Satyanarayana Raju, J.
1. This is an appeal from the judgment and decree of the Court of the Subordinate judge, Bapatla in O. S. No. 145 of 1952.
2. The facts which have given rise to this appeal may be briefly stated. The plaintiff had 9 daughter by name Damayanti. She was married to the defendant on /-4-1939. She died intestate and issueless on 28-8-1952. On 4-12-1952, the plaintiff instituted the above suit for recovery of an aggregate sum of Rs. 51,506-9-7. According to the case pleaded in the plaint, the plaintiff gave a cash katnam of Rs. 25,000/- to the defendant at the time of the marriage and announced a gift of 10 acres of land in Penumudi village as Pasupukunkuma to the bride; that subsequent to the marriage the defendant represented to him that he would prefer to purchase a land in his village and that in the years 1940 and 1941, he paid him two sums of Rs. 5,000/- and Rs. 6,000/- towards the value of the said land; that he also gave his daughter the jewels shown in Schedules A and A-1 and certain other presents in kind, such as silverware, brassware, and furniture mentioned in Schedules B and B-1; and that the several sums and the moveables together with the accretions thereto are in the possession of the defendant. The plaintiff sought recovery of these various sums on the basis of a caste custom prevalent in the Kamma community in the Andhra area, and more particularly in the Districts of Krishna and Guntur.
3. The defendant resisted the suit on various grounds. He denied the existence of the custom pleaded by the plaintiff. According to him, only a sum of Rs. 20000/- was paid to him towards katnam, Rs. 18,000/- at the time of the marriage and Rs. 2,000/- subsequently. He denied the receipt of the balance of Rs. 5,000/- towards katnam as also the payment of Rs. 11,000/-towards the value of the land. He averred that Damavanti did not leave the jewels at his house.
He admitted the existence of some of the items of movables but denied the existence of the rest.
4. On these pleadings, the learned Subordinate fudge framed the following issues:
'1. Whether the custom pleaded by plaintiff is true, valid and reasonable?
2. What is the amount of dowry presented by plaintiff to defendant and whether the same is returnable to plaintiff?
3. Whether plaintiff is entitled to interest onthe same?
4. Whether plaintiff presented his daughter with any money in lieu of 10 acres of land?
5. Whether plaintiff is entitled to recover the same with interest?
6. What are the jewels and other articles presented by plaintiff to defendant and his late wife?
7. Whether the radio set was returned to plaintiff as alleged by defendant?
8. Whether plaintiff is entitled to recover the movables and jewels of A. 1 and B. 1 schedules and what is their value?'
5. On a consideration of the voluminous evidence adduced by the parties, the learned trial Judge has found on issue 1 that the custom set UP by the plaintiff has been established; on issues 2 and 3 that Rs. 25,000/- was given as Katnam by the plaintiff to the defendant and that he was entitled to a return of the said amount together with interest; on issues 4 and 5 that the plaintiff paid Rs. 11,000/- to the defendant in lieu of 10 acres of land promised to be to given by him to his daughter towards Pasupukunkuma and that the plaintiff is entitled to recover interest on the said amount from the date of the death of Damayanti.
On issue 6, the trial, Judge held that the silverware, brassware and furniture worth Rs. 1,000/- was presented by the plaintiff to the defendant or his wife; that the plaintiff gave him a cow and calf and that A and A-1 schedule Jewels were also presented by the plaintiff to the defendant's wife. Ho found on issue 7 that the radio set was returned by the defendant to the plaintiff; and on issue 8, that the plaintiff is entitled to recover Rs. 900/- towards the value of the jewels and Rs. 1000/- towards the value of the other articles. In the result, the court below passed a decree in favour of the plaintiff for a sum of Rs. 38,476/- with interest thereon from the date of suit pursuant to the findings recorded by him on the various issues set out above. Against the said decree the defendant has preferred the main appeal, The plaintiff has preferred Memorandum of Cross-Objections with regard to the balance of the suit amount disallowed to him.
6. The principal question which arises for decision in thp appeal is with regard to the custom pleaded by the plaintiff. It is argued by the learned counsel for the appellant (defendant) that the essential attributes of the custom relied upon by the plaintiff have not been established by cogent and conclusive evidence and that the consciousness in the community with regard to the custom is not such as to give it the force of law.
7. Now. in a long catena of cases decided by the Privy Council and Courts in India, the rule has been accepted that custom can override any text of Smriti law. The essential attributes of a valid custom are that it must be ancient; reasonable: must have continued or been observed without interruption; and must be certain in respect of its nature generally, as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect. It must be uniform and obligatory. It must not be immoral or opposed to public policy and cannot derogate from any statutes unless the statute saves any such custom or generally makes exception in favour of rules of custom. (Vide Mulla's Hindu Law, 12th Edition, page 64).
8. In the recent decision of Gokal Chand v.Parvin Kumar, AIR 1952. S.C. 231 their Lordships of the Supreme Court have summarisedthe principles which should be kept in view indealing with customary law as follows:
'(1) There is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by customary law must prove that he is so governed and must also prove that existence of the custom set up by him. (2) A custom, in order to be binding must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that 'a custom in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary' should not be strictly applied to Indian conditions. All that is necessary to prove is that the usage has been, acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. (3) A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognisant of its existence, and its exercise without controversy'.
