JUDGMENT Kumaraswami Sastri, J. 1. These appeals arise out of two suits filed for the recovery of the estate of one Vannia Konar who was a member of a divided Hindu family and who died in Madura on or about the 27th of June, 1916. He left no sons and the claimants to the estate are his two surviving widows, his half-brother and his three nephews by a deceased brother. The following genealogical table as to which there is no dispute sets out the relationship between the parties. Rama Konar. | ____________________________________________________ | | | 1st wife. 2nd wife. 3rd wife. | | | | | | | Vannichi (daughter). Pichai Konar alias _______________________________________ Devendra Konar | | (4th Defendant) Devendra Konar Vannia Konar (pre-deceased (died in June. Vannia Konar). 1916). | | | | | | ___________________________________ _______________________________________ _______ | | | | | | Mooka Konar Krishna Dhanakoti 1st wife Chellayi 2nd wife Ammakutti 3rd wife Rakkayi alias Vannia Konar (2nd Konar (3rd pre-deceased alias Vannichi Ammal (2nd Konar (1st Defendant). Defendant). Vannia Konar. Ammal (1st Plaintiff). Defendant). | Plaintiff). | | | | Vannichi (daughter). | Male issue (?). 2. On Vannia Konars death, his property is alleged to have been taken possession of by his brothers sons, Mooka Konar, Krishna Konar and Dhanakoti Konar, Defendants 1 to 3 in O.S. No. 64 of 1917. It is admitted that Vannia Konar was divided from his brothers. Under the ordinary Hindu Law, if it is applicable to the parties, his heirs would be his two surviving widows, Ammakutti and Rakkayi. It was admitted during the course of the trail that Vannichi has a male issue. Pichai Konar who is his half-brother would, in default of any heirs of Vannia Konar, be the heir under Hindu Law as he being the nearer reversioner would exclude the sons of the deceased brother Devendra Konar. The sons of Vannia Konars brother Devendra Konar however, claim the estate on the ground that according to the custom prevailing in the community to which the parties belong, widows and daughters are excluded from inheritance and that agnates of full-blood however remote exclude agents of half-blood. The half-brother Pichai Konar claims the estate alleging that the widows and daughters are excluded, but, that the agnates of half-blood who are nearer in degree exclude agnates of full-blood who are more remote. 3. The half-brother Pichai Konar claims the estate alleging that the widows and daughters are excluded, but, that the agnates of half-blood who are nearer in degree exclude agnates of full-blood who are more remote. 3. O.S. No. 21 of 1917 was filed by Pichai Konar, the half-brother of the deceased Vannia Konar, against Mooka Konar, Krishna Konar and Dhanakoti Konar, his nephews, claiming the estate of Vannia Konar on the ground that he as the nearer heir was entitled to the same to the exclusion of the Defendants who were more remote reversioners. The widows of Vannia Konar who claimed the estate as heirs under Hindu Law applied to be made parties to that suit, but, they were referred to a regular suit, and they filed O.S. No. 64 of 1917 against the half-brother and the nephews of their husband claiming possession of the estate on the ground that there was no such custom as is pleaded by the Defendants excluding widows from inheritance and that under Hindu Law they as heirs would be entitled to the estate. The Subordinate Judge found against the custom set up by the Defendants whereby the widows were excluded from inheritance and passed a decree in favour of the plaintiffs-widows. He also found against the custom pleaded by the nephews of the deceased that they, though remoter heirs, were entitled in preference to the brother of half-blood, but, in view of the decision of the Subordinate Judge that the widows were entitled to succeed, the suit filed by the half-brother O.S. No. 21 of 1917 was dismissed. Appeals Nos. 208 of 1922 and 329 of 1922 are appeals filed by the nephews of the deceased and the half-brother respectively against the decree of the Subordinate Judge in O.S. No. 64 of 1917 decreeing the widows claim, and Appeal No. 328 of 1922 is the appeal filed by the half-brother against the decree dismissing his suit O.S. No. 21 of 1917. 4. The questions to be decided in these appeals are whether the custom which is set up by the Defendants in O.S. No. 64 of 1917 as to the exclusion of widows and the custom which is set up by the Defendants in O.S. No. 21 of 1917 whereby agnates of half-blood are postponed to agnates of full-blood, even though more remote, have been proved. It will be seen that, while the brother and the nephews of Vannia Konar agree that the widows are excluded, they are in conflict as to whether the rule of Hindu Law that nearer agnates exclude agnates more remote is applicable. Both the suits were tried together, but, as there is some confusion as to what exactly is the custom which is pleaded, I think it is desirable to set out the custom which the" half-brother and the nephews set up. 5. In the written statement in the suit filed by the widows who claimed