Kumaraswami Sastriar, J.
1. These appeals arise out of two suits filed for the recovery of the estate of one Vannia Konar who was a member of a divided Hindu family and who died in Madura on or about the 27th of June, 1916. He left no sons and the claimants to the estate are his two surviving widows, his half-brother and his three nephews by a deceased brother. The following genealogical table as to which there is no dispute sets out the relationship between the parties.
| | |
Ist wife 2nd wife 3rd wife
| Vannichi Pichai Konar
| (daughter). Alias Devendra Konar
| (defendant No. 4)
Devendra Konar, Vannia Konar
(pre-deceased Vannia (died in June 1916)
| | | |
Mokka Konar Krishna Konar Dhanakoti Konar |
alias Vannia (defendant No.2.) (defendant No. 3.) |
(defendant No. 1.) |
| | |
Ist wife chellayi 2nd wife Ammakutti 3rd wife Rakkayi
Pre-deceased alias Vannichi Ammal Ammal (plaintiff
Vannia Konar (plaintiff No. 1) No. 2.)
Vannichi Male issue
2. On Vannia Konar's death his property is alleged to have been taken possession of by his brother's sons, Mooka Konar, Krishna Konar and Dhanakoti Konar, defendants Nos. 1 to 3 in O. S. No. 64 of 1917. It is admitted that Vannia Konar was divided from his brothers. Under the ordinary Hindu Law, if it is applicable to the parties, his heirs would be his two surviving widows Ammakutti and Rakkayi. It was admitted during the course of the trial that Vannichi has a male issue. Pichai Konar who is his half-brother would, in default of any heirs of Vannia Konar, be the heir under Hindu Law as he being the nearer reversioner would exclude the sons of the deceased brother Devendra Konar, The sons of Vannia Konar's brother Devendra Konar, however, claim the estate on the ground that, according to the custom prevailing in the community to which the parties belong, widows and daughters are excluded from inheritance and that agnates of full-blood, however remote, exclude agnates of half-blood. The half-brother, Pichai Konar, claims the estate alleging that the widows and daughters are excluded but that the agnates of half-blood who are nearer in degree exclude agnates of full-blood who are more remote.
3. Original Suit No. 21 of 1917 was filed by Pichai Konar, the half-brother of the deceased Vannia Konar, against Mooka Konar, Krishna Konar and Dhanakoti Konar, his nephews, claiming the estate of Vannia Konar on the ground that he, as tie nearer heir, was entitled to the same to the exclusion of the defendants who were more remote reversioners. The widows of Vannia Konar who claimed the estate as heirs under Hindu Law applied to be made parties to that suit but they were referred to a regular suit and they filed O. S. No. 64 of 1917 against the half-brother and the nephews of their husband claiming possession of the estate on the ground that there was no such custom as is pleaded by the defendants excluding widows from inheritance and that under Hindu Law they, as heirs, would be entitled to the estate. The Subordinate Judge found against the custom set up by the defendants whereby the widows were excluded from inheritance and passed a decree in favour of the plaintiffs-widows. He also found against the custom pleaded by the nephews of the deceased that they, though remoter heirs, were entitled in preference to the brother of half blood, but, in view of the decision of the Subordinate Judge that the widows were entitled to succeed, the suit filed by the half brother O. S. No. 21 of 1917 was dismissed. Appeals Nos. 208 of 1922 and 32.9 of 1922 are appeals filed by the nephews of the deceased and the half-brother, respectively, against the decree of the Subordinate Judge in O. S. 64 of 1917 decreeing the widows' claim, and Appeal No. 328 of 1922 is the appeal filed by the half-brother against the decree dismissing his suit O. S. No. 21 of 1917.
4. The questions to be decided in these appeals are whether the custom which is set up by the defendants in O. S. No. 64 of 1917 as to the exclusion of widows and the custom which is set up by the defendants in O. S. No. 21 of 1917 whereby agnates of half-blood are postponed to agnates of full-blood, even though more remote, have been proved. It will be seen that, while the brother and the nephews of Vannia Konar agree that the widows are excluded, they are in conflict as to whether the rule of Hindu Law that nearer agnates exclude agnates more remote is applicable. Both the suits were tried together but as there is some confusion as to what exactly is the custom which is pleaded, I think it is desirable to set out the custom which the half-brother and the nephews set up.
5. In the written statement in the suit filed by the widows who claimed inheritance under Hindu Law, defendants Nos. 1 to 3, who are the nephews of the deceased, in para. 4, state as follows:
The parties belong to what is known as the caste of the Thousand Yadhavas. They are not governed by the strict principles of Hindu Law in very many matters such as marriages, adoption, partition, inheritance, etc., but solely by the customs and usages prevalent among them from time immemorial.
(a) One special incident regarding marriage is that a girl ought to be married to her maternal uncle's son, if there is one, whatever disparity of age or social position or wealth may exist between them. A violation of this rule entails a payment of Rs. 106-4-0 by the party breaking it and a payment of Rs. 12-8-0 and Rs. 6-4-0 respectively, by each male or female attending such marriages, and the funds so collected become caste property.
(b) Adoption is unknown to the caste and wholly forbidden as being radically repugnant to the Customary Laws of Succession.
(c) Regarding partition, one remarkable feature is that it is regulated by what is known as patnibhagam as distinguished from putrabhagam, i. e., the shares are determined by the number of wives and not by the number of sons for the several wives. Where a Yadhava dies leaving two (sic) the first wife and four sons by the second wife, the two sons by the first wife take a moiety of the inheritance with special rights of survivorship and succession between themselves and the four sons by the second wife take the other moiety with special rights among themselves and the children by the one line do not have any rights in respect of the properties of the children of, the other line until the other line becomes wholly extinct.
(d) The rules of succession obtaining among them are also very peculiar and perhaps the logical result also of the other customary incidents.
(i) Sonless widows possess an interest in the inheritance only to the extent of the customary allowances, namely, 99 sheep, if the owner died possessed of the same, or, at Re. 1 per sheep for every sheep that remain undelivered.
(ii) Agnates of the full blood, however remote they may be, exclude all agnates of the half-blood and the latter have besides no place in the line of inheritance until the full-blood in male line becomes wholly extinct.
6. The 4th defendant in para. 2 of his written statement denies that the plaintiffs are the heirs and plead the custom as follows:
The parties belong to Nattu Idayar alias Ramayana Chavadi Idayar Community and according to long-established custom of the said caste, widows do not inherit their husbands' property but are entitled only to a small perquisite, the succession, in the absence of a son opening to the nearest male dayadi and according to the said custom of the caste, it is this defendant that has succeeded to the estate of the deceased and plaintiffs as excluded from succession, are not entitled to the plaint properties.
7. In Suit No. 21 of 1917 which was filed by the 4th defendant in Suit No. 64 against his nephews who are defendants Nos. 1 to 3 in that suit, the custom is pleaded as follows in paras. 6 and 7 of the plaint. Paragraph 6 runs as follows : 'Both the parties belong to the Yadhava caste of the class of Madura Ramayana Chavadi Edayars otherwise known as Nattidayars residing in land about Madura. The custom that has long been in vogue among the said community is that in ease an original ancestor dies without male issue his widow or daughters do not succeed to his properties by right of succession. According to the custom long prevailing among the said castemen, the widows should only leave the house on receiving the aruppucooli due to them, viz., 100 sheep, or Rs. 100 in case there are no sheep, and they have no manner of right to the properties of the original ancestor.' Paragraph 7 runs as follows; 'Moreover no right accrues, to his daughters or their heirs by right of heirship in the properties of the person dying without male issue, according to the custom obtaining in the said community. If a person dies without male issue as stated above, only his brother and other near dayadis succeed to his properties as his heirs and claimants. This custom has been in existence for a long time.' The defendants in this suit denied the validity of the custom as stated in the plaint and pleaded the custom in para. 4 of their written statement which is the same as the custom they set up in the written statement in the suit filed by the widows and which, therefore, I need not repeat.
8. It is clear from the pleadings that both the half-brother and the nephews of the deceased agree that when a man dies issueless, the estate passes to his nearest dayadis or agnates to the exclusion of the widow and daughter. The right of the widow is only to receive the aruppucooli or kaimpenkur, the amount of which is 100 sheep or Rs. 100, should there be no sheep to be delivered irrespective of the value of the estate left. Nothing is said as to what the daughters get; but the evidence adduced on behalf of the defendants is that the daughters have to leave the father's house and go to the house of their maternal uncle whose duty it is to get them married and they have no claim on their father's estate even for maintenance or marriage expenses or residence. Some witnesses go to the extreme length of saying that even where there is no maternal uncle able to protect them, they have no claim to their father's estate and they should throw themselves under the protection of the King. There is nothing said about the rights of the daughters' sons who would succeed under Hindu Law in default of widow or daughters but having regard to the fact that the custom alleged makes the next agnate (sic) could be no divesting and the daughters' sons are by necessary implication also excluded. The pleadings are also silent as to what is to become of the mother who would be, the heir under the Hindu Law in default of widow or daughter or daughter's son, But the evidence adduced is that the mother also is excluded. In fact the witnesses state that all female relations are excluded.
