Saraswathi Ammal vs Jagadambal And Another
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 105 of 1952
Decision Date: 27 February 1953
Coram: Mehr Chand Mahajan
Saraswathi Ammal versus Jagadambal and another was decided on 27 February 1953 by the Supreme Court of India. The judgment was authored by Justice Mehr Chand Mahajan, who also formed the bench together with Justices Das and Sudhi Ranjan. The case is reported in the 1953 AIR 201 and the 1953 SCR 939. The citation record also notes references to later cases such as RF 1962 SC1493 (10) and F 1989 SC1359 (19). The legal issue concerned the succession rights of dasi daughters, that is, dancing girls of South India, and whether a custom existed that gave a dasi daughter who remained unmarried a preferential right over her married sisters. The Court examined the nature of the evidence required to prove such a custom under Hindu law. The headnote summarised that the evidence on record failed to establish the alleged custom that a dasi daughter succeeded to her mother’s property ahead of married daughters. Consequently, in the absence of such custom, the succession of a dasi’s property must follow the rule of propinquity in Hindu law, which distributes the estate equally among the surviving daughters. The Court held that a rule that grants preferential status to “degraded” relations over “undegraded” ones cannot be created solely on logical reasoning; it must be grounded in a firmly established custom. Custom, the Court explained, must be proved inductively from factual practice, not deduced theoretically, and one cannot infer one custom from another. The Court distinguished the earlier decision in Shanmugathammal v. Gomathi Ammal (6 M.L.J. 861) and relied upon authorities such as Narasanna v. Gangu (I.L.R. 13 Mad. 133), Subbaratna Madali v. Balakrishna Naidu (33 M.L.J. 207), Subbaraya Pillai v. Ramaswami Pillai (I.L.R. 23 Mad. 171), Balasundaram v. Kamakshi Ammal (71 M.L.J. 785), and Abdul Husein Khan v. Soma Dero (I.L.R. 45 Cal. 450: P.C.). The Court further noted that the Hindu law rule which prefers a maiden over her married sisters does not apply to daughters who are married to an idol and live a life of prostitution, referring to Tara v. Krishna (I.L.R. 31 Bom. 495).
The appeal, designated Civil Appeal No. 105 of 1952, arose from a judgment and decree dated 16 September 1949 of the Madras High Court (Judges Subba Rao and Chandra Reddi) in Appeal No. 162 of 1946. That earlier decision originated from a decree dated 30 November 1945 of the Subordinate Judge of Tanjore in Original Suit No. 34 of 1945. Counsel for the appellant was S. Ramachandra Iyer, while the respondents were represented by T. R. Srinivasan. The matter was heard on 27 February 1953, and the judgment was delivered by Justice Mahajan. The factual backdrop involved One Thangathammal, who was a dasi residing in the Tanjore district of Madras State. Upon her death she possessed certain movable and immovable properties. She was survived by three daughters: Saraswathi, Jagadambal and Meenambal. Jagadambal instituted the suit from which this appeal arose, seeking partition of the mother's property and an allocation of one-third share to herself. The suit alleged that the mother had been married to Thyagaraja Pillai and that the contested assets were her stridhanam, inherited on her intestate death on 26 July 1943, and that under the law or custom of their community the daughters were each entitled to an equal share. Saraswathi Ammal, the first defendant, contested the suit, asserting that the mother was not a married woman but a dasi attached to the Shri Saranatha Perumal temple at Tiruchurai, that Jagadambal and the second defendant had married and lived with their husbands, whereas she herself had been formally initiated as a dasi in the temple and remained unmarried, and that according to the law and custom of their community, the mother’s property devolved solely upon the unmarried dasi daughter.
