John Wallis, C.J.
1. This case raises a question of considerable difficulty and importance as to the existence of a special custom among Labbais or Tamil-speaking converts to Muhammadauism in the District of Coimbatore, or alternatively in the family of the parties to the present suit who belong to that district, to depart from the Muhammadan rule of succession and, as alleged by the defendants, to follow the Hindu Law as regards the law of property succession and partition. This, however, is too broadly produced as the only question arising in the suit is whether they follow the particular rule of Hindu Law which excludes females from the right of succession. The suit is brought by the plaintiffs, who are respectively the husband and minor daughter of the deceased Ponnuthayee, as her heirs to recover her share under the Muhammadan Law in the estate of her father, the late Mahomed Hussain Rowther who predeceased her. In 1877, in a suit tried by Innes, J., in the original side of the High Court, the custom relied by the defendants in the present case was proved to exist, but the case was compromised whilst under appeal; and in Mirabivi v. Vellayanna 8 M. 464 which came before the High Court in second appeal, this Court reversed the decrees of the lower Courts finding a similar custom proved in the Palghat country which adjoins the Coimbatore District. The decision, of coarse, proceeded on the evidence in the case, but the question was approached from the standpoint that it was for the parties setting up the custom to show that though following their religion generally Labbais had adopted from the Hindu Law the principle of the exclusion of the females. The onus, no doubt, was rightly placed, but, having regard to the fact that we are dealing with Tamil-speaking people whose adoption of Muhammadanism in many cases cannot be referred to an earlier date than the second half of the eighteenth century, I should prefer to state the question as being whether after their conversion they had adhered in these respects to the usages to which they had been accustomed as Hindus; and with great respect, I am unable in the face of the evidence in this case to attach much weight to the suggestion that the state of things which we find existing may be due to unwillingness on the part of Muhammadan females to assert their rights against the male members of the family. Of the later cases, this is the first to come before this Court on first appeal so as to enable the Court to appreciate the evidence for itself, but there have been several cases in the lower Courts in which the custom was uphold when set up, and the plaintiff has had to rely largely on the fact that in certain other cases it was not set up. Exhibits L, C, N, R, H, and Q show that in suits of 1890, 1892, 1891, 1903, 1904 and 1910 arising in the district the women's right to succeed in accordance with Muhammadan Law was not contested. Exhibit G relates to a suit of 1893 in which the custom was pleaded and negatived by the lower Courts, whoso judgments wore upheld in second, appeal as, on the other hand, Exhibit B and Exhibit B-l relate to a suit of 1901 in which the District Judge held that the evidence went to show that the parties who were Labbais had adhered to the Hindu Law in this respect, but had hesitated to plead such adherence expressly for fear of being considered not to be good Muhammadans, and had set up instead a family custom under which women were excluded from the succession as regards immoveable property and were given cash and jewels in lieu of their share. He accordingly upheld the decree of the District Munsif, disallowing the custom on the ground that it was not pleaded that the parties had adhered to the rule of Hindu Law and that the family custom derogatory to Muhammadan Law had not been proved. Exhibit 18 relates to a suit of 1893 in which it was expressly pleaded on behalf of the minor plaintiff by his mother as his next freind that according to well-established custom, the widow and daughter of the deceased Labbai do not take any share in the inheritance, and the razinama decree, Exhibit XVII; proceeded on this view. Exhibit 3 again is a judgment of the District Judge, now Mr. Justice Oldfield in a suit of 1904 which upheld the custom in that case, an Exhibit XVI is a judgment of a later District Judge in another suit to the same effect. The general result would, therefore, seem to be that in more recent years, whenever the custom has been set up, it has been established, and the number of instances in which it has not been set up would appear, as was observed by Mr. Brodie in Exhibit B-1, to be due to the growing disinclination of members of the community to adhere to a usage which is not in accordance with a strict observance of the Koran. Looked at as a whole the