Hallifax, A.J.C:— The question propounded for the decision of the Bench is “Whether the plaintiff Lal Singh ans Mt. Sengo who are Gonds are governed by the Hindu Law of succession.” The plaintiff-respondent Lal Singh Gond claimed a declaration that a mortgage by his mother Sengo of an absolute occupancy field which she had inherited from her father was valid only for her life-time and would be inoperative after her death. The claim is based on the principles of Hindu Law, and it is perhaps natural that the plaint assumed withuut asserting that the plaintiff is governed by those principles. Lal Singh's mother has for some reason not been made a party to the suit. The first plea taken by the defendant mortgagee was: “Plaintiff is not governed by Hindu Law, because he is a Gond,” and an appropriate issue was framed.
2. The only evidence given on the point was the deposition of Lalji Gond, a man of forty, who appears to live in the same tahsil as the plaintiff but not in the same village.
3. He was called by the defendants. The deposition may usefuly be quoted in full. “I am Gond by caste. I worship Mnta Deo. I do not worship Gods of the Hindus. In my caste no shradha is performed. We do not observe sutak. We do not observe Hindu holidays. In the caste the property of a propositus descends to his daughter. She can sell and mortgage. She has however no life interest. In my caste the wife acquires an absolute interest in the property of her husband after his death. Gond is called Bhumak. Bhumaks worship Maroti. Maroti is the God of Hindus. The law of inheritance amongst my caste is not written. If the father gives his property to his daughter, she acquires an interest in it after her father's death. If the father has a wife the property will go to her first and then to his daughter. If he has got a son daughter and wife, then the property goes to his son. If a Gond dies possessed of property leaving behind a son, daughter and wife, the property will go to the widow first and then to his son. I have got son, daughter and wife. My property will go to my son. My wife Will not be entitled to sell my property so long as my son lives. After my son, his son if in existence will inherit the property. If my wife inherits any property from her father and without any reason sells the said property, ray son will have a right to recover the property after my wife's death” In addition to this evidence we have the various treatises on the Gonds mainly included in the earlier Settlement Reports of the Central Provinces, to which we can refer under section 49 and the penultimate clause of section 57 of the Evidence Act.
4. It is important to be sure at the beginning of any such discussion where the burden of proof lies. It is beyond controversy that if any person asserts in a Court of law that he is a member of a certain section of the community and this fact is denied, he must prove his assertion before it can be accepted. If the opposite party chose to deny that shioshankar Brahman or Zalim Singh Rajput is Hindu or that Muhammad Islam Khan was a Musalman it would technically be necessary for Shioshankar or Zalim Singh or Muhammad Islam Khan to prove that he was governed by the personal law by which he claimed to be governed. The task would in those cases be as easy as the proverbial one of falling off a log but it would still be there. Similarly in this case it was for Lal Singh Gond to prove that he and his mother are governed by the Hindu Law at least in respect of the one matter to which this suit relates. He could only do this by showing that the section of the general community of which he is a member, the whole of his race or no more than his own family is so governed. That could be done by proving one of three things, that their religion of, that section is the Hindu; religion or that it is ordinarily classed among Hindus although its religion is slightly or entirely different or that it has adopted the principles of Hindu. Law and followed them long enough and consistently enough to make them its own customary law. Under the last of these three, heads it would of course be sufficient if he proved that the particular principle which he seeks, to have applied to himself had become his customary law.
5. The most ambitious of all these tasks has been selected by the present plaintiff and by the learned Counsel who appeared for him in this Court, that of supporting the contention that the religion of the whole Gond race is the Hindu religion, though spine reference was also made to the contention at even if they are not Hindus by religion they have always been classed among Sudras. It will be convenient to take the second of these contentions first, though it was not very seriously pressed. It rests wholly on the alleged fact that the ??? Smriti classes every aboriginal or non-Aryan either as a dasa or slave, which is the same thing as a Sudra, or as a dasyu or enemy, which is not, and the list of enemies does not mention the Gond. This is based on an entirely incorrect statement and a further assumption which could not possibly be made even if that statement were correct.
6. The reference was to verses 44 and 45 of Chapter X of the Manu Smriti, which have been completely misread. The list in verse 44 does not refer to verse 45 but to verse 43. The translation of all these as given in Max Muller's Sacred Books of the East is as follows:—
“43. But in consequence of the omission of the acred rites and of their not consulting Brahmanas, the following tribes of Kshatriyas have gradually sunk in this world to the condition of Sudras;
44. (Viz.) the Paundrahas, the Kodas, the Dravidas, the Karabogas, the Yavanas, the Sakas, the Paradas, the Pahlavas, the Kinas the Kiratas, and the Daridas.
