1. The question at issue in this appeal is the right of succession to the property of a dancing girl of Palamcottah named Amirthammal who died issueless in 1920. Amirthammal had four sisters of whom three still survive and were impleaded in this suit as defendants 1, 2 and 3. Plaintiff is the daughter of the other sister who had predeceased Amirthammal. Plaintiff claims that she is the sole heir of Amirthammal and that her aunts are disqualified for the following reasons; defendant 1, because she has been adopted by another dancing girl, and defendants 2 and 3 because they are married women who do not practise the profession of the dancing girl caste. Plaintiff alleges that by the customary law of the caste such married women are precluded from the succession. Plaintiff was given a decree by the Sub-Judge of Tuticorin but her suit was dismissed on appeal by the District Judge of Tinnevelly and she now comes to us in Second Appeal. Various questions of fact were disputed in the first Court, but the facts are now settled, viz. that plaintiff is a dasi and not a married woman, and that Defendant 1 was taken in adoption; and the sole question now in dispute, as indeed it was before the District Judge also, is whether plaintiff has established the custom by which she claim to exclude her two remaining aunts Defendant 2 and Defendant 3.
2. It is unnecessary, we think, to discuss in detail the various rulings of the Madras High Court which have been oited before us. None of them deals with the same facts as those here, and in none of them has the custom here pleaded been either upheld or negatived. Nor does either the Sub-Judge or the District Judge in coming to their respective decisions, rely upon any particular authority. 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. The only point which really falls to be decided in this appeal is whether the evidence in this case establishes the custom pleaded by plaintiff or not.
3. Before discussing the actual evidence it will be well to quote the issue which was framed by the Sub-Judge. It is as follows:
Whether the custom sot up by the plaintiff viz., that among dancing-women married women are excluded by women who continue to be Dasis is true, valid and legally enforceable.
4. Now the evidence on this issue is given by five witnesses, all of them dasis, arid all except one living in Palamcottah. P.W. 1 and P.W. 2 are old women, whoso age is given as 70.
5. P.W. 1 was asked.
Who will succeed to the properties of a childless dasi-her married sisters or one who is leading the life of a dasi '.? and she answers.
The sister who is a dasi will take the properties in preference to the married sister.
6. P.W. 2 says:
When a dasi leaves any properties, they are inherited by those who are dasis and not by any who leads a married or family life.
7. P.W. 4 who is the plaintiff herself says:
Some daughters are married...daughters so married must remain under the protection of their hns'uauds and inherit their husband's properties', and again,
Daughters who are dasis will succeed to their mother's properties.
8. D.W. 1 is defendant 1 who sides with the plaintiff on this question of custom though she is against her on the facts of plaintiff's alleged marriage and her own adoption, She says.
If some of the deceased's idaughters are married and some are dasis her properties will go to those daughters who, are dasis. The married daughters and sons do not succeed to the properties when there are daughters who are dasis.
9. D.W. 2 is the daughter of a dasi but was married in her infancy. She says that because of her marriage she has not inherited her mother's property. She refers to two other cases to illustrate the exercise of the custom set up by plaintiff, but admits in cross-examination that in this matter she is merely repeating what her husband told her.
10. This is all the material evidence. It will be noticed at once that there is no evidence whatever against the plaintiff. Defendants 2 and 3 who deny the existence of the custom in their written statements do not venture to deny it on oath in the witness box. And this evidence is accepted by the District Judge as representing the honest belief of the witnesses. He however rejects it as insufficient to establish the custom on the ground that none of the witnesses can give a single instance, properly admissible in evidence, of any dispute or any instance of the carrying of the custom into effect.
11. Now we would not normally be inclined to interfere in second appeal with this appreciation of evidence by the lower appellate Court, but in this case there is no doubt that the District Judge was misdirecting himself in attaching so great an importance to the absence of these specific instance. The following passage occurs in a judgment of the Privy Council reported in Ahmadkhan v. Channi Bibi 1925 P.C. 267 .
As regards the custom in respect of which the two Courts in India have differed, their Lordships think that the Sub-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 evidence as to its existence by members of the tribe or family who would naturally be cognisant of its existence and its exorcise without controversy.
12. These principles seem to apply clearly to the custom set up in the present case. The dasi community in Palamcottah is a small one consisting originally as P.W. 1 says of 20 houses of which only 7 or 8 now remain, and it may well be that the custom pleaded is so well recognised, and so much a part of the consciousness of the community that any dispute like the present dispute amongst so small a body of women will be an extremely rare occurrence and therefore impossible of proof. Nor can a plaintiff be reasonably expected to search the Presidency for witnesses to speak to some similar dispute in other places. We are accordingly of opinion that we are not precluded from forming our own appreciation of the evidence, and in our view that evidence, entirely unshaken by cross-examination in any other than the one way indicated by the District Judge, and entirely uncontradicted, and occurring in a case the very groundwork of which is that the parties are not governed by the ordinary Hindu Law but by special caste custom and usage, is sufficient, as the subordinate Judge held, to prove the custom which the plaintiff set up.
13. It is true that Mr. Ganapathi Ayyar, for the Respondents attacks this evidence in a final argument as not being sufficiently definite. He points out that the witnesses do not say, specifically, that a niece who is a dasi is a preferential heir to a married sister, and therefore according to him the rule of the ordinary Hindu Law which prefers a nearer relation to one more remote should be applied to this case. But this is an entirely new point. It is quite clear from the frame of the issue, from the line of cross-examination of the witnesses, and from the judgments of the two Courts below that no such argument as this, viz., that though a sister who was a dasi might exclude her other sisters who were married, a niece who was a dasi could not exclude her married aunts was ever thought of until the final stages of a lengthy hearing before us. The custom set up was a wide one, wide enough to cover the present case. It might have been wiser had the witnesses been more carefully examined in chief, but in the absence of all cross-examination on the point we are not prepared to hold that because this or that witness contrasts the position of sister with sister or daughter with daughter in formulating what she holds to be the custom, her statement is not capable of being read as equivalent to the wider statement made by P.W. 2.
14. For these reasons we are of opinion that this appeal must be allowed with costs here and in the lower appellate Court and the decree of the Subordinate-Judge be restored.