# Bejoy Gopal Mukherji v. Pratul Oha.ndrct Ghose. DasJ

- **Citation:** [1953] 1 S.C.R. 939
- **Court:** Supreme Court of India
- **Decided:** 1953
- **Case number:** Civil Appeal No. 105 of 1952
- **Bench:** Mehr Chand Mahajan, S. R. Das
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bejoy-gopal-mukherji-v-pratul-oha-ndrct-ghose-dasj-226
- **Pages:** 11

## Headnote

Hind11 la•v-S11ccession-Dancing girls of Sonth IndiaWhether dasi dauqhter excludes niarried dau,ghters-Uu.ston1,-Na tu re
of evidence necessar·y to prove custo1n-- Hindu, law--Rulc preferring
1naidens
to
11ia1-ried
daughters, whether avplies
to JJrostitute
daughters.
The evidence on record did not establish the custom which
bad been pleaded, namely that among the community of. do.sis
•
1953
Bejoy Gopal
Mukherji
v.
Pratul Oha.ndrct
Ghose.
DasJ.
1953
Feb. 27.
•
1903
· Baraswathi
· Ani1nal
v.
J agada1nbal
and Anothe·r.
940
SUPREME COURT REPORTS
[1953)
(dancing girls) in South India a dasi daughter succeeded to her
mother in preference to the married daughters; ~nd in the absence
of such custom, succession to a dasi must be governed by the rule
of propinquity of Hindu law as a rule of justice, equity and good
conscience and dasi daughters and married daughters \Vonld succeed to their mother's property in equal shares.
A rule that degraded relations are preferential heirs to undegro .. ded ones cannot be evolved merely on logical grounds; the
existence of such a rule can only be justified on the basis of established custom.
Custom cannot be extended by analogy. It must be established inductively, not deductively, and it cannot be established by a
priori methods. It cannot be a matter of mere theory but must
always be a matter of fact and one custom cannot be deduced from
another.
Shanmngathammal v. Gomathi Ammal (6 Nl.L.J. 861), distinguished. N'uasanna v. Gang" (I.L.H. 13 Mad. 133), Snbbaratna
Mudali v. Balokrishna Naidu (33 1I.L.J. 207), Subbaraya Pillai
v. Rmnaswami Pillai (I.L.R. 23 llfacl. 171), Balamndaram v.
Karnakshi Arnrnal (71 11.L.J. 785), and Abdtil Hnsein Khan v. Sama
Dero (I.hl\. 45 Cal. 450: P .C.) referred to.
The rule of Hindu law by which a maiden is a preferential
heir to her married sisters does not apply to daughters who are
admittedly married to an idol and lead a life of prostitution.
Tara v. Krishna (I.L.R. 31 Born. 495) referred to.
CIVIL
APPELLATE
JURISDICTION:
Civil Appeal
No. 105 of 1952. Appeal from the Judgment and
Decree dated the 16th September, 1949, of the High
Court of Judicature at Madras (Snbba Rao and
Chandra ReddiJJ.) in Appeal No. 162 of 1946 arising
out of Judgment and Decree dated the 30th November
1945 of the Court of the Subordinate Judge of Tanjore
in Original Suit No. 34of1945.
S. Ramachandra Iyer, for the appellant.
'l'. R. Srinivasan, for the respondents.
1953, February 27. The Judgment of the Court was
delivered by
-
MAHA.JAN J. - One Thangathammal who was a dasi
(dancing girl) lived in the Tanjoro district in Madras
State and died possessed of some properties.
She left
her surviving three daughters, Saraswathi,Jagadambal
and Meenambal. Jagadambal filed the suit out of which
•
•
,.. ., ..
8.C.R.
SLTPREME COURT REPORTS
941
this appeal ari~es against her sisters for partition of the
movable and immovable properties set out in the pbint
and for allotment of a thin! share to her therein. 8he
alleged that her mothor was maried to one Thyagaraja
Pillai, that the properties in suit were the stridhanam
properties of her mother who died intestate on 26th
July, 1943, and that according to the law or custom
of the community to which the parties belonged she
and her sistcrn were entitled to share equally the propertil's of her mother.