The suit was instituted by the plaintiff against her two sisters seeking a partition of both the movable and immovable assets specifically identified in the plaint, and also requesting that she be allotted a one-third share of those assets. In support of her claim, the plaintiff asserted that her mother had been lawfully married to a man named Thyagaraja Pillai and that the properties subject to the suit constituted the stridhanam of her mother, who had died intestate on 26 July 1943. The plaintiff further contended that, under the law or the customary practice of the community to which the parties belonged, she and her sisters were each entitled to an equal share of their mother’s estate.
The first defendant, identified as Saraswathi Ammal, contested the suit. She pleaded that her mother was not a married woman in the ordinary sense but a dasi who followed a hereditary occupation and was attached to Shri Saranatha Perumal temple at Tiruchurai in the Tanjore district. She explained that among the three daughters, the plaintiff and the second defendant had each entered into marriage and lived with their respective husbands, whereas she herself had been formally initiated as a dasi in the mentioned temple and had remained unmarried. According to her submission, the law and the custom of that specific community dictated that the mother’s property devolved exclusively upon the unmarried dasi daughter, thereby excluding both the plaintiff and the second defendant from any right of inheritance.
The second defendant fully supported the position advanced by the first defendant. The principal issue framed by the trial court was Issue No. 1, which read: “Who is the proper heir of Thangathammal? Whether, according to the custom presented by the plaintiff, all the daughters are heirs, or, according to the custom advanced by the first defendant, only the unmarried daughters are entitled to inherit.” The Subordinate Judge dismissed the suit, holding that Thangathammal was a dasi and not a married woman, and that, according to the custom prevailing among the dasi community in South India, a dasi daughter was considered a nearer heir to her mother than a married daughter. Consequently, the judge ordered that the first defendant should retain possession of the properties involved.
An appeal against that decision was lodged in the High Court. The High Court set aside the decree of the Subordinate Judge, concluding that the custom pleaded by the first defendant had not been proved. It further held that the rule of propinquity under Hindu law, applied as a principle of justice, equity and good conscience, governed succession, and that both married daughters and dasi daughters were equally entitled to inherit. The Court also observed that a dasi daughter did not occupy the status of a maiden or an unmarried daughter for the purpose of succession to stridhanam property. Leave to appeal to the Supreme Court was subsequently granted under Article 133 of the Constitution.
After hearing the counsel for the appellant, the Court expressed no hesitation in affirming the High Court’s decision. The appellant contended that the High Court erred in concluding that the custom advanced by the defendant was not proved. To establish the existence of a custom whereby a dasi daughter was a preferential heir and the married sisters were excluded, reliance was placed upon the testimony of certain members of the community and on references to other evidence.
In this matter, the plaintiff also produced evidence of certain instances in an attempt to reinforce her claim. The Court observed that the material presented by both parties on the question of whether a customary rule existed in the community was unsatisfactory and inconclusive. From the testimonies it was impossible to infer the presence of a uniform, certain and ancient custom governing inheritance in the manner alleged.
Among the witnesses called by the defendants, the first was Rajagopal Pillai. He testified that his wife was the daughter of a dasi named Kamakshi, who had six daughters—three married and three dasis. According to his statement, on Kamakshi’s death only the dasi daughters were entitled to inherit and his wife would be excluded from any share. The Court noted that this declaration did not cause any prejudice to Rajagopal because his wife was not bound by the alleged custom. Moreover, his assertion was unsupported by any source of information, and during cross-examination he admitted that he could not point to a single specific instance in which such a custom had actually been applied.
The second witness on the issue was the first defendant herself. She recounted that Mangalam, the sister of a woman named Tulasi, had received no share of the property of their mother Ammani. When cross-examined, the defendant conceded that Mangalam had died about four years earlier, that is, before the defendant was born, and therefore she could not possess personal knowledge of Ammani’s inheritance. No documentary evidence of that division was produced. Mangalam’s son, Govindaswami Pillai, appeared as the third defence witness and testified that Ammani had, during her lifetime, distributed her assets among her dasi daughters. The Court held that this circumstance related to a voluntary partition rather than a succession and could not be treated as relevant to the present enquiry.