inheritance under Hindu Law, defendants 1 to 3, who are the nephews of the deceased, in paragraph 4, state as follows The parties belong to what is known as the caste of the Thousand Yadavas. They are not governed by the strict principles of Hindu Law in very many matters such as marriages, adoption, partition, inheritance, etc., but solely by the customs and usages prevalent among them from time immemorial. (a) One special incident regarding marriage is that a girl ought to be married to her maternal uncles son, if there is one, whatever disparity of age or social position or wealth may exist between them. A violation of this rule entails a payment of Rs. 106-4-0 by the party breaking it and a payment of Rs. 12-8-0 and Rs. 6-4-0, respectively, by each male or female attending such marriages, and the funds so collected become caste property. (b) Adoption is unknown to the caste and wholly forbidden as being radicallly repugnant to the customary laws of succession. (c) Regarding partition, one remarkable feature is that it is regulated by what is known as Patnibhagam as distinguished from Putrabhagam, i.e., the shares are determined by the number of wives and not by the number of sons for the several wives. Where a Yadava dies leaving 2 sons by the first wife and 4 sons by the second wife, the two sons by the first wife take a moiety of the inheritance with special rights of survivorship and succession between themselves and the four sons by the second wife take the other moiety with special rights among themselves, and the children by the one line do not have any rights in respect of the properties of the children of the other line until the other line becomes wholly extinct. (d) The rules of succession obtaining among them are also very peculiar and perhaps the logical result also of the other customary incidents. (i) Sonless widows possess an interest in the inheritance only to the extent of the customary allowances, namely, 99 sheep, if the owner died possessed of the same, or, at Re. 1 per sheep for every sheep that remain undelivered. (ii) Agnates of the full-blood, however remote they may be, exclude all agantes of the half-blood, and the latter have besides no place in the line of inheritance until the full-blood in male line becomes wholly extinct. 6. The 4th Defendant in paragraph 2 of his written statement denies that the Plaintiffs are the heirs and plead the custom as follows The parties belong to Nattu Idayar alias Ramayana Chavadi Idayar Community and, according to long-established custom of the said caste, widows do not inherit their husbands property, but are entitled only to a small perquisite, the succession, in the absence of a son, opening to the nearest male dayadi, and, according to the said custom of the caste, it is this defendant that has succeeded to the estate of the deceased, and plaintiffs, as excluded from succession, are not entitled to the plaint properties. 7. In suit No. 21 of 1917 which was filed by the 4th defendant in suit No. 64 against his nephews who are defendants 1 to 3 in that suit, the custom is pleaded as follows in paragraphs 6 and 7 of the plaint. Paragraph 6 runs as follows: Both the parties belong to the Yadhava caste of the class of Madura Ramayana Chavadi Edayars otherwise known as Nattidayars residing in and about Madura. The custom that has long been in vogue among the said community is that, in case an original ancestor dies without male issue, his widow or daughters do not succeed to his properties by right of succession. According to the custom long prevailing among the said castemen, the widows should only leave the house on receiving the Aruppucooli due to them, viz., 100 sheep, or, Rs. According to the custom long prevailing among the said castemen, the widows should only leave the house on receiving the Aruppucooli due to them, viz., 100 sheep, or, Rs. 100, in case there are no sheep, and they have no manner of right to the properties of the original ancestor." Paragraph 7 runs as follows: "Moreover no right accrues to his daughters or their heirs by right of heirship in the properties of the person dying without male issue, according to the custom obtaining in the said community. If a person dies without male issue as stated above, only his brother and other near dayadis succeed to his properties as his heirs and claimants. This custom has been in existence for a long time." The Defendants in this suit denied the validity of the custom as stated in the plaint and pleaded the custom in paragraph 4 of their written statement which is the same as the custom they set up in the written statement in the suit filed by the widows and which, therefore, I need not repeat. 