Saraswathi Ammal, the 1st defendant contested the
snit. She pleaded that her mother was not a married
womnn but n dnsi who followed her hereditttry occupa,tion and w<1s att<1ched to Shri Saranatha Perurnal
temple at 'riruchurai in the Tanjore district, that of
the three daughters the plaintiff and the 2nd defendant
married and lived with their husbands, while she
(1st defendant) was duly initiated as a dasi in the said
temple and remained unmarried and that according to
the h1w and custom of the community, the mother's
property devolved solely on her to the exclusion of the
plaintiff and the 2nd defendant.
The 2nd defendant
supported the 1st defendant's case. The

## Text

•
-
S.C.R.
SUPREME COURT REPORTS
939
indicated thei;e have been many transfers and devolutions and the landlords have accepted rent from
the transferees or the successors.
The names of
:Nirs. Cynthia Mills and Dobson and Jones were mutated in the Zamindar's Sherista. Although in the rent
receipts Dobson continued to be shown as the recorded
tenant, eventually Jones's name appears on the rent
receipts as tenant. In spite of the increase in land
value and the letting value the landlords through whom
the plaintiff derives his title did not at any time make
any attempt to eject the tenant or to get any further
enhancement of rent since 1860. All these circumstances put together are explicable only on the hypothesis of permanency of the tenure and they irresistibly lead to the conclusion, as held by the lower
Courts, that the tenancy in question was heritable and
a permanent one.
The decision of Mukherjea, J., in
the case of Probhas Chandra JY!allick v. Debendra Nath
Das (supra) is definitely in point. In this Yiew of the
matter we hold that the Courts below were right in
dismissing the plaintiff'.s claim for ejectment.
In the result this appeal must fail and we dismiss it
with costs.
Appeal dismissed.
Agent for the appellant: P. K. Ghose.
Agent for the respondent : Sukiimar Ghose.
SARASW' ATHI AMMAL
v.
JAGADAMBAL AND ANOTHER.
[MEHR CHAND MAHAJAN and S. R. DAS JJ.]
Hind11 la•v-S11ccession-Dancing girls of Sonth IndiaWhether dasi dauqhter excludes niarried dau,ghters-Uu.ston1,-Na tu re
of evidence necessar·y to prove custo1n-- Hindu, law--Rulc preferring
1naidens
to
11ia1-ried
daughters, whether avplies
to JJrostitute
daughters.
The evidence on record did not establish the custom which
bad been pleaded, namely that among the community of. do.sis
•
1953
Bejoy Gopal
Mukherji
v.
Pratul Oha.ndrct
Ghose.
DasJ.
1953
Feb. 27.
•
1903
· Baraswathi
· Ani1nal
v.
J agada1nbal
and Anothe·r.
940
SUPREME COURT REPORTS
[1953)
(dancing girls) in South India a dasi daughter succeeded to her
mother in preference to the married daughters; ~nd in the absence
of such custom, succession to a dasi must be governed by the rule
of propinquity of Hindu law as a rule of justice, equity and good
conscience and dasi daughters and married daughters \Vonld succeed to their mother's property in equal shares.
A rule that degraded relations are preferential heirs to undegro .. ded ones cannot be evolved merely on logical grounds; the
existence of such a rule can only be justified on the basis of established custom.
Custom cannot be extended by analogy. It must be established inductively, not deductively, and it cannot be established by a
priori methods. It cannot be a matter of mere theory but must
always be a matter of fact and one custom cannot be deduced from
another.
Shanmngathammal v. Gomathi Ammal (6 Nl.L.J. 861), distinguished. N'uasanna v. Gang" (I.L.H. 13 Mad. 133), Snbbaratna
Mudali v. Balokrishna Naidu (33 1I.L.J. 207), Subbaraya Pillai
v. Rmnaswami Pillai (I.L.R. 23 llfacl. 171), Balamndaram v.
Karnakshi Arnrnal (71 11.L.J. 785), and Abdtil Hnsein Khan v. Sama
Dero (I.hl\. 45 Cal. 450: P .C.) referred to.
The rule of Hindu law by which a maiden is a preferential
heir to her married sisters does not apply to daughters who are
admittedly married to an idol and lead a life of prostitution.
Tara v. Krishna (I.L.R. 31 Born. 495) referred to.
