BRAHADEESWARA MUDALIAR Vs. RAJAGOPAL PILLAI

JUDGEMENT

(1.) THE appellant is the grandson of a dancing girl. He sued in the Court of the District Munsiff of Palni for a decree fcr partition of bis grandmother's estate. He claimed a half share in the property by right of inheritance. The general rule of succession to the estate of a dancing girl is that the daughters are preferred to sons, her property being treated as stridhanam. In this case the plaintiff's grandmother had a son and a daughter. The plaintiff is the son of the son. Notwithstanding chat he had not pleaded that he was entitled to a half share in his grandmother's estate by reason of custom, the District Munsiff allowed evidence to be led in proof of custom and this in spite of the fact that he himself had refused to allow the plaint to be amanded by the inclusion therein of a plea of custom. The evidence which the plaintiff adduced on this question was that of a relation, two pipers from a temple in Palni and a weaver residing there. This evidence was accepted by the District Munsiff as establishing the custom and he gave the plaintiff a decree for partition. On appeal this decision was concurred in by the Subordinate Judge of Dindigul. The second defendant, an alienee of property from the daughter of the dancing girl appealed to this Court. The appeal was heard by Byers, J., who considered that the evidence on record was not sufficient to establish the custom and consequently allowed the appeal. The plaintiff has appealed against the learned Judge's judgment under Clause 15 of the Letters Patent.

(2.) IN Palaniappa Chetti v. Sreemath Devasikamani Pandora Sannadhi, (1917) 33 M.L.J. 1 :, L.R. 44 IndAp 147 :, I.L.R. 40 Mad. 709 the Privy Council had to consider the position where there had been concurrent findings on the question of custom and their observations are very relevant here. They said:

(3.) THERE could scarcely be a more glaring instance of the misapplication of the word ' custom' or a more remarkable instance of forgetfulness of essentials of a custom which modifies the ordinary law."