Jwala Prasad, J.:— (after stating the facts as set out above proceeded as follows):
Mr. Jayaswal on behalf of the plaintiff contends that the finding of the Court below that the plaintiff failed to establish the custom set up by him has been vitiated by reason of its not having considered the effect of some important evidence. In particular, our attention has been drawn to Exhibit 7, deposition of Bhairo Naik, dated the 19th June, 1876.
This document has been referred to in the judgment of the Subordinate Judge who disposes of it in the following words:—
In proof of this custom the plaintiff also relies upon a deposition (Exhibit 7) of one Bhairo Ram recorded in Urdu on 19th June, 1876 Defendants strongly deny that this person Bhairo Ram was an ancestor of their family and that his statement could not be binding upon them. The passage relied upon in this document runs as:— “Ham logon he jaidad main tewaif ka hissa barabar hota hai.” It is difficult to see what the statement actually signifies. The defence reads this as alluding to their professional earnings and not to any inheritance of the kind now in dispute. In my opinion this statement is not binding upon the defendants and cannot be of any avail to plaintiff in proving the alleged custom.
The words quoted above are the very last words in the deposition and are wholly unconnected with the tenor of the deposition in the preceding portion of it and there is nothing in the context to amplify or explain them. The words are in themselves vague and not sufficient to establish any custom. Even if they refer to any custom, there is nothing to show that the deposition is with respect to the custom of the family in question, inasmuch as the parties in that case have not been connected with those in the present case. There is also nothing to show that the aforesaid passage in the deposition was referred to or relied upon by the appellant in the Court below. There is no affidavit to the effect that it was referred to in the argument in appeal before the learned Judicial Commissioner. Ground No. 19 which relates to this point does not state that the aforesaid passage was relied upon in the argument before the Judicial Commissioner. It is possible that after the remark of the Subordinate Judge with regard to the passage in question referred to above, it was not thought worthwhile to refer to it again before the learned Judicial Commissioner. I do not think that the omission to consider this document vitiates the finding of the learned Judicial Commissioner. Both the Courts below have referred to instances disproving the alleged custom and they seem to have arrived at their finding upon an appreciation of all the evidence—oral and documentary—bearing upon the point. The evidence is ample in favour of the view taken by them. Therefore we cannot interfere with this finding in this case.
The plaintiff's case is entirely based upon the custom set up in the plaint for a declaration of the title of defendant No. 1 to the properties in suit. The Courts below have held that defendant No. 1 never possessed the properties in question and that after the death of her father Beni Ram the properties came to be in possession of defendant No. 2 Brij Behari, his nephew. This finding is supported by the decision of the Land Registration Deputy Collector, dated the 31st July, 1908, which was upheld in appeal (Exhibits 3 and 4) and the name of Brij Behari defendant No. 2 was recorded in the Collectorate Register D. This is also supported by the decision of the Execution Court, dated the 19th August, 1915, upholding the claim of defendant No. 2 on the ground of his possession and releasing the same from attachment for satisfaction of the money decree of the plaintiff. The finally published record-of-rights also supports the possession of defendants 2 and 3.
Therefore the plaintiff must show how the defendant No. 1 acquired title to the properties. In order to prove her title the plaintiff sets up special customs in the plaint by which he says that she inherited the properties of her father. He has failed to establish those customs. He does not say in the plaint that she succeeded to the properties by any rule or law.
Mr. Jayaswal does not rely upon the statements made in the body of the plaint, but in the pedigree attached to it and says that upon the pedigree Beni Ram could not be a Hindu. For this contention he carries us a degree above Jaimangal Ram, grandfather of Kishun Ram mentioned as the starting ancestor in the pedigree attached to the judgment of the learned Judicial Commissioner. Mr. Jayaswal says that Jaimangal's mother is mentioned in the genealogical tree of the plaint to be Rai Kuer, tewaif and that the word “tewaif” connotes that she must have been a Muhammadan and hence her son Jaimangal could not be a Hindu by birth and so also Beni Ram, grandson of Jaimangal. Therefore Mr. Jayaswal contends that succession to the estate of Beni Ram should not be governed by the Hindu Law.
The genealogical tree attached to the plaint does not expressly describe the mother of Jaimangal as a Muhammadan, nor does the plaint state that. Mr. Jayaswal says that the appellation ‘tewaif’ must necessarily imply that she had become a Muhammadan. In paragraph 3 of the plaint it simply stated that:
“frequently the females who adopt the profession of tewaifs embrace the Muhammadan religion and the children born in the state of prostitution live with their Hindu fathers and brothers as Hindus.”
The word used in the plaint is “aksar” (which means ‘often’) and not “hamesha’ (which means ‘always’ or ‘invariably’). The above passage is a free “translation of the plaint and not a literal one. It omits the word ‘aur’ (and) which occurs between the word “tewaifs” (who carry on the profession of singing and dancing) and those of them who embrace the Muhammadan religion. The vernacular passage makes it clear that ‘tewaifs’ does not necessarily imply embracing the Muhammadan religion, but that some of the tewaifs do embrace that religion.
