1. The question for decison in this appeal is whether the plaintiff has proved the caste custom set up by him in derogation of the Hindu Law of inheritance. The plaintiff is of Nattukottai Chetti caste. It is a custom in that caste, when the daughter of a house is married, for her parents to present to her jewels, vessels and money which become her stridhanam. There is also a custom which has been recognised by this Court in A.S. No. 196 of 1923, that if that married daughter dies without issue, that stridhanam reverts to the donors, her parents. The plaintiff before us contends for a custom that that stridhanam reverts to the parents even when the woman has had a female issue and that female issue herself dies without issue. Under ordinary Hindu Law a female issue would on the death of the mother inherit her stridhanam holding a limited interest therein, and on her own death without issue it would revert to her father, the husband of the original donee. The plaintiff contends that there is in his caste a custom having the force of law which diverts the inheritance from the father to the family of the original donors of the stridhanam.
2. Now it is essential in a case where a custom is pleaded in derogation of Hindu Law that that custom should be clearly defined and proved; so that, given the facts of the case, there will be no vagueness or obscurity as to the application of the custom. The facts of the present case are, the plaintiff's sister, Minakshi, was married to the defendant in 1891; her parents gave her the usual stridhanam; she died in 1908 leaving one child, a daughter Visalakshi, who inherited her mother's stridhanam; she died in 1921 without issue. It may be noted also that at the time of her birth Visalakshi also received stridhanam presents from her maternal grandfather's family. Now the custom contended for in the plaint is that on the death of Visalakshi, both these stridhanams, the one given to her and the one given to her mother, belong to the plaintiff's family according to law and justice and according to the custom of the caste of both parties. The plaintiff asserts that the capital sum of both stridhanams has been left intact and has been accumulating interest; so that what was originally a sum of about Rs. 4,000 has now swelled to over Rs. 50,000 and the original claim was for that sum. If we confine ourselves to what is involved in the present appeal, which relates only to the stridhanam conferred on Minakshi, the amount originally stood at Rs. 1,672 has now swollen to Rs. 28,616 and it is that sum which the plaintiff now claims. The plaint was not clear as to whether custom demanded that each stridhanam should be kept intact from the moment of donation until reverter. It was claimed, however, in this case that both have been kept so intact and therefore were available.
3. It is of course settled law that the evidence of a custom pleaded to have the force of law must prove it to be continuous, uniform and specific. We have to examine the evidence to see if it satisfies that test.
4. It will be convenient here to dispose of a contention of the plaintiff that he could establish a custom by evidence of what he calls an analogous custom. He contends, for example, that the recognised custom by which the stridhanam of a woman dying issueless reverts to her family is analogous to the one now pleaded. He contends again that a custom, to which some of his witnesses speak, by which the stridhanam of a woman dying leaving a son who himself dies without issue reverts to her family, is an analogous custom. And he pleads that such analogous customs give, by considerations of common sense and parity of reasoning, a probability in favour of the custom alleged in the plaint. Such a contention seems to us inadmissible. Common sense and reasoning have nothing whatever to do with custom. As stated in Arthur v. Bokenham (1708) 11 Modern 148 161 quoted at page 326 of 37 Calcutta, it cannot be said that a custom is founded on reason, 'for no reason, even the highest whatsoever, would make a custom or law, and therefore you cannot enlarge such custom by any parity of reasoning-, since reason has no part in the making of such custom.' Customs may be similar or contradictory, probable or improbable, and the existence of one custom is no evidence for the existence of another. The only proof of custom is the evidence of that custom and no other--evidence that given certain data certain results follow with the force of law. It therefore appears to us that no evidence of analogous custom is relevant in proof of the plaint custom. This rules out the evidence of P.Ws. 4 and 6. for the plaintiff.
5. For the rest, P.W. l's evidence is very vague. The only instance of the plaint custom to which he speaks is one which occurred two months before he gave his evidence in the house of M.M.P. L, Palaniappa Chetti of Nemathanpatti. Now no one from that house has been examined. According to the witness also the stridhanam was repaid in that case by a hundi, but no hundi has been filed nor any accounts produced. P.W. 2 instances a case in his own family in which on the advice of his elders he returned his wife's stridhanam and paid it by a hundi 'one and a half years ago,' that is just about the time when the present plaint was filed. That hundi is not filed. But what is more important, P.W. 2 does not say that the reverter was in response to his feeling that it was a matter of caste law. He says himself that he did not know what the caste rule was. None of those who advised him is examined. It may be noted that the custom he speaks of is not exactly that alleged in the plaint, since he does not speak of any reverter of stridhanam pad to his daughter. P.W. 3 only speaks of the plaint case and says that according to Chetti custom, the stridhanam--it is not clear if he is speaking only of Minakshi's stridhanam and not of Visalakshi's also--'belong' to the parents of the girl. He speaks of a correspondence about the matter but no letters are filed. P.W. 5 says vaguely that if a woman dies 'leaving a son or daughter who also dies subsequently,' that is, in every case, since every one dies, it will again revert to the parents of the woman. He does not say what happens when the woman's issue dies issueless. A witness who makes such a statement is entitled to no weight. His knowledge is shown in cross-examination to be mere hearsay.