The first defendant also narrated an alleged case from Srirangam concerning the succession of a dasi called Chellappa. She claimed that on Chellappa’s death her property was taken by her dasi daughter Visalakshi, thereby excluding Chellappa’s married daughters Marakatham and Rukmini, and that the assets were valued at one lakh rupees. The Court observed that, if such a succession had truly occurred, some written record would be expected. However, no evidence from Chellappa’s descendants or any documentary proof of the purported transfer was produced. Consequently, the Court found it difficult to rely on this alleged instance. The defendant further conceded that her knowledge of the Chellappa case was derived solely from hearsay, and that the requirements of section 32 of the Evidence Act were not satisfied; therefore, her testimony on this point could not be accepted as admissible.
The third defence witness, already mentioned, also testified about the Mangalam incident and added a further example involving a dasi named Meenakshi. The witness’s daughter Jeevaratnam was married to him, and he asserted that Meenakshi’s dasi daughters inherited her property while his own wife was excluded. The only property attributed to Meenakshi was a house, the value of which was not disclosed, and the succession was said to have taken place more than twenty years ago. The Court noted that none of Meenakshi’s daughters had been examined as witnesses to elucidate the details of that alleged inheritance, and therefore the claim could not be deemed proven on the basis of this solitary statement.
In this case the Court observed that none of Meenakshi’s daughters had been called as witnesses, so the Court could not examine their testimony to discover the details of the alleged succession. Consequently, the Court held that the claim could not be proved solely on the statement of the witness who had spoken about the matter. The fourth witness for the defendant was her sister, who did not contest the case. She made no comment on the custom in question. However, she asserted that she herself was not entitled to any share of her mother’s assets. When the Court asked why she made that statement, she replied that her husband and certain elders, whose names she did not disclose, had told her so. The Court found that evidence of this character on the issue of custom could not be given serious consideration. The fifth witness for the defendant was Venugopal Pillai, the husband of the second defendant. His evidence concerning the instance involving Chellappa was purely hearsay. He testified that he had learned that a dasi’s married daughter could not claim a share because she was not an heir in the presence of a dasi daughter, and that he therefore advised his wife not to claim a share. He did not disclose the source of this information. The sixth witness, Janaki Ammal, identified herself as a dasi. She said she had five daughters, two of whom were married, one who was a dasi, and two young girls. She explained that, according to their caste custom, her property on her death would devolve upon her dasi daughters, while married daughters were to be satisfied with the gifts given at their marriages. In cross-examination she admitted that her testimony about the caste custom was not based on any specific instance where the custom had been observed but was given at the request of the defendant. She said she had heard of the custom from unnamed elders and that, although she had an uncle living, she had not asked him about the custom. The Court concluded that the witness appeared to know nothing about the custom and was testifying merely to support the defendant’s case.
The next witness, identified as D.W. 8 Kamalathammal, was also a dasi. She stated that her mother, who was a dasi, had divided her property between Kamalathammal and another dasi sister, while a third sister named Amba, who was married, received no share. In cross-examination Kamalathammal admitted that Amba never asked for a share. The Court noted that Amba was not produced as a witness and that there were no written municipal records to show that the property had been inherited by Kamalathammal to the exclusion of Amba. The Court found it difficult to treat this incident as proved on the basis of the vague testimony. The following witness, Pappathi Ammal, was likewise a dasi. She testified that the property of her father’s mother had devolved on her two dasi daughters upon her death and that there was no married daughter at that time. The Court observed that this evidence was of a neutral character and did not substantially advance the issue of the custom pleaded in the case.