The written statement also does not admit that a tewaif is necessarily a Muhammadan. Paragraph 13 of the written statement implies that in order to be a Muhammadan, a tewaif has to be converted to that religion.
Reliance has been placed upon the following passage in the judgment of the learned Judicial Commissioner:—
“Nor is the evidence very satisfactory that all the daughters of Jaimangal Ram and Kishun Dayal had married before the death of their father and some of them must have been tewaifs as they had Muhammadan names.”
This does not mean that all tewaifs are Muhammadan, but that the Muhammadan names indicate that they must have carried on the profession of tewaifs, that is, of dancing and singing. Such a proposition as is stated by Mr. Jayaswal that Beni Ram and his grandfather Jaimangal Ram must have been Muhammadans as they were born of a Muhammadan mother Rai Kuer, tewaif, is of so great an importance in determining the status of Beni Ram and the law of succession applicable to him, that it could not have been lost sight of and omitted from the plaint. It was not only important but essential and is expressly required by the rules of pleading to be clearly and distinctly stated. Far from stating that Beni Ram was a Muhammadan, the aforesaid passage implies that even when the tewaifs of the family embrace the Muhammadan religion, their children born in the state of prostitution live with their Hindu fathers and brothers as Hindus.
Now, assuming for the sake of argument that the word “tewaif” necessarily implies conversion to Muhammadanism, there is nothing to show when the mother of Jaimangal became a tewaif. It may be that she adopted the profession of tewaif, that is, of singing and dancing after the birth of Jaimangal. In that case, Jaimangal will not be a Muhammadan by birth.
Now, Jaimangal had brothers and uncles shown, in the pedigree and their ancestors have Hindu names: Ganga Ram and Basan Ram. Applying the principle stated in the aforesaid passage of the plaint, Jaimangal must have lived with his Hindu father and brother as Hindu and it is not expressly stated that he deviated from the aforesaid custom and became a Muhammadan.
The pedigree attached to the lower appellate Court's judgment makes a distinction between Hindu and the Muhammadan members of the family by describing them as such. This pedigree, the learned Judicial Commissioner says, was prepared by him in accordance with the evidence in the case.
In the plaint it is nowhere stated that Beni Ram was governed by any law other than the Hindu law. On the other hand, it assumes in the passage quoted above as well as in paragraph 14 that the family is governed by the Hindu law of Mitakshara including the rule of survivorship, subject to the special customs set forth in the plaint as exceptions to the Hindu law giving right of succession to the daughters equally with the sons.
The defence in the written statement expressly asserted that the Hindu Naiks were governed by the Hindu law of the Mitakshara School. The plaintiff did not refute it. On the other hand, he states in his deposition:
“The offsprings of these (tewaifs embracing Muhammadan religion) will be and are recognized as Hindu. Their sons and unmarried daughters will live with their progenitors and maternal uncles and grand father in the same mess and will be considered to be Hindus.”
He gives the definition of ‘tewaifs’ in the following words:
“Dancing and singing females are called tewaifs,”
and does not say that they became Muhammadans. About his own mother, he says:
“My mother named Jasoda (still alive) is a tewaif lady who was in the keeping of Babu Padarath Singh…………………. I am born of that connection. Mostly the tewaifs remain unmarried. Some remain in the keeping of Hindus: still lesser number marry in nikah” (Muhammadan form of marriage).
Therefore it is not necessary the tewaifs must be Muhammadans. His mother is tewaif; still he says:
“I am a Hindu. I would not dine with a Muhammadan.”
About Beni Ram and his family, he says:
“Beni Ram was a Hindu; so is Brij. Yes, Beni Barn's dead body was burnt. He died of plague. Brij performed his daswan at the cost of Beni Ram…………Gantr Puran was rend at the daswan. The ceremony was in every respect a Hindu one……………A Naik man or lady (not tewaif) marries according to Hindu custom. All Naik girls do not become tewaifs…. Those who are trained by their parents in their profession become tewaifs. The wife of Beni Kam and the mother of Brij were sisters; that is, the two brothers had married two sisters. They had not taken to the profession as they were not tewaifs. They remained like Hindus as they were Hindus.”
Upon this evidence of the plaintiff it is futile to contend that Beni Ram was not a Hindu and that the succession to his estate would not be according to the Hindu law. Even if they were not Hindus by birth, which does not appear to be the case, they call themselves Hindus, were recognized as Hindus for generations and governed themselves by the Hindu rules of birth, death and succession. The learned Judicial Commissioner was, therefore, right in not accepting the contention that the Hindu law should not be applied to the Naiks unless special custom to the contrary was established. No issue was raised nor any suggestion made in the trial Court that the ordinary Hindu law is inapplicable to the parties. Therefore the plea now taken is not admissible: vide Azhimnnila Veettil Kanne Pillai v. Kamnari Gopalan Nair.