9. It is not necessary to refer to the various decisions from which their Lordships have deduced the above principles. Suffice it to Say that Section 3(1)(d) of the Hindu Succession Act (30 of 1956) which has amended and codified the law relating to intestate Succession among Hindus, embodies in a statutory form all the essential attributes of a! valid custom.
'The expressions 'custom' and 'usage' signify any rule which having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community group or family;
Provided that the rule is certain and not unrensonable or opposed to public policy; and provided further that in the case of a rule applicable only to a family, it has not been discontinued by the family'.
10. In the light of the above principles, we shall now consider the exact scope of the custom pleaded and the proof adduced in its support. The plaint sets up the custom upon which the claim for relief is based in the following manner:
'There has been an immemorial custom in the Kamma community in the Andhra area and particularly in the Districts of Krishna and Guntur whereby if there is any separation between the husband and wife either because of misunderstandings or otherwise and in the case of the wife dying issueless and intestate, all presents made to either the husband or wife at the time of the marriage or subsequently by the bride's parents or bride's people should be returned along with the accretions to the parents or their heirs and that they do not descend on the husband'.
11. The parties to the suit belong to the Kamma community. The custom pleaded is in derogation of the ordinary rule of Hindu Law whereunder if a married woman dies without leaving issue, her Stridhana of all descriptions except (sulka) goes, if her marriage took place in an approved form to her husband, It is not suggested that the marriage was in any other form, and so according to the normal mode of devolution, the defendant would be entitled to all the Stridhana properties of his deceased wife. The departure from the normal mode of devolution is based on a custom which, according to the plaintiff, prevails in the Kamma community generally in Andhra Desa, and more particularly in the districts of Krishna and Guntur.
12. Among the members of the Kamma community certain special customs have received indicial recognition. Of them is the custom of affiliating a son-in-law and giving him a share, called Illatom adoption, which has been held to be in vogue in the community, So too, a custom among the Kamma families of Andhra Desa that if estrangement results between the wife and the husband, dowry and all other kinds of gifts and presents that were made to the bride-groom by the bride's people at the time of the marriage have to be handed back to the bride after rendering a complete account with interest by the bridegroom or his family, has been judicially recognised by a Division Bench of the Madras High Court, consisting of Subba Rao and Panchapakesa Ayyar, JJ., in Parandhamayya v. Navarathna Sikhamani (1949) 1 Mad. L.J. 467: (AIR 1949 Mad. 825).
The learned Judges held that this custom must have had Its origin in an attempt made by the Kamma community to stabilise the condition of a woman, who, for one reason or other, had to-live apart from her husband; that it was conceived in the best interests of women, who would otherwise be put to grave hardships and untold miseries; that the custom was reasonable and not opposed to public policy and was really in the interests of an important section of the public.
13. The custom pleaded in the present case is, however, wholly different. Though there cannot be a more effective estrangement than the separation by death of one of the spouses, a custom cannot be extended by analogy or enlarged by parity of reasoning and one custom cannot be deduced from another, and we have to find whether the specific custom set up has been established by clear and unambiguous evidence and whether the said custom has all the essential attributes to give it the force of law. Where the question is as to the existence of any right or custom, the following facts are relevant:
'(a) any transaction by which the right of custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from.' (Vide Section 13 of the Indian Evidence Act).
14. Before we review the evidence, it is necessary to state that proof from ancient unimpeachable documents is much more valuable than oral evidence. In this case the plaintiff has endeavoured to prove the custom by means of unimpeachable documentary evidence besides producing oral evidence of a respectable and reliable character showing that the particular custom prevails amongst the members of the community to which the witnesses belong and that the observance of the custom is well known for a fairly long period of time.
15-20. (The judgment then discussed the documentary and oral evidence in Paras 15-20 and proceeded:) The large volume of oral evidence adduced by the plaintiff, apart from the unimpeachable documents, prove that the usage has been acted upon in practice for a long time. It is unnecessary to set, out the evidence of all these witnesses in detail for it has been carefullly considered by the lower court There seems no special reason why all these witnesses should combine to give false evidence in support of the custom unless its existence was universally recognised in the community.
21-26. There is no doubt that in every case of this kind the burden of proof lies heavily upon the plaintiff. It is also recognized that the volume of evidence necessary to negative the existence of a custom is very much less than that is required to establish one. (The Judgment here in Paras 21-26 considered the question whether there was trustworthy evidence which negatived the existence of custom and proceeded:)
27. The plaintiff has produced evidence of a reliable character showing that the particular custnrn prevails among the community to which the witness belongs and that the observance of the custom is well known for a fairly long period of time. The plaintiff's witnesses have given instances covering a period of nearly 40 years and it would not he unreasonable to presume that the evidence of those instances shows that the custom had been in existence even before the period covered by them. The evidence of the defendant's witnesses is too weak to rebut the custom. In every case of the kind spoken to by these witnesses, there is an extremely plausible explanation. The documentary evidence, coupled with the evidence of respectable and disinterested witnesses, produced by the plaintiff, proves the custom beyond alt reasonable doubt, and we are in agreement with the conclusion reached by the court below that the essentials of the custom pleaded by the plaintiff have been established.
(The rest of the judgment is not material for the purposes of this report as it only deals with pure questions of fact and evidence.)