1. This appeal arises out of a suit in which one Musammat Shaman Tawaif, a dancing girl, seeks to recover from the Secretary of State a certain sum of money representing the value of the movable and immovable property left by one Musammat Ganeshi also a dancing girl. The plaintiff alleges in her plaint that from the time of the death of her parents, Musammat Ganeshi kept her with her, maintained her and trained her in the art of singing and dancing at her own expense and by reason of love declared her, the plaintiff, to be her successor and executor in respect of the whole of her property and that she also performed the funeral ceremony of Musammat Ganeshi. In paragraph 5 of the plaint the plaintiff says: 'according to law and custom the plaintiff is the lawful heir of the whole of the movable and immovable property left by Musammat Ganeshi deceased which was her special stridhan. The plaintiff is entitled to get the whole of the property left by the deceased 'also' because Musammat Ganeshi deceased took her in adoption, from her childhood and maintained her as her own daughter and appointed her to be her successor.' It appears that the plaintiff was the daughter of one Musammat Alichi, a sister of Musammat Ganeshi. Alichi seems to have been the kept woman of some man a id not to have carried on the profession of a prostitute in the same, manner as her sister Musammat Ganeshn The Court below decreed the plaintiff's claim' and the present appeal is preferred on behalf of the Government on a number of grounds. In this Court the plaintiff's claim has been based, first, on the ground that as the natural daughter of Musammat Alichi the plaintiff is the heir to the property left by Musammat Ganeshi; secondly, that there exists a custom amongst the Ramjani class of prostitutes that a prostitute, in the absence of issue of her own, may adopt a girl as her daughter and that after adoption the latter acquires all rights of a legitimate daughter and as such is entitled to the property of the adoptive mother on the latter's death; thirdly, the plaintiff claims that Musammat Ganeshi bequeathed her property to the plaintiff by a Will. The Government Advocate maintains that the plaintiff as the illegitimate daughter of Musammat Alichi is not the heir of Musammat Ganeshi; secondly, that no custom was proved by evidence and that even if such custom were proved, it contravenes the provisions of Section 373, Indian Penal Code, and that in any event it is immoral. Lastly, that there was no evidence on which the Court could possibly hold that Musammat Ganeshi had made a Will in favour of the plaintiff.
2. As to the first ground on which the plaintiff bases her claim, namely, that she is the heir on account of the relationship, which existed between Musammat Ganeshi and his natural mother Musammat Alichi, we think that the plaintiff's claim fails. We have been referred to ho authority that a sister's daughter is an heir to the stridhan of a Hindu female. Even if we treat Musammat Ganeshi as a Hindu maiden (which certainly she was not), no authority has been quoted that a sister's daughter would be an heir to her estate. Much less is there any authority that the illegitimate daughter of the sister of a deceased prostitute is her heir.
3. We proceed now to deal with the question of the alleged custom. It is noteworthy that in the plaint no specific custom is alleged. In the paragraphs we have quoted the plaintiff alleges merely that she was kept, maintained and taught by Musammat Ganeshi and that according to law and custom she was the lawful heir, adding the words that 'the plaintiff is entailed to get the whole of the property left by the deceased also because Musammat Ganeshi deceased took her in adoption from her childhood.' It would thus appear that adoption was by no means the chief basis of the plaintiff's claim. The form of pleading rather suggests an after-thought. In this Court the learned Pandit on behalf of the plaintiff-respondent puts forward as the alleged custom, a custom amongst the Ramjani prostitutes to adopt a girl in the absence of issue of her own and that as result of the adoption the girl succeeds to the property of the deceased prostitute as her daughter. A number of witnesses depose to the fact that some sort of a ceremony was gone through and that Musammat Alichi took the plaintiff and placed her in the lap of Musammat Ganeshi. Most of the witnesses were women belonging to the same class as the plaintiff and the deceased Musammat Ganeshi. Musummat Maina speaks of the adoption. She says that persons were invited and that dancing, singing and recitations were performed. She says: in the absence of any issue, a girl is adopted. This is an old custom. After an adoption the girl is entitled to all the property'. Narayan Prasad states that he is a chaudliri of the dancing girls. He says that he was present at the adoption which is practised amongst his community. He says that the custom of adoption prevails amongst the Ramjanis. The next witness is one Jawahir a prostitute. She says that when a Ramjani dancing girl has no issue, one