1. This appeal raises an interesting question as to the succession to the property of a woman of the dancing girl caste. The 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 Arunachallam. Arunachallam had two brothers Ramaswami and Mathurbutham and the question is whether Mathurbutham's daughter Seethai or Ramaswami's daughter's son Marudamuthu Mudali is the heir of Palani. All the women appear to have followed the profession of a' prostitute. That members of this caste are Hindus is certain, though the ancient writers and their modern exponents find some difficulty in fixing them in one of the four castes; but whether they belong to the Suira or fourth caste or to a separate fifth caste is immaterial. That male members of this caste are usually governed by the Hindu Law and usage does not seem to have been questioned; so also when female members marry and have children, as they sometimes do, their family relation is governed by the Hindu Law and presumably the ordinary Hindu Law of Inheritance will govern succession to their properties. At the same time their female children may remain unmarried and become professional dasis without any degradation or stigma attaching to them so long as they observe the caste customs. It is well-known that at least in the Southern Districts they are supposed to be married to the r idol of some temple and it is a question not beyond dispute whether after such a marriage, signified by the tying of a bottu and thali by the archaka or priest, they can contract a real marriage with a member of their caste. They are not virgins, are not married women and never become widows. We are led to make these observations for showing that there is no such thing as a dissolution of the natural tie of relationship between the members of the caste who remain unmarried and follow their trade and their married relations who lead a espectable life. Even in the case of the married or unmarried women of other castes who have become degraded by their immoral conduct, it is now settled that the natural relationship is not broken between such common women and their respectable relations and the ordinary rule of the Hindu Law of Inheritance applies. But it will be seen at once that that law which is based on a system of legal marriage and consequential relationship; cannot be applied at all or at least without very considerable modifications to the property of a woman of this caste who except her own children can ordinarily have relations only through females. The rules as to stridhan obviously do not apply to such property and there is no other rule of succession laid down in the Smrithis or by the commentators prescribing the devolution of the property of women of this caste, except it be the general rule ' that to the nearest Sapinda the inheritance next belongs'. According to Vignaneswara 'Sapinda' connotes merely relationship (See Acharadhyaya Vivahaprakaranam, pp. 31, 32 & 35, Setlur's Edition. Trans: 1 Madras Law Journal 75. Usage has therefore sprung up in this caste which permits affiliation of daughters and gives preference to females in matters of succession.
2. This was recognised in one of the early cases in this Court Kamakshi v. Nagaratnam (1870) 5 M. H.C.R. 161. There the two daughters of a son inherited the mirasi office of their grand-mother. On the death of one of them her daughter was held entitled to her share of the office jointly with the aunt. The learned Judges held that the rules of inheritance applicable to paternal property were applicable to succession to the property of the mother, treating the females as if they were males, as that was necessary from the nature of the case. It is to be observed that the females so inheriting the property take an absolute interest therein as a male. Apparently the learned Judges thought they were applying the ordinary Hindu Law of Inheritance, with such modifications as they thought necessary to suit the circumstances of the case; but we can find no authority in that law for such a manipulation. We think the correct basis was usage. In Venku v. Mahalinga I.L.R. (1888) M. 393 Muthusami Aiyar, J., after a review of the previous decisions coucluded that the Civil rights of the members of this class are to be adjudicated upon in the absence of a positive rule to the contrary with reference to the custom of the caste and the analogies of the Hindu Law. (See p. 399). Apparently on that analogy it has been held that a dancing woman and her daughters may constitute a joint Hindu family. (Chalakonda Alasani v. Chalakonda Ratnachalam (1864) 2 M.H.C.R. 56. In Muttukannu v. Paramasami I.L.R. (1889) 12 M. 214 the same learned Judge held that by custom plurality of adoptions was recognised in the section of the caste whose practices were in question and that the adopted daughter succeeded in preference to and to the exclusion of the son of another deceased adopted daughter. Evidently the right of representation was not allowed to a daughter's son. In Narasanna v. Gangu I.L.R. (1889) M. 133 it was held that the sister's adopted daughter was entitled to succeed to a deceased dancing woman's property in preference to her brother. This would be in accordance with the principles governing the devolution of the property of the female members of the caste, but the learned Judges based their decision on degradation being a ground of preference. They followed the decision in Sivasangu v. Minal I.L.R. (1889) M. 277 which however was not a case of succession to the property of a woman of the dancing girl caste, but of a married woman who became degraded by becoming a prostitute. This ground of preference to succeed to a prostitute's property is no longer law. Subbaraya PilJai v. Ramasami Pillai I.L.R. (1899) M. 171 Mandaram Nammaiya Chetty v. Mandaram Thiruvengadathan Chetty (1912) 13 M.L.T. 88 Minakshi v. Muniandi Panikkar : (1914)27MLJ353 but it is to be observed that these cases leave the law as to dancing girls as it was before.
3. Acting then on the analogy of the cases decided in respect of the devolution of the property of dancing girls, we think Seethai was a preferential heir to her cousin's son. She is nearer in relationship to the deceased and the ordinary Hindu Law which excludes females or prefers males to females has no application to the case of dancing girls. This is also in accordance with the consciousness of the parties, for it is said in the judgment of the District Munsif that the defendants conceded that there was a special custom as regards inheritance to property left by a dancing girl under which heirs who are also dancing girls take the property of the deceased in preference to male heirs. It is also clear that the ordinary Hindu Law of inheritance is not applicable to these parties, for when the female heirs succeeded they took an absolute estate. The appeal must therefore be dismissed with costs.