evidence, in my opinion, goes far to show that the Labbais of this part of India at the date of their conversion preferred to retain the Hindu rule excluding women, as it was not unnatural they should; and I should infer that the usage was general until some time before 1877 when we first hear of the question coming before the Courts, as any difference on the point must probably before long have given rise to litigation. But it also seems to me perfectly natural that, as the evidence shows, there should be of late years a growing tendency to depart from the usage and conform in this matter to the precepts of their sacred law. Now assuming that the special usage among Labbais of this part of the country has been proved, and that it would be open to individual families to abandon it and conform to the ordinary law governing their co-religionists, as to which see the observations of their Lordships in Rajkishen Singh v. Ramjoy. Surma Mozoomdar 19 W.R. 8 : 8 M.L.J. 151 it would be a question of fact whether they had in fact abandoned it, and such abandonment would have to be proved. It is unnecessary to consider this question further, because so far as the parties to the suit are concerned, I think that the evidence, oral and documentary, of their transactions is amply sufficient to show that they adhere to the Hindu rule, even if we put aside the various judgments concerning other persons coming from the same part of the country which support this conclusion. Exhibit 10 would seem to show that there had been a partition between the plaintiff and his brothers in which the claims of the sisters were ignored, and the document' itself is a release by the plaintiff and one of his brothers in favour of another brother of their share in the estate of a deceased brother in which again, nothing is allotted to the female members. The 1st plaintiff who was a party to the deed has not ventured to go into the box, which goes very far to prove the custom in the family. Exhibit, J. on which the plaintiffs, rely relates to the share which a deceased brother of the defendants' family had in partnership with two Hindus. It expressly states that the brothers of the deceased were his heirs, though it also states that with them the 1st plaintiff and his brothers as sister's sons of the deceased had recieved his share. The signatures of the sister's sons who were adults were, I think, obtained to protect the surviving partners from any possible claim by them, although the document does not include them as among heirs of the deceased, just as there is an indemnity inserted lower down against any claim by the minor daughter of the deceased partner then aged nine. This daughter, according to D.W. No. 8, has since married the 1st plaintiff himself and it is not suggested that any claim has ever been made on her behalf. The general effect of the document is to assert that the brothers of the deceased were his heirs, though for the security of the Hindu partners of the deceased, it provides against possible claims against them by his sister's sons and his minor daughter. D.W. No. 7, who is related to the defendants by marriage, proves that in his family their properties were divided by Exhibit 5 without any share being given to the daughters. D.W. No. 7, who is related to the plaintiff's and defendants' families, also speaks to the custom, as does D.W. No. 10 who is related by marriage to the plaintiffs. D.W. No. 13 speaks to the fact that women get no shares in the defendants' family and proves Exhibit 10 which, as I have already said, amply bears him out. I think the evidence oral and documentry is sufficient to show that the defendants' family have adhered with perhaps most of the other Labbais of the neighbourhood to the Hindu rule excluding the succession of females. As observed in Kunhambi v. Kalanathar 24 Ind. Cas. 528 it is under the provisions of the Civil Courts Act a question of fact in each case as to the usage followed by the family, and in the present case, I think, the usage is sufficiently proved. As regards the point taken as to res judicata, I agree with the judgment of my learned brother and with the order proposed by him.
Srinivasa Aiyangar, J.
2. The principal question for decision in this case is as to the devolution of the property of a Muhammadan named Hussain Rowther who died, it is said, about the end of the year 1904. He left him surviving three sons, defendants Nos. 1 to 3, a widow, the 4th defendant, and two daughters, Ponnuthayee and Sulaihabi. There was another son who is now dead, but whether he left any heirs other than the parties to the suit does not appear. The two daughters are dead. The first plaintiff is the husband of Ponnuthayee and the 2nd plaintiff is her daughter. Defendants Nos. 5 and 6 are the children of the other daughter Salaihabi.
