In the absence of evidence that a community has adopted Hindu law of succession and inheritance as its customary law, the members of that community are governed by Muslim law.

K. S. SHRIVASTAV, J.

( 1 ) THIS is unsuccessful plaintiff s first appeal in forma pauperis against the judgment and decree of dismissal of his suit for declaration of his 1/4th share, partition and separate possession of the plaint a and b schedule properties.

( 2 ) THE facts giving rise to this appeal, in brief, are that the plaintiff-appellant is the son of the 1st defendant through his first wife Siddamma. The remaining defendants are the sons of 1st defendant through the second wife Peeramma. The appellant-plaintiff; on the allegation that they belong to Dudekula community who are regarded as Hindus and according to long established custom they are following Hindu customs, practices and conventions, they observe Hindu festivals and rituals; they wear jewels and dress in Hindu fashion; they wear caste marks as Hindus; they form a joint Hindu family, which family owns plaint a and b schedule properties; instituted the suit demanding his l/4th separate share in the plaint a and b schedule properties. But the defendant No. 1 refused to do so and, therefore,he is entitled for a declaration that he has got 1/4th share in the plaint a and b schedule properties and is also entitled for partition and separate possession of the same.

( 3 ) THE defendants through their wri tten statement denied the allegations of the plaintiff-appellant that they are Hind us or they observe Hinducustoms and conventions as alleged. They have pleaded that they are Muslims and they observe all the customs and other religious functions of Muslims. They are governed by muslimlaw. They do not form a joint Hindu family. The plaint a and b schedule properties are not the properties of the joint Hindu family. They have pleaded that under the Muslim law a son has no right to claim partition on the ground of alleged joint Hindu family property. They have denied that movable properties as mentioned in plaint b schedule properties are in existence. The 1st defendant has a share in item Nos. 4,7,8,23,25 and 26 of the plaint a schedule properties and he is the absolute owner of item nps. 15 to 22 and 31 to 33. The suit is, therefore, not maintainable and should be dismissed with costs.

( 4 ) IT is a matter of record that the appellant-plaintiff examined three witnesses onhis behalf. He himself wasp. W. 1. He produced and proved school transfer certificate Ex. A-1 and another certi ficate Ex,a-2 in support of his case. The defendants examined eight witnesses. The 1st defendant is D. W. 3. They filed 27 documents in support of their case and proved them.

( 5 ) THE learned lower Court, on assessment of the evidence on record, reached to the conclusion that the appellant-plaintiff is the son of the 1st defendant It reached to the conclusion that the parties are governed by the muslim law and not Hindu law. The plaintiff-appellant has failed to prove the existence of plaint b schedule movable properties. It has further found that had the parties been governed by the Hindu law, the appellant-plaintiff would have been entitled to 1/4th share in item Nos. 11 to 13 to the extent of Ac. 1-74 cents only and in item Nos. 15 and 19 because it has not been established that the remaining items of the plaint a schedule properties belong to the joint family. On the ground that the appellant-plaintiff has failed to establish that they are governed by the Hindu law, the learned lower Court dismissed the suit of the plaintiff which has been filed in forma pauperis.

( 6 ) BEING aggrieved by the judgment and decree, the plaintiff has preferred this appeal.

( 7 ) AT the outset it is to be remarked that the learned Counsel of the respondents did not challenge the finding recorded by the learned lower Court that the plaintiff is the son of the 1st defendant and rightly so because there is evidence on record that the appellant-plaintiff is the son of the 1st defendant it is apposite to mention that the mother of the appellant-plaintiff, namely b. Siddamma had filed

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