Kumaraswami Sastriar, J.@mdashThese 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.
RAMA KONAR
|
______________________________________
| | |
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)
Konar) |
__________________________________ |
| | | |
Mokka Konar Krishna Konar Dhanakoti Konar |
alias Vannia (defendant No.2.) (defendant No. 3.) |
Konar |
(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
(daughter).
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 Sinnanna Kone and Others Vs.
Muthupalani Chetti and Another, . 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 H.H. Mir Abdul Hussain Khan Vs. Mussammat Bibi Sona Dero, . 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 Pandit Suraj Narain Vs. Pandit
Ikbal Narain, .
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.
Devadoss, J.
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 m