On appeal, as appears from the judgment of the learned Judicial Commissioner, the contention for the first time was raised that the
“Naiks were not a Hindu community but so mixed in their religion and so estranged from Hindu ideas of morality in their customs” particularly “where their daughters become Muhammadan prostitutes and the sons of these daughters are taken into the family of their nominally Hindu grand parents again and are brought up as Hindus”, that the applicability of the Hindu law would be “repugnant to the sacred character of the Hindu Sastras.”
This contention has not been accepted by the Court below and Mr. Jayaswal repeats it strenuously in this Court. Mr. Manohar Lal, on the other hand, opposes it with equal vehemence.
The contention of Mr. Jayaswal has raised important Questions as to what the Hindu law is and to whom that law is applicable.
Before I proceed to describe what is now known as the Hindu law, some references to the primitive lawgiver Manu may be useful.
After giving the metaphysical process of the evolution of the universe and the creation of men by the self-originated deity Brahma, Manu says:
“For the preservation of all this creation, he of great effulgence, laid down separate duties for those originated from his mouth (Braharnan), from his arms (Kshatrivas), from his thighs (Vaisyas) and from his legs (Sudras). (Manu, Chapter I, slake 87.)
The study of Vedas and the performance of sacrifices were assigned to the Brahman as, the protection of the people and performance of sacrifices to the Kshatrivas, the rearing of wealth by merchandise, money-lending, agriculture, etc. to the Vaisvas and service to the Sudras: (Manu. Chapter I. slokas 89 to 91) These duties would seem to be exhaustive for all civil and religious purposes and therefore he says:
“Conduct is the highest virtue, as inculcated by the smriti and the Sruti (Vedas) (Manu, Chapter I, slokas 107 and 108)
and exhaustively deals with the rules of conduct and the duties of citizenship in all aspects which govern the four Social orders of humanity: Among other he lays down the laws of punishments and penances for dereliction of duties, the law relating to debts and properties and rules for the administration of those laws by kings. These laws and rules, according to Manu, were laid down for the whole of humanity. In Chapter II, slokas 17 to 22, he describes certain tracts in India and names them in order of sanctity for the performance of sacrifices and religious ceremonies by reason of the course of conduct followed from generation to generation both among the twice-born and the mixed castes. Brahavartam (the land of the Brahmarshis), Madhyadesa (central country) and Aryavarta (the country of the Aryans). Then in sloka 23 he says that the tract of land in which black antelopes are found to roam about in nature should be considered as the land fit for performing sacrifices; and the rest is to be considered as Malechchhas Desha. In sloka 24 he says that the twice-born should live in these tracts and a Sudra may live anywhere in the world where he can find his living.
The laws laid down by Manu would appear to be applicable to the people inhabiting India and the rest of the world, for he permits the Sudras to live anywhere in the world they like and restricts the tracts of sanctity to the twice-born only.
Again, the religious rites and ceremonies can be performed in any country where black antelopes are found to roam about and these necessarily need not be confined to India.
The primary sources of all laws governing the civil conduct and religious ceremonies are the Srutis or the Vedas which have their origin in the Creator Himself and consequently govern the whole mankind, as expressly stated by Manu in Chapter I, sloka 87, that these duties were enjoined by the Creator for “the preservation of all his creation.”
The Institutes of Manu and other sages enumerated in Yajnawlkya, sloka 4 of Chapter I, called the Smiritis, lay down rules for the purpose of regulating the conduct of the whole mankind.
Then grew a large number of commentaries and the different parts of the countries accepted the authority of the different commentators, thus giving rise to the different Schools, such as, Benares, Mithila, Bengal, etc.
Besides thee, the usages and customs determined by the course of conduct of men from generation to generation were declared to be binding and the king was enjoined to administer them: (Manu, Chapter I, sloka 108; Chapter II, sloka 18; Chapter VIII. sloka 3).
Thus, the Srutis and Smritis with their commentaries and supplemented by recognized customs and usages constitute the moral law as well as the municipal and positive laws (for in ancient, jurisprudence there was no difference between the two) regulating the civil conduct of men as well as the performance of religious ceremonies. These laws applied to all classes of men.
When the country passed into the hands of the Muhammadans and the Muhammadan Government was established, they did not interfere with the internal affairs of the country and the law of the Srutis and the Smritis modified by recognized customs remained unaffected.
On the advent of the British, with a view to preserve the personal laws and customs of each and everyone of the diverse races inhabiting India, the preamble to 21 Geo., Chapter 70, stated that the inhabitants of the country should be maintained and protected in the enjoyment of all their ancient laws, usages, rights aid privileges; while the Act provided that inheritance and succession to lands, rents and goods and all matters of contract and dealing between party and party shall be determined in the case of Muhammadans by the laws and usages of Muhammadans and in the case of Gentus by the laws and usages of Gentus. The Charters of the several High Courts and the Civil Courts Acts declared that in cases relating to marriage, succession, etc., the Hindu law shall apply to the Hindus and the Muhammadan law to the Muhammadans.
