JUDGMENT
Anantakrishna Ayyar, J.
1. Defendants 5 to 8 are the appellants in this second appeal. Defendants 1 to 4 are the daughter’s sons of Seetharamudu on whose death Gangalakshmi his widow took possession of those properties. In the case of an ordinary family governed by Mitakshara Law the presumption will be that Gangalakshmi had only a life-estate (widow’s estate) in the properties that came to her on the death of Seetharamudu. The appellants, that is, defendants 5 to 8 who are the alienees from Gangalakshmi and her daughters Rattama and Narasamma, set up a custom in the family of the parties by which in the properties inherited by a female, she would have absolute rights. The plaintiff claims as vendee from the daughters’ sons, namely defendants 1 to 4. Under the ordinary Hindu Law the plaintiff as purchaser from the daughters’ sons would be entitled to the property on the death of their mothers, namely daughters of Gangalakshmi. It is upon the appellants who claim as purchasers from the widow and her daughters to prove that they got an absolute interest in the properties.
2. The learned advocate for the appellants contends that by virtue of a special custom, his vendors were absolutely entitled to the property. All that is in evidence in this particular case is that the family of Gangalakshmi, Rattamma and Narasamma originally belonged to dancing women caste. But whatever might be the position of affairs before Gangalakshmi, it is clear that, Gangalakshmi left off her profession and married Seetharamudu, and it is by virtue of that marriage and as heir of Seetharamudu that Gangalakshmi claimed right to these properties. No custom among dancing girls could ordinarily provide for a case of a dancing girl succeeding to the properties of her husband because the very idea is that the “dancing girls” do not “marry” and do not have “legal husbands” whose properties they could “inherit.” Therefore, it is not likely that there would be any such custom as is set up on behalf of defendants 5 to 8. Objection is, however, taken by the learned advocate for the appellants to the statement made by the learned Subordinate Judge at p. 2, namely:
we have here the important fact that the women of this family have not been carrying on their caste profession and were leading married lives.
3. Therefore, the custom that exists in the family should not be held to be not binding upon them and it is complained that the lower appellate Court has not disposed of the case in a satisfactory manner. I am not, however, clear that the learned Subordinate Judge has in any way misdirected himself in the disposal of the appeal. But whatever that may be, the onus is really upon the appellants to prove the custom set up by them. On questioning the learned advocate for the appellant to point out to me the evidence that has been let in to prove the alleged custom he admitted (and very properly) that there is no such legal evidence at all in this particular case, as would prove a custom. That being so the finding on the first point raised before the Court is correct.
4. The second point raised is that the alienation evidenced by Ex. 1 under which the appellant’s claim should be upheld because it was an alienation made not only by the widow Gangalakshmi but also by the next reversioners, namely, her daughters Rattamma and Narasamma. It is argued that because the next reversioners also joined with the widow in making the alienation, therefore, there is a presumption that the alienation was for binding purposes, and that the onus will be upon the ultimate reversioner to prove that the alienation was not binding. In this particular case there is the fact that the next reversioners who joined in the alienation are Rattamma and Narasamma who too had only life-estates. But without pursuing this point further, I may say that we have got in this case the finding of fact by both the lower Courts, on a consideration of all the circumstances and the evidence let in the case, that no necessity for the alienation (Ex. 1) has been made out. That being so, no question of presumption arises. The finding has been arrived at having regard to all the evidence let in the case. I think that finding is binding upon me in second appeal, and consequently I think there is nothing in the second point raised by the learned advocate for the appellants. This being my view on both the points raised on behalf of the appellants, I think the second appeal should be dismissed, which I hereby do, with costs.
