Subba Rao, J.
1. The question that arises in this appeal is whether in the case of competition between a dasi daughter and married daughters to succeed to the estate of her mother, the former would exclude the latter.
2. The relevant facts necessary for appreciating the question of law raised in this case may be stated. The following pedigree may usefully be referred to.
AMMANI AMMAL|-------------------------------------------------------------| | | |Muthulakshmi Thulasi Kumudam Mangalam|Thangathammal (died 25-7-1943)|--------------------------------------------------------- | | |Saraswati (1st Deft.) Jagadambal (Plff.) Meenambal (2nd deft.)
The members of the family belong to the dasi or dancing girls community. Thangathammal was a dasi and in accordance with custom, she had bottu tied in a temple. Saraawathi defendant 1, also had bottu tied in the temple. But Jagadam bal and Meenambal got married. Thangath ammal died intestate on 25th July 1943 possessed of property. On her death, the plaintiff, one of the married daughters, filed the present suit for partition and separate possession of her one third share in the properties left by her mother, Thanga thammal. The defendant 1, inter alia, contended that by custom obtaining in the community a dasi daughter is the nearer heir to the dasi mother. Curiously the defendant 2, who is also one of the married daughters supported the case-of defendant 1. The learned Subordinate Judge, held that a custom has been proved that a dasi daughter is the nearer heir to the dasi mother than her married daughter. In the result he disallowed the claim of the plaintiff and dismissed the suit. The plaintiff has preferred the above appeal. Learned counsel for the appellant raised the same contentions before us.
3. At the outset we shall briefly notice the law applicable to the dasi community. The dasi or dancing girl caste has a definite status in society. The girls were dedicated to the deity and prostitution was not an essential condition or even a necessary consequence. But later on they had fallen so low that it is now impossible to think of a dancing girl without her taking part in the professional prostitution. The law regulating succession to dancing girls is not laid down by the precepts of sages. Rules governing their succession are evolved by caste custom and usage and in other cases the texts relating to stridhana are made applicable to them as rules of justice, equity and good conscience and also by the rule of analogy.
4. In Mayne's Hindu law the principles governing the said case are stated as follows:
'It was held that the members of the dancing girl caste are not governed by the ordinary Hindu law in matters of succession, but by caste custom and usage. There does not seem to be any valid reason why the property of a dancing girl should not be governed by the rules of succession to stridhana property except to the extent to which there is a usage to the contrary. 'Whether the texts relating stridhana directly apply to dancing girls or not, the rules of succession they lay down will apply to them as rules of justice, equity and good conscience. They will also apply by the rules of analogy.'
These principles are also laid down in the Full Bench decision in Subramania lyer v. Ratnavelu Chetti, 41 Mad. 44: A. I. R. 1918 Mad. 1346. Therefore an attempt was made in the lower Court to establish a custom in support of the defendants' case that a dasi daughter would be a preferential heir in a competition between her and a married daughter. The learned Judge accepted the evidence adduced on behalf of the defendants and held that such a custom was proved. Learned counsel for the appellant canvassed that finding before us. In appreciating the evidence, the principles laid down by the Judicial Committee in Palaniappa Chettti v. Devasikamani Pandarasannadhi, 40 Mad. 709: A. I. R. 1917 P.C. 33 and applied by a Bench of this Court in Brahadeeswara v. Rajagopala : AIR1947Mad71 viz., that the custom must be ancient, certain and reasonable may be borne in mind. The nature of the evidence required to establish such a custom, is stated by the Privy Council in Ahmed Khan v. Channi Bibi in the following passage: ''As regards the custom in respect of which the two Courts in India have differed, their Lordships think the Subordinate Judge was in error in putting aside the large body of evidence on the plaintiff's side merely on the ground that specific instances had not been proved. They are of opinion that the learned Judges of the High Court are right in holding that a custom of the kind alleged in this case may be proved by general evidendfe as to its existence by members of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy.'
It is therefore clear that such a custom may be proved not only by specific instances but also by general evidence of the nature described above. The evidence adduced in this case by the parties comes under both the categories. There is a general evidence and there is also an attempt to prove specific instances.