The words “Hindu”, “Hindu religion” and “Hindu law” are not to be found in any of the Shastras. The word “Hindu” is supposed to be derived from the word “Indus” or “Sindhu” and was used by the Muhammadans to designate the people living to the east of the river Indus and generally all the inhabitants of India which in itself is a modification of the word “Indus”. Accepting this significance of the word, the British Legislature recognized two laws and only two laws, governing the people of the country, namely, the Muhammadan law and the Hindu. Law. Therefore the words “Hindu” and “Hindu law” which occur in the legislative enactments referred to above, would apply to all the people who are not Muhammadans. In order to make the Hindu law exhaustive and applicable to the diverse sects and communities—whether following the Brahmanical religion or not—the special customs and usages of the several communities were declared to be binding. In the case of Ramalinga v. Sattupathi their Lordships of the Judicial Committee observe:
“The duty, therefore, of an European Judge, who is under the obligation to administer Hindu law, is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities as to ascertain whether it has been received by the particular School which governs the district with which he has to deal and has there been sanctioned by usage. For, under the Hindu system of law, clear proof of usage will outweigh the written text of the law.”
This is in accordance with what Manu ordains that immemorial custom is the transcendent law approved in the sacred scripture and in the code of divine legislators and directs kings to observe the rules drawn from local usages. Therefore the Hindu law as laid down in the aforesaid authority is the law of the Srutis and Smritis and the approved customs and usages of the various people inhabiting the country.
The Muhammadans brought their own personal laws and chose to be governed by those laws. The Srutis and Smritis recognize the laws of a particular class of people and indeed every community has a right to be governed by its own recognized usages and customs. The same would apply to other communities inhabiting India or coming from outside who choose to be governed by their own laws. But those who have not expressly so chosen to be governed by particular rules of their own in the shape of usages and customs, will be governed by the comprehensive laws of the Srutis and Smritis which apply to all people.
The law of succession and inheritance found in Chapter IX of Manu and in Chapter II of Yajnawalkya the different commentaries of which have given rise to the different Schools of the Hindu Law in the country, as observed above, apply to persons who follow the religious rules as well as to those who do not follow the religious rules of the Srutis and the Smritis. The religious rites are dealt with in different chapters from those relating to rules of succession and even those who fall off from religion and are outcaste are governed by the rules of succession to property. Similarly, the rules relating to crimes dealt with in the Srutis and Smritis are applicable to all irrespective of whether they follow the rel pious rites or not, for criminals having no religion or having lost or abandoned their religion were equally amenable to those laws. Therefore even those who abandon the religion of the Srutis and Smritis and do not adopt another religion signifying thereby their intention to adopt the laws of succession of the community following the religion newly adopted, will be governed by the Hindu law. The word “Hindu” was applied by the Muhammadans not only to those who followed the religion of the Srutis and Smritis but to all people who lived to the east of the river Indus, now India. Therefore it was a local name given to the people-inhabiting the said locality regardless of what their religion was.
The Srutis and Smritis recognize freedom of choice both in religion as well as in law and do not make the one dependent upon the other, though the profession or adoption of or conversion to a religion may raise a presumption of the intention to be governed by the laws regulating the community which generally follows that religion. The judicial decisions, some of which will be noticed presently have from time to time recognized this.
Therefore I would answer the question raised by Mr. Jayaswal that the Hindu Law as now understood is the law of the Srutis and Smritis including the recognized customs as administered and interpreted in the light of judicial decisions and the said law is applicable to all who have not adopted some other personal laws of their own.
The question then is whether the Naiks whose daughters become Muhammadans and the sons of those daughters are taken in the family of their Hindu grandparents and are brought up as such are governed by the Hindu law or not. In order to answer this, I would again revert to Manu. He deals with different kinds of marriages, no less than eight, which exhaust all conceivable forms of marriages from almost promiscuity to a lawful marriage. In Chanter X he deals with offsprings from lawfully married wives belonging to their respective social orders or castes and those belonging to different castes, lower and ??? assigns to them their respective places in the social order and their denominations, such as, Suta. M'agadhas Vadeas. Ayogyas, Kshattas, Chandals. These he calls hybrid castes and deals with the offsprings produced through intermarriages among these hybrid castes. In this way he divides men into castes and sub-castes, high and low and thus exhausts all classes of men, Aryans, non-Aryans, Yogyasand Ayogyas, Dasyyas—Mlechchhas—whether they speak the Aryan or nun-Aryan tongue—even those who renounce the ??? prescribes rules, penances and yogas for the ??? ation of the low and hybrid castes, thus gaining higher status in society. It is well known that Vishwunnirya a Kshatriya by caste, attained the status of a Brahman and became Brahmarshi.