9. As regards the aruppucooli, though in the pleadings it is limited to 100 sheep or Rs. 100 irrespective of the value of the estate, the witnesses called by the defendants in the suit filed by the widows are not agreed on the fixed rule pleaded, and the amount to be given ranges from Rs. 30 to Rs. 100. Some of the documents filed also do not show that there was any inflexible rule as to the number of sheep or the amount to be paid in default to the widow. The evidence also is that aruppucooli is to be given by the dayadis even though the husband left no property. Some of the witnesses also state that if a man leaves more than one widow, each widow gets 100 sheep or Rs. 100 irrespective of there being property sufficient to pay aruppucooli to each widow. It is also stated that aruppucooli is to be paid even though the husband was a member of a joint family. So far as aruppucooli or kaimpenkur is concerned, it is clear from the evidence that there is no definite rule or custom as to the amount. The Subordinate Judge deals with the evidence in para. 76 of his judgment. As it was conceded by the appellants' Vakil during the course of the argument that the evidence, oral and documentary, does not show any uniform rule, I need not discuss the evidence on this point The custom pleaded is in direct opposition to the rules of Hindu Law of Inheritance, for, while, under the ordinary Hindu Law, the widow, the daughter and, in their default, the daughter's sons would take the property of a sonless and divided Hindu, according to the custom set up they are excluded in favour of agnates however remote; and, whereas, under the Hindu Law widows and unmarried daughters would be entitled to maintenance and residence and unmarried daughters to marriage expenses out of the estate of the deceased, according to the custom set up the widows get only 100 sheep or Rs. 100 whatever may be the magnitude of the estate of the husband and the daughters get nothing at all. Although in this case the daughter of the deceased is not a party and any decision here would not bind her, still it is necessary to consider the position of the daughter as it is an integral part of the custom pleaded excluding the widow and the question is whether such a custom has been proved. A number of witnesses were examined on both sides and each party has let in evidence as to instances either in support of or denying the custom. The Subordinate Judge has found against the custom The case has been argued at very great length before us and I am of opinion that the custom has not been proved.
10. It is admitted that the parties belong to the Yadhava or Shepherd community. They form a sub-division of that sect and are known as the Madura Ramayana Chavadi 1,000 Yadhavas who reside chiefly in the town of Madura and about 56 adjoining villages. Thought the community is known as 1,000 Yadhavas probably meaning that originally there were 1,000 families, the evidence is that there are about 700 families now constituting the community. This community is again subdivided into three sub-sects, viz., Puthunattu Edayars, Sivikara Edayars and A Edayars. Although all these three sub-sects go by the name of the Madura Ramayana Chavadi 1,000 Yadhavas and although they all contribute to the caste panchayat which is situate in a place called Ramayana Chavadi in Madura and although all these three sub sects are within the jurisdiction of this caste panchayat which settles their caste affairs, inter-marriage between them is prohibited. The panchayat consists of a manager called Nattamakkar and 24 Pattikars or members of the panchayat. This community claims to belong to the larger community called the Yadhavas or the Shepherd community.
11. The Yadhava community or the community of cowherds and shepherds is a very ancient one and is mentioned in the great Epic Mahabharatha. In fact Sri Krishna was a member of that community. It is, however, doubtful whether the cowherds and shepherds of Southern India can claim descent from the Yadhavas of Northern India, as identity of trade or occupation can hardly be a sound basis, for determining identity of stock especially where cattle and sheep breeding is an occupation not exclusively Aryan. The probability is that the Yadhavas of Southern, India belong to the original Dravidian stock who, like other inhabitants of Southern India, came under the influence of the Aryan conquerors and who were: absorbed into the Hindu community, though they retained some of their original customs too deep rooted to be supplanted by Aryan influences. There can be little doubt that some of their aboriginal deities were absorbed into the Hindu Pantheon and that in the process of assimilation which has gone on for several centuries the original inhabitants of Southern India took their place in and subjected themselves to the laws and usages of the Aryans, In the Census Report the Yadhavas or Edayars are classed as Sudras which is the fourth subdivision of the Aryan caste system and there can be little doubt that the Yadhavas should be classed as Hindus belonging to the Sudra caste.
12. The question as to how far the Hindu Law as expounded in the Smritis and Commentaries is to be applied to the Dravidian and other communities of Non-Aryan descent is one which has given rise to a lot of controversy. Some of the earlier Judges and Jurists thought it unreasonable to apply the Hindu Law to them as the whole scheme of Hindu Law was based upon religious and spiritual considerations alien to the thoughts, habits and culture of the original Dravidian inhabitants of Southern India, while others were of opinion that in view of the centuries that have elapsed between the conquest of Southern India by the Aryans and the assimilation that has been going on, the Hindu Law should be applied except in cases where there is clear proof of custom to the contrary. I think it is too late in the day to contend that, in the case of persons professing the Hindu religion, the Hindu Law as expounded in the Smritis and Commentaries prevalent in the Province in which disputes arise should not prima facie govern the parties, though it will always be open to show that such Hindu Law has been either modified by custom or that particular rules have not been adopted by the community who retained in that respect their original customs.
13. I may point out that in the present case the parties and the witnesses give their religion as Vaishnavite, their caste as Yadhava and it is not suggested that they do not follow the Hindu religion. I may also point out that defendants' forty-sixth witness Ayya Kone who belongs to the 1000 Yadhavas community states that at the time of the annual ceremony he would mention the names of his father, grand father, and great-grandfather and that, when his father performed sraah ceremonies, he used to mention the names of his ancestors. So that this community performs sradh ceremonies to the deceased ancestors which forms an important basis in the Hindu Law of Inheritance. It is not suggested that, though the Yadhava community is a large community in Southern India and although ethnologically the sub-sect to which the parties belong, namely, the Madura Ramayana Chavadi 1,000 Yadhavas, is not different from the other Yadhavas in Madura, Ramnad and Tinnevelly Districts, other Yadhavas adopt the custom as to succession now set up What is sought to be proved is that this sub-sect confined to about 700 families in the Madura Town and surrounding villages follow the rule of exclusion of females. I may state that another section of the Yadhavas tried to setup the rule of exclusion of females but this was negatived in both the lower courts and was confirmed in the High Court in Sinnana Kone v. Muthupalani Chetti : AIR1926Mad378 . There is nothing to show that the Yadhava community has its own self contained written system of inheritance to which recourse is to be had in dealing with such questions. According to the brother's sons of the deceased (defendants Nos. 1 to 3) and the half-brother of the deceased (4th defendant), the Hindu Law is applicable except in so far as they say it has been modified by the custom of the caste. The 4th defendant, would have it that the rule of Hindu Law that nearer agnates would exclude the ones more remote is applicable to the parties, While this is denied by defendants Nos. 1 to 3. I think it has to be presumed that the parties are governed by Hindu Law except in so far as they prove any custom which is at variance with it.
14. It has been held in numerous decisions both of the High Courts and the Privy Council that in order to give effect to a custom which is set up and which is at variance with the ordinary Hindu Law, it should be ancient, invariable, continuous, notorious not expressly forbidden by the Legislature and not opposed to morality or public policy and as regards instances in support of the custom, they should be established by clear and unambiguous evidence and must be conclusive.
15. In Ramalakshmi Ammal v. Sivanatha Perumal Sethurayar 14 M. I. A. 570; 17 W. R. 552; 12 B. L. R. 396 : 2 Suth. P. C. J. 603; 3 Sar. P. C. J. 108; 20 E. R. 898 their Lordships of the Privy Council at page 585* observe: 'Their Lordships are fully sensible of the importance and justice of giving effect to long established usages existing in particular Districts and families in India, but it of the essence of special usages, modifying the ordinary law of succession that they should be ancient and invariable: and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by of such evidence that the Courts can be assured of their existence, and that they possess the conditions or antiquity and certainty on which alone their legal title to recognition depends.' This case was referred to with approval by their Lordships of the Privy Council in Abdul Hussein Khan v. Bibi Sana Dero : (1918)20BOMLR528 . As regards the evidence being clear and conclusive and not explainable, their Lordships in that case cite with approval the decision of the Madras High Court in Mirabivi v. Vellayanna 8 M. 464; 9 Ind. Jur. 267; Ind. Dec. 317. The following observations of the learned Judges (Sir Charles Turner, C. J., and Hutchins, J.) will be relevant in appreciating the evidence in this case. They observe: It must be admitted that instance have been adduced in which the claims of daughters and sisters to a share have been ignored, or they have been allotted maintenance, though the cases mentioned by the Judge of a partition in the father's lifetime are not in consistent with Muhammadan Law. There are also cases in which married daughters have been treated as estranged from the family. But instances of this kind will be found to occur where there is no doubt that the family is governed by pure Muham-madan Law. Indeed, in many parts of the country it is unusual for Muhammadan ladies to insist on their unquestioned rights. They will often prefer being maintained by their brothers to taking a separate share for themselves, and when they are married the marriage expenses and presents are often, by express or implied agreement, taken as equivalent to the share which they could claim. Moreover, Muhammadan females are so much under the influence of their male relations that the mere partition of the property among the males without reference to them cannot count for much.'
16. In Rama Kanta Das v. Shamanand Das 1 Ind. Cas. 754; 36 C. 590; 6 A. L. J. 364; 13 C. W. N. 581; 9 Cri. L. J. 497; 11 Bom. L. R. 530; 19 M. L. J. 239; 36 I. A. 49; 6 M. L. T. 84 where the question was whether the custom of primogeniture was proved, and it was found that whenever the holder of an estate left more than one son the right of the eldest son was challenged in Courts and the litigation invariably ended in a compromise under which the younger sons obtained a share of the estate very much in excess of the maintenance to which, had the custom existed, they would have been entitled, their Lordships of the Privy Council observe; 'The evidence entirely fails, in their Lordships' opinion, to give to the alleged Custom the character of certainty which is essential to its validity.' I shall refer to this case again in dealing with instances connected with proceedings in Court. In Hurpurshad v. Sheo Dyal 3 I. A. 259; 26 W. R. 55; 3 Sar. P C. J. 611; Bald 25 3 Suth. P. C. J. 304; Rafique and Jackson's P. C. No. 41 their Lordships of the Privy Council observe at page 285: 'A Custom is a rule which in a particular family or in a particular district, has from long usage obtained the force of law. It must be ancient, certain and reasonable, and being in derogation of the general rules of law, must be construed strictly.'
