Hindu female, that is to say, the daughters took a life estate in it. her daughters devolved on 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 Jll'inciples 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 unde graded ones. As already said, "we cannot subscribe to the view that any such rrile can be evolved merely on logical grounds. Its existence can only be justified on the basis of established custom. No trustworthy evi. dence has been led in this case to establish that the daughters of a dasi by marriage lose their right of in· heritance and form a separate community. The correct approach to a case where it party seeks to prove a custom is the one pointed out by their Lordships of the . \I) J.L.R. 23 Mad. 17r. (2) ?1 i\1.L.J. 785. • - • - • 1953 Saraswathi Ammal v. Jagadamhal and Another. Mahajan J, S.C.R. SUPREME COURT REPORTS 949 Privy Council in Abdul Hussein Khan v. Soma Dero(' ). 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 It is well settled that custom cannot particular case. be extended by analogy. It must be estabished induc tively, 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 com munity living in another district is necessarily follow. ing the same custom. The last point taken by the learned counsel was the 1st defendant as a that under Hindu law maiden was entitled to preference over her marri ed sisters. Defendant No. 1 was admittedly married to the idol and she has been on her own show ing 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(')]. It is inconceivable that when the sages laid down the principle of preference concerning unmarried daughters they would have intended to include a prostitute with· in 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. 1 : M. S. K. Aiyangar. (r) l.L.R. 45 Cal. 450 (P.C.) (%) I.L.R 3I Bom. '\95. 123 •