In this case the Court examined the question of the custom that the defendant had pleaded. The defendant asserted that, within this community, the property of a dasi devolved on her death only to dasi daughters, expressly excluding married daughters. To support this claim the defendant cited the example of Chellappa, a dasi from Srirangam. During cross-examination it was revealed that Chellappa had left a house and landed property. No explanation was offered as to why the documentary revenue records relating to that example had been withheld. The Court observed that oral testimony concerning matters that could be demonstrated by documentary evidence could not be safely relied upon to establish a custom when there was no satisfactory explanation for withholding the most reliable evidence. The final witness for the defendant was Rajamani Ammal, another dasi who performed services in the Sri Ranganathaswami temple. She also referred to the Chellappa instance and stated that her jewels, valued at Rs 1,000, would pass on her death to her dasi daughter. She further contended that even if a dasi left an only child who was a married woman, the property would pass to the next heir such as a cousin and not to the married daughter. The Court noted that this was the entire evidence presented by the defendant to prove the custom. On the basis of this meagre and unsatisfactory material the Court could not hold that the custom pleaded was proved. The opinion evidence was not of a convincing character and there was essentially no specific evidence supporting the custom.
The Court’s attention was also drawn to a decision of the Madras High Court in Shanmugathammal v. Gomathi Ammal (1) 67 M.L.J. 861. In that case the plaintiff, a member of the dasi community, claimed succession to her deceased maternal aunt and argued that the three surviving sisters of the deceased, who were impleaded as defendants, were not entitled to inherit because one of them had been adopted by another dancing girl and the other two had become married. The issue was whether the custom alleged by the plaintiff—that among dancing women married women were excluded from inheritance by a woman who continued to be a dasi—was true, valid and enforceable. Certain dasis gave evidence in support of the custom and no evidence was presented to the contrary. The custom was held to be proved in the circumstances of that case. Emphasis was placed on the fact that there was no evidence against the plaintiff, and that defendants two and three, although denying the custom in their written statements, did not contest it under oath. The dasi community involved in that case was a small one, originally consisting of twenty houses, of which only seven or eight remained at the time. It was suggested that in such a small community the custom might be well recognized and part of the community’s consciousness, so that any dispute among so few women would be an extremely rare occurrence and therefore difficult to prove.
The Court observed that the situation described would be an extremely rare occurrence and consequently could not be proved. It held that the plaintiff could not reasonably be expected to search the entire presidency for witnesses who could speak about a similar dispute in other locations. In the Court’s view, the earlier decision did not provide a suitable judicial example for the custom pleaded in the present case. No evidence was placed before the Court to show that the customs of the small dasi community mentioned in the earlier case were applicable to the much larger dasi community that existed in the district concerned. Moreover, that earlier case had been decided on its own peculiar facts and on very meagre material, and it had not articulated any general custom of dasis on the point of succession. Accordingly, the Court found it unnecessary to go into a detailed examination of the plaintiff’s evidence. It was sufficient to state that the plaintiff’s evidence more than rebuffed the evidence produced by the defendant and neutralised any effect that the defendant’s evidence might have had. Because there was no proof of the existence of a custom governing succession, the Court concluded that the decision had to be based on the principles of justice, equity and good conscience, noting that no clear text of Hindu law could be applied to the case.