3. Plaintiffs sue to recover their share, under the Muhammadan Law, of the share of Ponnuthayee in the estate of her father, Muhammad Hussain Rowther. Muhammad Hussain Rowther and the parties to the suit are Labbais. The claim is opposed by defendants Nos. 1 to 4, who plead that, according to the custom prevailing among Labbai Muhammadans of the Coimbatore District and alternatively, according to the custom prevailing among the parties and their relations, the property of a deceased Labbai devolves on the sons to the exclusion of the daughters, as under the Hindu Law; they also state that unmarried daughters are maintained out of the paternal estate and stridhanam given to them at the time of marriage, as in Hindu families. Custom in its legal sense means a rule exceptional to the general rule of law. In countries like England where there is a uniform territorial law binding on all persons, a custom in derogation of that law, when allowed, requires very strict proof. But in India, where there are innumerable sects each following its own usages which constitute its law, in many cases it is impossible to say that any particular usage which is pleaded is in derogation of a general law. For instance, the Nambudris and Nairs of the West Coast are Hindus, but they are mostly governed by their usages. In the case of many of the aboriginal tribes who come in under the general designation of Hindus, the presumption that they are governed by the Hindu Law of the Smriti writers and their commentators, is so slight that very little evidence suffices to displace this presumption. Among the Nattukottai Chetties of Southern India who are orthodex Hindus, there are usages relating to adoption which are entirely at variance with the rules of Hindu Law. The Moplahs of North Malabar, who are Muhammadan converts from Hinduism, generally follow the Marumakkatayam system, modified in some matters by rules of Muhammadan Law, as in the case of succession to self-acquired property. The Khojas and Memon Cutchis of Bombay who are Muhammadans by religion follow the Hindu Law of succession. Again, a family domiciled in Southern India is presumed to be governed by the Mitakshara School of Hindu law, but if it is proved that they emigrated from the northern or Maharatta country, this presumption is rebutted, and the family is presumed to retain the law of the place from which it emigrated. In many cases the inquiry is as to what is the law, and not as to what is the usage at variance with law Hirbai v. Gorbai 12 B.H.C.R. 294; Rarichan v. Perachi 15 M.k 281; Kunhi Raman v. Kunhi Parwathi (1910) M.W.N. 642. The Judicial Committee in dealing with a family custom forbidding adoption said: 'Looking at the origin and history of the family, it appears to their Lordships that the question is not whether the general Hindu Law is modified by a family custom forbidding adoption, but whether with respect to inheritance the family is governed by Hindu Law, or by customs which do not allow an adopted son to inherit'. Fanindra Deb Raikat v. Rajeswar Das 12 I.A. 72. Standard of proof which is required in any particular case may, therefore, vary.
4. The parties to this suit being Muhammadans by religion they are presumably governed by their religious law i.e., the Muhammadan Law, in matters of succession. There is, however, the fact that the Labbais are a mixed class of Muhammadans consisting partly of compulsory converts to Islam made by the early Muhammadan invaders and Tippu Sultan. (See Madras Census Report of 1891.) They generally speak Tamil in their houses. Their marriage ceremony is said to closely resemble that of the low Hindu castes. (See Thurston on Castes and Tribes, Volume IV, page 200) It is, therefore, probable that many of the Labbais being recent converts from Hinduism retained the mode of devolution of property according to Hindu usages even after their conversion, though, in course of time, they would try to give up such usages and adopt rules of devolution of property prescribed by their religious law. An examination of the evidence in this case presents these features.
5. In 1878 this custom was pleaded in a suit in the original side of this Court, and Mr. Justice Innes, after a careful consideration of the large mass of evidence, both oral and documentary, placed before him, came to the conclusion that in the District of Coimbatore there are peculiar customs in regard to marriage and succession, and the most prominent feature in the rule observed as regards succession is that, on the death of a man leaving sons and unmarried daughters and a widow, the sons take to the exclusion of the females who are simply maintained, and that married daughters are regarded as entitled, as among Hindus, to no provisions whatsoever'. Exhibit XII. It is noticeable that the evidence in this case consisted mostly of witnesses from the village of Pallipatti in which and in the neighbouring villages the defendants and their relations mostly live. This decision was appealed against but the appeal was compromised.
6. This custom was again set up in a case, Mirabivi v. Vellayanna 8 M.k 464. That was a case of Labbai Muhammadans residing at Palghat. Both the first Court and the first Appellate Court held the custom proved. But the High Court interfered in second appeal holding that the evidence was not sufficient to prove the custom. The learned Judges were able to find satisfactory explanation in the evidence in that case as regards the various instances proved in that case of devolution in accordance with the principles of Hindu Law.
7. The next occasion when the matter was the subject of controversy was in the year 1901. (Exhibits B and B1) Exhibit B is the judgment of Mr. Sadasiva Aiyar (now Mr. Justice Sadasiva Aiyar) as District Munsif of Coimbatore and Exhibit B-l is the judgment of Mr. Brodie, the District Judge, on appeal. A careful perusal of the two judgments leads to only one conclusion, namely that at that time, that is so late as 1901, it was the practice of the Labbai Muhammadans of Coimbatore District to follow Hindu usages in matters of succession. In paragraph 6 of the appeal judgment, Exhibit B-l, Mr. Brodie observes that 'though no doubt the customary law of the Labbais in this district has upto date been more in accordance with Hindu than Muhammadan Law as is only natural, I observe a tendency on the part of the defendants in such cases as the present to resort to any defence to defeat such claims amongst themselves rather than plead that they are governed in anything by Hindu Law, as this lays them open to the reproach of not being strict observers of Muhammadan practices'. The actual decision was in favour of the claim of a female to a share, but this was based on the absence of the plea that the parties were governed by Hindu Law in matters of succession.
