Santhals who have been sufficiently Hinduized are governed by the Hindu law in matters of succession and inheritance, and the burden of proving that the old custom of that community still exists is upon the party who sets it up.

Kanhaiyaji, J.

1. This appeal by the defendants arises out of a suit instituted by the plaintiff for declaration of title to and recovery of possession of the suit lands situated in village Sadant Kuchai, Police Station Kharsawan, district Singhbhum appertaining to khata No. 17.

2. The lands in suit are 12 bighas 13 kathas and 13 dhurs, fully described in the schedule attached to the plaint. The case of the plaintiff, Jaba Majhain, who had brought the suit, was that the lands belonged to her father, Baya Majhi, who died leaving behind his widow Deola Majhain and his only daughter, the plaintiff. On the death of Baya Majhi, his widow Deola Majhain came in possession of all his properties as his heir and remained so till her death in the year 1950. The parties are Santhals but are Hindus by religion and are governed by the Hindu Law in the matter of succession and inheritance. Therefore, the plaintiff inherited all the properties of her father and came into possession in permanent raiyati right. The defendants forcibly dispossessed the plaintiff in Jeth, 1368 B.S. on the plea that they had taken possession in execution of a decree obtained by them. The plaintiff stated in the plaint that Deola Majhain had executed a deed of gift in favour of the plaintiffs sons, but the same was not acted upon and was also invalid because Deola, being a limited owner, could not make a valid gift.

3. The suit was contested by the appellants who claimed to be agnatic relations of Baya Majhi. They denied that they were Hindus and asserted that they were governed by their own tribal customary law, and, as such they were the legal heirs of Baya Majhi to the exclusion of his widow or daughter. According to them, Deola died on the 10th October, 1947 and not in 1950. They denied that the plaintiff or her mother Deola ever came in possession of the suit lands. It was alleged that Deola illegally executed a deed of gift in favour of the plaintiffs sons, for the setting aside of which the defendants had to bring Title Suit No. 23 of 1946 in the court of Munsif, Kharsawan, but during the pendency of that suit, Deola died. So, the defendants got their plaint amended by adding a prayer for immediate khas possession. The suit was decreed on contest, and, in execution of that decree, the defendants obtained delivery of possession through court. The defendants also alleged that the plaintiff had no cause of action and that the suit was barred by limitation.

4. The learned Subordinate Judge, who tried the suit in the first instance, decreed the suit holding that the Santhals of village Kutchai have been sufficiently Hinduized and they follow Hindu Law in the matter relating to succession and inheritance and hence the plaintiff was entitled to the properties of her father, Baya Manjhi. He also held that the suit was not barred by res judicata, and the plaintiff was not estopped from asserting her title to the disputed lands. On appeal, the learned Additional District Judge affirmed the findings of the trial Judge and further held that the defendants have failed to prove that they were the nearest agnates of deceased Baya Manjhi, and, therefore, the appeal was dismissed.

5. Learned counsel for the appellants has mainly urged that (1) the suit was barred by limitation, (2) that the plaintiff is estopped from claiming right and interest which she has claimed in the suit, and (3) that the parties are governed by tribal laws and the courts below have committed errors of law in holding otherwise.

6. In support of the first point, reliance was placed on Article 141 of the Limitation Act, 1908, which provides that in a "suit by a Hindu or Muhammadan entitled to the possession of immovable property on the death of a Hindu or a Muhammadan female", the possession of the defendant shall be deemed to become adverse only after twelve years "when the female dies". It is alleged by the plaintiff that on the death of her mother Deola, she came in possession of the suit lan