5. (After reviewing the evidence his Lordship proceeded). On the evidence we hold that about nine instances are proved, in some cases of the children irrespective of sex succeeded to the dasi mother, in most oases both the married and the dasi daughters succeeded to the dasi mother. We therefore do not find in this case any uniform practice or usage. There is an instance of a dasi daughter excluding the married daughter. There are many instances of both the daughters succeeding to the mother. There are a few instances of all the children succeeding to the dasi mother. In this state of evidence, it is impossible to hold in favour of the custom pleaded by the defendants. We are therefore of the view that the custom pleaded by the defendants has not been proved.
6. Mr. T. M. Krishnaswami Aiyar then argued that the dancing girls caste had a distinct status in Hindu society and by custom OR by analogy a rule of law has been evolved recognising the state of degradation as a rule of preference in a competition between a dasi daughter and a married daughter. He further contended that though the said principle has been abrogated by the later decisions in the case of succession to a prostitute the said rule of law in regard to dancing girls is left untouched. We shall now proceed to consider the cases cited by him. In Chalakonda Alasani v. Chalalconda Ratnachalam, 2 M. H. C. R. 56 the defendant was from her childhood brought up by the plaintiff and both of them earned jointly in the trade of prostitution. The learned Judges held on the principles of law and on common justice that both of them held the property jointly and the plaintiff as the eldest member of the family was entitled to its possession. In Eamakshi v. Nagaratnam, 5 M. H. C. R. 161 it was, held that on the death of one of the two sisters to whom the joint here, ditaey office of dancing girls attached to a pagoda had passed on the death of their mother, the share of the deceased sister in the office devolved on her daughter and not on the surviving sister by survivorship. The principle on which they decided the case is stated at p. 166 :
'There appears to be no doubt that the daughters of dancing women like the parties to the suit take the place of sons, and our decision founded upon this view of the law, is that, in the absence of any further positive rule, daughters must be regarded as sons and held to take estates of inheritance from their mother similarly to sons under the general law of inheritance, and so regarding the parties in the present case it is clear that defendant 1 did not, as coparcener, acquire by the general law the right of succession to the exclusion of the plaintiff and that the plaintiff was entitled to succeed to the share of her mother.' It is clear from this decision that in the case of dancing girls living as members of one family the principle of coparcenary applied by analogy. In Sivasangu v. Minal, 12 Mad. 277 the question was in a competition between the sons and a sister leading a life of prostitution who would be the preferential heir to the estate of another deceased sister who was leading a life of prostitution. The learned Judges followed the decision in Tara Munnee Dassea, v. Motee Buneanee, 7 S. D. A. 273 and held that the prostitute rather than the sons would be the preferential heir. The principle on which the question was answered in that case is found at p. 284 :
'Following the opinion of the Pundit, the Sudder Dewanney Adalat held that the two prostitute daughters were alone entitled to inherit what the prostitute mother has left and that the relation of the married and respectable daughter to the outcaste mother had been severed.'
