Kumara Pillai, J.
1. The suit which has given rise to this appeal was brought by a Thenkasi Vellala woman for partition and recovery of one-fifth share in her deceased father's assets which she claimed she was entitled to get under the customary law governing her community, with an alternative prayer that in case it was found that she was not entitled to get a decree for partition she might be allowed to recover Rs. 25,000/- from her father's estate in the hands of her brothers in lieu of the streedhanam she was entitled to get from the father's estate under the customary law of the community, or allowed to recover immovable properties worth this much of money from the properties left by her father.
Defendants 1 and 2 are the brothers of the plaintiff, and defendants 3 and 4 her elder sisters. Defendant 5 is their mother. The suit was dismissed by the lower Court which heldthat the Thenkasi Vellala community was governed by the Hindu Mitakshara Law and there was no customary law in the community as alleged by the plaintiff entitling the daughters to get a share in their father's properties or to get streedhanam from the father's assets as a matter of right. Plaintiff has, therefore, filed this appeal.
2. According to the tradition which is accepted by both sides, the Thenkasi Vellalas are a community which originally belonged to Thenkasi in the Tinnevelli District and emigrated from there to Travancore some centuries back and settled down principally in the Thodupuzha Taluk. Some of the witnesses examined in the case say there are only 300 families even in the Thodupuzha Taluk while others have given a higher estimate. The estimates given by other witnesses range from 500 to 800 families in the Thodupuzha Taluk.
There are, admittedly, only a handful of families living in other parts of the State. It is also admitted by both sides that the Thenkasi Vellalas are followers of the Hindu religion, and in the description of the parties in the plaint the religion of the plaintiff and defendants 1 to 5 is given as Hindu religion. Perumal Pillai Sankara Pillai, the father of the plaintiff and defendants 1 to 4 and the husband of defendant 5, was a vakil practising in the Courts in the Thodupuzha Taluk.
He died in Kumbhom 1118 M. E. leaving considerable properties. About 7 years later, on 22-9-1950, the plaintiff brought the present suit in forma pauperis claiming that, under the customary law governing the Thenkasi Vallalas, daughters were entitled to share equally with sons in the assets left by their father and that she was therefore entitled to get one-fifth of the assets left by Perumal Pillai Sankara Pillai and praying for partition and recovery of the said share with past and future mesne profits after partition of the same by metes and bounds.
The suit, as originally brought, was only for partition and recovery of possession of the above share, and it was stated in paragraph 7 of the original plaint that among the Thenkasi Vellalas daughters and sons have equal shares in their father's assets and that the rule of law under the Hindu Mithakshara Law under which daughters have no right to get any share in their father's assets is not applicable to their community. In October 1951 the plaintiff filed an amended plaint, after obtaining leave to do so, claiming an alternative relief for recovering from her father's estate in the hands of defendants 1 and 2 Rs. 25,000/-on account of streedhanam which she was entitled to get from the father's estate or for recovering properties worth this much of money.
The alternative relief was asked for on the ground that among the Thenkasi Vellalas in the Thodupuzha Taluk there was a long standing custom, which was being observed uninterruptedly, of giving even to married daughters some share in their father's assetsunder the name of streedhanam, or avakasam, etc., but plaintiff had not been given any streedhanam at the time of her marriage, and that on account of this custom which has obtained the force of law the plaintiff is entitled to get a share in her father's assets, and considering the extent of his assets and the status of the family she is entitled to get Rs. 25,000/-on account of this customary right. In both the original plaint and in the amended plaint it was also averred that from very ancient times the practice and custom among the Thenkasi Vellalas was to give either land and movable properties or money to the daughters in lieu of their customary right in the father's assets.
3. The suit was contested by defendants 1 and 5 and defendant G who is an alienee of defendants 1 and 2. They contended that the Thenkasi Vellala community is governed by the Hindu Mitakshara Law and there is no customary law among them as alleged in the plaint entitling the daughters to get a share in their father's assets or to get streedhanam from his assets as a matter of right, that the plaintiff's marriage had been conducted by the father during his lifetime and he had given her a dowry, and that the plaintiff had no right whatever to get either a share in the father's estate or the amount claimed by her as streedhanam.