17. In Rama Nand v. Surgiani 16 A. 221; A. W. N. (1894) 47; 8 Ind. Dec. 143; Sir John Edge, C. J. and Burkitt, J. referred to the fact that the instances which are cited to prove a custom Should be instances which should not be explained otherwise than by the fact that the custom exists. Their observations at page 223? are in point. I may also refer to Patel Vandravan Jekisan v. Patel Manilal Chunilal 16 B 470; 8 Ind. Dec. 792 where it was held by Sir Charles Sargent, C. J., and Birdwood, J., that even two cases against the custom set up which occurred several years ago and which were acquiesced in by the members of the community and not impugned in Court would be sufficient to outweigh a number of instances to the contrary and as showing that there was not a uniform and persistent usage moulding the custom of the caste.
18. Before dealing with the evidence as to instances adduced on both sides, I think certain general observations should be made in dealing with the evidence of custom in the case. We find no cases where a dayadi went to Court to establish his claim although in some instances the widow took her husband's property and dealt with it. Although it is said that there was a caste panchayat which settled caste questions, there is no-decision of any panchayat which upholds the custom which is now sought to be established. There was a panchayat regularly held in the Ramayana Chavadi; contributions were levied from the caste men and it is not suggested that the panchayat is not now functioning. If there was this invariable custom which was given effect to by the panchayat) there would be something in the records of the panchayat to show this. It is stated that the person in charge of the panchayat records was sub(sic) and that he came to Court and said that he had not got the records. I find it difficult to see why steps were not taken, as provided for in the Code to compel the production of the records. The panchayat is a public body and the Code gives ample powers to the Court by arrest, imprisonment and attachment of property to compel the production, of documents. I may also state that no pattas or other documents are produced to show the enjoyment of property by agnates to the exclusion of widows. Though pattas may not be evidence of title, they are certainly evidence as to possession as the Revenue Authorities issue pattas to those in possession. There are also kist receipts which would show who paid the kist but no such receipts have been produced in any instance. The Revenue Registers could also have been produced to show who was in possession and also the mutation of names.
19. In dealing with the evidence, one has to bear in mind that before instances cited by the defendants can be considered as proving the custom alleged, it has to be shown that the person whose estate is in question died as a member of a divided family, as otherwise, even under the ordinary Hindu Law, female relations would be excluded in preference to the undivided co-parceners. This is conceded by all the parties, so that the onus is on the person alleging the custom of showing by clear proof that the instance cited is the instance of a divided person. It is only in such cases that the taking of the property by the agnate would prove the exclusion of the widow or the daughter and this is the custom set up. There are several instances of the plaintiffs where there is nothing but the statement of a single witness to show that the instances cited refer to a person who is divided. The ordinary presumption of law is that a person is undivided and the onus is on the party alleging it to prove division and if in cases where such instances can be proved by documentary evidence, for example, partition deeds, pattas, separate kist receipts or the separate transactions of the various members and no documents are produced, or, if in cases of oral partitions, the members of the family who divided or the widows concerned who are said to have been excluded are not, if alive, examined, and if the only evidence is the statement of a person not connected with the family or of a distant relation that the deceased was a divided member, I do not think I can hold that such instances have been proved. Although it may not be necessary to prove each instance as if that particular instance related to a suit which raised the issue of partition between the various co-parceners, I think there should be such proof as would reasonably satisfy the Court that the case which is cited is that of a person who is a member of a divided family.
20. As regards aruppucooli I have already stated that according to the evidence, it was payable to all widows whether the family was divided or undivided and whether the husband had or had not property. The rate of aruppucooli also was not as pleaded a uniform amount payable and the documents show that it varied from Rs. 30 to 100. Mere proof that aruppucooli was paid would not, therefore, by itself afford any guidance.
21. As regards the custom being ancient, two documents have been put in. One is Ex. V, dated the 11th of May, 1871, which purports to be a receipt granted to two persons Muruga Kone and his younger brother Chinna Muruga Kone by the widow of one Muruga Kone who was their junior paternal uncle. It recites that the husband died without any male issue, that they were bound to give her aruppucooli according to the custom of the caste and that she received Rs. 17. This receipt refers to the 13th instance which is referred to in para. 60 of the judgment. This instance was given up at the hearing before us as affording an instance of supporting the custom set up as it only says that aruppucooli was paid and says nothing about the widow not inheriting her husband's property.
22. The next document in order of time is Ex. XX which is a cadjan receipt executed by one Veerayi on the 27th of January, 1883, to one Velayudha Kone. The receipt runs as follows: 'Whereas the aforesaid Veerayi had been married to your elder brother Devendra Konar, whereas after the death of the aforesaid, Rs. 42 was settled as the (aruppucooli) maintenance for the said Veerayi in the presence of arbitrators and where as Rs. 7 has been already received and Rs. 35 now in cash, you shall have this itself as the receipt for my having received from you this Rs. 42 (forty-two) in all as per the above-mentioned particulars.' This document again simply says that aruppucooli was received by her. The executant is examined as D. W. No. 25. She says that Ex. XX was given by her, and that she put her mark to it. She says that she did not know who the attestors were as she was inside the house and was asked to touch the style which she did. The cadjan is produced by defendants' 54th witness. The Subordinate Judge deals with this as instance No. 2 in para. 60 of his judgment and, as he points out, this is not a case of exclusion of a widow but of a mother. He also points out that the recital in Ex. XX does not tally with the evidence given by the widow as regards the amount. As regards the other witness who speaks to this (D. W. No. 15) the Subordinate Judge is not prepared to accept his evidence., The Subordinate Judge, however, is wrong in thinking that there is any discrepancy in the evidence as regards the extent of land owned by Devendra Kone. All that D. W. No. 15 says is that Devendra Kone had one acre of land in Chettikulam. This does not mean that he had no lands elsewhere. D. W. No. 54 states that her son owned 20 acres of land in Chettikulam and Veerapandi so that there is no necessary inconsistency. That Devendra Kone was a member of a divided family appears from Ex. XXX, deed of partition, dated the 9th of March, 1872, between Devendra Kone, Velayudha Kone and Ramaswami Kone. This does not by itself help to prove the custom set up but it is only used to show that Ex. XX refers to a divided family. The Subordinate Judge seems to have made a mistake in thinking that, there is no evidence to prove that aruppucooli was given to the other widow Poornam, as D. W. No. 25 distinctly says that she left after receiving the aruppucooli.
23. Objection is taken that Ex. XX is not produced from proper custody, and that the presumption of genuineness could only arise where it is produced from proper custody. As, however, the executant says that she put her mark and touched the pen and received the money, I do not think it can be said that the document is not proved to be genuine apart from any question of custody. I think Ex. XX should be taken to be a document evidencing a genuine transaction and that read with Ex. XXX it refers to the widow of a member of a divided family. But Still the case is one of a mother.
24. I may also point out that although pattas are said to have been transferred in the name of pangalis and although sale-deeds are said to have been executed in respect of the lands, they have not been produced to Show the enjoyment by pangalis.
25. I do not think these two documents, Exs. V and XX, prove the custom of exclusion of widows.
26. The earliest document on the defendants' side is Ex. VII of 1899. We have, on the other side, the fact that a Succession Certificate (Ex. Q) was granted on the 16th March, 1878 to one Irulayi who is said to be the widow of one Karuppanna Kone Who died in Madura. It refers to the orders of Court, dated the 17th of August, 1877 granting her the Succession Certificate The order has not been produced as it has been destroyed under the rules for the destruction of records. The plaintiffs' third witness Krishnaswami Kone states that he knew Karuppanna Kone who died about 30 years ago, that Irulayi enjoyed the properties till her death, that his father conducted proceedings in Court and helped her to get the Succession Certificate and that he found the certificate in his father's records. He states that when Karuppanna Kone died he left a pangali Appavu Kone but that he did not inherit the estate. He states that the deceased belonged to the 1,000 Yadhavas. His evidence is important as he is a relation. He says that after Karuppanna Kone's death a dayadi put forward a claim to the properties and that the widow applied for a certificate and got it. This witness is 60 years old. Thers is no suggestion in cross-examination that Karuppanna Kone did not belong to the 1,000 Yadhavas, and I do not think there is any reason to doubt that the Succession, Certificate, Ex. Q, relates to a person who belongs to the community in question. The importance of it is that as early as 1878 a widow obtained a Succession Certificate to collect debts whereas if there was any custom, it will be the dayadi who should have got the certificate. So far, therefore, as the documentary evidence goes, the earliest document on the defendants' side is of the year 1899, whereas on the plaintiffs' side there is the Succession Certificate of 1878. The custom, therefore, of exclusion of widows has not been established by any documentary evidence prior to the year 1899.
27. I shall now, deal with instances adduced to show that females did not succeed to a divided member who died without male issue. As regards cases where the only evidence is that the parties were living separately and nothing further appears I do not think I can draw the presumption that they were living separately because of a partition. Unless there is something to show that there was a partition, separate living may be due to several causes, for example, convenience, and does not necessarily import a division. I need, only refer to Ganesh Dutt Thakoor v. Jewach Thakoorain 31 C. 262; 31 I. A. 10; 8 C. W. N. 146; 14 M. L. J. 8; 6 Bom. L. R. 1; 8 Sar. P. C. J. 575 and Suraj Narain v. Iqbal Narain : (1913)15BOMLR456 .
28. There have been some errors pointed out in the judgment of the Subordinate Judge in dealing with the evidence. This is due to the fact that the predecessor of the Subordinate Judge who wrote the judgment took the evidence of 56 witnesses for the defendants, while the Subordinate Judge who wrote the judgment took the evidence of the remaining witnesses. The case was closed on the 3rd of November, 1921, and judgment was not pronounced till the 12th of April, 1922. The Subordinate Judge was 'under orders of transfer and was asked by the High Court to write the judgment before handing over charge. The judgment was written by him and pronounced by his successor. Written arguments were given to him by both sides and he seems to have relied chiefly on the written arguments and not the original depositions and exhibits.
