1. In this appeal filed under the Letters Patent against the judgment of Panchapagesa Sastri J. in S. A. No. 1501 of 1947, the question relates to the succession to the properties of a dancing girl.
2. One Pullamma brought a suit for partition and possession of her half share of certain properties conveyed to her and her brother's daughter jointly in gift by a third person. When the suit was pending Pullamma died. Thereupon, the first respondent sought to come, on record as her legal representative and continue the action. He claimed to be the grandson of the brother of one Nandamma who was alleged to have adopted Pullamma as her daughter. The brother's daughter who was the contesting defendant claimed to succeed to the properties of Pullamma as her nearest heir.
3. It was common ground that both Nandamma and Pullamma belonged to the dancing girl caste and that Nandamma had adopted Pullamma as her daughter. It was further found that the first respondent was the brother's grandson of Nandamma. The trial Court decreed the suit. But, on appeal, the learned Subordinate Judge took the view that the first respondent was not the heir and that the appellant, the brother's daughter, was herself the heir. He therefore dismissed the suit. The first respondent filed the second appeal which was disposed of by Panchapagesa Sastri J. The learned Judge held that when Pullamma was adopted to Nandamma her connection with her natural family came to an end and therefore the appellant who was the natural brother's daughter could not inherit. He also held that the first respondent succeeded to the properties of Pullamma as her bandhu, being her adoptive mother's brother's grandson. He therefore allowed the second appeal and restored the decree of the trial Court. The brother's daughter now appeals.
4. It must be now taken as well established that so far as Madras is concerned, an adoption of a daughter by a dancing girl when it is not for the purpose of prostitution is valid by custom and such adoption confers on the person adopted the status of an adopted daughter with all the civil rights flowing therefrom like inheritance, to the adoptive mother's properties. -- 'Venku v. Mahalinga', 11 Mad 393 (A), --'Muttukannu v. Paramasami', 12 Mad 214 (B) and -- 'Veeranna v. Sarasiratnam', AIR 193& Mad 639 (C). Mr. Ramachandra Rao, learned counsel for the appellant did not therefore question the validity of the adoption of Pullamma by Nandamma. He however argued that the adoption, does not sever all ties between the adopted daughter and her natural family. He relied on the analogy of illatom son-in-law and the decision in which it was held that an illatom son-in-law does not lose all his rights in the natural family. Vide -- 'Balarami v. Pera', 6 Mad 267 (D) and --'Ramakristna v. Subbakka', 12 Mad 442 (E) and -- 'Subbarao v. Mahalakshmma', AIR 1930 Mad 883 at p. 894 (F). We do not think that this contention can be dealt with as a pure question of law. Hindu law as such does not recognise the adoption of a daughter. Such adoption is entirely the creation of custom. We must therefore find out whether it is one of the incidents of the custom, which permits the adoption of a daughter by a dancing girl that such adopted daughter loses or retains her rights in her natural family. Learned counsel for the plaintiff-respondent referred us to the oral evidence in the oases which appears to support the conclusion that according to the custom of the community the adopted girl does not Inherit in her natural family. There is no evidence contra. On the facts of this case it must therefore be held in the absence of any judicial authority on the point that when Pullamma was adopted by Nandamma her ties with her natural family were broken. The appellant as her natural brother's daughter would not therefore be her heir.
5. This finding however does not dispose of the case. The first respondent must succeed on the strength of his own title. It therefore becomes necessary to consider whether he is entitled to inherit to Pullamma. The answer to this question depends upon the rule of succession which applies to the property of a dancing girl. Panchapagesa Sastri J. was of the opinion that the law of succession to a dancing girl's property must ordinarily be the Hindu law relating to 'stridhanan property of a woman or principles analogous to the same. We shall now refer to some of the decided cases dealing with the point to see if this rule is; well established.
6. In -- '12 Mad 214 (B)', the learned Judges (Muthuswami and Parker JJ.) observed as follows:
"We consider therefore that as a matter of private law it must be taken the class of dancing woman being recognised by Hindu law as a separate class having a legal status, that the usage of that class, in the absence of positive legislation to the contrary, regulates rights of status and of inheritance, adoption and survivorship."
