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".....As a first measure, such a custom should be pleaded in specific terms what the custom is, upon which a party is relying on, regard within the scope of Order VI Rule 3 of C.P.C. appears to be settled by the Supreme Court in more than one precedent........."

It is also difficult to accept the contention of the learned Advocate that such a custom among such communities is judicially noticed. It is true that the Courts can notice the existence of such a custom under Section 57 of the Evidence Act which dispenses the proof of the same by virtue of Section 56 of the Evidence Act. Therefore, where it is not established as a custom not judicially noticed, such a custom can be set up and established like any other custom and there is no bar to raise such a plea and proof. It may be noted that what is judicially noticed in precedents supra is that there exists a custom among Hindus to give some properties including immovable properties to a daughter or sister at the time of marriage or alter towards Pasupukunkuma and not specifically that such a custom exists in particular communities like Kammas etc, as alleged or contended. Only to that extent, the court can take judicial notice under Section 57 of the Evidence Act which requires no proof by virtue of Section 56 of the Evidence Act. But still the fact remains whether the plaintiffs have proved such a fact of gifting the suit lands to Rajamma by her father, as rightly stated by the learned Sub Judge. The learned Sub Judge has rejected the proof of the alleged gift of suit lands to Rajamma towards Pasupukunkuma by her father. Number of reasons are given in support of the same. This court finds no reason to the contrary as they are based on evidence and unexceptionable. It is true that Chowdaramma had only a son and a daughter. He was a rich man., He owned more than Ac.200.00 of land. It was not improbable if he had either contemplated or given any properties to his only daughter Rajamma towards Pasupukunkuma. There was no reason for providing her maintenance as, admittedly plaintiff No. 1 himself was a rich man. Even the extent of the suit lands is not so much as to doubt the donor's intention to make them a gift towards Pasupukunkuma. It is nobody's case that nothing else was given to plaintiff No. 1 or Rajamma at the time of marriage except the suit land s to make it a part of the marriage presentation. As we can understand, the tone and tenor of the case and the evidence of the plaintiffs, such a gift was some thing more than the normal presentations or gifts at the time of marriage. Except plaintiff No. 1 and his brother P.W2, no other person has come forward to speak about such a gift. The marriage of plaintiff No. 1 with Rajamma took place in the year 1925. At that time plaintiff No. 1, P. W2 and Rajamma were not only minors, but practically they were the infants aged not more than 10 to 15 years. It is pointed out that P.W. 2 was hardly 10-year-old in the year 1925. Their mental maturity, their knowledge and their understanding of the decision of elders and their conduct in giving certain gifts including Pasupukunkuma can never be a safe basis to accept the proof of the same. The testimony of plaintiff No. 1 and his brother P.W 2 is found to be totally unsatisfactory in regard to the proof of such a gift. If we go by the requisites of a gift in Hindu Law, it appears to be mandatory that a gift under the law is not valid unless it is accepted and accompanied by delivery of possession of the subject of the gift from the donor to the done. Therefore, even while not making the provisions of the Transfer of Property Act applicable to such a gift towards Pasupukunkuma, the law appears to be that even where there is a registered deed by a donor, there cannot be any proof of acceptance by the donee and the acceptance must be proved as a independent fact (Item 358 at pages 476 and 477 of Mulla's Hindu Law 15th Edn.). The testimony of P. Ws 1 and 2 does not indicate that there was any manner of acceptance of gift by Rajamma from her father at any time till she died, except stating that she was in possession of the same and was receiving the produce from defendant No. 1. It is true that the delivery of possession of the gifted property may constitute the acceptance of gift. In this case, it is found that the possession of the suit lands never passed on to Rajamma at any time nor she exercised any act of possession over the same. The lands remained in the possession of defendant No. 1 throughout. There was no mutation of the record s in the name of Rajamma so far as those lands are concerned, there was no payment of land revenue by her, there was no mention of her name in any revenue records in regard to the suit lands at any time till she died. Regarding the payment of the usufruct or the income from the suit lands to Rajamma, the matter has remained only in the testimony of plaintiff No. 1 and P.W.2. Their interested testimony is found to be conflicting and inconsistent with the realities. It is true that admittedly, Rajamma and defendant No. 1 were on cordial terms throughout. When her husband Plaintiff No. 1 was himself a rich man having lot of movable and immovable properties in Karamchedu village arid in Madras and acquired lot of money in film-business, it is highly improbable that she had a need to insist payment of any usufruct from defendant No. 1, nor in her good relationship with the only brother, would ask him to pay the income from the land. Even assuming that he spared some income not only from the suit lands, but the other properties of the family to a sister that cannot partake the conuct of a person in sparing the income from the lands towards the right of the other person. The circumstance that plaintiff No. 1 and his brother P.W2 were managing their lands at Karamchedu village and not cultivating or arranging for cultivation of the suit lands for a long time or perhaps at no time, is inconsistent with any gift of the lands to Rajamma. It is nobody's case that Rajamma had at any time evinced any interest in the management or cultivation of the suit lands. Therefore, if at all they were managed on her behalf, that must be by the first plaintiff either directly or through his brother P.W.2. Regarding the management of the lands also, the evidence of the plaintiffs is not consistent or probable. In the plaint, the plaintiffs came out with a theory that the property that was gifted to Rajamma was managed by defendant No. 1 subsequent to 1953 as she along with plaintiff No. 1 went to Madras and settled down there. But in the evidence plaintiff No. 1 came out with a different theory. According to him, his father cultivated the suit lands personally till 1941 and leased out them for some time and that he managed them up to 1953 and thereafter defendant No. 1 managed them. The conflict between the plea and proof cannot be accepted in law. Even then, he was not able to prove such a changed version. Admittedly, both plaintiff No. 1 and P.W.2 have got their lands at Karamchedu village and they personally cultivated them for some years and leased out them for some years and, as rightly pointed out by the learned Sub Judge, it is highly improbable that they would have allowed the suit lands to be looked after by defendant No. 1 subsequent to 1953. Admittedly, P.W.2 remained in the Village although plaintiff No. 1 and his wife went to Madras and there was no difficulty to manage the lands by P.W.2. Plaintiff No. 1 and P.W.2 were not able to give the correct boundaries of the suit lands when tested in cross-examination. Their demeanour and expressions are rightly noted by the learned Sub Judge; as well versed persons in litigation and experienced they would not have failed to get the lands mutated in the name of Rajamma or paid the cyst if they had actually cultivated the lands of behalf of Rajamma. Thereby it is rightly concluded by the learned Sub Judge that plaintiff No. 1 or his brother could not have managed the suit lands till the year 1953 either by themselves or through their father till he died or get them cultivated. On the other hand it is found from the testimony of defendant No. 2 as D.W.I and D.Ws. 5 to 10 (which includes some of the defendants) and also the lease deeds - Exs.B-7, B8, B-26, to B-33 - most of the mare in the hand-writing of P.W.I himself- show that the suit lands were being cultivated through some of the defendants by defendant No. 1 and with the assistance of plaintiff No. 1 The testimony of the witnesses stated above, corroborates the testimony of defendant No. 2 in regard to the cultivation of the suit lands with the management of defendant No. 1. so, the whole theory of the plaintiffs about the management of the suit lands in various ways stated above appears to be improbable and not true.