Saraswathi Ammal Vs. Jagadambal &
ANR  INSC 16 (27 February 1953)
MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN
CITATION: 1953 AIR 201 1953 SCR 939
CITATOR INFO :
RF 1962 SC1493 (10) F 1989 SC1359 (19)
Hindu law-Succession-Dancing girls of South
India-Whether dasi daughter excludes married daughters-Custom-Nature of
evidence necessary to prove custom--Hindu law--Rule preferring maidens to
married daughters, whether applies to prostitute daughters.
The evidence on record did not establish the
custom which had been pleaded, namely that among the community of dasis 940
(dancing girls) in South India a dasi daughter succeeded to her mother in
preference to the married daughters; and in the absence of such custom,
succession to a dasi must be governed by the rule of propinquity of Hindu law
as a rule of justice, equity and good conscience and dasi daughters and married
daughters would succeed to their mother's property in equal shares.
A rule that degraded relations are
preferential heirs to undegraded ones cannot be evolved merely on logical
grounds the existence of such a rule can only be justified on the basis of
Custom cannot be extended by analogy. It must
be established inductively, not deductively, and it cannot be established by a
priori methods. It cannot be a matter of mere theory but must always be a
matter of fact and one custom cannot be deduced from another.
Shanmugathammal v. Gomathi Ammal (6 M.L.J.
861), distinguished. Narasanna v. Gangu (I.L.R. 13 Mad. 133), Subbaratna Madali
v. Balakrishna Naidu (33 M.L.J. 207), Subbaraya Pillai v. Ramaswami Pillai
(I.L.R. 23 Mad. 171), Balasundaram V. Kamakshi Ammal (71 M.L.J. 785), and Abdul
Husein Khan v. Soma Dero (I.L.R. 45 Cal. 450: P.C.) referred to.
The rule of Hindu law by which a maiden is a
preferential heir to her married sisters does not apply to daughters who are
admittedly married to an idol and lead a life of prostitution.
Tara v. Krishna (I.L.R. 31 Bom. 495) referred
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 105 of 1952.
Appeal from the Judgment and Decree dated the
16th September, 1949, of the High Court of Judicature at Madras (Subba Rao and
Chandra Reddi JJ.) in Appeal No. 162 of 1946 arising out of Judgment and Decree
dated the 30th November 1945 of the Court of the Subordinate Judge of Tanjore
in Original Suit No. 34 of 1945.
S. Ramachandra Iyer, for the appellant.
T. R. Srinivasan, for the respondents.
1953. February 27. The Judgment of the Court
was delivered by MAHAJAN J.-One Thangathammal who was a dasi (dancing girl)
lived in the Tanjore district in Madras State and died possessed of some
properties. She left her surviving three daughters, Saraswathi, Jagadambal and
Meenambal. Jagadambal filed the suit out of which 941 this appeal arises
against her sisters for partition of the movable and immovable properties set
out in the plaint and for allotment of a third share to her therein. She
alleged that her mother was married to one Thyagaraja Pillai, that the
properties in suit were the stridhanam properties of her mother who died
intestate on 26th July, 1943, and that according to the law or custom of the
community to which the parties belonged she and her sisters were entitled to
share equally the properties of her mother.
Saraswathi Ammal, the 1st defendant contested
the suit. She pleaded that her mother was not a married woman but a dasi who
followed her hereditary occupation and was attached to Shri Saranatha Perumal
temple at Tiruchurai in the Tanjore district, that of the three daughters the
plaintiff and the 2nd defendant married and lived with their husbands, while
she (1st defendant) was duly initiated as a dasi in the said temple and
remained unmarried and that according to the law and custom of the community,
the mother's property devolved solely on her to the exclusion of the plaintiff
and the 2nd defendant. The 2nd defendant supported the 1st defendant's case.
The material issue in the suit was issue No. 1 which was in these terms:"
Who is the proper heir of Thangathammal. Whether according to custom as set tip
by the plaintiff, all the daughters are heirs, or according to the custom put
forward by the 1st defendant, -the unmarried daughters alone are entitled to
inherit." The Subordinate Judge dismissed the suit holding that
Thangathammal was a dasi and not a married woman, that according to the custom
of the dasi community in South India, a dasi daughter is regarded as a nearer
heir to the mother than a married daughter and that the 1st defendant was
entitled to remain in possession of the suit properties.
Against this decision an appeal was taken to
the High Court.