29. The Subordinate Judge in dealing with the instances of exclusion of widows, mothers and daughters has divided them into four classes. The drat class of instances are instances where it is sought to establish the custom by oral and documentary evidence. This class of instances are dealt with by the Subordinate Judge in para. 60 of the judgment. The next class of instances are instances spoken to by widows, but there is no documentary evidence in support of their evidence. This class of instances are dealt with by the Subordinate Judge in para. 62 of the judgment. The third class of instances are instances spoken to by the agnates of deceased co-parceners. This class of instances are dealt with by the Subordinate Judge in para. 64 of the judgment The fourth class of instances are instances spoken to by Nathikarans or the relations of the widows, This class of instances are dealt with by the Subordinate Judge in para. 66 of the judgment. The fifth class of instances are instances spoken to by other relations, and are dealt with by the Subordinate Judge in para. 68 of the judgment. The Subordinate Judge in para. 71 of the judgment refers to admissions by the defendants against the custom.
30. [His Lordship than dealt with the evidence relating to these instances and proceeded:]
I have now dealt with the instances which have been argued before us on both sides and think it is clear from the instances which I have referred to above that, while the defendants have not shown any instances in Court where the custom set up was either alleged or recognized, the plaintiffs have proved that, in cases where parties went to Court, the widows were treated as the legal representatives of their husbands and decrees passed against them and no such custom as is now pleaded was set up, but, on the contrary Hindu Law of Inheritance was treated as the basis on which the claims were adjudicated. It also appears that in cases where the dayadis could have gone to Court to assert their claim, no assertion was made. In one case the dayadi did not press the matter probably because the estate was small and in another case where the estate was fairly large the matter was compromised and the widows withdrew their application for Succession Certificate. The compromise proceeded on the footing that Hindu Law applied to them, There are cases where the widows conveyed properties belonging to their husbands not only to strangers, but, to members of the community, who presumably would have been aware of the custom if it existed, but, who did not choose to claim the property or interfere, even where the amount for which the property was sold was fairly large. We also find cases Where widows lived in the houses of their husbands after their husbands' death, We find in one instance that patta was transferred in the name of the widow after her husband's death although pangalis were alive who could have taken objection if the custom was in existence. Having regard to the evidence on both sides, I find it difficult to hold that the evidence adduced by the defendants as to custom satisfies the requirements which I have already referred to validate a custom that can be enforced by Courts in derogation of the ordinary law applicable.
Great reliance was placed upon a statement in the 'Madura District Gazetteer' and in Dr. Thurston's book, 'Castes and Tribes of Southern India', that, in the community to which the parties belong, widows were excluded. We find in the Madura District Gazetteer the following statement: 'Among those Puthunattars an uncommon rule of inheritance is in force. A woman who has no male issue at the time of her husband's death has to return his properly to his brother, father or maternal uncle, but, is allotted maintenance, the amount of which is fixed by a caste panchayat.
31. The custom which is set up here is different from that which the defendants want to establish in this case. It is not the general custom that agnates exclude all females, however remote, but that after the husband's death if he leaves a brother or father, the property is to go to those two persons and maintenance is to be given to the widow. The statement in the above passage that the maternal uncle is to get the property is opposed to the custom now set up, as cognates have no place in the custom pleaded by the defendants. There is also nothing here to show whether daughter's son is also to be excluded if the person left a daughter's son. No doubt, the statement in 'the Madura District Gazetteer' deserves great weight but I do not think it should be taken as conclusive especially where the evidence in the case does not support a uniform, custom set up.
32. Reliance was also placed by the defendants on the affidavits filed by the plaintiffs' witnesses in the suit by the half-brother against the nephews (O. S. No. 21 of 1917) which it is said support the case of the custom set up. These affidavits have been filed as Exs. XLI, XLII, XLIII and XLIII (a). These affidavits are on printed forms and contain the same allegations. As regards the custom, para. 4 of Ex. XLI, runs as follows: ''According to the custom of our caste, if the deceased Yadhava does not leave a male issue, his property is to be taken only by the next dayadi, and there is no practice or panchayat award or any other record for warranting the statement in the affidavit filed on behalf of the defendants that the uterine brothers and their descendants or heirs only should take the property and not the step brothers (or brothers who are the sons of the stepmother) or their descendants or heirs, however close they may be.'
33. Although it is not stated that this custom applies even if the deceased leaves widows, mothers, or daughters or daughter's sons, having regard to the pleadings it should betaken that these heirs would be excluded as the parties who deposed to the affidavits must have known that there were two widows and a daughter's son in existence. As I said before, the suit was a suit between the half-brother and the nephews by the full-blood who by common consent set up the case of exclusion of widows. It is stated by Mr. Ramachandra Ayyar for the widows that printed affidavits were taken round and signatures obtained without the deponents knowing the contents. It is difficult to believe that the deponents were ignorant of the contents. In cases where the witnesses now go back on their statements as some of the plaintiffs' witnesses have done, the best thing would be not to accept their statements unless those statements are corroborated by other reliable evidence--oral or documentary. There is no ground for rejecting the evidence wholesale, as the defendants' Vakil wants us to do.
34. Reliance has also sheen placed by the appellants on Ex. XLIII (a) an affidavit filed by the widows on the 15th March, 1917, in support of their application to be made parties to O. S. No. 21 of 1917. In para. 5 the widows deny the custom of exclusion of widows and state that the parties are governed by Hindu Law. They go on to say that it might be usual in some poor families to send away widows having no heir after paying some amount with the consent of both parties but that in rich families during their lifetime and in some cases they received large sums and handed over properties to the heirs. They deny the custom that widows should quit the house. I do not think that there is any admission of the custom set up. All that it shows is that the practice varied and depended on the consent of the widow.
35. It is argued by Mr. Ramachandra Ayyar that the custom set up is unreasonable inasmuch as the widow, whatever may be the property of her husband, has to leave the house on receipt of 100 sheep or Rs. 100, unmarried daughters are left destitute and dependent on the mercy of their maternal relations not even receiving maintenance till they attained age or any money for their marriage expenses and daughter's sons are totally excluded in favour of agnatic relations, however remote. I do not think we can reject a custom if it is otherwise proved. It should be remembered that the position of woman in the line of heirs under Hindu Law was one of slow and laborious growth, and that in the early stages of the Aryan community woman found no place in succession. Even under the Hindu Law, the sister was till recently excluded from inheritance altogether and sister's son only came in after his rights ware negatived in more than one decision. These persons who would be nearer heirs according to modern conceptions had been excluded for centuries in favour of remote kinsmen. A person looking at the Hindu Law of Inheritance from a western standpoint would probably look at it with a mixture of wonder and pity especially when he forgets that the keynote to the system of inheritance is the capacity to benefit the soul of the deceased by offering funeral oblations. It is very probable that, when the community was in a nomadic state and the sole occupation was to rear cattle and sheep, women by reason of their incapacity to carry on the occupation ware excluded from inheritance, but, as time went on and the primitive occupation was no longer the source of income for several persons, as these shepherds settled down in towns and villages and acquired property and were surrounded by persons who followed the Hindu Law of Inheritance and Succession, they began to adopt the ordinary rule of Hindu Law of Inheritance. Assuming for argument's sake that in the old days there was such a custom as is now set up, it has ceased to be uniform and invariable by reason of inroads made from time to time and I think it is too late in the day to revive it especially as it seems to me to be opposed to the present day rules of equity and justice.
36. The evidence, in my opinion, shows that there have been instances both ways but the defendants' evidence falls far short of the standard required to prove a custom in derogation of the ordinary Hindu Law.
37. In the result Appeals Nos. 208 and 329 of 1922 are dismissed with coats. As Regards printing costs, defendants have to pay, it will be divided between defendants Nos. 1 to 3 on one side and 4th defendant on the other,
38. As regards Appeal No. 328 of 1922, in view of my finding that the custom excluding widows has not been proved, it is not necessary to find whether there is a custom excluding half brothers in favour of nephews of full blood. As the Hindu Law applies and as the deceased has left widows, daughter and daughter's son, the question raised in this suit is purely (sic) and
39. I do not see any ground for deciding which of the two sets of reversioners who have at present merely a spes successionis and who may not at all have any rights in the estate are entitled to precedence. I may also state that the daughter is not a party to any of these suits and no adjudication between the two sets of reversioners would be of any use when the estate opens on the death of the widows. Under these circumstances the appeal is dismissed but without costs throughout.
40. One Vanniya Kone, a shepherd by caste, died in June, 1916, leaving behind him a daughter, two wives, a half-brother and three nephews by a deceased full-brother. The half-brother has brought O. S. No. 21 of 1917 against the three nephews for possession of the property of Vannia Kone alleging that he as half-brother is entitled to inherit the properties in preference to the nephews. The nephews plead that the half-brother is not the heir as by the custom of the caste, the full-brother and his descendants exclude the half-brother and his descendants. The widows applied to be made parties to the suit and they were directed to bring a separate suit. They have accordingly brought O. S. No. 64 of 1917 against the three nephews and the half-brother for possession of the property alleging that they as widows are entitled to inherit to their husband under the Hindu Law in preference to the nephews and half-brother. The nephews and the half-brother resist the suit of the widows on the ground that, according to the custom governing the caste, widows without male issue have no rights of inheritance, but are only entitled to aruppucooli or kaimpenkur meaning widow's perquisites of 100 sheep or Es. 100. The Subordinate Judge of Madura tried both the suits together and decreed O. S. No. 64 of 1917 and dismissed O. S. No. 21 of 1917. The nephews have preferred Appeal No. 208 of 1922 against the decree in O. S. No. 61 of 1917 and the half brother has preferred Appeal No. 328 of 1922 against the decree in O. S. No. 21 of 1917 and has preferred Appeal No. 329 of 1922 against the decree in O. S. No. 64 of 1917. The appeals have been heard together as the main question raised in issue No. 1 of O. S. No. 64 of 1917 is common to them all. The issue is--
Whether females are excluded from in heritance by the custom of the caste (sic)
which the parties belong as contended by the defendants.