8. It is clear from the pleadings that both the half-brother and the nephews of the deceased agree that when a man dies issue-less the estate passes to his nearest dayadis or agnates to the exclusion of the widow and daughter. The right of the widow is only to receive the Aruppucooli or Kaimpenkur, the amount of which is 100 sheep, or, Rs. 100, should there be no sheep to be delivered, irrespective of the value of the estate left. Nothing is said as to what the daughters get; but, the evidence adduced on behalf of the Defendants is that the daughters have to leave the fathers house and go to the house of their maternal uncle, whose duty it is to get them married, and they have no claim on their fathers estate even for maintenance or marriage expenses or residence. Some witnesses go to the extreme length of saying that even where there is no maternal uncle able to protect them, they have no claim to their fathers estate and they should throw themselves under the protection of the King. Some witnesses go to the extreme length of saying that even where there is no maternal uncle able to protect them, they have no claim to their fathers estate and they should throw themselves under the protection of the King. There is nothing said about the rights of the daughters sons who would succeed under Hindu Law in default of widow or daughters, but, having regard to the fact that the custom alleged makes the next agnate inherit and vests the estate in him, there could be no divesting and the daughters sons are by necessary implication also excluded. The pleadings are also silent as to what is to become of the mother who would be the heir under the Hindu Law in default of widow or daughter or daughters son. But the evidence adduced is that the mother also is excluded. In fact the witnesses state that all female relations are excluded. 9. As regards the Aruppucooli, though in the pleadings it is limited to 100 sheep or Rs. 100, irrespective of the value of the estate, the witnesses called by the defendants in the suit" filed by the widows are not agreed on the fixed rule pleaded, and the amount to be given ranges from Rs. 30 to Rs. 100. Some of the documents filed also do not show that there was any inflexible rule as to the number of sheep or the amount to be paid in default to the widow. The evidence also is that Aruppucooli is to be given by the dayadis even though the husband left no property. Some of the witnesses also state that, if a man leaves more than one widow, each widow gets 100 sheep or Rs. 100, irrespective of there being property sufficient to pay Aruppucooli to each widow. It is also stated that Aruppucooli is to be paid even though the husband was a member of a joint family. So far as Aruppucooli or Kaimpenkur is concerned, it is clear from the evidence that there is no definite rule or custom as to the amount. The Subordinate Judge deals with the evidence in paragraph 76 of his judgment. As it was conceded by the Appellants vakil during the course of the argument that the evidence, oral and documentary, does not show any inform rule, I need not discuss the evidence on this point. The Subordinate Judge deals with the evidence in paragraph 76 of his judgment. As it was conceded by the Appellants vakil during the course of the argument that the evidence, oral and documentary, does not show any inform rule, I need not discuss the evidence on this point. The custom pleaded is in direct opposition to the rules of Hindu Law of Inherntance, for, while, under the ordinary Hindu Law, the widow, the daughter and, in their default, the daughters sons would take the property of a sonless and divided Hindu, according to the custom set up, they are excluded in favour of agnates however remote; and, whereas, under the Hindu Law, widows and unmarried daughters would be entitled to maintenance and residence and unmarried daughters to marriage expenses out of the estate of the deceased, according to the custom set up, the widows get only 100 sheep or Rs. 100, whatever may be the magnitude of the estate of the husband, and the daughters get nothing at all. Although in this case the daughter of the deceased is not a party and any decision here would not bind her, still it is necessary to consider the position of the daughter as it is an integral part of the custom pleaded excluding the widow, and the question is whether such a custom has been proved. A number of witnesses were examined on both sides and each party has let in evidence as to instances either in support of or denying the custom. The Subordinate Judge has found against the custom. The case has been argued at very great length before us and I am of opinion that the custom has not been proved. 10. It is admitted that the parties belong to the Yadhava or Shepherd community. They form a subdivision of that sect and are known as the Madura Ramayana Chavadi 1,000 Yadhavas who reside chiefly in the town of Madura and about 56 adjoining villages. Though the community is known as 1,000 Yadhavas probably meaning that originally there were. 1,000 families, the evidence is that there are about 700 families now constituting the community. This community is again subdivided into three sub-sects, viz., Puthunattu Edayars, Sivikara Edayars and A. Edayars. Though the community is known as 1,000 Yadhavas probably meaning that originally there were. 1,000 families, the evidence is that there are about 700 families now constituting the community. This community is again subdivided into three sub-sects, viz., Puthunattu Edayars, Sivikara Edayars and A. Edayars. Although all these three sub-sects go by the name of the Madura Ramayana Chavadi 1,000 Yadha-vas and although they all contribute to the caste panchayat which is situate in a place called Ramayana Chavadi in Madura and although all these three sub-sects are within the jurisdiction of this caste panchayat which settles their caste affairs, inter-marriage between them is prohibited. The Panchayat consists of a manager called Nattamakkar and 24 Pattikars or members of the Panchayat. This community claims to belong to the larger community called the Yadhavas or the Shepherd community. 