Alfred Henry Lionel Leach, C.J.
1. The appellant is the grandson of a dancing girl. He sued in the Court of the District Munsiff of Palni for a decree fcr partition of bis grandmother's estate. He claimed a half share in the property by right of inheritance. The general rule of succession to the estate of a dancing girl is that the daughters are preferred to sons, her property being treated as stridhanam. In this case the plaintiff's grandmother had a son and a daughter. The plaintiff is the son of the son. Notwithstanding chat he had not pleaded that he was entitled to a half share in his grandmother's estate by reason of custom, the District Munsiff allowed evidence to be led in proof of custom and this in spite of the fact that he himself had refused to allow the plaint to be amanded by the inclusion therein of a plea of custom. The evidence which the plaintiff adduced on this question was that of a relation, two pipers from a temple in Palni and a weaver residing there. This evidence was accepted by the District Munsiff as establishing the custom and he gave the plaintiff a decree for partition. On appeal this decision was concurred in by the Subordinate Judge of Dindigul. The second defendant, an alienee of property from the daughter of the dancing girl appealed to this Court. The appeal was heard by Byers, J., who considered that the evidence on record was not sufficient to establish the custom and consequently allowed the appeal. The plaintiff has appealed against the learned Judge's judgment under Clause 15 of the Letters Patent.
2. In Palaniappa Chetti v. Sreemath Devasikamani Pandora Sannadhi (1917) 33 M.L.J. 1 : L.R. 44 IndAp 147 : I.L.R. 40 Mad. 709 the Privy Council had to consider the position where there had been concurrent findings on the question of custom and their observations are very relevant here. They said:
It has, however, been pressed on behalf of the appellants that there are two findings : one by the Munsiff and one by the Subordinate Judge, who agrees with him that the ancient custom relied upon has been proved, and that, as that is an issue of fact, it must be accepted. No doubt two findings upon questions of pure fact must be accepted by this Board, but questions of the existence of ancient custom are generally questions of mixed law and fact; the Judge first finding what were the things actually done in alleged pursuance of custom, and then determining whether these facts so found satisfy the requirements of the law. This latter is a question of law-not fact. The second answer is that neither of these Judges has found that any ancient custom such as modifies the law, existed in this locality. The Munsiff sets out the finding he arrived at in these words:I must find that for a very long time, permanent leases of temple land are being granted, and that the alienees are in undisputed possession thereof'.
3. The Subordinate Judge states his finding in these words:
If custom were needed to justify such a grant, the District Munsiff has found upon the evidence (and I agree in his finding) that such local usage does obtain in the village in question. The custom is perfectly reasonable, and is not opposed to public policy.
4. There could scarcely be a more glaring instance of the misapplication of the word ' custom' or a more remarkable instance of forgetfulness of essentials of a custom which modifies the ordinary law.'
In Subbaratnam Mudali v. Balakrishnaswami Naidu : (1917)33MLJ207 Balasundaram v. Kamakshi Ammal : AIR1936Mad958 arid Gangamma v. Kuppammal : (1938)2MLJ923 , this Court held that the. property of a dancing girl devolves upon her female issue in preference to her male issue. It is true that in Beta Chandramma v. Chandram Naganna : AIR1924Mad94 , Schwabe, C.J. and Coleridge, J., held that there is a custom in the caste of dancing girls by which sons and daughters share the inheritance equally. This decision was based on an observation in Thurstan's Castes and Tribes of Southern India. Byers, J., has pointed out in his judgment that the statement in this work was taken from a census report fifty years ago. Even if it is accepted, the decision in Beta Chandramma v. Chandram Naganna : AIR1924Mad94 , cannot be deemed to apply beyond the Vizagapatam district. It cannot be held to support an alleged custom in the Madura district. We are certainly not prepared to accept Bera Chandramma v. Chandram Naganna : AIR1924Mad94 in preference to the other decisions of this Court on this question.
5. In view of what the Judicial Committee said in Palaniappa Chetti v. Sreemath Devasikamani Pandara Sannadhi (1917) 33 M.L.J. 1 : L.R. 44 IndAp 147 : I.L.R. 40 Mad. 709 it cannot be held that the testimony in this case is sufficient to establish the custom which must be ancient, certain and reasonable. Moreover, the evidence should not have been admitted at all.
6. The appeal is dismissed with costs.