The High Court reversed the decree of the
Subordinate Judge and held that the custom pleaded by the 1st defendant 942 was
not proved and that the rule of propinquity of Hindu law as a rule of justice,
equity and good conscience, governed the succession and the married and dasi
daughters were equally entitled to the inheritance. It was further held that a
dasi daughter was not in the status of a maiden or unmarried daughter for
purposes of succession to stridhanam property. Leave to appeal to the Supreme
Court was granted under article 133 of the Constitution.
After bearing the learned counsel for the
appellant, we feel no hesitation in concurring with the decision of the High
Court. It was contended that the High Court was in error in holding that the
custom set up by the defendant was not proved. To prove the custom that a dasi
daughter was a preferential heir and excluded her married sisters reliance was
placed on, the evidence of some members of the community and reference was also
made to certain instancese same kind of evidence was led by the plaintiff
support of her case.
The evidence of both the parties on the issue
of custom is of an unsatisfactory and inconclusive character and from it no
inference can be drawn of the existence of a uniform, certain and ancient
custom prevailing in the community on this point.
Out of the defendant's witnesses, the first
witness, Rajagopal Pillai, deposed that his wife was the daughter of dasi
Kamakshi who had six daughters of whom three were married and three were dasis,
that on Kamakshi's death, her dasi daughters alone would take the inheritance
and that his wife, would be excluded. This statement does not hurt him in any
way as his wife will not be bound by what be might state. His bald assertion
about the custom in the community is not of much value. He does not disclose
any source of his information. In cross-examination he admitted that he did not
know a single specific instance where such a custom was enforced . The second
witness on the point is the first defendant. She stated that one Tulasi's
sister Mangalam got no share in her mother Ammani's properties. In cross examination
it was admitted that Mangalam died about fort years ago, 943 i.e., some time
before the defendant was born. She could therefore have no personal knowledge
about Ammani's instance. No written record of that inheritance is forthcoming.
Mangalams son Govindaswami Pillai appeared as D. W. 3. He deposed that
Mangalam's mother Ammani had divided her properties between her dasi daughters
in her lifetime. The instance therefore is not an instance concerning
succession and cannot be treated as relevant in this enquiry. The 1st defendant
further deposed to an instance in Srirangam when succession opened out on the
death of dasi Chellappa. It was said that her property was taken by her dasi
daughter Visalakshi to the exclusion of her married daughters Marakatham and Rukmini
and that the assets were worth a lakh of rupees. One would have expected some
written documents about that sucession if it took place in the manner deposed
to. In the absence of any evidence from the descendants of Chellappa and in the
absence of any documentary evidence regarding that succession it is difficult
to place any reliance on this so-called instance. Defendant No. I stated that
her knowledge of it was only from hearsay, and the requirements of section 32
of the Evidence Act not being fulfilled, her evidence on this point cannot be
treated as admissible. The third witness, about whom reference has already been
made, apart from deposing as to Mangalam's instance also deposed about the
instance of dasi Meenakshi. Her daughter Jeevaratnam is married to the witness.
He said that Meenakshi's dasi daughters inherited her property and that his
wife was excluded. The only property alleged to belong to Meenakshi was a
house, the value of which is not known. The succession is said to have occurred
over twenty years ago. None of the daughters of Meenakshi have been examined as
witnesses in the case, to enable the court to find out the details about it and
merely on the statement of this witness the instance cannot be held proved. The
fourth witness for the defendant is her noncontesting sister. She said nothing
on the on the question of custom. She, however, stated 944 that she was not
entitled to a share in the assets of her mother. When asked why she was making
that statement, she said that she was saying so because her husband and some.
elders (whose names were. not disclosed) had
told her so.
Evidence of this character on the question of
custom cannot be seriously considered. Venugopal Pillai is the fifth,witness
for the defendant. He is the husband of the second defendant. His evidence
regarding the instance of Chellappa is purely, hearsay. He deposed that he had
learnt that a dasi's married daughter is not entitled to claim a share as she
is not her heir in the presence of a dasi daughter and therefore he told his
wife not to claim a share.
He did not disclose the source of his
information. Janaki Ammal, the sixth witness, is a dasi. She deposed that she
has five daughters of whom two are married, one is a dasi and the other two are
young girls and that according to their caste custom her properties on her
death would devolve on her dasi daughters and that the married daughters must
remain content with the presents given at their marriage.