11. The Yadhava community or the community of cowherds and shepherds is a very ancient one and is mentioned in the great Epic Maha-bharatha. In fact Sri Krishna was a member of that community. It is, however, doubtful whether the cowherds and shepherds of Southern India can claim descent from the Yadhavas of Northern India, as identity of trade or occupation can hardly be a sound basis for determining identity of stock especially where cattle and sheep breeding is an occupation not exclusively Aryan. The probability is that the Yadhavas of Southren India belong to the original Dravidian stock who, like other inhabitants of Southern India, came under the influence of the Aryan conquerors and who were absorbed into the Hindu community, though they retained some of their original customs too deep-rooted to be supplanted by Aryan influences. There can be little doubt that some of their aboriginal deities were absorbed into the Hindu Pantheon and that, in the process of assimilation which has gone on for several centuries, the original inhabitants of Southern India took their place in and subjected themselves to the laws and usages of the Aryans. In the Census Report the Yadhavas or Edayars are classed as Sudras which is the fourth sub-division of the Aryan caste system and there can be little doubt that the Yadhavas should be classed as Hindus belonging to the Sudra caste. 12. In the Census Report the Yadhavas or Edayars are classed as Sudras which is the fourth sub-division of the Aryan caste system and there can be little doubt that the Yadhavas should be classed as Hindus belonging to the Sudra caste. 12. The question as to how far the Hindu Law as expounded in the Smritis and Commentaries is to be applied to the Dravidian and other commnutiies of Non-Aryan descent is one which has given rise to a lot of controversy. Some of the earlier Judges and Jurists thought it unreasonable to apply the Hindu Law to them, as the whole scheme of Hindu Law was based upon religious and spiritual considerations alien to the thoughts, habits and culture of the original Dravidian inhabitants of Southern India, while others were of opinion that, in view of the centuries that have elapsed between the conquest of Southern India by the Aryans and the assimilation that has been going on, the Hindu Law should be applied except in cases where there is clear proof of custom to the contrary. I think it is too late in the day to contend that, in the case of persons professing the Hindu religion, the Hindu Law as expounded in the Smritis and Commentaries prevalent in the Province in which disputes arise should not prima facie govern the parties, though it will always be open to show that such Hindu Law has been either modified by custom or that particular rules have not been adopted by the community who retained in that respect their original customs. 13. I may point out that in the present case the parties and the witnesses give their religion as Vaishnavite, their caste as Yadhava and it is not suggested that they do not follow the Hindu religion. I may also point out that defendants forty-sixth witness Ayya Kone who belongs to the 1,000 Yadhavas community states that at the time of the annual ceremony he would mention the names of his father, grandfather, and great grand father and that, when his father performed Sradh ceremonies, he used to mention the names of his ancestors. So that this community performs Sradh ceremonies to the deceased ancestors which forms an important basis in the Hindu Law of Inheritance. So that this community performs Sradh ceremonies to the deceased ancestors which forms an important basis in the Hindu Law of Inheritance. It is not suggested that, though the Yadhava community is a large community in Southern India and although ethnologically the sub-sect to which the parties belong, namely, the Madura Ramayanachavadi 1,000 Yadhavas, is not different from the other Yadhavas in Madura, Ramnad and Tinnevelly districts, other Yadhavas adopt the custom as to succession now set up. What is sought to be proved is that this sub-sect confined to about 700 families in the Madura Town and surrounding villages follow the rule of exclusion of females. I may state that another section of the Yadhavas tried to set up the rule of exclusion of females but this was negatived in both the lower Courts and was confirmed in the High Court in S. A. No. 1413 of 1922. There is nothing to show that the Yadhava community has its own self-contained written system of