The lower Court found that the Thenkasi Vellalas were governed by the Hindu Mitakshara law and that the plaintiff had not succeeded in proving any custom in derogation of that law entitling the daughters to get a share in the father's assets or entitling them to get streedhanam from his assets as a matter of right, and dismissed her suit ordering the parties to bear their costs. On the question whether the plaintiff was actually paid any dowry by her father during his life-time the lower Court said that there was no clear proof of such payment and that it was not necessary to deal with that question In detail in view of its finding on the other questions.
4. Although the plaintiff has produced a large number of documents to show that, while making settlements of their properties or effecting partition of them, fathers and brothers belonging to the Thenkasi Vellala community of Thodupuzha have in many instances made provisions not only for their unmarried daughters and sisters but also for the married daughters and sisters, the evidence is clear that these provisions were made not because the daughters had any right to a fixed share in the assets of their fathers or because they had any right to get streedhanam from their father's properties but because of the natural love and affection of the fathers and brothers towards their daughters and sisters.
Exts. A, D, H, M, O, P, T, AB, AQ, AW, AY, BB and XXV are deeds of settlement or wills executed by fathers by which daughters also have been given either properties or various amounts of money or sons have been directed to give them monies, By some ofthese documents settlements have been made not only in favour of unmarried daughters but also in favour of married daughters. Exts. B, C, E, L, S, AA, AD, AT, BA and VII are partition deeds executed either by the father himself in favour of his sons or partition deeds executed by the father and the sons jointly whereby certain properties are set apart for the daughters also or the sons are directed to pay certain amounts to the daughters.
Exts. F, G, Q, R, AG and IX are partition deeds executed by brothers in which provisions have been made for sisters either by giving them properties or by directing one of the brothers to give them certain amounts. Exts, U, W, Y, Z, AC, AH, AJ, AP, AW and AZ are streedhanam deeds or gift deeds executed by fathers or brothers in favour of daughters or sisters, and Exts. J, K, II, IV and V are documents in which there are references to property or money having been already given by the fathers or brothers to daughters or sisters.
In some of these documents the gift or settlement in favour of daughter or sister is referred to as having been made for her streedhanam or avakasam or share, and in others the gift or settlement is made without any such reference and with a simple statement that such and such property or so much money is given, to the daughter or sister. In a few of them it is expressly stated that the settlement or gift was being made on account of natural love and affection. Five of these documents were executed after the date of this suit and one, namely, Ext. AP, in 1078. All the others range from the year 1096 to 1124.
These documents, it is contended on behalf of the plaintiff show a uniform long-standing and invariable practice of giving the daughters or sisters, whether married or unmarried, a portion of their father's assets either as a share due to them or as streedhanam which they are entitled to get from their father's estate; and this usage, according to the plaintiff has on account of its long-standing, uniform and invariable practice, crystallised itself into a custom having the force of law.
But the very witnesses through whom the plaintiff has proved these documents have stated in unequivocal terms that this is not an invariable practice, that the gifts or settlements in favour of the daughters or sisters are made at the sweet will and pleasure of the donor or donors (father or brothers as the case may be), that the daughters or sisters are not entitled to get any share or streedhanam as a matter of right and that even when properties are given to daughters or sisters the share varies and there is no uniform rule determining the daughters' shares.
P. W. 1, who proves Ext. A and says that it is usual to give something to married daughters from their father's assets, has also deposed that it is not compulsory to give them anything (x x x) although there are.few people who would say that they are not willing to give anything. He has deposed further that the daughters and sisters have no fight to ask for a share or streedhanam and that they do not participate in the execution of partition deeds in respect of their father's properties.