41. A good deal of argument has been addressed to us by Mr. Ramachandra Ayyar who appears for the widows about the burden of proof of a custom opposed to the ordinary Hindu Law and about the essentials of a valid custom.
42. In deciding whether a certain custom relating to marriage, divorce, adoption, inheritance or succession obtains among a caste, sub-caste, class, sect or clan, the following considerations have to be borne in mind. What is ordinarily understood as Hindu Law is not the Customary Law of the country like the Common Law of England. Neither is it a Statute Law in the sense that some King or Legislature framed the law and enforced its acceptance by the people. The Hindu Law as is commonly understood is a set of rules contained in several Sanskrit books which the Sanskritists consider as books of authority on the law governing Hindus. There are several treatises on law and they are not of equal authority in all the provinces. Many of the so called provisions of law are only moral or ethical rules for the conduct of a community which found a resting place amidst strange surroundings and amongst people differing considerably in many respects from it. The inhabitants of the southern portion of India, were Dravidians of Turanian origin and not of the Aryan stock. The term 'Dravidian' is applied generally to the South Indian people. The Dravidians were a highly civilized people with languages and literatures of their own long before the Christian era. Tamil was a highly cultivated language long before the Aryans came down south as is apparent from the absence of Sanskritic influence in the most ancient of the Tamil works extant. Consequently though the Aryans peacefully penetrated into the country and in course of time acquired considerable influence over the people posing as priests and gurus, yet they were not able to alter the customs and manners and mode of worship which prevailed among the people to any appreciable extent. Mayne says: 'We also know that the influence of Brahmins or even of Aryans, among the Dravidian races of the South has been of the very slightest, at all events, until the British officials introduced their Brahmin, advisers,'--Mayne's Hindu Law and Usage, 8th Edition, page 50. What little influence they really exerted over the people could be gathered from the fact that the people retained their own customs and manners and worshipped their own gods and goddesses. The Aryans in Southern India, instead of changing the customs and manners of the people, adopted some of their customs as their own. As the gods and goddesses worshipped by the Dravidians Were not those of the Aryans, the latter in order to influence the people for their own benefit created a pedigree for them and made out that they were the sons and daughters of their gods and goddesses. As regards marriage, divorce and inheritance and social and domestic relations, the people followed their own customs, though they were willing to worship the gods and goddesses of the Aryans without forsaking their allegiance to their demon gods and goddesses; find the rules embodied in the Sanskrit Law books were never accepted by the people as the law governing their relations.
43. During the Hindu period there was no attempt to force upon the people any general system of law as regards social and domestic relations and inheritance and succession. History does not tell us that during the period of the Muhammadan domination the rulers interfered with the customary laws of the people. Each caste, class and clan had its own peculiar customs governing their social and domestic relations, inheritance and succession to property, After the advent of the British rule, the Judges appointed by the East India Company who were obviously ignorant of the customs and manners of the people looked for guidance to the learned men among the people in deciding questions regarding succession, inheritance, etc. The learned men or Pandits naturally relied upon the rules contained in the old Sanskrit works for their opinion. As observed by Mr. Mayne: 'Upon all disputed points of law the English Judges were merely the mouthpieces of the Pandits who were attached to their Courts and whom they were bound to consult'---Mayne's Hindu Law, 8th Edition, para. 40, page 43. The English Judges who gave their decisions according to the opinions of the Pandits when not opposed to natural justice came to look upon the Sanskrit works as embodying the law applicable to the people of the land; and a custom not in accordance with, the rules contained in the books came to be considered as an exception to the general Hindu Law.
44. The term 'Hindu' is applied indiscriminately to all people who are not Muhammadans or Christians. The lowest castes who are outside the pale of Hinduism proper are also called Hindus. To call all the people 'Hindus' and then apply the Hindu Law contained in the Sanskrit books to all of them is the natural consequence of the ignorance of those to whom the administration of Civil Justice was committed in the early part of the last century. It is now settled by a long course of decisions that the Hindu Law as understood by the Judges and the legal profession, is applicable to all Hindus and a custom not in accordance with the general Hindu Law has to be proved by the party setting it up. But, in considering the proof of such a custom, the Court should not labour under the impression that the custom pleaded is a conscious departure from or variation of the Hindu Law applicable to the parties, The custom is not an exception to the general Hindu Law as if that a set of persons who were governed by the Hindu Law agreed to adopt a course of conduct in variance with the law which governs them. The customs obtaining amongst the non-Aryan races of this Presidency, especially among those inhabiting the Southern or Tamil Districts, have been in vogue from time immemorial. To hold such customs as exceptions to or variations of the Hindu Law is to ignore History and Ethnology; for, the Dravidians were never governed by the Hindu Law, and they adopted only some of the customs and manners of the Aryans when they wanted to imitate them. In weighing the evidence as regards any custom which is set up, the Court should consider whether the caste or sect or clan among whom it is said to prevail ever adopted wholly or only with some reservations the general body of Hindu Law and whether they ever intended to alter their customs and Customary Laws completely. Dr. Burnell in his Introduction to the Dayavibagha, page 15, observes: 'Custom has always been to a great extent superior to the written law in India and especially so in the South, but the Indian Jurists never attempted to record such merely human details; hence the difficulty of the law of marriage and caste usages on which questions of inheritance often depend. By custom only can the Dharma Sastra here be the rule of others than Brahmins, and even in the casa of Brahmins it is very often superseded by custom.'
45. The parties to the appeals or Edayars of shepherds by caste. They call themselves Yadhavas. Many of them profess to be Vaishnsvites and wear their distinctive marks. Though the Madura Edayars are not Aryans, yet they have arrogated to themselves the position of the caste in which the great avatar of Vishnu, Krishna, was born, and, consequently, have adopted the customs and religious practices and usages of the Aryans. Defendants' witness. No. 46 says that they perform the shradhas and repeat the names of their ancestors during the ceremony. A mere conversion to a religion would not necessarily involve the adoption of the laws as to inheritance and succession obtaining among the adherents of that religion. As observed by Mr. Nelson in his brochure on Hindu Law entitled a 'View of the Hindu Law as administered by the High Court of Judicature at Madras' at page 138: 'If all professed one and the same religion, that fact would not in itself warrant the supposition that all followed the same customs in respect to succession to property and the like; for whilst nearly all the countries of Europe profess the Christian faith, each has its own peculiar laws regulating the devolution of property and other affairs.' But when the converts aim at identifying themselves with the rest, strong evidence would be needed to show that they kept their own laws relating to social relations, marriage, inheritance and succssion uninfluenced by the rules of law obtaining among the adherents of the religion to which they became converts.
46. No hard and fast rule can be laid down as to how many instances are sufficient to make out a valid custom and how many exceptions to the custom setup would make the Court hold that the custom pleaded is not obligatory or invariable. Where a custom is a general one obtaining in a caste or clan composed of hundreds of families, the Court would naturally expect a large number of instances in proof of the custom, but, where the custom set up is that of a single family or a small group of families, it is unreasonable to expect a large number of instances in support of the custom. Where a large number of instances are proved which are not in accordance with the custom even though the number of instances produced in support of the custom is considerably larger, the Court would hesitate a good deal before coming to the conclusion that the custom is considered by the people among whom it is said to prevail as obligatory. It is unnecessary in this view to consider the cages relied upon by Mr. Ramachandra Ayyar such as Mirabivi v. Vellayanna 8 M. 464; 9 Ind. Jur. 267; Ind. Dec. (N. S.) 317 and Abdul Hussein Khan v. Bibi Sona Dero 43 Ind. Cas. 306; 45 C. 450; 16 A. L. J. 17; 4 P. L. W. 27; 34 M. L. J. 48; 22 C. W. N. 353; 23 M. L. T. 117; 27 Cri.L.J. 240; 1 P. L. R. 1918; 20 Bom. L.R. 528; 12 S. L. R. 104; 45 I. A. 10.
47. The first question is, what is the custom that is set up? The issue as framed, 'Whether females are excluded from inheritance by the custom of the caste to which the parties belong as contended by the defendants?' is too wide. When the case was opened by Mr. K. V. Krishnaswami Ayyar for the 4th defendant, I asked him how he would formulate his position. He replied that women are excluded from inheritance. His statement is in keeping with the issue, but the written statements of defendants Nos. 1 to 3 and the 4th defendant do not go that length. In para. 2 of the 4th defendant's written statement, the custom is pleaded in the following terms: 'Widows do not inherit their husbands' property, but are entitled only to a small perquisite, the succession in the absence of a son opening to the nearest male dayadis' Defendants Nos. 1, 2 and 3 plead in para. 4 'Sonless widows possess an interest in the inheritance only to the extent of the customary allowances, namely, 99 sheep if the owner died possessed of the same or at Re. 1 per sheep for every sheep that remains undelivered.'
48. We cannot consider the custom with reference to the right of a mother to succeed to her son dying leaving no widow or issue, or the right of a daughter to the estate of a father dying without male issue or the right of a grandson by a daughter in the absence of male issue to inherit to the maternal grandfather, as they are not before us; and the question has not been definitely raised with reference to them, though witnesses in their anxiety to make out the defendants' case are prepared to go the length of saying that if a man dies without male issue his estate immediately vests in his agnates. The custom for determination in this case should only be confined to that set out in para. 2 of the written statement of the 4th defendant, namely, widows do not inherit their husbands' property but are entitled only to a email perquisite.
49. It is urged by Mr. Ramachandra Ayyar that a finding that widows do not inherit to their husbands, dying without male issue would necessarily mean the vesting of the property in the nearest agnate and that would prejudice the right of a daughter to inherit to a father and the right of the daughter's son to inherit to the grandfather, for, property must vest in somebody and if it vests in the agnate, it cannot be subsequently divested in favour of the daughter or of the daughter's son. A finding on the custom need not necessarily prejudice the right of the daughter or daughter's son as it is confined only to the right of the widow to inherit to her husband.