inheritance to which recourse is to be had in dealing with such questions. According to the brothers sons of the deceased (defendants 1 to 3) and the half-brother of the deceased (4th defendant), the Hindu Law is applicable except in so far as they say it has been modified by the custom of the caste. The 4th defendant would have it that the rule of Hindu Law that nearer agnates would exclude the ones more remote is applicable to the parties, while this is denied by defendants 1 to 3. I think it has to be presumed that the parties are governed by Hindu Law except in so far as they prove any custom which is at variance with it; It has been held in numerous decisions, both of the High Courts and the Privy Council, that, in order to give effect to a custom which is set up and which is at variance with the ordinary Hindu Law, it should be ancient, invariable, continuous, notorious, not expressly forbidden by the legislature and not opposed to morality or public policy and, as regards instances in support of the custom, they should be established by clear and unambiguous evidence and must be conclusive. 14. 14. In Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar (1872) 14 MIA 570, their Lordships of the Privy Council at page 585 observe Their Lordships are fully sensible of the importance and justice of giving effect to long established usages existing in particular Districts and families in India but it is of the essence of special usages, modifying the ordinary law of succession, that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends. 15. This case was referred to with approval by their Lordships of the Privy Council in Abdul Hussein Khan v. Sona Dero (1917) LR 45 IA 10 : ILR 45 C 450 : 34 MLJ 48 (PC). As regards the evidence being clear and conclusive and not explainable, their Lordships in that case cite with approval the decision of the Madras High Court in Mirabivi v. Vellayanna (1885) ILR 8 M 464. The following observations of the learned Judges (Sir Charles Turner, C.J., and Hutchins, J.) will be relevant in appreciating the evidence in this case. They observe It must be admitted that instances have been adduced in which the claims of daughters and sisters to a share have been ignored or they have been allotted maintenance, though the cases mentioned by the Judge of a partition in the fathers life time are not inconsistent with Mohammdan Law. There are also cases in which married daughters have been treated as estranged from the family. But instances of this kind will be found to occur where there is no doubt that the family is governed by pure Muhammadan Law. Indeed, in many parts of the country it is unusual for Muhammadan ladies to insist on their unquestioned lights. They will often prefer being maintained by their brothers to taking a separate share for themselves, and when they are married, the marriage expenses and presents are often, by express or implied agreement, taken as equivalent to the share which they could claim. They will often prefer being maintained by their brothers to taking a separate share for themselves, and when they are married, the marriage expenses and presents are often, by express or implied agreement, taken as equivalent to the share which they could claim. Moreover, Muhammadan females are so much under the influence of their male relations, that the mere partition of the property among the males without reference to them cannot count for much. 16. In Ramkanta Das Mohapatra v. Shamanand Das Mohapatra (1908) LR 36 IA 49 : ILR 36 C 590 : 19 MLJ 238, where the question was whether the custom of primogeniture was proved, and it was found that, whenever the holder of an estate left more than one son, the right of the eldest son was challenged in Courts and the litigation invariably ended in a compromise under which the younger sons obtained a share of the estate very much in excess of the maintenance to which, had the custom existed, they would have been entitled, their Lordships of the Privy Council observe The evidence entirely fails, in their Lordships opinion, to give to the alleged custom the character of certainty which is essential to its validity. 17. I shall refer to this case again in dealing with instances connected with proceedings in Court. In Hurpurshad v. Sheo Dyal (1876) LR 3 IA 259, their Lordships of the Privy Council observe at page 285 A custom is a rule which, in a particular family or in a particular district, has from long usage obtained the force of law. It must be ancient, certain and reasonable and, being in derogation of the general rules of law, must be construed strictly. 18. In Rama Nand v. Surgiani (1894) 1 LR 16 A 221, Sir John Edge, C. J., and Burkitt, J., referred to the fact that the instances which are cited to prove a custom should be instances which should not be explained otherwise than by the fact that the custom exists. Their observations at page 223 are in point. 