whom she adopts or one whom she brings up as a nochi becomes owner of her property, provided she is under her control. She then goes on to say that she inherited the property of two prostitutes named Chunni and Munni, that they brought her up and they adopted her. We may mention here that a nochi is a girl, whom a prostitute keeps and trains up with a view to her becoming a prostitute. The witness Ramdhari deposes to the fact of the plaintiff's adoption. As to the alleged custom he says: 'Amongst us a person, who remains at the vestibule and perpetuates the name of a family is entitled to property.' This means that any one who remains after the death of a prostitute, carrying on the profession in the place where the deceased carried it on, perpetuates her name and succeeds to the property. He goes on to say that an unworthy daughter gets nothing and that a girl who is adopted and a nochi are on the same level and have an equal right with a prostitute's own daughter. He mentions a number of instances of prostitutes who succeeded to the gaddis, that is, the sitting places of the deceased prostitutes. He says that he knew one Tota a prostitute and that Bhagwati received her property, but he cannot say whether the latter was adopted by Tota or was merely a girl that she kept with her. We may note here that the evidence of the witnesses Jawahir and Ram Dhari is by no means consistent with the custom stated by the learned Pandit in this Court, Their evidence, on the other hand, is very much in keeping, with the vague statements contained in the plaint, which we take to amount to little more than this that there is a practice amongst prostitutes of this class that any girl whom they take into their house and teach the art of dancing and singing takes the property which they may leave behind them. The witness Balkishan, no doubt, says that the adopted daughter takes all. He also speaks to the fact of the adoption of the plaintiff and to a declaration by Musammat Ganeshi made at the time to the effect that upon her death the plaintiff should have all her property and perpetuate her memory. The witness Baldeo says that a girl may be adopted and that she need not necessarily belong to the same caste, but that if adopted she takes everything. Buddu says that he remembers the adoption of the plaintiff and that in the brotherhood a girl adopted takes the entire property. The evidence of Musammat Janki is very much like the evidence of the last two witnesses, except that in a moment of forget falness, she speaks of the plaintiff as having been a nochi of the deceased, showing how little distinction apparently exists between the so-called adopted daughter and a nochi. Musammat Patti another prostitute speaks as to the custom. She says that it is a very old custom and she gave her daughter in adoption to one Pyare. When Pyare died she took back her daughter and the property of Pyare. Musammat Maina deposes as to the adoption of the plaintiff, although she was not present. She says that if girls were not adopted, the lineage of her caste would not continue. In our opinion the evidence does not establish the custom stated by the learned Pandit. It establishes no more than the fact that certain practices, V no means universal, exist amongst this class as to succession under which a prostitute who has no daughter either obtains a girl from another member of the caste or from outside the caste, trains her up as a prostitute and the rest of the brotherhood acquiesce in her remaining in possession of the gaddi and any property the deceased may leave. In our opinion, a practice of this kind would clearly be immoral. It is unnecessary for us to express what our views might be if a custom was proved by proper evidence under which a member of the prostitute class might adopt as a daughter a girl belonging to the same class simply to succeed as heir to her property. The practice in the present case, as shown by evidence, is simply one for the furtherance of immorality. Ganeshi according to plaintiff's own statements, from the time of the death of her parents, trained her in the art of singing and dancing. This training could only be with a view to her becoming a prostitute, which, as a matter of fact she now is.
4. It only remains now to deal with the alleged Will. This matter was not very seriously pressed by the learned Pandit. In our opinion the vague statements made by the witnesses as to what occurred at the time of the alleged adoption are totally insufficient to establish an oral Will. In the case of an oral Will of this description the onus lies very heavily on the person setting up the Will to prove not only the fact but the very words used by the deceased. There were certain other matters raised in the memorandum of appeal in respect of limitation. Having regard to the view we take of matters already dealt with, it is unnecessary for us to go into these questions. We accordingly allow this appeal, set aside the decree of the Court below and dismiss the plaintiff's suit. Under the circumstances we direct the parties to bear their own costs in both Courts.