50. It is next urged that the custom is an unreasonable one. Nothing is unreasonable in a custom which places widows under a disability to inherit to their deceased husbands. In considering whether a custom is reasonable or unreasonable, we should not be influenced or guided by modern ideas, for, that which appears to be unreasonable to us now may have been considered as eminently reasonable and necessary for the growth or well being of a caste or clan in bygone ages. In ancient times woman were considered as chattel and, therefore, not fit to own property in their own right. Even Manu who gives women the right of inheritance in certain cases places them under a perpetual tutelage: 'In childhood must a female be dependent on her father; in youth on her husband; her lord being dead, on her sons; if she have no sons on the near kinsmen of her husband; if he left no kinsmen, on those of her father; if she have no paternal kinsmen, on the sovereign; a woman must never seek independence'--Manu, Chap. V, verse 148. It is only in recent times that women were considered fit to own property in their own right. The right to inherit to male relations is a still more modern development of the law. The earliest recorded instance of daughters claiming a share for themselves in their father's property is that of the daughters of Zelophehad who applied to the great law-giver Moses to be allowed to succeed to their father who died leaving no sons on the ground that his name should not 'be done away from among his family, because he has no son.' Moses allowed them to take their father's property and decreed; 'If a man die and have no son, then ha shall cause inheritance to pass unto his daughter...and it shall be unto the children of Israel a Statute of judgment'---The Book of Numbers, Ohap. XXVII, verses 4 and 8. This became 'law 'in Israel. Everafter that in the absence of sons, the daughters divided their father's property among themselves. Under the Muhammad an Law a mother and wife are given definite shares and a daughter is a, residuary and a sister is a sharer or a residuary according to circumstances. Till the passing of the Married Women's Property Act of 1884 a married woman could not own separate property in England. According to the Mitakshara, a sister is not an heir at all, though she is an heir in the Bombay Presidency under the Mayukha Law. So, there is nothing unreasonable in a custom which prohibits a wife from inheriting to her husband. If we apply the present day notions to some of the rules of Hindu Law, we should certainly condemn them as unreasonable and unsuited to modern conditions, but, as they are binding on the people, Courts are bound to recognize them and to give effect to them.
51. The parties to the appeals are a sub-division of Shepherds called Pothunattu Edayars or Ramayana Chavadi Yadhavas. They are also called one thousand shepherds and they number about 700 families. The custom by which sonless widows are excluded from inheritance is said to obtain among this Ramayana Chavadi Yadhavas. In giving evidence, the defendants' witnesses depose that the widows get what is known as aruppucooli or kaimpenkur of 100 sheep or 100 rupees and quit the house of their husbands. If the payment of kaimpenkur or aruppucooli is a part and parcel of the custom which excludes widows from their husbands' inheritance, I may say at once that the custom has not been made out; for, the evidence as to the amount, time and mode of payment of aruppucooli is so conflicting and unsatisfactory that it is not possible to arrive at any definite decision as to its amount or the time or mode of payment. Even though the witnesses treat the payment of aruppucooli as part of the custom and inseparable from the portion relating to the exclusion of the widows from inheritance, yet, as the defendants should not be made to suffer on account of the attempt of the witnesses to prove too much, I addressed myself to the simple question, have the defendants made out by reliable and unambiguous evidence a custom, which is invariable and obligatory where by widows are debarred from inheriting their husbands' property? The appellants seek to establish the custom by adducing a number of instances in which the property, of a person dying without male issue was inherited not by the widows but by the agnates or pangalis. The instances may be roughly classified under the following heads:
I. Instances supported by documentary evidence.
II. Instances spoken to by widows.
III. Instances spoken to by pangalis or agnates of the deceased persons.
IV. Instances spoken to by the widows' relations.
V. Instances spoken to by other relations.
52. [His Lordship referred to the evidence and proceeded:]
The above are the instances spoken to by the defendants' witnesses, and excepting fifteen, the others do not lead to any definite inference. It is only instances in which there is reliable and unambiguous evidence that the pangalis inherited the properties of a deceased person who was divided in interest from them at the time of his death would lead to the inference that the divided pangalis excluded the widow, for according to the Hindu Law no widow has a right of inheritance to a member of a joint family. Her right is only to maintenance and residence either in the family house or in a house provided by her husband's co parceners.
VI. I will next consider the evidence regarding the instances in which the custom was either ignored or departed from.
The first class consists of instances supported by documentary evidence.
53. [His Lordship proceeded to discuss the evidence and concluded:]
The cases in which there is satisfactory evidence that the dayadis or pangalis inherited their divided pangali's properties in preference to the widows are only fifteen. The cases in which there is satisfactory evidence that the widows dealt with the properties of their husbands are thirteen. It is strongly urged by Mr. Ramachandra Ayyar for the respondents that the appellants have not produced a single pttta to show that the patta which stood in the name of the deceased pangali was transferred after his death to the name of a divided pangali. Nor is there any evidence to show that a divided pangali was brought on the record as the legal representative of a Kone in any suit or legal proceeding. It is significant that no person who had occasion to file a suit against a Yadhava of the Ramayana Chavadi sub division ever thought of making the pangali the legal representative of the deceased Kone. In the case of persons who do not belong to the community it might be said that they were not aware of the custom prevailing in the community, but when we find that the members of the community sued either the widows or made the widows the legal representatives of a deceased Yadhava defendant, it cannot be said that the members of the community considered that there was a binding custom which prevented the widows from succeeding to their deceased husbands' properties. It is also urged for the respondents that no panchayat award was produced. Exhibits XXV and XXVI make the panchayat award the basis of the payment of aruppucooli. Yet no panchayat award has been produced by the appellants. There is no instance of a pangali having enforced his right in a Court of Law. But there are at least two instances in which the widows applied for Succession Certificate to collect the outstandings due to their husbands.
54. The appellants naturally rely upon the admissions made by the plaintiffs' witnesses in support of their case. Mr. Ramachandra Ayyar explains the fact that some of the plaintiffs' witnesses made statements supporting the contention of the defendants by urging that they were adverse to the plaintiffs and they had to be called in order to prove certain documents and that they in cross-examination made statement supporting the cases of the defendants. This explanation appears to be plausible.
55. An application was made in the course of the suit for the appointment of a Receiver and a number of affidavits were filed by the parties in support of their allegations Exhibits XXXVII, XXXVIII, XLI, XLII and XLIII are such affidavits. In Ex. XXXVIII the statement is: 'According to the custom of our community, if a Yadhava should leave no male issue, only his full-brother, that is, brother born of the same mother (as the deceased) and his descendants are entitled to succeed and not the half brother and his descendants;' In Ex XLI the statement is 'According to the custom of our caste, if the deceased Yadhava does not leave a male issue, his property is to be taken only by the next dayadi.' Exhibits XLII and XLIII are similar to Ex. XLI. The case has been complicated by the contention of defendants Nos. 1 to 3 that full-brother and his descendants succeed in preference to the half-brother. Though this question does not arise in the suit of the widows, yet as evidence has been taken in both suits together, some witnesses speak to the custom of excluding the widows, and some witnesses speak to the custom of excluding the half-brother, and defendants Nos. 1 to 3 and the 4th defendant have filed affidavits in support of their contentions, and some of the plaintiffs' witnesses who swore to the affidavits now depose that the affidavits were printed sheets of paper and that they signed without knowing what the contents were. Their statements may be true or false. Without relying upon their statements it is safer to rely upon the documentary evidence in the case for the purpose of arriving at the truth.
56. As I have already observed the evidence as to aruppucooli is not uniform. Exhibit XXIII gives it as Rs. 70, Ex. II gives it as Rs. 100, Ex. XXII as Rs. 100 and Ex. IX as Rs. 70, Ex. V as Rs. 17. The witnesses are not agreed as to the amount which is due as aruppucooli. The contention of the defendants is that only Rs. 100 is paid as aruppucooli. Some of the witnesses say 50 or 60 sheep and in one case 90 sheep were given as aruppucooli. If the aruppucooli was only Rs. 100 it is difficult to see how 99 sheep could have been given. A sheep would have been worth at least Rs. 5 to Rs. 7 some years ago. The evidence as regards the quantum of aruppucooli is so conflicting that it would not be possible to accept the statement that Re. 100 was the amount of aruppucooli that should be paid by a pangali before he inherits the property of the deceased pangali and therefore, if the aruppucooli is an integral part of the custom set up, it can be safely said that the custom has not been made out. But, as I have dealt with the custom, apart from the aruppucooli, only the evidence as regards the exclusion of the widows from inheritance should be considered in weighing the evidence whether the custom set up has been made out or not. The appellants place reliance upon a statement in the 'Madura Gazetteer' as supporting their contention. The passage is as follows;
Among these Pathunattus an uncommon rule of inheritance is in force. A woman who has no male issue at the time of her husband's death has to return his property to his brother, father or maternal uncle but, is allotted maintenance, the amount of which is fixed by a caste panchayat.
57. The custom that is now set up is different from the custom that is referred to in the Gazetteer. According to the Gazetteer, the property has to return to the deceased's brother, father or maternal uncle and the amount of maintenance is to be fixed by the caste panchayat. The defendants stoutly repudiate the suggestion that the caste panchayat determines the amount of maintenance, and their case is that the pangali alone inherits the property, and in no case does the maternal uncle take the property. The custom which is pleaded now is not the game as that referred to in the Gazetteer and, therefore, the statement in the Gazetteer cannot be relied upon as supporting the case of the defendants.