18. In Rama Nand v. Surgiani (1894) 1 LR 16 A 221, Sir John Edge, C. J., and Burkitt, J., referred to the fact that the instances which are cited to prove a custom should be instances which should not be explained otherwise than by the fact that the custom exists. Their observations at page 223 are in point. I may also refer to Patel Vandravan Jekison v. Patel Manilal Chumilal (1891) ILR 16 B 470, where it was held by Sir Charles Sargent, C.J., and Birdwood, J., that even two cases against the custom set up which occurred several years ago and which were acquiesced in by the members of the community and not impugned in Court would be sufficient to outweigh a number of instances to the contrary and as showing that there was not a uniform and persistent usage moulding the custom of the caste. 19. Before dealing with the evidence as to instances adduced on both sides, I think certain general observations should be made in dealing with the evidence of custom in the case. We find no cases where a dayadi went to Court to establish his claim although in some instances the widow took her husbands property and dealt with it. Although it is said that there was a caste Panchayat which settled caste questions, there is no decision of any Panchayat which upholds the custom which is now sought to be established. There was a Panchayat regularly held in the Ramayanachavadi; contributions were levied from the castemen and it is not suggested that the Panchayat is not now functioning. If there was this invariable custom which was given effect to by the Panchayat, there would be something in the records of the Panchayat to show this. It is stated that the person in charge of the Panchayat records was subpoenaed and that he came to Court and said that he had not got the records. I find it difficult to see why steps were not taken as provided for in the Code to compel the production of the records. The Panchayat is a public body and the Code gives ample powers to the Court by arrest, imprisonment and attachment of property to compel the production of documents. I may also state that no pattas or other documents are produced to show the enjoyment of property by agnates to the exclusion of widows. The Panchayat is a public body and the Code gives ample powers to the Court by arrest, imprisonment and attachment of property to compel the production of documents. I may also state that no pattas or other documents are produced to show the enjoyment of property by agnates to the exclusion of widows. Though pattas may not be evidence of title, they are certainly evidence as to possession, as the revenue authorities issue pattas to those in possession. There are also kist receipts which would show who paid the kist, but, no such receipts have been produced in any instance. The Revenue Registers could also have been produced to show who was in possession and also the mutation of names. 20. In dealing with the evidence, one has to bear in mind that before instances cited by the defendants can be considered as proving the custom alleged, it has to be shown that the person whose estate is in question died as a member of a divided family, as otherwise, even under the ordinary Hindu Law, female relations would be excluded in preference to the undivided co-parceners. This is conceded by all the parties, so that the onus is on the person alleging the custom of showing by dear proof that the instance cited is the instance of a divided person. It is only in such cases that the taking of the property by the agnate would prove the exclusion of the widow or the daughter and this is the custom set up. There are several instances of the plaintiffs where there is nothing but the statement of a single witness to show that the instances cited refer to a person who is divided. There are several instances of the plaintiffs where there is nothing but the statement of a single witness to show that the instances cited refer to a person who is divided. The ordinary presumption of law is that a person is undivided, and the onus is on the party alleging it to prove division, and, if in cases where such instances can be proved by documentary evidence, for example, partition deeds, pattals, separate kist receipts or the separate transactions of the various members and no documents are produced, or, if in cases of oral partitions, the members of the family who divided or the widows concerned who are said to have been excluded are not, if alive, examined, and if the only evidence is the statement of a person not connected with the family or of a distant relation that the deceased was a divided member, I do not think I can hold that such instances have been proved. Although it may not be necessary to prove each instance as if that particular instance related to a suit which raised the issue of partition between the various co-parceners, I think there should be such proof as would reasonably satisfy the Court that the case which is cited is that of a person who is a member of a divided family. 21. As regards Aruppucooli, I have already stated that, according to the evidence, it was payable to all widows whether the family was divided or undivided and whether the husband had or had not property. The rate of Aruppwcooli also was not as pleaded a uniform amount payable, and the documents show that it varied from Rs. 30 to 100. Mere proof that Aruppucooli was paid would not therefore by itself afford any guidance. [His Lordship after dealing with the documentary evidence and the instances of custom proceeds as follow.] 