The main legal point established in the judgment is the interpretation of the customary rule of inheritance amongst the Garos of Mymensingh, where property once in a motherhood cannot pass out of it, and the requirement for plaintiffs to establish their title to the disputed property.

JUDGMENT

Rau, J. - The only question in this second appeal is as to the customary rule of inheritance amongst the Garos of Mymensingh. The facts are simple. The parties belong to the Sangma clan or sect of the plains Garos of the Mymensingh District as distinguished from the hill Garos. One Kanai acquired certain lands by his personal labour as well as with borrowed money. There is no dispute now that upon his death they passed to his widow, Indra Moni, who however died later the same day, leaving some sons, two sisters and a sister's daughter. Plaintiff 1 is one of the sisters and plaintiff 2 is the daughter of the other sister. They claim the estate alleging that they are entitled to it in preference to the sons of the deceased under Garo custom. Both the Courts below have dismissed the suit. The finding of the lower appellate Court as to the oral evidence in the case is this:

The evidence of the witnesses examined by both sides does not seem to be quite reliable on the question of the customary law on the point. Their knowledge is not derived from sufficient actual experience or from authoritative books or from any strong tradition and the oral evidence on this point is very meagre.

We are thus driven to other sources. Three authorities have been cited before us on behalf of the plaintiff-appellant. The first is Major Playfair's monograph on "The Garos," 1909. After pointing out that the Garos are divided into certain clans or "motherhoods," the author goes on to describe the law of inheritance in these terms:

"The law of inheritance may be briefly stated to be, that property once in a motherhood, cannot pass out of it. A woman's children are all of her machong (motherhood), and therefore it might at first appear that her son would satisfy the rule; but he must marry a woman of another clan; and his children would be of their mother's sect, so that, if he inherited his mother's property, it would pass out of her machong in the second generation. The daughter must therefore inherit, and her daughter after her, or, failing issue, another woman of the clan appointed by some of its members."

2. Applying these rules to the present ease it would follow that upon Indramoni's death her property would have gone to her daughters, if she had any. But as she had no daughters, the property would devolve upon another woman of the clan appointed by some of its members. Neither of the plaintiffs in this suit claims to have been so appointed by any members of the clan. It may be that according to the Garo custom no man can inherit property under any circumstances whatever; nevertheless this does not assist the plaintiffs, because they have to prove a better title than the sons of the deceased which they have not succeeded in doing. The next authority cited before us is a small publication on Garo law by the Reverend C.D. Baldwin, dated 1933. The author is an Australian Baptist Missionary of the Mymensingh District and does not himself claim his work to be authoritative. Even so, what he says on the subject does not assist the plaintiffs. This is what he says:

"It should be remembered that no Garo man can own property. In the matriarchal system which exists, whatever a Garo boy may earn or receive, whether he be of age or not, is really the property of his mother or sister. Should he marry, whatever he gets will become his wife's property, or, after her death that of her daughter. In the event of his mother's death or that of his wife or daughter or sisters, as the case may be, the property will become that of the nearest maternal woman relation."

According to this rule, if Kanai had died without leaving a mother or wife or daughter or sisters surviving him, his property would have devolved upon his nearest maternal woman relation. But the rule is of no assistance to us in the present case for the purpose of deciding who inherited Indramoni's property upon her death. Finally the plaintiff appellant cited the Bengal District Gazetteer of Mymen