CIVIL
APPELLATE
JURISDICTION:
Civil Appeal
No. 105 of 1952. Appeal from the Judgment and
Decree dated the 16th September, 1949, of the High
Court of Judicature at Madras (Snbba Rao and
Chandra ReddiJJ.) in Appeal No. 162 of 1946 arising
out of Judgment and Decree dated the 30th November
1945 of the Court of the Subordinate Judge of Tanjore
in Original Suit No. 34of1945.
S. Ramachandra Iyer, for the appellant.
'l'. R. Srinivasan, for the respondents.
1953, February 27. The Judgment of the Court was
delivered by
-
MAHA.JAN J. - One Thangathammal who was a dasi
(dancing girl) lived in the Tanjoro district in Madras
State and died possessed of some properties.
She left
her surviving three daughters, Saraswathi,Jagadambal
and Meenambal. Jagadambal filed the suit out of which
•
•
,.. ., ..
8.C.R.
SLTPREME COURT REPORTS
941
this appeal ari~es against her sisters for partition of the
movable and immovable properties set out in the pbint
and for allotment of a thin! share to her therein. 8he
alleged that her mothor was maried to one Thyagaraja
Pillai, that the properties in suit were the stridhanam
properties of her mother who died intestate on 26th
July, 1943, and that according to the law or custom
of the community to which the parties belonged she
and her sistcrn were entitled to share equally the propertil's of her mother.
Saraswathi Ammal, the 1st defendant contested the
snit. She pleaded that her mother was not a married
womnn but n dnsi who followed her hereditttry occupa,tion and w<1s att<1ched to Shri Saranatha Perurnal
temple at 'riruchurai in the Tanjore district, that of
the three daughters the plaintiff and the 2nd defendant
married and lived with their husbands, while she
(1st defendant) was duly initiated as a dasi in the said
temple and remained unmarried and that according to
the h1w and custom of the community, the mother's
property devolved solely on her to the exclusion of the
plaintiff and the 2nd defendant.
The 2nd defendant
supported the 1st defendant's case. The material
issue in the suit was issue No. 1 which was in these
terms:-
" Who is the proper heir of Thangathammal.
·whether according to custom as set up by the plaintiff,
all the daughters arc heirs, or according to the custom
put forward by tbc 1st defendnnt, the unmarried
daughters alone are entitled to inherit."
The Subordinate Judge dismissed the suit holding
that Thaugathammal was a dasi and not a mttrried
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 the 1st defendant was entitled to remain in
possession of the suit properties. Agninst this decision
an appeal was taken to the High Court. The High
Court reversed the decrne of the 8nbordinate ,Judge and
held that the custom pleaded by the lst defendant
•
1953
Saraswathi
Ammal
v.
J a.yadambal
and Another,
Mahajan:J.
•
J9fjJ
Saraswat}u"
Anunal
v.
J agadau1bal
a,nd Another.
942
SUPREME COtJRT REPORTS
[1953]
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 <1 maiden or unmarried daughter for purposes
of succession to stridhanam property. Leave to appe1tl
to the Supreme Court was granted under article 1:33 of
the Constitution.
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
Comt was in error in holding that the custom set up
by the defendant was not proved. To prove the custom
that a dasrdaughter was a preferential heir and excluded her married sisters reliance was placed on the
evidence of some mem hers of the communitv and
reference was also made to certain instances. Th~ same
kind of evidence was led by the plaintiff in support
of her case.
The evidence of both the parties on the
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 ancl ancient
custom prevailing in the community on this point.
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
w horn three were married and three were dasis, 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-examination he admitted
that he did not know a single specific instance where
such a custom was enforced. The second witness ~
the point is the first defendant. She stated th1tt one
Tulasi's sister Mangalam got no share in her mother
Ammani's properties. In cross-examination it was
adiuitted that Mangalam died about forty years ago,
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.... , .
•
., .
,
,
•I
-
S.C.R.
SUPREME COURT REPORTS
943
i.e., some tim~ before the defendant was born.
She
could therefore have no personal knowledge about
Ammani's instance. No written record of that inheritance is forthcoming.
Mangalam's son Govindaswami Pillai appeared as D. W. 3.
He deposed that
Mangalam's mother Ammani had divided her properties between her dasi daughters in her lifetime.
