1. The plaintiffs, who are the appellants in this case, sued to recover possession of the properties in suit as the sister's sons of one Manik Cachari, The defendant, who was in possession of the property, professed to hold it on behalf of the sister of Manik's wife.
2. The Court of first instance found that the sister's son in the absence of agnates is an heir among the Cacharies and decreed the suit. On appeal, the learned Subordinate Judge reversed that decree and dismissed the suit.
3. The plaintiffs have appealed to this Court.
4. The learned Subordinate Judge, we think, was in error in considering that the point for determination in the case was whether a sister's son is an heir in preference to a daughter according to the Cachari custom. It is true that the plaintiff in his plaint stated that, the sister's son excluded the widow and the daughter. But both the widow and the daughter of Manik had died before this suit was instituted, and if, as found by the Court of first instance, the sister's son is an heir in the absence of agnates (and there is no agnate or any other heir in the present case), the sister's son would be an heir.
5. So far as the claim of the wife's sister is concerned, in the absense of any custom, she can never be an heir under the Hindu Law.
6. The question whether the Hindu Law should be applied to the aborigines of Assam same up to this Court in several cases, and it was held that the Bengal School of Hindu Law applied to the peopls of Assam. That being so, the sister's son is certainly entitled to succeed unless there is a custom to the contrary.
7. The Court of first instance came to an affirmative finding that no such custom was proved. The lower Appellate Court does not find that there was any such custom. The learned Subordinate Judge proceeds to discuss the question whether the sister's son or the daughter is the preferential heir, a question which, as was have already pointed out above, does not really arise in the circumstances of the case, though it does arise upon the statements made in the plaint.
7. The learned Pleader for the respondent strongly relied upon the fact that the plaintiff set up a special custom and contended that under the circumstances he ought not to be allowed to succeed on the ground that he is an heir under the Hindu Law.
8. Had it been necessary for the plaintiff to prove that the sister's son is the heir in preference to the widow or daughter by custom, no doubt it would have been necessary to prove the custom and on failure to prove it the suit would have been dismissed. But the plaintiff claims after the death of the widow and the daughter. Admittedly there is no agnate or any heir more nearly related than himself or, for that matter, any other heir at all and the only person whose right has been set up, viz., the wife's sister, cannot possible be an heir under the Hindu Law, and no custom has been proved under which she can succeed.
9. The learned Subordinate Judge observes in his judgment that the passage in the Census Report quoted by the Court of first instance shows that inheritance goes through the male and that Court found that there was no succession through a female under the Cacharies.
10. We have not got the Census Report before us, and all that the learned Munsif found was that the female is no heir so long as there is an agnate. From this it does not follow that where there is no agnate a female cannot be an heir. Here there is no question of a female being the heir, although the sister's son claims inheritance through a female. However that may be, it has not been found that a sister's son is not an heir.
11. The decree of the lower Appellate Court must accordingly be set aside and that of the Court of first instance restored, but having regard to the manner in which the plaint was drawn up and the circumstances of the case, we direct each party to bear his own costs in all Courts.