6. Thus the evidence gives us one definite instance and one vague instance of a very modern date and neither of them prior to the date of the suit. Obviously this is inadequate to discharge the onus which lies on the plaintiff to prove a custom, uniform, definite and specific and having the force of law. See the observations of the Privy Council in Chandika Bakhsh v. Muna Kunzvar (1902) L.R 29 IndAp 70: I.L.R. 24 A. 273 (P.C.). None of the plaintiff's witnesses in fact deposes that the alleged custom has among them the force of law or that the obligation to return the stridhanam is of the nature of a legal obligation. Most of them seem to agree that the stridhanam need not be kept intact although caste etiquette does usually keep it intact. It is difficult to gather from their evidence what custom lays down about that, and here undoubtedly the custom is to the last degree vague and indefinite. No case has been cited as settled by a caste panchayat, and, if the custom had been in vogue, there must have been cases of this kind. The evidence therefore appears to us wholly insufficient to justify this Court in putting on one side the ordinary rule of inheritance under Hindu Law. The alleged custom is not proved by cogent evidence or by well authenticated and ancient instances, nor is it in all respects specific and definite.
7. The plaintiff in argument sought to support his weak case by quoting the evidence of two of the defendant's witnesses, D.Ws. 2 and 3. D.W. 2, when the plaint custom was put to him in general terms, said that the property 'will go' to the donor's family. In cross-examination he said he did not know personally of the custom. Here again is lacking the essential element, namely, the conviction that the stridhanam will go as a matter of obedience to custom having the force of law. D.W. 3's evidence is much vague and he speaks merely of a demand and not even of a payment. We do not think that this evidence is sufficient to fill the gap in the plaintiff's evidence.
8. It seems clear that there is a custom having the force of law by that, if the daughter of the family dies issueless, the stridhanam will revert to her parents, but there is at present no clear custom having the force of law by which such reverter occurs when the daughter has issue and dies leaving issue. There is no certain custom in such a case governing the destiny of the stridhanam, and that destiny is apparently being decided by mutual arrangement sometimes one way, sometimes another. This is the evidence of a witness examined on commission for the defendant, Ex. II (a) and it appears to us to represent the probable state of affairs.
9. It is argued for the plaintiff that granted a custom that where the woman dies issueless the inheritance would go to her parents. Hindu Law would avail to send that inheritance in the same track when she has a daughter who dies issueless because under Hindu Law that daughter will not be a full owner. But obviously such an argument is untenable. The plaintiff cannot appeal to Hindu Law to support a custom which has its foundation in the derogation of Hindu Law. The manner of inheritance must be wholly either one way or the other, either according to custom or according to Hindu Law. This contention of the plaintiff has no support in the evidence of any witnesses; nor does any witness distinguish the manner and the reason of the reverter in the case of Minakshi's stridhanam, and in the case of Visalakshi's stridhanam, or suggest that Visalaksht held hers by custom merely as a limited owner; nor is the contention even found in the plaint itself.
10. The conclusion therefore we come to on the evidence is the opposite of that come to by the learned Trial Judge. We should have been more reluctant to differ from him if he had given any reasons for his conclusion, but his judgment is merely a setting out of the evidence and the argument on both sides with a pledding, it appears to us, on the whole against the plaintiff's Case, and then one sentence in paragraph 18 that on a careful consideration of the evidence, he has come to the conclusion that the plaintiff is entitled to recover. For that conclusion he gives no reason except that Minakshi's and Visalakshi's amounts are kept distinct in the accounts, but this seems to us no reason at all, since, as they were donated at different times and no doubt invested at different times, it is natural that they should find separate entry in the family accounts.
11. We, therefore, on our conclusion, reverse the decree of the learned Trial Judge and dismiss the plaintiff's suit with cost in both Courts.