The Court noted that the High Court had applied the rule of propinquity, according to which the mother’s property would be divided equally between the married daughters and the dasi daughters. The Court declared that no exception could be taken to that finding of the High Court and that no other rule was suggested that would lead to a contrary result. It was argued that dasis occupied a distinct status in Hindu society and that a rule had been developed by judicial decisions whereby the condition of degradation itself gave a preference in a competition between dasi daughters and married daughters. The judicial decisions cited related to the community of prostitutes, and the rule that had been evolved for that community had been repudiated by later decisions. Nevertheless, it was contended that although the rule had been abolished for the original community, it should be applied by analogy to succession matters involving dasis. The first case cited was Narasanna v. Oangu(1), in which an adopted niece of a prostitute-dancing girl was preferred to a brother who remained in caste, on the ground that the legal relationship between a prostitute-dancing girl and her undegraded relatives was severed, depriving them of inheritance rights. The next case cited was Subbaratna Mudali v. Balakrishnaswami Naidu (2). In that case, the deceased woman Palani had inherited property from her mother Nagu, who had inherited it from her mother Mottai, who in turn had inherited it from her father Arunachalam. Arunachalam had two brothers, Ramaswami and Mathurbutham, and the dispute concerned whether Mathurbutham’s daughter Seethai or Ramaswami’s grandson Marudamuthu Mudali should inherit Palani’s estate. The learned judges held that Mathurbutham’s daughter was the preferential heir compared to Ramaswami’s grandson. It was
The Court pointed out that the rule granting preference based on degradation was no longer considered good law. Nevertheless, the Court noted the earlier authorities (1) I.L.R. 13 Mad. 133 and (2) 33 M.L.J. 207, which added that for dancing girls the law continued to apply as before. The Court also referred to observations recorded on page 177 of Subbaraya Pillai v. Ramaswami Pillai (1) and to the decision in Balasundaram v. Kamakshi Ammal (2). In Subbaraya Pillai, the learned judges rejected the broad proposition that a woman’s degradation through unchastity automatically terminates her kinship ties with her natural family and with her husband’s family. The Court observed that, despite the general abandonment of the degradation rule, the earlier authorities still maintained the old position for cases involving dancing girls. It found that judgment to be sound in law, emphasizing that degradation does not and cannot sever blood relationships. It further observed that succession is normally determined by blood ties rather than by the moral character of the heir. In Balasundaram v. Kamakshi Ammal, the Court held that property acquired by the mother as a married Hindu woman remained her property despite her lapse into unchastity. The Court further explained that the daughters were entitled to a life estate in that property, consistent with the ordinary character of property acquired by a Hindu female.
Counsel for the respondent attempted to persuade the Court to recognize the custom relied upon, citing analogous decisions and the principles enunciated in those cases. The cited cases were decided on their own facts, and in certain rulings a principle was stated that degraded persons form a separate class, whereby their degraded relatives become preferential heirs over undegraded relatives. The Court reiterated that it could not accept a rule created solely on logical reasoning, and that such a rule could exist only if founded on an established custom. No reliable evidence had been produced in the present case to show that daughters of a dasi married to a man lose their inheritance rights or constitute a distinct community. The appropriate method for proving a custom, the Court said, follows the approach outlined by the Privy Council in Abdul Hussein Khan v. Soma Dero, reported in (1) I.L.R. 23 Mad. 171 and (2) 71 M.L.J. 785. That authority requires a party claiming a custom to allege and prove the specific custom applicable to the parties, and it rejects the reliance on abstract theories or deductions from other customs as a basis for decision. The Court emphasized that custom cannot be extended by analogy; it must be established inductively from factual proof, not deductively or by a priori reasoning. Consequently, the Court concluded that theory and custom are opposites, and that a custom must be demonstrated as a factual matter rather than as a mere theoretical construct.
The Court observed that theory and custom are opposite concepts; custom cannot be a matter of mere speculation but must always be proved as a fact, and one custom cannot be inferred from another. It further explained that a community residing in a particular district may have developed a specific custom, yet that development does not oblige a community living in a different district to follow the same custom. Counsel for the respondent advanced the argument that, according to Hindu law, the first defendant, being a maiden, was entitled to a preferential right over her married sisters. The Court, however, noted that Defendant No. I was, as admitted, married to an idol and has been living a life of prostitution. In view of this admission, the Court held that the Mitakshara provision dealing with the case of a virgin could not be applied to her circumstances, citing the decision in Tara v. Krishna. The Court found it inconceivable that the ancient sages, when establishing the principle of preference for unmarried daughters, intended to extend that principle to a prostitute. For these reasons, the Court concluded that the appeal had no merit and therefore dismissed it with costs. The order recorded that the appeal was dismissed. Counsel for the appellant was noted, as was counsel for the first respondent. The judgment referenced the authorities (1) I.L.R. 45 Cal. 450 (P.C.) and (2) I.L.R. 31 Bom. 495.