The instance therefore is not an instance concerning
succession and cannot be treated as relevant in this
enquiry. The 1st defendant further deposed to an
instance in Srirangam when succession opened out on
the death of dasi Chellappa. It was said that her property was taken by her dasi daughter Visalakshi to the
exclusion of her married daughters Marakatham and
Rukmini and that the assets were worth a lakh of
rupees. One would have expected some written documents about that sucession if it took place in the
manner deposed to. In the absence of any evidence
from the descendants of Chellappa and in the absence
of any documentary evidence regarding that succession
it is difficult to place any reliance on this so-called
instance.
Defendant No. 1 stated that her knowledge
of it was only from hearsay, and the requirements
of section 32 of the Evidence Act not being fulfilled,
her evidence on this point cannot be treated as
admissible. The third witness, about whom reference
has alreacly been made, apart from deposing as to
l\fangalam's instance also deposed about the instance
of dasi l\foenakshi.
Her daughter Jeevaratnam is
married to the witness. He said that Meenakshi's dasi
daughters inherited her property and that his wife was
exeluded. The only property alleged to belong to
Meenakshi was a house, the value of which is not
known. The succession is said to have occurred over
twenty years ago. None of the daughters of Meemikshi
have been examined as witnesses in the case, to enable
the court to find out the details about it and merely
on the statement of this witness the instance cannot
be held proved. The fourth witness for the defendant
is her non-contesting sister.
She said nothing on the
on the question of custom. She, however, statecl
•
1963
SaratJWathi
Arnmat
v.
Jagadambal
and Another.
Mahajan J.
•
1953
Saraswathi
A1nn1al
v.
J agada-111 bal
and Another.
Mahajan J.
944
SUPREME COUH.T BEPORTS
[19fi3]
that she was not entitled to a share. in the assets
of her mother.
\Vhen asked why sho was making
that statement, she said that she was saying so
because
her husband
and some elders (whose
names were not disclosed) had told her so.
Evidence
of this character on the question of custom cannot
be seriouslr considered.
Venugopal Pillai is the
fifth witness for the defendant. He is the husband of
the second defendant.
His evidence regarding the
instance ef Chellappa is purely hearsay. He deposed
that he had learnt that a dasi's married daughter is not
entitled to claim a share as she is not her heir in the
presence of a dasi daughter and therfore he told his
wife not to claim a share.
He did not disclose the
source of his information. Jan.aid Ammal, the sixth
witness, is a dasi.
She deposed that she has five
daughters of whom two are married, one is a dasi and
the other two are young girls and that according to
their caste custom her properties on her death would
devolve on her dasi daughters and that the married
daughters must remain content with the presents given
at their marriage. In cross-examination she admitted
that she was deposing about the caste custom not from
any specific instance in which the custom was observed
hut at the request of the defendant, and that she had
heard of this custom from her elders whose names she
did not disclose. She further admitted that she had an
uncle living but she did not even ask him about the
custom. The witness, it appears, knows nothing about
the custom and is giving evidence in order to oblige
the defendant.
The next witnesB who gave evidence
on the issue is D. W. 8, Kanrnlathammal, a dasi. Her
mother was also a dasi. She deposed that her mother's
properties were divided between her and her other dasi
sister and Amba, her third sister, who was married,
was not given a share.
In cross-examination she
admitted that Amba never asked for a share.
Neither was Amba produced, nor any written municipal records showing that the witness actually inherited
the property of her mother to the exclusion of Amba.
It is difficult to hold this incident proved mnrely on the
' •
•
--
·~
!
.
•
-
S.C.R.
SUPREME COURT REPORTS
945
vague testimony of this witness.
Pappathi Ammal,
the next witness in the case, is also a dasi. She deposed
that her father's mother's property devolved on her
two dasi daughters on her death and that there was no
married daughter in existence. This evidence is of a
neutral character and is not of much use on the question of custom pleaded in the case. Apart from asserting that in this community dasi's property devolves on
her death only on the dasi daughters to the exclusion
of married daughters, she cited the instance of
Chellappa, a dasi of Srirangam. It was elicited in
cross examination that Chellappa
left
a house
and landed properties.
No explanation is
forthcoming why
documentary
evidence
of revenue
records about this instance has been
withheld.