22. The rate of Aruppwcooli also was not as pleaded a uniform amount payable, and the documents show that it varied from Rs. 30 to 100. Mere proof that Aruppucooli was paid would not therefore by itself afford any guidance. [His Lordship after dealing with the documentary evidence and the instances of custom proceeds as follow.] 22. I have now dealt with the instances which have been argued before us on both sides and I think it is clear from the instances which I have referred to above that, while the defendants have not shown any instances in Court where the custom set up was either alleged or recogined, the plaintiffs have proved that, in cases where parties went to Court, the widows were treated as the legal representatives of their husbands and decrees passed against them and no such custom as is now pleaded was set up, but, on the contrary Hindu Law of inheritance was treated as the basis on which the claims were adjudicated. It also appears that in cases where the dayadis could have gone to Court to assert their claim, no assertion was made. In one case the dayadi did not press the matter probably because the estate was small and in another case where the estate was fairly large the matter was compromised and the widows withdrew their application for succession certificate. The compromise proceeded on the footing that Hindu Law applied to them. There are cases where the widows conveyed properties belonging to their husbands not only to strangers, but, to members of the community, who presumably would have been aware of the custom if it existed, but, who did not choose to claim the property or interfere, even where the amount for which the property was sold was fairly large. We also find cases where widows lived in the houses of their husbands after their husbands death. We find in one instance that patta was transferred in the name of the widow after her husbands death, although pangalis were alive who could have taken objection if the custom was in existence. Having regard to the evidence on, both sides, I find it difficult to hold that the evidence adduced by the defendants as to custom satisfies the requirements which I have already referred to validate a custom that can be enforced by Courts in derogation of the ordinary law applicable. 23. Having regard to the evidence on, both sides, I find it difficult to hold that the evidence adduced by the defendants as to custom satisfies the requirements which I have already referred to validate a custom that can be enforced by Courts in derogation of the ordinary law applicable. 23. Great reliance was placed upon a statement in the "Madura District Gazetteer" and in Dr. Thttrstons book "Castes and Tribes of Southern India" that, in the community to which the parties belong, widows were excluded. We find in the "Madura District Gazetteer" the following statement Among those Puthunattars an uncommon rule of inheritance is in force. A woman who has no male issue at the time of her husbands death has to return his property to his brother, father or maternal uncle, but, is allotted maintenance, the amount of which is fixed by a caste Panchayat. 24. The custom which is set up here is different from that which the defendants want to establish in this case. It is not the general custom that agnates exclude all females however remote, but, that after the husbands death, if he leaves a brother or father, the property is to go to those two persons and maintenance is to be given to the widow. The statement in the above passage that the maternal uncle is to get the property is opposed to the custom now set up, as cognates have no place in the custom pleaded by the defendants. There is also nothing here to show whether daughters son is also to be excluded, if the person left a daughters son. No doubt the statement in "the Madura District Gazetteer" deserves great weight, but, I do not think it should be taken as conclusive especially where the evidence in the case does not support a uniform custom set up. [His Lordship after dealing with the evidence disclosed by certain affidavits filed in the case proceeded as follows.] 25. It is argued by Mr. Ramachandra Aiyar that the custom set up is unreasonable inasmuch as the widow, whatever may be the property of her husband, has to leave the house on receipt of 100 sheep or Rs. [His Lordship after dealing with the evidence disclosed by certain affidavits filed in the case proceeded as follows.] 