In -- 'Subbaratnam Mudali v. Balakrishnaswami Naidu', AIR 1918 Mad 642 (G), the rival claimants to the property of a deceased dancing girl were the mother's mother's father's brother's daughter and the mother's mother's father's brother's daughter's son. It was held that the former was the preferable heir. The learned Judges, after pointing out that the ordinary Hindu law of inheritance which is based, on a system of legal marriage and consequential relationship, cannot be applied at all or at least "without any considerable modifications to the property of a woman of the dancing girl caste who, except her own children can ordinarily have relations only through females, said,
"The rules as to stridhanam obviously do not apply to such property and there is no other rule of succession laid down in the Smritis 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."
The Full Bench case in -- 'Subramania Iyer v. Ratnavelu Chetti', AIR. 1918 Mad 1346 (FB) (H), no doubt concerned the right of a putative father to succeed as heir to his illegitimate son, But Kumaraswami Sastri J. made some observations in passing on the law of succession applicable to dancing girls and prostitutes on the basis of earlier decisions of this Court, namely, that in the absence of a positive rule of law to the contrary the custom of the caste and the analogies of Hindu law should be applied.
In -- 'Viswanatha Mudali v. Doraiswami Mudali', AIR 1926 Mad 289 (1), it was held that the legitimate descendants of two sons of a Hindu dancing woman are entitled to succeed to each other. There is a long discussion of case law by Devadoss J. who delivered the leading judgment of the Bench. The learned Judge was of the opinion that the ordinary Hindu law would govern dancing girls who followed the Hindu faith and Hindu customs and manners. Wallace J. approached the case from a slightly different aspect. He started by saying
"The law first of all to be applied is then the law founded on usage which governs inheritance to woman of the dancing girl caste, the paternity of whose children is unknown, and is not a fact of consideration at all."
But he held that the general principles of Hindu law can be applied unless such application would violate equity and good conscience and so long as a special custom to the contrary is not proved. The learned Judge said,
"I cannot see that such an analogous application of Hindu law to persons living as Hindus and following Hindu customs and usages can in any way offend the general principles of equity and good conscience."
In -- ', the plaintiff, a member of the Dasi community, claimed to succeed to her deceased maternal aunt in preference to the three surviving sisters of the deceased on the ground that one of them had been adopted by another dancing girl and the other two had become married women. The material issue related to the custom set up by the plaintiff that among dancing women married women were excluded by a woman who continued to be a dasi. It was held by the learned Judge, differing from the lower Court, that the custom was established; King J. who delivered the judgment of the Division Bench starts the discussion of the evidence with the following prefatory remarks:
"It is unnecessary, we think, to discuss in detail the various rulings of the Madras High Court which have been cited before us....... One proposition however is uniformly laid down in every decision which deals with the Dasi caste and that is that its members are not governed by the ordinary Hindu law in matters of succession but by caste, custom and usage."
7. In--'Balasun daram v. Kamakshi Ammal', AIR 1936 Mad 958 (K), Wadsworth J. observed:
"There is remarkably little authority in the reported cases regarding the devolution of property through females of the dancing girl caste. It is of course quite settled that when a dancing girl practising the calling of her caste acquires property thereby, it devolves more or less after the fashion of stridhanam, females taking in preference to males."
In -- 'Veeranna v. Satyam', AIR 1948 Mad 10 (L), the facts were: A person belonging to dancing girl community died leaving his widow and two daughters by her. Both these daughters lived the life of prostitutes and had children whose paternity was unknown. On the death of the widow and the two daughters a daughter's son claimed to be entitled to succeed to his maternal grandfather as against the daughter's daughters. It was held by Horwill J. that his claim was unsustainable because an illegitimate son of a daughter could not be considered under the Hindu law as a daughter's son and would not be entitled to rights and privileges as such. In a community in which marriage is only casual and neither common nor customary, it appears anomalous to insist on legitimacy as a condition of the right to succeed. But the learned Judge was obviously faced with this difficulty, namely, that in the absence of custom he had to apply the general rules of Hindu law. Under the Hindu law 'sapinda' relationship and propinquity were based on the legitimacy of the offspring.