In slokas 43 to 45 of Chapter X, Manu describes the hybrid castes as follows:—
Translation:— “The following Kshatriya castes, through the extinction, (non performances) of their proper religious rites and on account of not seeing (i.e, in the ??? of ??? contact ??? Brahnianas, have been degraded to the sudra) caste in this world”
“(They ae) the Pauudrakas, Andras, Dravidas, Katnvojas, Javanas, Saks, Parandas, Chinas, Kiratas, Darudas, Kashas. (Kshatriyas of these countries have become Sudras for having renounced the religious rites.)”
Members of castes, respectively originated from the face, arms, thighs and legs of Brahman (i.e, Brahmana, Kshatriya, Vaisa and Sudra) ??? have been comprised outside the pale of these ??? castes for the extinction of their religious rites, are all called Dasyus, whether they speak an Aryan or a non-Aryan (Mlechchha) tongue.”
The same is the view of Haribansha, Chapter 22, sloka 123.
Translation:— Pandyas, Kerlas Kolas and Cholas were all descendants of the Kshatriyas, but on account of this wicked character they were ??? by the king named Sagur (that is, they were degraded from ???)
Hemchandra would include Malas, Billas and Kiratas into Mlechchha caste, among whom are numerous classes of people, such as, washermen, Chamars, Dusadhs, Mallahas, Medas and Billas, etc. (Prayashchchittatattvam; Parasar Paddhati).
According to Matsya Purana, Chapter 34, the Yavanas were the descendants of Turvasu and the Mlechchhas were the descendants of Anu , the sons of king Yajati
According to Brahmavaivarta Purana, Prakriti Khanda, Chapter 28, a woman having one husband is called Pativarta, having two husbands Kulata, having three husbands Brishali, having four Punschali, having five to six husbands Vesya, having seven to eight Yungi and having more than eight husbands Maha Vesya, in all castes. These Vesyas and Maha Vesyas were considered to be so low as not to be touched. Thus, we get here a class of women who almost led the life of prostitutes.
Reverting to Manu we find a class of women as attendants of the gods who were supposed to be the creations of the superior kind of activity or rajas. They are called Gandharvas, Guhyakas, Vakshas and Apsaras. Says Manu:
Translation:— “Births as Gandharvas, Guhyakas, Yakshas, attendants of the gods and Apsoras as are the effects of the superior kind of Rajas.”
The dasis and female courtesans and attendants so prevalent in the country trace their descent from Gandharvas and Apsarasas of the gods referred to in Manu. They began to be called Gandharvas or Vesyas.
Vatsyayana in his Kamasutra, book VI, Chapter 7 (written in about 800 B.C, the period of Nand Mauryan Dynasties) mentions nine classes of courtesans or Vesyas:—
1. Kumbbadasi—a low class of courtesans;
2. Paricharika—a servant woman that has become a concubine to her master;
3. Kulata—one who, though having a husband, misconducts herself with others;
4. Svairini—a hold self-willed woman who misconducts herself in defiance of her husband;
5. Nati—one who ostensibly following the profession of an actress but at the same time carries on love intrigues with others;
6. Silpakariba—one who ostensibly engaged in some handicraft, etc. but secretly carries on amorous intrigues;
7. Prakasavinasta—a public spoiled woman;
8. Rupajiva—one trading on her good looks, i.e, her beautiful person, lending herself to men for enjoyment in return of their money; and
9. Ganika—an honourable class of courtesans having some rules of conduct.
The Naik or Naikin sect in the present case would probably come in class 5 referred to above, or at any rate in one of the classes mentioned above. The Vesya caste came to be regarded as a distinct caste of Hindus.
Now Yajnawalkya, while dealing with adultery and punishment for the same, in Chapter II, sloka 290, says;
Translation:— “(A king) should inflict the highest form of pecuniary punishment (upon a person), who carries away a maiden, of the same caste, adorned (for marriage), in ordinary cases the lowest form of pecuniary punishment should be his penalty. (In the case of carrying away) a maiden of a higher caste, sentence of death is laid down by law.”
Commenting upon the aforesaid sloka of Yajnawlkya, Vijnesvar would include the Vesya caste in the word He says.
[Translation.— The Vesya caste which follows the profession of prostitution with men of equal or higher caste is from the beginning of the world like the four castes of Brahmanas, etc. In the Skanda Parana it is found that the Vesya caste is the descent of a divine nymph named Panshchuda and it is a fifth caste.]