25. It is argued by Mr. Ramachandra Aiyar that the custom set up is unreasonable inasmuch as the widow, whatever may be the property of her husband, has to leave the house on receipt of 100 sheep or Rs. 100, unmarried daughters are left destitute and dependant on the mercy of their maternal relations not even receiving maintenance till they attained age or any money for their marriage expenses and daughters sons are totally excluded in favour of agnatic relations however remote. I do not think we can reject a custom if it is otherwise proved. It should be remembered that the position of woman in the line of heirs under Hindu Law was one of slow and laborious growth, and that in the early stages of the Aryan community woman found no place in succession. Even under the Hindu Law, the sister was till recently excluded from inheritance altogether and sisters son only came in after his rights were negatived in more than one decision. These persons who would be nearer heirs according to modern conceptions had been excluded for centuries in favour of remote kinsmen. A person looking at the Hindu Law of Inheritance from a western standpoint would probably look at it with a mixture of wonder and pity especially when he forgets that the keynote to the system of inheritance is the capacity to benefit the soul of the deceased by offering funeral oblations. It is very probable that, when the community was in a nomadic state and the sole occupation was to rear cattle and sheep, women by reason of their incapacity to carry on the occupation were excluded from inheritance, but, as time went on and the primitive occupation was no longer the source of income for several persons, as these shepherds settled down in towns and villages and acquired property and were surrounded by persons who followed the Hindu Law of Inheritance and Succession, they began to adopt the ordinary rule of Hindu Law of Inheritance. Assuming for arguments sake that in the old days there was such a custom as is now set up, it has ceased to be uniform and invariable by reason of inroads made from time to time and I think it is too late in the day to revive it especially as it seems to me to be opposed to the present day rules of equity and justice. 26. The evidence in my opinion shows that there have been instances both ways, but, the defendants evidence falls far short of the standard required to prove a custom in derogation of the ordinary Hindu Law, 27. In the result Appeals Nos. 208 and 329 of 1922 are dismissed with costs. As regards printing costs, defendants have to pay, it will be divided between defendants 1 to 3 on one side and 4th defendant on the other. 28. As regards Appeal No. 328 of 1922, in view of my finding that the custom excluding widows has not been proved, it is not necessary to find whether there is a custom excluding half-brothers in favour of nephews of full blood. As the Hindu Law applies and as the deceased has left widows, daughter and daughters son, the question raised in this suit is purely speculative and I do not see any ground for deciding which of the two sets of reversioners who have at present merely a spes suceessionis and who may not at all have any rights in the estate are entitled to precedence. I may also state that the daughter is not a party to any of these suits and no adjudication between the two sets of reversioners would be of any use when the estate opens on the death of the widows. Under these circumstances the Appeal is dismissed but without costs throughout. Devadoss, J. 29. One Vanniya Kone, a shepherd by caste, died in June 1916 leaving behind him a daughter, two wives, a half-brother and three nephews by a deceased full-brother. The half-brother has brought O.S. No. 21 of 1917 against the three nephews for possession of the property of Vannia Kone alleging that he as half-brother is entitled to inherit the properties in preference to the nephews. The nephews plead that the half-brother is not the heir, as, by the custom of the caste, the full-brother and his descendants exclude the half-brother and his descendants. The nephews plead that the half-brother is not the heir, as, by the custom of the caste, the full-brother and his descendants exclude the half-brother and his descendants. The widows applied to be made parties to the suit and they were directed to bring a separte suit. They have accordingly brought O.S. No. 64 of 1917 against the three nephews and the half-brother for possession of the property alleging that they as widows are entitled to inherit to their husband under the Hindu Law in preference to the nephews and half-brother. The nephews and the half-brother resist the suit of the widows on the ground that, according to the custom governing the caste, widows without male issue have no rights of inheritance, but are only entitled to Aruppucooli or Kaimpenkur meaning widows perquistites of 100 sheep or Rs. 100. The Subordinate Judge of Madura tried both the suits together and decreed O.S. No. 64 of 1917 and dismissed O.S. No. 21 of 1917. The nephews have preferred Appeal No. 208 of 1922 against the decree in O.S. No, 64 of 1917 and the half-brother has preferred Appeal No. 328 of 1922 against the decree in O.S. No. 21 of 1917 and has preferred Appeal No. 329 of 1922 against the decree in O.S. No. 64 of 1917. The appeals have been heard together as the main question raised in issue No. 1 of O.S. No. 64 of 1917 is common to them all. The issue is Whether females are excluded from inheritance by the custom of the caste to which the parties belong as contended by the defendants.