1. The plaintiffs and the defendant are Oraons, an aboriginal tribe in Chota Nagpur. The suit is for recovery of possession of certain lands, on the allegation that by custom the plaintiffs, who are the male agnates of one Somra, deceased, are entitled to succeed to the exclusion of the defendant, who is the daughter. The Munsif dismissed the suit, holding that as the Succession Act applied, the parties being neither Hindus, Mahomedans nor Buddhists, the daughter had a preferential right to the brother and brother's son. But the learned Judicial Commissioner has set aside that decree on the ground that the Succession Act, did not apply by reason of a special notification issued under Section 332 of the Act by the Government of India during the pendency of the appeal before the Judicial Commissioner, and that the plaintiffs had proved a special custom that females are excluded from inheritance to immovable property. The present appeal before me has been preferred by the defendant.
2. It is clear that the learned Judicial Commissioner is wrong in holding that the notification of the Government of India applies to the present case. The notification expressly states that it is not to apply when there has been a decision of a competent Court regarding the rights of the parties. I cannot agree with the learned Judicial Commissioner that the decision here means some final decision such as would operate as res judicata. The Munsif's decision was the decision of a competent Court, and, in my opinion, the rights of the parties are untouched by the notification and are, governed by the Succession Act. It is contended however by the learned Vakil for the respondent that the learned Judicial Commissioner has found that a custom exists to exclude females and that this custom must override the Statute. Now the applicability of custom to the case before us arises by virtue of S. 37, Act 12 of 1887, and it cannot be disputed that in the case of Hindus, custom outweighs the written text of Hindu law. As regards Mahomedans, although there are cases to the contrary, it has been held that custom cannot override the text of the Mahomedan law: Jammya v. Diwan(1). So again in the case of trade customs it has been held that usages may be proved to override the law merchant, that is to say, the Common law. In the case of codified law the ordinary practice of the Legislature is to make special provision when it thinks fit to do so for the saving of custom, usage and customary rights. But I have been unable to find any authority that, after Customary law has been stereotyped in the form of a Statute which contains no provision saving custom, it is open to a Court to give effect to custom, much less to a custom inconsistent with the Statute.
3. In Abraham v. Abraham(2) it was held that a particular family custom is capable of attaching to Hindus concerted to Christianity but that case was before the passing of the Succession Act and I have been unable to find any instance of custom varying the rules of the Act among parties who are governed by it. As the Act contains no clause saving custom, the Courts are not competent to accept custom as a reason for deviating from the provisions of the Act. The learned Judicial Commissioner therefore is, in my opinion, wrong and the decree of the Munsif is right.
4. As regards the question whether the custom has been proved, the learned Judicial Commissioner has dealt with it very summarily and it is not clear whether he has considered all the points necessary for the proof of a custom at law. He has based his finding chiefly on the writings of three authors, which do not appear to have been ever adduced in avidence or referred to in the Court of first instance. I would invite the attention of the learned Judicial Commissioner to the observations of the Madras High Court in Vallabha v. Mudusudanan(3), to the effect that reference to works of history at the appellate stage is irregular and to be avoided. The result is that the appeal is decreed with costs and the decree of the Munsif is restored.
V.S/R.K
5. Appeal decreed.