58. There are about fifteen instances in which there is satisfactory evidence that the divided pangalis or dayadis succeeded to the estate of a deceased person in preference to the widow. Mr. Krishnaswami Ayyar for the appellants relies upon Palaniappa Chettiar v. Alagan Chetti 64 Ind. Cas. 439; 44 M. 740; (1921) M. W. N. 637; 26 C. W. N. 417: 30 M. L. T. 208; 15 L. W. 521; 4 U. P. L. R. 21; A. I. R. 1922 P. C. 228; 48 I. A. 539 and contends that the clear proof of a few instances is sufficient to make out a custom. It may be that where a custom set up is not opposed to the general law governing the community, a few instances may be sufficient to enable the Court to hold that the custom prevails in that community. But where the custom which is set up is opposed to the ordinary law governing the parties, it must be shown that the custom is invariable and that it is obligatory and must be proved by a large number of instances. In this case the instances referred to as being opposed to the custom are supported by documentary evidence. In several of them the pangalis did not come forward as legal representatives of the deceased person and in one case a pangali clearly stated that he was not the heir and that the widow was the legal representative--vide Ex. B 2. Fur-their the widows have asserted their rights in a Court of Law by applying for Succession Certificates--vide. Ex. Q. Mere statements of witnesses that such a custom exists or that such a custom is not in vogue should not be relied upon, unless such statements are supported by instances. It is urged that the witnesses are interested persons and their evidence should not be accepted. In a case like this, where the custom obtaining in community is in issue, only the members of the community would be in a position to speak to the custom prevailing in it, and the mere fact that they are related to the defendants or that they are related to influential men in the community--Narayana Kone, D. W No. 54, or B.K. Vannia Kone, D. W. No. 61--should not by itself be a sufficient reason for rejecting the oral testimony as false. If the evidence is sufficient to make out that the members of the community observed the custom and considered it obligatory on them and if there are no variations or departures from it, the Court would be justified in considering the custom as proved. In this case, it does not appear that the widows knew that they had no rights and accepted what was given to them by the pangalis. It may be that the caste panchayat in many cases compelled the widows to accept cash payment and relinquish their rights to their husbands' property in favour of the pangalis and determined what amount should be paid as maintenance having regard to the extent and nature of the husbands' estate, and that is the reason why the amount of aruppucooli, is different in different cases. The statement in the Gazetteer that a woman who has no male issue is allotted maintenance, the amount of which is fixed by the caste panchayat, is probably correct. The defendants' witnesses do not admit that the caste panchayat fixed the amount of the maintenance, as such a statement would cut at the root of the defendants' case and they are driven to the logical conclusion that, if a wealthy man dies leaving only daughters and a widow, they have to seek an asylum in the house of the widow's brother, however, poor he may be. They further go to the length of saying that even if there was no estate, the pangali was bound to pay Rs. 100 to the widow. The Yadhavas being a polygamous people, if the custom is a binding one, a poor pangali who may not get a pie of the deceased pangali's estate will be obliged to pay Rs. 200, if there are two widows and more, if there are more widows. Curiously enough in many cases the deceased left two widows.
59. Indian Courts are Courts of Law as well as of equity and they ought not to give effect to a custom which the growing consciousness of the community in which it is said to have prevailed is prepared to treat it as unsuited to modern conditions and has allowed a departure from it in several cases. When a custom which is not in accordance with the ordinary law governing the Hindu community is giving way to enlightenment in order to bring it in line with other communities, Courts would not be justified in giving effect to it and thereby compelling the unwilling community to be bound by the custom which it has practically abandoned. The judicial recognition of a custom which a community is prepared to jettison is neither necessary nor just. Even if such a custom as that setup had prevailed at some time, I am not prepared to hold that the custom has been considered to be a binding one during the last 20 or 25 years. The truth probably is that set out in Ex. XLIII(a), the affidavit of plaintiffs Nos. 1 and 2. In para. 5 they state: 'We object to the caste custom alleged by both parties. Both parties are followers of Hindu religion. All the rights and non-rights under the provisions of the Hindu Law are applicable to both parties and to us as well.' Paragraph 6 is as follows: 'It might be usual in some poor families to send away widows having no heir, after paying some amount with the consent of both parties.' In para. 7 they say: 'But in the case of rich and influential families like that of our deceased husband Vannia Konar, the widows used to manage their properties during their lifetime, and in the case of some other families they used to hand over their properties to their heirs, receive from them amounts in thousands for their expenses and do several other acts.'
60. After careful and anxious consideration of the whole of the evidence in this case, I have not the slightest hesitation in holding that the defendants have failed to prove the custom as set up by them and I find issue No. 1 against the defendants. The result of this finding is, the appeals against the decree in O. S. No. 64 of 1917 fail and they are dismissed with costs. It is unnecessary in the view I have taken of issue No. 1 to consider the issues that arise in O. S. No. 21 of 1917. Appeal No. 328 of 1922 is also dismissed without costs throughout,
Appeals Nos. 208 And 329 OF 1922.
61. I concur with my learned brothers.
62. The point for decision is whether the defendants have proved a custom in derogation of Hindu Law that the agnates to the remotest degree exclude the sonless widow or widows of a deceased divided member of the 1,000 Yadhava caste community, in the matter of inheritance of his property at his death. It has not been contended before us, although it was contended in a way before the lower Court, that the parties to these suits are not Hindus. They are certainly Hindu by religion. They describe themselves as Vaishnavites and do not claim that they follow any other religion. That being so, it is difficult for them to contend that they are not in the matter of family Law of Inheritance governed primarily by Hindu Law and in fact that has been admitted in this Court. In their pleadings also they admit that they are governed primarily by Hindu Law, but plead the suit custom, which is a custom in derogation of the ordinary Law of Succession under Hindu Law, as a custom among them having the force of law and, therefore, to be enforced by the Courts. The onus of proving such a custom lies heavily on the defendants audit was necessary for them to prove that the custom alleged is certain, uniform and ancient, and forms in the caste consciousness such a binding rule that disobedience of it will be felt by the caste as tantamount to disobedience of a positive law.
63. The evidence to prove the custom is voluminous and deals with a large number of separate instances, each of which had to be carefully extracted and dealt with by the trial Court. This may partly account for the lower Court having made many mistakes in quoting it, although there are also indications that these mistakes are due not to the Judge reading the evidence for himself but to his depending upon the Vakils' notes of argument. Speaking generally, however, the evidence is not of a high order, is more conspicuous for quantity than for quality and is vague, indefinite and inconclusive It is a sounder policy in such cases to put forward a reasonable number of unmistakable instances of a custom clearly and definitely proved than any number of vague and indefinite instances insufficiently established.
64. As to what the custom pleaded really is, the defendants make an unfortunate start by not agreeing with one another. In their pleadings in the suit with which we are now concerned, i. e., O. S. No. 64 of 1917, the defendants Nos. 1 to 3 said that the custom is that 'a sonless widow possesses an interest in the inheritance only to the extent of the customary allowances, namely, 99 sheep if the owner died possessed of the same, or at Re. 1 per sheep for every sheep that remained undelivered.' The 4th defendant says the custom is that 'Widows do not inherit their husbands' property but are entitled only to a small perquisite, the succession in the absence of a son opening to the nearest male dayadi' In their pleadings in O. S. No. 21 of 1917 which was tried along with this case, the present 4th defendant pleaded that the custom is that 'in case an original ancestor died without male issue Ms widow or daughters do not succeed to his properties by right of succession . . . The widows had only a right to receive aruppucooli, namely, 100 sheep or 100 rupees in case there are no sheep and then they leave the house and have no manner of right to the properties of the original ancestor and no right accrues to his daughters or their heirs by right of heirship in the properties of a person dying without male issue; . . . only his brother and other near dayadis succeed to his properties as his heirs and claimants.' Defendants Nos. 1 to 3 in their defence in that suit started by denying in toto this custom and then set up rules of succession in the same words as used by them in their pleadings in the present suit. As set out by defendants Nos. 1 to 3, therefore, the custom relates only to widows. Nothing is said about mothers or daughters; and these widows have an interest in the inheritance to the extent of 99 sheep. According to the 4th defendant, the daughter as well as the widow do not succeed and neither of them has any interest in the inheritance as such. At the trial all the defendants joined forces together, and defendants Nos. 1 to 3 accepted what they had previously, denied, namely, the custom pleaded by the 4th defendant. The custom put for-. ward in the evidence adduced by them differs in several respects from that put forward in the pleadings. For example, the exclusion from inheritance previously predicated of widows and daughters only is extended also to mothers and step-mothers. The amount of aruppucooli or payment due to the sonless widow is not fixed at 99 sheep or 99 rupees, but varies considerably, and the succession is not restricted to a brother or other near dayadis, but any agnate, however remote excludes all the above female relations, This latter extension is significant in view of the fact that defendants relied on a recital in the 'Madura Gazetteer' to support the custom pleaded by them. Now the recital in the Gazetteer is to the effect that in this caste on the death of a man without male issue the widow has to return his property to his father, brother or maternal uncle. It seems to me obvious that the Gazetteer custom, especially in its inclusion of the maternal uncle, differs fundamentally from the custom now pleaded that all agnates, however remote exclude all cognates. Again the Gazetteer does not say that widows are ever deprived of the right of residence in the family house, which is now pleaded as part of the custom, nor does it mention the exclusion of mothers or daughters or give any countenance to the custom now pleaded that daughters have no right even to a pie of their father's property but are turned adrift penniless on their father's death. The Gazetteer also says that the custom is that the amount of the widow's maintenance is not fixed but is determined by a panchayat. There is no suggestion that it is limited to one lump sum payment of Rs. 100 or so.
65. There are many indications in the evidence, into which I need not go in detail, that there once was such a custom as set out in the Gazetteer, and my general conclusion is that the present defendants are trying to expand and extend it further than it ever really went, while, as a matter of fact, the influence of surrounding Hindu Law has been such that the original custom has been largely broken down, especially, as one would expect, in the main town of Madura. It is not without significance that most of the oral evidence for the plaintiff against the existence of the custom comes from Madura Town and most of the evidence of the defendants from the outside villages.