8. Again in 1906 the District Judge of Coimbatore held the custom proved in Exhibit III.
9. This matter came up for adjudication again in 1910 and it was held that among the Labbais of Pallappatti the custom of exclusion of females was prevalent: Exhibits IX and XVI.
10. There is only one other judgment to which I need make reference, i.e., Exhibit Gr. What is printed in the records is merely the decree the second appeal, but our attention was drawn to the judgments in the lower Courts. It appears that, in a previous litigation between the parties, this custom was set up, but was found against for want of evidence. In the present litigation the question was disposed of on the plea of res judicata. This decision is not of use either way. The respondent relied on several judgments in partition suits in which the right of females to shares was not disputed. They are Exhibits L and M in 1890, Exhibit C in 1892, Exhibit N in 1894, Exhibit R in 1903, Exhibit H in 1904, and Exhibit Q in 1910. In Exhibit XVIII, a plaint in a suit of 1893, the custom was expressly pleaded by a mother suing as next friend of her minor son; the suit was compromised, but the compromise-decree, Exhibit XVII, proceeded on this view. The documents referred to above prove, in my opinion, the general prevalance among the Labbais of the Coimbatore District of this custom of excluding females from participating in the property of their deceased ancestors at the time of partition, and also that in recent times the custom was not set up in some cases owing to the disinclination of members of this community to follow usages at variance with their religious law.
11. There is evidence in this case which establishes that the family of the parties follow this custom. Defence 7th witness, a relation of the parties, speaks to this custom and proves a partition in his own family, where the father's properties were divided amongst the sons without any share being given to the daughters: Exhibit V. The property divided was considerable. He says, no doubt, in his examination-in-chief, that lie does not remember what the brothers did for the daughters; but that does not imply that anything was given to the daughters on account of their shares. The statement may refer to the practice of giving stridhanam. Defence 8th witness, another relation, speaks to a partition in his own family in which the daughters wore not given any shares. Defence 10th witness, also a relation, proves Exhibit VIII, a deed of partition which shows that the sons alone divided the properties of their father. The mother who was alive was not given a share, but Rs. 200 was set apart for her maintenance as in the case of a division among the members of a Hindu family. I attach considerable importance to this circumstance. Defence 13th witness speaks to this custom and proves Exhibit X. It is a release executed to the 1st plaintiff by two of his brothers releasing all their rights to the property of a deceased brother, the executants receiving Rs. 900 from the 1st plaintiff in satisfaction of their claims. The 1st plaintiff and his two brothers considered themselves solely entitled to the property of their deceased brother, though their sisters were alive at the time. The document also recites an oral partition among the brothers which again makes no reference whatsoever to the sisters. This document is important as proving an instance of exclusion of females in the plaintiffs' own family. The 1st plaintiff has not chosen to go into the box to explain this transaction. General evidence is given by the other witnesses for the defendants in proof of the 'custom, but I do not attach much value to that evidence. There is no evidence on the plaintiffs' side except general statements of witnesses, to which again I am unable to attach any weight. The learned Pleader for the respondents relied on Exhibit J as affording an instance in which the Muhammadan Law was assumed by the family to be the law by which they were governed. After carefully considering this document I am unable to come to any such conclusion; on the other, hand I agree with my Lord the Chief Justice that it is against the plaintiffs. The evidence above set out taken along with the evidence of the general prevelance of the practice is, 1 think, sufficient to prove the family custom set up.
12. It is remarkable that the 4th defendant, the widow, who, if the Muhammadan Law applied, would be entitled to a 7th share in the properties of her husband which are of considerable value, disputes the claims of the plaintiffs along with her sons, defendants Nos. 1 to 3. No explanation is given for her disclaiming any interest in the valuable properties of her husband, nor is there any reason shown for her joining her sons as against her own daughter's children. I am, therefore, unable to agree with the conclusion of the lower Court on this point. On this ground the decree of the lower Court will have to be reversed and the plaintiffs' suit dismissed with costs throughout.
13. The appellants contended that the plaintiffs are not entitled to institute this suit as they had already instituted Original Suit No. 16 of 1909 in respect of the same cause of action. I agree with the lower Court that the cause of action pleaded in Original Suit No. 16 of 1909 was quite different from the cause of action in the present suit, and disallow this contention.
14. The appellants also contended that the suit is barred by limitation in respect of the moveables. It is unnecessary to decide 'this question as we are dismissing the plaintiffs' suit on another ground.