Oral evidences as to instances which
can
be
proved by documentary evidence cannot safely be
relied upon to establish custom, when no satisfactory
explanation for withholding the Lest kind of evidence
is given. The last witness in the case is Rajamani
Ammal, another dasi who does service in Sri Ranganathaswami temple. She also referred to the instance
of Chellappa. She said that her jewels which were
worth Rs. 1,000 would pass on her death to her dasi
daughter. She went to the length of saying that if a
dasi leaves an only child who is a married woman, even
then her properties will pass to a next heir such as a
cousin and not a married daughter. This is all the evidence led by the defendant to prove custom. On this
meagre and unsatisfactory material we cannot hold th11t
the custom pleaded is proved. The opinion evidence
is not of a convincing character and evidence as to
specific instances in support of the custom is really nil.
Our attention was also drawn to a decision of the
lVIadras High Court in Shanmugathammal v. Gomathi
Ammal(') In that case the plaintiff, a member of the
dasi community, claimed to succeed to her deceased
maternal aunt and pleaded that the three surviving
sisters of the deceased who were impleded as defendants were not entitled to inherit because one of them
(r) 67 'l.L.J. 861,
U2
•
1953
ScwaBwathi
Animal
v.
Jagadamho.l
and Anothe·J'
MahajanJ.
•
1953
SaraRwa.th.i
A1nmal
v.
Jagndanibal
r11vl A nothe1·,
Mahajan J.
946
SUPREME COURT REPORTS
[1953]
had been adopted by another dancing, girl and the
other two had become married.
The issue raised in
the case was whether the custom set up by the plaintiff
that among dancing women married women are excluded by a woman who continues to be a dasi is true,
valid and enforceable.
Certain dasis gave evidence in
support of the custom.
No evidence whatever was
given to the contrary and the custom pleaded was held
proved in the circumstances of that case. Emphasis
was laid on the circumstance that there was no evidence whatsoever against the plaintiff and defendants 2
and 3 who denied the existence of the custom in their
written statements did not venture to deny it on oath
in the witness box. The dasi community concerned in
that case was a small one consisting originally of
twenty houses of which only seven.or eight were then
in existence and in that situation it was said that the
custom might well be one that was well recognized and
so much a part of the consciousness of the community,
that any dispute like the present dispute amongst so
small a body of women would be an extremely rare
occurrence and therefore impossible of proof and that
the plaintiff could not reasonably be expected to search
the presidency for witnesses to speak to some similar
dispute in other places. In our opinion, that decision
does not furnish a good judicial instance in respect of
the custom pleaded in the present case.
There is no
evidence that the customs of that small community of
dasis are applicable to the community of dasis in the
present case which form a considerable community in
this district. Moreover, the case was decided on the
peculiar circumstances of that case on very meagre
materials and did not lay down any general custom
of dasis on this point.
It is unnecessary to examine the plaintiff's evidence
in detail. Suffice it to say that it is more than sufficient
to rebut the evidence led by the defendant and it
neutralizes its effect, if any. In the absence of proof
of existence of a custom governing succession the
decision of the case has to rest on the rules of justice,
equity and good conscience because admittedl;v no
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-
S.O.R.
SUPREME COURT REPORTS
947
clear text of .Hindu law applies to such a case. The
High Court thought that the just rule to apply was one
of propinquity to the case, according to which the
married and dasi daughters would take the mother's
property in equal shares.
No exception can he taken
to this finding givPn by the High Court.
:N" o other
rule was suggested to
us leading to a contrary
result.
It was argued that the dasis have a distinct status
in Hindu society mid that a rule has b1wn evolved by
judicial decisions under which the state of degradation
hy itself furnishes a rule of preference in a competition between dasi daughters and married daughters.
The juidicial decisions referred to concern the community of prostitutes and the rule evolved concerning
them has been abrogated by later decisions. It was
contended that though the said rule had been abrogated and was no longer applicable to that community
concerning which it was evolved, it should by analogy
be applied to cases of succession to dasis.
N arasanna
v. Gangu(') was the first case cited. There, an adopted
niece of a prostitute dancing girl was preferred to a
brother remaining in caste. It was said that the legal
relation between a prostitute dancing girl and her
undegraded relations remaining in caste becomes
severed and thev are therefore not entitled to inherit
the estate. In" Subbaratna Mudali v. Balakrishnaswami Naidu('), the next case cited, the facts were
that a deceased woman Palani inherited the property
in dispute from her mother N agu, who inherited it
from her mother Mottai who again inherited it
from her father Arunachalam. Arunachalam had two
brothers Ramaswami and Mathurbutham and the
question in that case was whether Mathurbutham's
daughter Seethai or Ramaswami's daughter's son
Marudamuthu Mudali was the heir of Palani. The
learned judges held that Mathurbutham's daughter
was preferential heir to Ramaswami's daughter's son.