It is needless to pursue the subject further for we find that apart from Manu and other authorities, the class of dancing girls and prostitutes have been recognized as a caste like the four castes—whether they are to be regarded as a fifth caste or included in the residuary caste of Sudra as Manu would have it. They, the Vesyas, exist among the Hindus. They will therefore be governed in matters of succession by the rules laid down in the Mitakshara. If these professional women are governed by the Hindu law, the Naiks, that is, their parents would be much more governed by the Hindu Law. It is not necessary to find out whether they were the aboriginal races of the country or were the Aryans or non-Aryans in their origin, for the Hindu law will apply not only to the Aryan settlers and such aboriginal races as have been completely absorbed in the Aryan community but also to the descendants of the original tribes who more or less avoided the complete conversion to the Brahmanioal religion.
Sir Guru das Banerji in his Tagore Law Lectures recognized that the class of dancing girls and prostitutes has found place in the Hindu community in spite of their existence being repugnant to the high standard of morality set up by the Shastras.
The Smritis have, however, regarded them as degraded class of people and have condemned and ??? also for ??? intrigues with them; but in the nature of things the class has existed. Therefore the Smritis had to provide rules of inheritance and succession for them and their offsprings, as they must necessarily hold and inherit properties. Therefore it cannot be said that their existence was in any way encouraged; on the other hand, it was condemned. The laws have, however, to provide for every class of persons.
In the case of Rani Bhanwan Kaer v. J.C Bose it was observed that there are various sects of importance, such as the Buddhists, the Jains, the Brabmos and the Sikhs who have entirely repudiated Brahmanism and to them the Hindu law applies as much as to those who accent the authority of the Vedas. In that case their Lordshins observe that the legislative provisions requiring Hindus to be governed by the Hindu law came in course of time to be applied to various religious bodies in India which at various periods and under various circumstances developed out of or split off from the Hindu system but whose members have nevertheless continued to live under the Hindu law and in dealing with them “the Courts have always put a liberal construction upon the enactments by which the Muhammadans and the Hindus were secured in the enjoyment of their own laws.”
The Hindu law has been held to apply to a considerable port on of the population of the Madras Presidency, the Central India and the hill tribes of the various parts of India. Their Cronus find religion differ widely from those of the Hindus properly so called. They have no codes of law but some instances they have adopted much ??? is Hindu in their customs and religion and some of these perhaps, such as Koch and others have been described by Dalton as the Hinduised aborigines of India. These semi-Hindu races have been sometimes regarded as Hindus and therefore subject to Hindu law; for instance the Jats [Mussammat Bhagwani v. Khushi Ram]; the Lubias Shaikh Ibrahim Rowther v. Muhammad Ibrahim Rowther]; and the Chetties Azimanila Veettil Kanne Pillai v. Kayinari Gopalan Nair], etc.
Dr. Gour in his Law of Transfer in British India Volume I, pages 28 and 29, says:
“Although the term ‘Hindu’ is properly understood to comprise only such people as follow the Hindu religion, or rather its ceremonial observances, a wider class of people are subject to Hindu Law. And while it may truly be said of a Hindu, nascitur non fit the is born, not made) still it is often difficult to reconcile the juristic conception of the term with its popular notion.”
Trevelyan on Hindu Law says the expression ‘Hindus’ includes not only the persons who profess what is called the Hindu religion, but also such of their descendants as have not openly abjured that religion.
Tudball, J., of the Allahabad High Court, in Mussammat Bhagwani v. Khushi Ram applied the Hindu Law to the case of Jats on the ground that whatever the origin of the Jats may be, whether they were aborigines of the country or whether of Aryan origin, they are and always have been held to be Hindus and Hindu law has always been applied to them except where customs have been established at variance with the Hindu law.
It is, therefore, not necessary in the present case to find out whether the Naik family in question were originally aborigines or Aryans. They were Hindus and are called such and for ought that is known they were originally Hindus.
The Hindu law has been applied to dissenters and non-conformists and to those who have ceased to conform to the rules of Hindu law.
The argument of Mr. Jayaswal is that the Hindu law should not apply to the girls of the family because they adopted the profession of dancing and became prostitutes. It may be repugnant to the ideas of morality, yet it does not cause exclusion from succession [Hirald Singha v. Tripura Charan Ray, Ghalakonda Alasani v. Ghalakonda ???, Subbarratna Mudali v. Balakrishnaswami Naidu and Muthusami Mudalier v. Masilamani]. This contention of Mr. Jayaswal must, therefore, fail.
Mr. Jayaswal then relies upon Abraham v. Abraham, Jowala Buksh v. Dharam Singh and Mussammat Ujiyara v. Tilochand Gond and various other authorities which hold that upon apostasy from Hindu religion which takes the form of conversion to another religion, the convert ceases to be governed by the Hindu law except on proof of a well-established custom to the contrary. These cases do not apply to the present case, inasmuch as Beni Ram or his ancestors were never converted to Muhammadanism. They continued to be Hindus according to the case of the plaintiff himself and to observe all the Hindu rites and ceremonies. They must therefore be governed by the Hindu law.
The plea that Hindu law is inapplicable to them was never taken in a definite form and cannot therefore be now admitted.