45. All those tribes, in this world, which are excluded from (the community of) those born from the month, the arms, the thighs, and the feet (of Brahman), are palled Dasyus, whether they speak the language of the Mlekkhas (barbarian), or that of the Aryans.”
7. The list is a list of Kshatriyas who became Sudras, not of non-Aryans who remained Dasyus, and it is very far from being exhaustive, so that even if it were a list of tribes who were not Sudras no argument could be based on it.
8. We come next to the, contention that the Gond religion of to day is the Hindu, religion. It is, admitted by everybody that the Gonds were originally not Hindus by religion and did not observe any of the laws or customs of the Hindus. It is further admitted even by the learned Counsel for Lal Singh in this Court that there are still many, those living in the wilder parts of the provinces, who have not even yet become Hindus in any sense of the word and have not adopted any part of the Hindu religion or any Hindu custom. That seems a full admission of complete failure in the ambitious task already mentioned of proving that all Gonds are Hindus or even that the great majority are. It would still be open to any particular Gond to prove that he himself or his family or his tribe or all the Gonds in his village or tract or tahsil or district had been converted to the Hindu religion, as some undoubtedly have, but an admission that all have not done so throws the burden of proving that any stated section has, on him who alleges it. In this particular case, as has already been pointed out, no attempt whatever has been made to do anything of the sort.
9. We are prepared to go further and to say that it is by no means shown on the authorities that have been cited that even a large number of Gonds have become Hindus and have abandoned either their religion or their own customs. In support of the contention that they have done so it was stated in argument that their ow tradition is that they are descended from Mahadeo and Parbati and they worship Mahadeo, a Hindu God, and Bhimsen, one of the Pandava brothers, and further that the higher classes of Hindu Sudras and even in some places Brahmans will take water from their hands and they are nowhere regarded as “untouchable” by the Hindus of the twice born class, whereas many of the lower classes of Sudras who are certainly Hindus are so regarded.
10. It is incorrect to say that the head of the Gond pantheon is the Hindu God Mahadeo. A Christian talking Hindustani to a Hindu would call his own God Mahadeo or Bhagwan, and if he were talking to a Musalman would pall him Allah or Khuda. So also the Gond would speak of his own greatest God in Hindi as Mahadeo, though as a matter of fact he uses the term Mota Deo in Marathi and Barn Deo in Hindi more often than the word Mahadeo, each of the three being an exact translation of the Gond name of Penda Pen. We are unable to find any warrant for the statement that Gond mytholosry attributes their origin to Mahadeo and Parbati, and there is good authority for the statement that the Gond pantheon is entirely male and does not include a single goddess. But the adoption of the name of the wife of the Hindu God Mahadeo for the wife of their own God of the same title in the tradition of their own origin would not be a matter for surprise among so wild and primitive a people, nor would the inclusion of a mythioal hero like Bhimsen in their pantheon. But even if the Mahadeo and Parbati and Bhimsen of the Gond are identical with the Hindu deities bearing those names, the very smallness of their number is proof that the Gond religion is still distinct from that of the Hindus. In the early days of Christianity many observances and beliefs were imported into it from the ancient religion of Egypt and from Mithraism, which was a development of the ancient Zoroastrianism, but it still remained the Christian religion. So also the addition of a few deities or tenets taken from the Hindu religion without, the abandonment of any of their own would not change the religion of the Gonds into Hinduism.
11. We are unaware of the authority for the statement of fact that many Hindus will take, water from the hands of a Gond and no Hindu regards him as untouchable, though it may be true. But the argument that a Gond must be a Hindu because he is touchable, though members of some admittedly Hindu castes, ape not, is very easily met by the that Christians, Parsis and Musalmapsare also touchable, at least to the same extent as that alleged in the case of Gonds. Our conclusion are as follows. A Gond is not a Hindu and is not governed by the, Hindu Law. In, the case of any particular Grond it can of course be proved, that, his family on any large body of Gonds in which no is included has adopted any particular custom or all the principles of Hindu Law, by becoming converts to the Hindn religion or otherwise, so that they are now bound by that custom of those principles but it is for the party who alleges this to prove it. In this particular case the plaintiff has given no evidence whatever in proof of his allegation that the principle of Hindu Law on which he relies has been adopted in his family so as to become a binding custom. The answer to the question referred to the Bench is therefore in the negative.
12. Appeal dismissed.