According to him, people who are not in very affluent circumstances do not give anything to their daughters or sisters. He himself has given properties to his daughters, and the share which he has given to them varies from. 1/3 to 1/4 of a son's share. P. W. 2 who proves Ext. D says that their girls have no right to streedhanam although the brothers give them properties out of love and that the extent of the property given to sisters varies in each case and bears no proportion to the brother's share. He also says that there are people who do not give anything at all to daughters or sisters.
Exactly similar is the evidence of P. Ws. 3 to 10, 12 and 14. Although P. W. 15 said in his chief examination that it is usual to give daughters a share in the father's assets and his sister has been given a share equal to one-fourth of the share obtained by her brothers, he admitted in his cross examination that his wife had not obtained any share or money from her father's assets and that there was no fixed rule regarding gifts or shares to be given to females.
P. W. 16 who also gave evidence in his chief examination supporting the custom alleged by the plaintiff, admitted in his cross-examination that there were no documents to Show that some of his female relatives had obtained any share or streedhanam from their father's properties. To counteract this admission he stated that they had, as a matter of fact, been given money and ornaments on account of their streedhanam. P. W. 17's evidence was also similar to that of P. W. 16. Like P. W. 16, he explained absence of documents to show allotment of shares or gifts or streedhanam to certain females by saying that they were as a matter of fact given money.
If money was given on account of any enforceable right which they had it is absolutely certain that the brothers would not have failed to take a registered receipt for the payment. P. W. 19 admitted that his first wife had not obtained any share or money from her father or brother and that, although she died leaving children, those children also have not been given any property or money from her father's family. P. W. 20 is not sure whether his brothers' wives have obtained streedhanam or share from their fathers' families; and he says that some people give more and some less to their daughters.
P. W. 21's father had gifted all his properties to his sister and after the father's death the sister gave back one-half of the properties to P. W. 21 as the father had directed her to do so on his death-bed. This evidence has no bearing at all on the question of the customalleged by the plaintiff. P. W. 22 is a cousin of the plaintiff and defendant 1, and he supports the defence case. P. W. 23 is the plaintiff herself. D. W. 1 is a retired Police Inspector.
His evidence is clear that although fathers and brothers give properties or moneys to their daughters and sisters out of natural love and affection the daughters and sisters have no legal right to claim any share or streedhanam as a matter of right, and he has produced the partition deed executed in his own family to prove an instance in which no share has been given to the daughters and sisters as a matter of right. D. Ws. 2, 3 and 4 have also given similar evidence and also mentioned instances in which daughters and sisters have not been given any share or streedhanam. D. W. 5 is the plaintiff's husband.
In the partition deed executed in his family some properties have been given to his sisters, but it is distinctly stated in the partition deed that the properties were being given to them on account of the natural love and affection of the brothers. The defence have also produced several partition deeds in which no mention has been made of the rights of daughters and sisters. According to the plaintiff, these documents are of no use since it was admitted by the defence witnesses that in all those cases ornaments had been given to the daughters or sisters at the time of their marriage and in some cases that money also had been given to them as streedhanam.
5. It is very significant that, although the plaintiff has produced numerous partition deeds executed by sons after the death of their fathers, she has not been able to produce any partition deed in respect of the father's properties in the execution of which the sisters also have participated. Ext. BD relied upon by the plaintiff is a partition deed in respect of properties left by the mother and not by the father, and there is no other partition deed in the execution of which the sisters have participated with the brothers.
Ext. N is a sale deed executed by a sister, a brother and their mother jointly. From the recitals in that document it is seen that one of the properties sold thereunder had been gifted by the father absolutely to his daughter during his lifetime. It was therefore necessary for her also to join in the execution of that document. Further, from the evidence of P. W. 11, the brother who had executed Ext N, it is seen that at the time of the execution of that document there was a dispute as to whether he had become a major or not and that the vendee had, therefore, insisted that his mother and sister should also join in the execution of the sale deed.