I need not refer in detail to the other authorities referred to at the Bar.
In my opinion it has not been shown by the plaintiff that the parties in this case were governed by any law other than the Hindu law and unless the plaintiff shows that, the Hindu law must apply to them.
Now the branch of the Hindu law applicable is the Mitakshara. If Beni Ram died while joint with his nephew defendant No. 2 Brij Behari as a member of a joint Mitakshara family, the defendent No. 2 Brij Behari will succeed to the exclusion of the daughters of Beni Ram. On the other hand, if Beni Ram was a separated member, his daughters would succeed.
It has, however, been urged by Mr. Manohar Lal that the daughters of Beni Ram, Bhagwari Bibi and Dahan Bibi (defendant No. 1) became prostitutes and adopted Muhammadanism. Therefore they cannot succeed. Both these grounds seem to be untenable.
Now, the Hindu law of Mitakshara as distinguished from Dayabbhag does not require that an unchaste or immoral daughter should not succeed. Such a condition is laid down in the case of widows, but not in the case of a daughter. Catyayana says:
“Let the widow succeed to her husband's wealth provided she be chaste and in default of her, let the daughters inherit if unmarried;”
so also Brahaspati and Manu [vide Mitakshara, Chapter II, section 2, pl. 2]. The point has been fully discussed in Advyapa v. Rudrava.
Now, the second ground based upon the conversion of the daughters to Muhammadanism is not tenable in face of the statutory provision contained in the Caste Disabilities Removal Act (XXI of 1850). The Act extended the provision of section 9 of Regulation VII of 1832 which applied to Bengal throughout the territories subject to the Government of the East India Company. It says:
“So much of any law or usage now in force within the territories subject to the Government of the East India Company, as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of any religion, or being deprived of caste, shall cease to be enforced as law in the Courts established by Royal Charter within the said territories.”
The Legislature has virtually set aside the provisions of the Hindu law which penalise the renunciation of a religion or exclusion from caste.
Mr. Manohar Lal contended that the conversion in this case took place before the death of Beni Ram and therefore before the succession opened. There is no substance in this contention. The section is clear upon the point. It repeals any law or usage which inflicts upon any person forfeiture of rights or property or may be held in any way to impair or affect any right of inheritance by reason of his or her renouncing or having been excluded from the communion or religion or being deprived of caste. Therefore a convert or an outcaste retains his right of inheritance whether the right occurs before or after the conversion to another religion or exclusion from caste Khuni Lal v. Knnwar Gobinda Krishna Narain].
Reference has been made to the Mitakshara, Chapter II, section 10, pl. 1, 2 and 3 and to Manu, Chapter IX, 201 and 202, where he says that among others a patit or a degraded person shall not take any share in the paternal property and a person “addicted to vice” shall be excluded from succession. Now, by pl. 8 of section 10 of Chapter II the above rule is made applicable to the case of females also. A man now-a-days cannot be disqualified from succession by reason of incontinence suh nomine vice. Therefore a woman also cannot be disqualified. Whatever be the rule of the Hindu law, the operation of that rule has been excluded by the aforesaid statute, so that no longer unchastity or exclusion from caste by reason of conversion would entail forfeiture in right of inheritance. Therefore the contention of Mr. Manohar Lal must be overruled.
Bhagwari Bibi and Dahan Bibi (defendant No. 1) would not be excluded because of their having adopted the profession of dancing and singing or having become proprieties or having adopted Mnhammadan religion, provided Beni Ram was separate from his nephew Brij Behari.
We are not concerned in this case with the succession to property of the dancing girls Bhagwari Bibi and Dahan Bibi and consequently I do not propose here, to discuss the authorities of the Bombay and the Madras Courts relative to the succession of Naikins (professional dancing girls or prostitutes) [Jaya Madhav Kalavant v. Manjunath Tax Chandui, Kamakshi v. Nagarathnam and several other similar authorities cited at the Bar]. They are, however, important to show that in spite of their having adopted the profession of dancing girls and having become prostitutes the succession was governed by the Hindu law and the rule enunciated by Manu
“to the nearest sapinde the inheritance belongs”
was applied.
The question then is whether Beni Ram was joint with Brij Behari, or was separate from him.
This question was decided by the Munsif upon an appreciation of the evidence in the case. He held that Beni Ram and Brij Behari were joint members of a Mitakshara Hindu family and that the former died while so joint with Brij Behari. Mr. Jayaswal, however, urges that the lower appellate Court has not validly disposed of this point.
The learned Judicial Commissioner says:
“Further it is not satisfactorily proved that defendant No. 2 was separate from Beni Ram in 1907 at the time of the latter's death. It is proved that he was a posthumous son of his father Ragho and there is evidence that Beni and Ragho were joint up to the time of Ragho's death at any rate. The evidence of P.W 6 has been recorded as follows:— ‘Brij Behari defendant No. 2, Ragho and Beni were joint till the death of the latter. Beni Ram was their karta.’ This must be taken to mean up to the death of Beni Ram as defendant No. 2 was born after the death of Ragho.”