66. It has been argued for the defendants that their case should not be dismissed, even if they have not succeeded in proving every detail of the custom pleaded, and that it is open to the Court to find out exactly what the custom is and give legal effect to it. That may be so in theory, but, in practice, the Court has to see whether any of the details are so satisfactorily proved that they can be accepted, and when witnesses have obviously given exaggerated or false accounts of the custom it is not easy to distinguish how much of their description is false or exaggerated and how much residuum of truth is left. Speaking generally, no witness for the defence supports the Gazetteer custom in giving the maternal uncle any right to the property or in stating that the amount of aruppucooli is left to be fixed by a panchayat, while all seem to agree that the widow has no right of residence in the family house, a point which the Gazetteer does not mention. Some of the defence witnesses go to absurd lengths about the details of the custom. Some assert that aruppucooli is to be paid, even when there is no property left at all or when the property left is less than 100 sheep or 100 rupees, and that it must be so paid to each separate widow--see the evidence of D. Ws. Nos. 1, 2, 5, 46 and 57,---even if the pangalis are ruined thereby --see D. W. No. 57, also that daughters get not a pie and have to beg if there are no relations who will feed them; apparently if they are infants they must die of starvation. Very strong proof of such an inhuman custom would have to be adduced before the Courts would accept and enforce it.
67. It is clear, I think, from all these considerations that the extent and the scope of the custom is by no means certain and definite. When I come to consider the value of the actual evidence adduced, I find that the residue left indicates the same uncertainty as to what the custom is. I need not go in detail into the evidence but will remark generally that I have rejected most of the defendants' instances on three main grounds: 92 Ind. Cas. 352; A. I. R. 1926 Mad. 378 That proof from ancient and unimpeachable documents is much more valuable than oral evidence given after the existence of the custom has become a matter of acute controversy in the caste, each member of which will be probably affected one way or the other by the decision. Of such ancient and unimpeachable documents there are none on the defendants' side. 14 M. I. A. 570; 17 W. R. 552; 12 B. L. R. 396 2 Suth. P. C. J. 603; 3 Sar. P. C. J. 108, 20 E. R. 898 That the proof that a deceased husband was divided from his pangalis was in most instances insufficient, unsatisfactory or not the best obtainable. Obviously the essential preliminary fact of division had to be established by the best possible evidence and, if it is not so established, the instance is useless, as, when there is no division, the widow would under Hindu Law not succeed to the property as against the undivided dayadi, and the non succession of the widow would be in accordance with the ordinary Hindu Law. : (1918)20BOMLR528 That evidence as to exclusion of mothers, stepmothers and daughters is not relevant to the case of widows, since, by the pleadings in this case as distinct from the pleadings in O. S. No. 21 to which the present plaintiffs are not parties, no plea of the exclusion of mother, stepmother or daughter was put forward and, therefore, the plaintiffs were not called upon to meet such a case. Plaintiff's husband in fact has left a daughter and a daughtar's son, and if the defendants wished to establish the custom as against the daughter, they should have made the daughter also a party to the suit.
68. We have had each instance on each side carefully put before us and criticised by the other side and my general conclusion is that on the defendants' side I accept as satisfactorily proved only seven instances, Nos. 3, 4 and 12 in para. 60 of the lower Court's judgment, Nos. 8, 9 and 15 in para. 62 and No. 13 in para. 68. Instance No. 4 in para. 60 sets out a partition deed Ex. I, which recites payment of aruppucooli to the widow and her exclusion from the husband's property. This is, however, of a recent date, only four years prior to the suit. Instance No. 3, para. 60, has some significance, inasmuch as there a father of a widow took a transfer of the husband's property from the pangali. See Exs. XXI and XXI (a), dated 1900. Instance No. 12, para. 60, is also a case where the widow herself took a mortgage of her husband's property from the pangali, a case of 1899. The other instances are not supported by documents but seem to me fairly proved as cases in which a pangali excluded the widow from the property. On the other hand, there are many infirmative circumstances weakening the defendants' case. In a community of 700 families one expects a certain number of documentary transfers of property; yet, the defendants have not been able to prove satisfactorily any such transfer earlier than 1899, which is only 17 years before the suit. One expects also a certain amount of litigation, at least by creditors for recovery of the debts of a deceased men or by claimants of his property, but the defendants have not put forward a single instance in which dayadis have been sued as legal representatives of the deceased husband. There is no recorded case in which a widow has ever been put by a dayadi to the test of a Law Court, no case in which they applied for and got a Succession Certificate, no documentary proof of a transfer of patta of the deceased land to dayadis, no proof of payment of kist by a dayadi for land primarily owned by the husband, no award of any caste panchayat on the lines of the alleged custom.
69. On the side of the plaintiffs I accept 12 Instances, No. 9. para. 64, Nos. 1 and 15, pare. 71, and Nos. 1, 2, 3, 5, 6, 7, 11, 14 and 15, para. 72. Instance No. 9, para. 64, and No. 1, para. 72, are cases of transfer of patta of the husband's property to the widow. The former is admitted by the pangali D. W. No. 15 and the latter proved by Exs G and G-1. I am not prepared to accept the contention that Exs. G and G-1 do not relate to the case of the husband of Murugayi, as the defence now contends, since in the lower Court they then-admitted these documents as relevant to this instance. Instance No. 1, para. 81, and Nos. 11 and 15, para. 72, are cases where the widow was sued as her husband's legal representative by members of her own community or to the knowledge of the members of her own community. If there was a strong consciousness in the community that the widow had no right of inheritance whatever, as is the present contention, one cannot conceive of it entering into the head of any of the members to make the widow the legal representative of her husband. In instance No. 5, para. 72, the pangali vis a-vis the widow actually disclaimed that he was the legal representative of the husband and put forward the widow as such and the Court accepted that plea--see Ex. B-2 and exonerated the pangali from the suit with costs. In instance No. 3, para. 72, the pangalis P.W. No. 4, etc., who were defendants in the suit (judgment Ex-8) did not put forward as a defence to the prayer for ejectment by the widow the present custom which would, had it been established, have immediately and absolutely non-suited the plaintiff. Instances Nos. 2, 6 and 11, para. 72, are cases in which, the widow disposed of her husband's property to a member of her own community. See Ex. W and Ex. BB in instances Nos. 2 and 6. In the first instance there was also a disposal of some other property of her husband by the widow to a Chetty which was attested by a member of her own community--see P. W. No. 5 Ex. U, The dates of these are 1908 and 1910. In instance No. 11 there is no document but P. W. No. 8 the vendee speaks to it. In instance No. 14, para. 72, a member of the community paid to the widow the amount of a mortgage due to her deceased husband. See Ex. PP, 1908. In instance No. 7, para. 72, the widow paid her husband's debt and the pangali acquiesced and joined in the transaction, In instance No. 15, para. 71, there is good oral evidence that the widow excluded the pangalis. Against these instances defendants plead generally that there is no proof of any case of a Succession Certificate to a widow--instance No. 4 in para. 72 depends only on the evidence of P.W. No. 3 who is called by the learned Subordinate Judge a determined liar--and that no widow has given evidence for the plaintiffs that she inherited. This is true, but we cannot be certain that in this uneducated caste widows are aware of their legal rights or even that if they know them they are prepared to assert and stand upon them. The indefinite extent of a widow's knowledge may be inferred from the present plaintiffs' affidavit, Ex. XLIII (a), paras. 6, 7 and 8. ''It might be usual in some poor families to send away widows having no heir, after paying some amount with the consent of both parties. But in the case of rich and influential families like that of our deceased husband Vannia Konar, the widows used to manage their properties during their lifetime . . . There is no such custom as that the widows should quit the house on the death of their husbands.'
70. Reliance was also placed by the defence on the fact that P. Ws. Nos. 5, 6, 7, 11 and 12 have given affidavits, Exs. XXXVIII, XL to XLIII. These were put in an I. A. in 0.8. No. 21 which is a contest between the 4th defendant on the one hand and defendants Nos. 1 to 3 on the other as to whether the inheritance from a sonless Yadhava goes to his brother by the same mother or not. The affidavits were put in support of the claim by defendants Nos. 1 to 3. The question whether the widow was excluded by the dayadis was not then in point and any assertion on it can only be inferred, if at all, indirectly from the statement in para. 7 of the affidavits that defendants Nos. 1 to 3 had succeeded to the estate of Vannia Kone.
71. Such is the state of the evidence as I find it to be in this case. Regarding it as a whole and remembering that the onus of proving a custom derogatory to Hindu Law lies heavily on the defendant?, I am satisfied that they have not discharged it. The custom mentioned in the Gazetteer is not the custom set out in the pleadings. The custom set out in the pleadings of defendants Nos. 1 to 3 is not the custom set out in the pleadings of the 4th defendant. The custom set out in the pleadings by all defendants is widely expanded and carried to absurd lengths in the evidence. The few instances which defendants have proved of dayadis excluding widows are to my mind wholly insufficient to establish that any clear, uniform, ancient and definite custom contrary to the ordinary Hindu Law and having the force of law governs the consciousness and the social life of this caste. As I have indicated there may at one time have been a custom, such as is set out in the Gazetteer, which is now in a state of flux and erosion owing to the inroads of Hindu Law. It is easier to Conceive that there was once such a custom Which has now fallen very much into desuetude owing to the influence of Hindu Law than that a definite custom was set up in defiance of Hindu Law by persons originally subject in this matter to the lull canon of Hindu Law. I am unable to conclude that there is now in Vogue any custom, such as the defendants contend for having the force of law so that the community regard it as law and a breach of it as a breach of the law. I, therefore, agree with the lower Court and with my learned brothers that this custom has not been proved, that the defence to the plaintiffs' claims fails, and that the appeals should be dismissed with costs, as provided for in my learned brothers' judgment.
A. S. No. 328 OF 1822.
72. I agree here also with the order in this appeal.