In cross-examination she admitted that she
was deposing about the caste custom not from any specific instance in which the
custom was observed but at the request of the defendant, and that she bad heard
of this custom from her elders whose names she did not disclose. She further
admitted that she had an uncle living but she did not even ask him about the
custom. The witness, it appears, knows nothing about the custom and is giving
evidence in order to oblige the defendant. The next witness 'Who gave evidence
on the issue is D. W. 8, Kamalathammal, a dasi. Her mother was also a dasi. She
deposed that her mother's properties were divided between her and her other
dasi sister and Amba, her third sister, who was married, was not given a share.
In cross-examination she admitted that Amba
never asked for a share. Neither was Amba produced, nor any written municipal
records showing that the witness actually inherited the property of her mother
to the exclusion of Amba. It is difficult to hold this incident proved merely
on the 945 vague testimony of this witness. Pappathi Ammal, the next witness in
the case, is also a dasi. She deposed that her father's mother's property
devolved on her two dasi daughters on her death and that there was no married
daughter in existence. Thisevidence is of a neutral character and is not of
much use on the question of custom pleaded in the case. Apart from asserting
that in this community dasi's property devolves on her death only on the dasi
daughters to the exclusion of married daughters, she cited the instance of
Chellappa, a dasi of Srirangam. It was elicited in cross examination that
Chellappa left a house and landed properties. No explanation is forthcoming why
documentary evidence of revenue records about this instance has been withheld.
Oral evidences as to instances which can be proved by documentary evidence
cannot safely be relied upon to establish custom, when no satisfactory
explanation for withholding the best kind of evidence is given. The last
witness in the case is Rajamani Ammal, another dasi who does service in Sri
She also referred to the instance of
Chellappa. She said that her jewels which were worth Rs. 1,000 would pass on
her death to her dasi daughter. She went to the length of saying that if a dasi
leaves an only child who is a married woman, even then her properties will pass
to a next heir such as a cousin and not a married daughter. This is all the
evidence led by the defendant to prove custom. On this meagre and
unsatisfactory material we cannot hold that the custom pleaded is proved. The opinion
evidence is not of a convincing character and evidence as to specific instances
in support of the custom is really nil.
Our attention was also drawn to a decision of
the Madras High Court in Shanmugathammal v. Gomathi Ammal(l) In that case the
plaintiff, a member of the dasi community, claimed to succeed to her deceased
maternal aunt and pleaded that the three surviving sisters of the deceased who
were impleded as defendants were not entitled to inherit because one of them
(1) 67 M.L.J. 861.
122 946 had been adopted by another dancing
girl and the other two had become married. The issue raised in the case was
whether the custom set up by the plaintiff that among dancing women married
women are excluded by a woman who continues to be' a dasi is true, valid and
Certain dasis gave evidence in support of the
custom. No evidence whatever was given to the contrary and the custom pleaded
was held proved in the circumstances of that case.
Emphasis was laid on the circumstance that
there was no evidence whatsoever against the plaintiff and defendants 2 and 3
who denied the existence of the custom in their written statements did not
venture to deny it on oath in the witness box. The dasi community concerned in
that case was a small one consisting originally of twenty houses of which only
seven or eight were then in existence and in that situation it was said that
the custom might well be one that was well recognized and so much a part of the
consciousness of the community, that any dispute like the present dispute
amongst so small a body of women would be an extremely rare occurrence and
therefore impossible of proof and that the plaintiff could not reasonably be
expected to search the presidency for witnesses to speak to some similar
dispute in other places. In our opinion, that decision does not furnish a good
judicial instance in respect of the custom pleaded in the present case. There
is no evidence that the customs of that small community of dasis are applicable
to the community of dasis in the present case which form a considerable
community in this district. Moreover, the case was decided on the peculiar
circumstances of that case on very meagre materials and did not lay down any
general custom of dasis on this point.
It is unnecessary to examine the plaintiff's
evidence in detail. Suffice it to say that it is more than sufficient to rebut
the evidence led by the defendant and it neutralizes its effect, if any. In the
absence of proof of existence of a custom governing succession the decision of
the case has to rest on the rules of justice, equity and good conscience
because admittedly no 947 clear text of Hindu law applies to such a case. The
High Court thought that the just rule to apply was one of propinquity to the
case, according to which the married and dasi daughters would take the mother's
property in equal shares. No exception can be taken to this finding given by
the High Court. No other rule was suggested to us leading to a contrary result.