Apart from these two documents there is absolutely no document, either a partition deed or a sale deed, which has been executed jointly by the sisters and brothers. It is therefore clear that the community never looked upon the daughters as entitled to any share in their father's assets. The documents executed bythe fathers, whether styled partition deed, settlement deed, gift, streedhanam deed, or will, are all of no help to the plaintiff in proving the custom, for it is always open to a person to dispose of properties over which he has absolute rights in any manner he chooses.
The mere fact that he has given some of his properties to his daughter or some money to her either at the time of her marriage or subsequently, calling the gift as streedhanam or as her share in his properties, would not be sufficient to prove the existence of a custom entitling the daughters to claim a share in their father's assets or claim streedhanam from his assets in the hands of their brothers as a matter of right. The custom alleged by the plaintiff is also not definite. Some of the witnesses say that it is usual to give the daughter about one-tenth of her brother's share.
Some would say that it was usual to give her one-fourth of a son's share. Some would put it as high as one-third or even one-half of the son's share, and one or two even said that a daughter's share was equal to a son's share. In this state of evidence it is impossible to hold that there is any uniform, definite and invariable practice which by its long usage has crystallised into a custom having the binding force of law. As pointed out by the learned District Judge the utmost that can be said is that, on account of their natural love and affection, parents and brothers in this community at recent years have been liberally giving marriage presents and also making provisions at the time of partitions and family settlements for their daughters and sisters.
6. Some reference was made by the appellant's learned counsel to certain items of evidence in the case showing that in matters like performance of shraddah, pollution, divorce, etc., this community is not governed by the ordinary rules of Hindu Law, and he contended that this difference would tend to Support his case that in matters of inheritance and streedhanam also the community was following rules different from the ordinary rules of Hindu Law. No doubt, two or three witnesses have said that in this community daughters also observe pollution and perform shraddha on their father's death.
One or two have also said that divorce and re-marriage are recognised. But, there was no averment in the plaint that in regard to shraddha, pollution, divorce and re-marriage there are any special customs in the community and so parties have not joined issue on those matters. The stray statements of a few witnesses on those matters cannot therefore be accepted as evidence of custom in regard to them. So far as divorce and re-marriage are concerned it is not clear from the evidence whether what the witnesses refer to as divorce and re-marriage are really what are known as divorce and re-marriage in law or only desertion and concubinage.
The Malayalam words used by the witnesses would apply equally to divorce or desertion and re-marriage or concubinage. Somewitnesses like D. W. 1 say that re-marriage is not recognised and there is only concubinage when a woman deserted by one husband cohabits with another person. According to these witnesses in such cases the concubine as well as her children do not get any right to the properties of the so-called second husband.
On the question of divorce there is a direct decision of the High Court of Travancore-Cochin in A. S. No. 118 of 1955 (TC) (A), in which it was held that Thenkasi Vellalas are governed by the Hindu Mithakshara law and a custom in derogation of that law recognising divorce in that community has not been proved in that case. In this connection we may also refer to Saraswathi Ammal v. Jagadambal, AIR 1953 SC 201 (B), wherein it has been held that
'It is incumbent on a party setting up a custom to allege, and prove the custom on which ho 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.'
'Custom', it was held in that case, 'cannot be extended by analogy and it cannot be established by a priori methods'. The fact that Thenkasi Vellalas are governed by customary law in regard to certain other matters or that among other communities in the former State of Travancore there was a custom regarding the rights of daughters similar to the custom alleged by the plaintiff in this case is perfectly irrelevant for the decision of the question whether Thenkasi Vellalas are governed by the particular custom alleged by the plaintiff in this suit, namely, that daughters are entitled to get a share in their father's assets or to get streedhanam as a matter of right from the father's assets.
7. We hold that the evidence in this case does not establish that among the Thenkasi Vallalas there is any customary law entitling the daughters to get a share in their father's assets or to get streedhanam as a matter oil right from the father's estate. It follows that the suit was rightly dismissed by the learned District Judge. The decree of the lower Court is therefore confirmed and this appeal is dismissed with costs. The State is allowed to realise the coure-fee payable by the plaintiff-appellant on this appeal.