8. The result of the authorities above cited appears to be this that members of the dancing girl community who adopt the Hindu faith and Hindu customs & manners must be treated as persons governed by the ordinary Hindu law, but on account of the special kind of life led by them which is in important respects inconsistent with Hindu dharma on which ultimately Hindu law is based, they are governed largely by custom and usage often not in consonance with Hindu law. Where there is no proof of a custom directly applicable to any particular case of disputed succession the general rules of Hindu law may be applied by analogy as rules, of justice and equity.
9. In the present case it is obvious that the plaintiff could have no right whatever under the general law to inherit to the deceased Puliamma. He is not related to her in any way; the basis of his claim is ultimately the adotion of Puliamma by Nandamma. Such an adoption is not contemplated by Hindu law. The validity of such adoption is therefore entirely dependent on custom and usage. The rights and status of a daughter adopted in accordance with the custom prevailing among the community must be determined by a clear proof of the incidents attaching to such adoption by custom. The evidence in the case carries us only so far, namely, that in this community a woman can take a girl in adoption as her daughter and in such case the adopted mother's property is inherited by the adopted girl and 'vice versa'. The decided cases also do not carry further vide the latest case on the point AIR 1936 Mad 639(C).
10. In --'Gangamma v. Kuppammal', AIR 1939 Mad 139 (M) Wadsworth J. discussed the scope of the custom of adoption of girls among the Devadasi community. In that case the adopted daughter sued her adoptive mother for partition of the latter's properties on the ground that she and her mother constituted a joint family. The learned Judge negatived the claim. He held that though it was well established in Madras that an adopted daughter of a dancing girl inherits to her adoptive mother, yet there was no such thing as coparcenary between the mother, and the daughter. The practice of adoption amongst the devadasis had nothing to do with religious benefit but was purely a custom arising out of the natural desire of the women to have a daughter to look after her in her old age and to receive her property on her death. The learned Judge therefore refused to concede to the adopted daughter the status and rights of an adopted son under the Hindu law. He insisted on a specific plea of a custom and evidence in support of it that the adopted daughter became a coparcener with the adoptive mother.
11. When Pullamma was adopted by Nandamma, she became entitled to inherit to Nandamma. Equally Nandamma would have had the right to inherit to Pullamma. But, did Pullamma become a 'sapinda' of all the collateral relations of Nandamma. The analogy of Hindu law does not help us, because that law does not recognise the adoption of a daughter, and the adopted daughter cannot be equated to an adopted son. In our opinion, in the absence of a custom it cannot be said that a girl adopted by a woman of the dancing girl community becomes entitled to all rights of collateral succession unless there is a custom pleaded & proved to that effect. Instances are not known in which a person has been held entitled to succeed to the person's immediate ascendant or descendant without being entitled to rights of collateral succession. One is the case of all illatom son-in-law who may succeed to his father-in-law as a son but cannot claim rights of collateral inheritance -- 'Muthala Reddiar v. Sankarappa Reddiar', AIR 1935 Mad 3(2) (N). Another is the case of an illegitimate son who can only inherit to his father and not to collaterals AIR 1913 Mad 1946 (FB) (H).
12. It is a well recognised legal principle that a custom cannot be enlarged by parity of reasoning. Attempts to rely upon analogous customs in support of an alleged custom have always been repelled vide -- 'Palaniappa Chettiar v. Chockalingam Chetti', AIR 1930 Mad 109 (O). In -- 'Seetha Neithyar Amma v. Kelu Menon', AIR 1939 Mad 564 (P), Madhavan Nair J. dealing with a custom of adoption prevailing among the Nair community in Malabar observed:
"......the law applicable to the case being essentially a customary law, the question can be decided only by having recourse to evidence as to custom in the absence of texts or express decision of this court."
13. In the present case, there is neither text nor decision to support the "claim of the first respondent. Nor is there proof of custom. His claim must therefore fail.
14. The Letters Patent Appeal is allowed and the decree of the lower appellate court is restored with costs here and before Panchapagesa Sastri J.