It was argued that the dasis have a distinct
status in Hindu society and, that a rule has been evolved by judicial decisions
under which the state of degradation by itself furnishes a rule of preference
in a competition -between dasi daughters and married daughters. The juidicial
decisions referred to concern the community of prostitutes and the rule evolved
concerning them has been abrogated by later decisions. It was contended that
though the said rule had been abrogated and was no, longer applicable to that
community concerning which it was evolved, it should by analogy be applied to
cases of succession to dasis.
Narasanna v. Oangu(1) was the first case
cited. There, an adopted niece of a prostitute dancing girl was preferred to a
brother remaining in caste. It was said that the legal relation between a
prostitute dancing girl and her undegraded relations remaining in caste becomes
severed and they are therefore not entitled to inherit the estate. In
Subbaratna Mudali v. Balakrishnaswami Naidu(2), the next, case cited, the facts
were that a deceased woman Palani inherited the property in dispute from her
mother Nagu, who inherited it from her mother Mottai who again inherited it
from her father Arunachalam. Arunachalam had two brothers Ramaswami and
Mathurbutham and the question in that case was whether Mathurbutham's daughter
Seethai or Ramaswami's daughter's son Marudamuthu Mudali was the heir of
The learned judges held that Mathurbutham's
daughter was preferential heir to Ramaswami's daughter's son. It was pointed
out that the rule of preference based on degradation was no longer good law. It
was, however, (1) I.L.R. 13 Mad. 133. (2) 33 M.L.J. 207.
948 added that in cases of dancing girls the
law remained as it was before. Our attention was also drawn to certain
observations in Subbaraya Pillai v. Ramaswami Pillai(1) at page 177, and to the
decision in Balasundaram v. Kamakshi Ammal(2). In the former case the learned
Judges rejected the broad proposition that Degradation of a woman in
consequence of her unchastity entails in the eye of the law cessation of the
tie of kindred between her and the members of her natural family and also
between her and the members of her husband's family. We think that decision on
this point is sound in law. Degradation of a woman does not and cannot sever the
ties of blood and succession is more often than not determined by ties of blood
than by the moral character of the heir.
In Balasundaram v. Kamakshi Ammal(2) it was
held that the property acquired by the mother had been acquired by her as a
married woman and notwithstanding her lapse into unchastity, it devolved on her
daughters clothed with the ordinary character of property acquired by a Hindu
female, that is to say, the daughters took a life estate in it.
The learned counsel attempted to persuade us
to hold the custom pleaded proved by the assistance of decisions given in
analogous cases and by applying the principles of the rules said to have been,
enunciated in some of them. Those cases were decided on their own facts and in
some of them a rule was enunciated that degraded people are a class by
themselves and their degraded relations are preferential heirs to the
undegraded ones. As already said, we cannot subscribe to the view that any such
rule can be evolved merely on logical grounds. Its existence can only be
justified on the basis of established custom. No trustworthy evidence has been
led in this case to establish that the daughters of a dasi by marriage lose
their right of inheritance and form a separate community. The correct approach
to a case where a party seeks to prove a custom is the one pointed out by their
Lordships of the (1) I.L.R. 23 Mad. 171. (2) 71 M.L.J. 785.
949 Privy Council in Abdul Hussein Khan v.
Soma Dero(1). It was there said that it is incumbent on a party setting up a custom
to allege and prove the custom on which he relies and it is not any theory of
custom or deductions from other customs which can be made a rule of decision
but only any custom applicable to the parties concerned that can be the rule of
decision in a particular case. It is well settled that custom cannot be
extended by analogy. It must be estabished inductively, not deductively and it
cannot be established by a priori methods. Theory and custom are antitheses,
custom cannot be a matter of mere theory but must always be a matter of fact
and one custom cannot be deduced from another. A community living in one
particular district may have evolved a particular custom but from that it does
not follow that the community living in another district is necessarily
following the same-custom.
The last point taken by the learned counsel
was that under Hindu law the 1st defendant as a maiden was entitled to
preference over her married sisters. Defendant No. I was admittedly married to
the idol and she has been on her own show. living a life of prostitution. The
text of the Mitakshara dealing with the case of a virgin can. not be applied to
her case. [Vide Tara v. Krishna(1)]. It is inconceivable that when the sages
laid down the principle of preference concerning unmarried daughters they would
have intended to include a prostitute within the ambit of that text.
For the reasons given above we see no force
in this appeal and it is dismissed with costs.
Appeal dismissed, Agent for appellant: S.
Agent for respondent No. I : M. S. K.