Judgement

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, Jagedambal and Meenambal. Jagadambal filed the suit out of which 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 26-7-1948 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.

2. Saraswathi Ammal, defendant 1, 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 defendant 2 married and lived with their husbands, while she (defendant 1) 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 mather s property devolved solely on her to the exclusion of the plaintiff and defendant 2. Defendant 2 supported defendant 1 s case. The material issue in the suit was issue 1 which was in these terms:

"Who is the proper heir of Thangatharnrral. Whether according to custom as set up by the plaintiff, all the daughters are heirs, or according to the custom put forward by defendant I the unmarried daughters alone are entitled to inherit."

3. 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 defendant 1 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 defendant 1 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 Art. 188 of the Constitution.

4. After hearing 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 sister reliance was placed on the evidence of some members of the community and reference was also made to certain instances. The same kind of evidence was led by the plaintiff in 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.

5. 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 dasi, 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 he 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-e