In order to understand the aforesaid finding it must be remembered that Beni Ram, Ragho and Lali were three brothers. Brij Behari is son of Ragho. Lal became a Muhammadan. He dropped out of the joint family and became separate. Therefore the evidence of P.W 6 quoted above would mean that the remaining members of the family, namely, Beni and Ragho and Ragho's son Brij Behari (defendant No. 2) continued to remain joint. Brij Behari was the posthumous son of Ragho. Therefore the Court below says that the statement of P.W 6 means that Beni and Brij Behari remained joint up to the death of the former in 1907. The Court, therefore, finds that Beni and Brij Behari (defendant No. 2) continued to be the joint members of the family after Lalji ceased to be so on account of his conversion, for his name is not mentioned by P.W 6 as a member of the joint family.
The share of the three brothers: Lalji, Beni and Ragho was 5 annas 4 pies each. Mr. Jayaswal contends that after Lalji's conversion there was a disruption of the entire joint family and all the members must be deemed to be separate unless the re-union was established, the onus of which was upon the defendant. This is so as is now settled by the authorities, for instance vide Balabux v. Rukhmabai. Therefore the onus of proving jointness or reunion was upon the defendant. It depends upon the circumstances of each case what amount of evidence is required to discharge this onus. In the present case the evidence of P.W 6 was taken as sufficient by the Court below to prove the continuity of the jointness of Ragho and Beni in spite of the separation of Lalji. The Court says that there is evidence that Beni and Ragho were joint at the time of Ragho's death. The Munsif has detailed that evidence. The learned Judicial Commissioner's finding is, therefore, based upon evidence. It is true that the learned Judicial Commissioner's statement that it is not satisfactorily proved that defendant No. 2 was separate from Beni Ram in 1907 at the time of the latter's death may reasonably give rise to the contention of Mr. Jayaswal that he had misplaced the onus, but considering the fact that he has referred to the evidence upon which he based his conclusion that Beni Ram, Ragho and Brij Behari were members of a joint family and that Beni and Brij Behari continued to be joint up to the death of Beni Ram, the question of onus does not become important.
It is also true that when one member drops out, there is no presumption that the others reunited. It is equally true that in such much evidence may not be required to prove reunion or continuity of jointness as regards the rest of the members of the family.
Considering all these circumstances in the case and also the clear finding of the Munsif, we do not think that sufficient ground has been made out in the present case to remand the case to the Court below for reconsideration of the question.
It has, however, been urged that the Court below has not considered an important document bearing on the point, namely, Exhibit 2, a partition khesra.
Now, Exhibit 2 has been referred to in the earlier part of the judgment of the Court below. We have looked into that document. It does not prove partition and that may be the reason that it was not relied upon by the appellant in the Court below for the purpose of proving separation and also for the Court below not referring to it while dealing with the question of jointness and separation. The contention of Mr. Jayaswnl must, therefore, be overruled.
The plaintiff, according to the finding of both the Courts below, has failed to prove that Dahan Bibi and Bhagwari Bibi succeeded to the property of Beni Ram.
It may be mentioned here that in 1907 when Beni Ram died, his widow Misran Kuer was alive and even if Beni Ram was separate she succeeded in preference to the daughters Bhagwari Bibi and Dahan Bebi. Brji Behari executed a ??? whereby gave the property to Misran Kuer with a reversion to Kewal, defendant No. 3, son of Dahan Bibi. Misran Kuer, according to the finding of the Munsif, lived till after the termination of the execution proceedings taken out by the plaintiff. Therefore, when the plaintiff took a mortgage of the property from the daughters of Beni Ram, Dahan Bibi and Bhagwari Bibi they had not inherited the property, nor had they inherited even at the time when he obtained the money decree and attached the property in dispute. Therefore they had no title in the property on the date when the cause of action is said to have arisen to him. Bhagwari Bibi died in 1908. Therefore she never inherited the property. Dahan Bibi did not assert her right, if any, to the property in question: rather she allowed it to be taken by her son upon the basis of the deed executed by Brij Behari (defendant No. 2). Dahan Bibi does not claim her right in the property and the plaintiff cannot force her to assert her title in order to enable him to proceed against that property. She had, if any, a limited interest which she could relinquish in favour of the next reversioner, her son. She did renounce her inchoate right, if any, by letting her son take the property and have his name registered in the Land Registration Department.
The question of collusion was not gone into in the Court below and her renunciation cannot be questioned on that ground and until the aforesaid deed executed by Brij Behari is set aside, the plaintiff cannot get a declaration in favour of Dahan Bibi.
For all these reasr the decision of the Court below is upheld and the appeal is dismissed with costs.
Ross, J.:— I agree.
Appeal dismissed.