In Narasanna v. Gangu, 13 Mad. 133 an adopt- ed niece of a prostitute dancing girl was preferred to her brother remaining in caste. The decision was based on the principle that the legal, relation between a prostitute dancing girl and her undegraded relations remaining in caste became severed. In Subbaratna v. Balakrishnaswami, 33 M. l. J. 207 : A. I. R. 1918 Mad. 642 on which the learned advocate laid great stress, the facts are, the deceased woman Palani inherited the property in dispute from her mother Nagu who inherited from her mother Mottai who in her turn inherited from her father Amnachala. Arunacbala had two brothers Rama- swami and Mathurbutham. The question in that case was whether Mathurbutham's daughter Seethai or Ramaswami's daughter's son Marudamuthu Mudali was the heir of Palani. The learned Judges held that Mathurbutham's daughter was the preferential heir to Ramaswami's daughter's son. In the course of the judgment they considered the earlier cases. They pointed out that the rule of preference based on degradation was no longer good law. They say :
'It is to be observed that these oases leave the law as to dancing girls as it was before.' Mr. Krishnaswami Aiyar strongly relied on this passage and argued that though the rule of preference based on degradation is no longer applicable in the case of prostitute's property it continues to be the governing rule in the case of dasis or dancing girls. This argument presupposes that there was a rule of law evolved by custom or on the analogy of Hindu law recognising the said rule of preference in the case of dancing girls. The cases cited by him which we have already referred to do not recognise any such rule. Each cage was decided on the proof of a particular custom or in its absence by applying the rules of Hindu law by analogy. Further if that rule was no longer applicable to prostitutes, we do not see any particular reason why it should continue to apply to dasis who led a prostitute's life. The principle now well settled is that prostitution does not sever the tie which connected a woman to her kindred by blood (see Hiralal v. Tripuracharan, 40 Cal. 650: 19 I. C. 129; Subbaratna v. Balakrishnaswami, (1918) 33 M. L. J. 207 : A. I. R. 1918 Mad. 642 and Viswanatha v. Doraiswami,, 48 Mad. 944 : A.I. R. 1926 Mad. 289. If prostitution does not sever the tie we do not see any reason why a different rule should be applied in the case of dasia. Be that as it may, we cannot accept a rule of preference based on degradation as no such rule has been, proved to have been evolved by custom or by analogy of Hindu law.
7. Learned counsel for the respondent next argued that even applying the analogy of Hindu law defendant 1 being an unmarried daughter should be preferred to the plain tiff who is a married daughter. In regard to succession to stridhanam property Hindu 'law prefers an un married daughter to a married daughter. Whether a prostitute can be ranked as an unmarried daughter within the meaning of the smritis has been elaborately considered in an illuminating judgment in Tara v. Krishna, 31 Bom. 495 : 9 Bom. L. R. 774. In that case one V'agbya (a male dedicated to the God Khandoba) had three daughters one of whom was a murali (female dedicated to the God Kbandoba) and two married. After 'Vaghya's death his dasi daughter who lived by prostitution claimed her father's property as heir to the exclusion of her sisters under the rule of Hindu law that an unmarried daughter inherits to her father before his married daughter. The learned Judge Chandavarkar J. exhaustively considered the smritis and the commentaries and held that a woman who in her maiden condition becomes a prostitute, being neither a kanya (unmarried) nor a Kulastri (married) would be entitled to succeed to her father's property only in default of either married or unmarried daughters. The learned Judge construed the word unmarried daughter as a Kanya. The learned advocate questioned the correctness of this decision on two grounds, (1) that the construction is contrary to the express word anudha used in Mitakshara which correctly translated means unmarried and (2) that the reason given by the learned Judge for preferring a Kanya to a married daughter viz., that according to law the right is given to her because of her eligibility for marriage no longer holds good as it is now recognised that a dasi can also be married. It is unnecessary to consider the various texts and the commentaries as we respectfully agree with the interpretation put upon that word by the learned Judge. But we may observe that it is inconceivable that when the sages laid down the principle of preference they would have intended to include a prostitute when they used the word anudha or unmarried daughter. They were only considering a case of competition between a kanya i.e., a virgin and a married daughter to the estate of their mother. In Subbaratna v. Balakrishnaswami, (1918) 33 M.L J. 207 : A. I. R. 1918 Mad. 642 though in a different context', the learned Judges have brought out this idea' very forcibly. They say at p. 209:
'The dancing girl's are not virgins, are not married women and never become widows.'
Though we agree with the meaning attributed to the word unmarried by the learned Judge we do not think it ia possible to apply the rule of preference to the case where the competition is between a dasi daughter and a married daughter of a dasi. The only rule of Hindu law which we can reasonably apply by analogy in the absence of a custom and consistent with the rule of justice, equity and good conscience is the rule of propinquity i.e., proximate relationship. Applying that rule, we hold that both the married and the dasi daughters would take the property in equal shares. Therefore the plaintiff would ba entitled to a one-third share in her mother's properties.
8. Learned counsel for the appellant did not contest the other findings of the lower Court and therefore we accept them.
9. In the result the appeal is allowed in part and in the circumstances of the case we direct the parties to bear their own costs here and in the Court below. The mesne profits will be ascertained on a separate application.