It was pointed out that the rule of preference based on
degradation was no longer good law. It was, however~
(r) I.LR. 13 ~[ad. IJ3.
(2) 33 ~LL.J. 207,
•
19.53
Saraswathi
A1n11u1.l
\'.
J(/gadarn.bal
and Another.
t.lf.ahajfln .J,
•
•
1953
Sa1·a.swa,lhi
Annna.l
Jagadarnbal
and Another.
Mahajan J.
948
SUPREME COGRT REPORTS
[1953]
added that in cases of dancing girls the law remained
as it was before.
Our attention was also drawn to
certain observations in Subbaraya Pillai v. Ramaswami
Pillai(') at page 177, and to the Q..eoision in Balasundarani v. Ka.makshi Ammal('). In the former case
the learned Judges rejected t.he broad proposition that
degradation of a woman in consequence of her unchastity entails in the eye of the law cessation of the tie of
kindred between her and the members of her natural
family and also between her and the members of her
husband's family.
We think that decision on this
point is sound in law.
Degradation of a woman does
not and cannot sever the ties of blood and succession
is more often than not determined by ties of blood
than by the moral charli'cter of the heir.
In Balasundaram v. Kamakshi Ammal(') it was
held that thc1 property acquired by the mother
had been acquired by her as a married woman
and notwithstanding her lapse into
unchastity,
it
devolved
on
her
daughters
clothed with
the ordinary character of property acquired by a Hindu
female, that is to say, the daughters took a life estate
in it.
The learned counsel attempted to persuade us to
hold the custom pleaded proved by the assistance of
decisions given in analogous cases and by applying the
Jll'inciples of the rules said to have been enunciated in
some of them. Those cases were decided on their own
facts and in some of them a rule was enunciated that
degraded people are a class by themselves and their
degraded relations are preferential heirs to the undegraded ones.
As already said, "we cannot subscribe to
the view that any such rrile can be evolved merely on
logical grounds. Its existence can only be justified on
the basis of established custom. No trustworthy evi.
dence has been led in this case to establish that the
daughters of a dasi by marriage lose their right of in·
heritance and form a separate community. The correct
approach to a case where it party seeks to prove a
custom is the one pointed out by their Lordships of the
\I) J.L.R. 23 Mad. 17r.
.
(2) ?1 i\1.L.J. 785.
.(
+
•
-
•
-
S.C.R.
SUPREME COURT REPORTS
949
Privy Council in Abdul Hussein Khan v. Soma Dero(' ).
It was there 'said that it is incumbent on a party
setting up a custom to allege and prove the custom on
which he relies and it is not any theory of custom or
deductions from other customs which can be made a
rule of decision but only any custom applicable to the
parties concerned that can be the rule of decision in a
particular case. It is well settled that custom cannot
be extended by analogy. It must be estabished inductively, not deductively and it cannot be ,established by
a priori methods.
Theory and custom are antitheses,
custom cannot be a matter of mere theory but must
always be a matter of fact and one custom cannot be
deduced from another. A community living in one
particular district may have evolved a particular
custom but from that it does not follow that the community living in another district is necessarily follow.
ing the same custom.
The last point taken by the learned counsel was
that under Hindu law the 1st defendant as a
maiden was entitled to preference over her married sisters. Defendant No. 1 was admittedly married
to the idol and she has been on her own showing living a life of prostitution. The text of the
Mitakshara dealing with the case of a virgin can.
not be applied to her case. [Vide Tara v. Krishna(')].
It is inconceivable that when the sages laid down the
principle of preference concerning unmarried daughters
they would have intended to include a prostitute with·
in the ambit of that text.
For the reasons given above we see no force in this
appeal and it is dismissed with costs.
Appeal dismissed.
Agent for appellant: S. Subramaniam,
Agent for respondent No. 1 : M. S. K. Aiyangar.
(r) l.L.R. 45 Cal. 450 (P.C.)
123
•
(%) I.L.R 3I Bom. '\95.
•
1953
Saraswathi
Ammal
v.
Jagadamhal
and Another.
Mahajan J,