1. It is impossible to support the judgment of the Court below in this case. The suit out of which this appeal arises was brought by the plaintiff-appellant for possession of a half share of the estate left by her deceased husband one Bason. He died in the year 1891 leaving him surviving the plaintiff his widow and Musammat Sobrani his mother. The names of these ladies were entered in the-revenue papers in place of that of Basori, In 1901 Musammat Sobrani died. As the defendant took possession of a half share of; the estate of Basori after the death of his mother, the plaintiff brought the present suit for recovery of the half share and for mesne profits. The claim was resisted on the ground that according to a custom' prevailing among Jains Parwar, to which class the parties belong, the estate of a person who died childless Was inherited in equal shares by his mother and his widow in absolute right; that according to this custom Musammat Sobrani succeeded to a half share of her son's estate; and that she made a gift of it to the defendant who is her son-in-law.
2. The Court of first instance found that the custom alleged by the defendant was not established and accordingly decreed the claim.
3. On appeal the learned Judge has set aside the judgment of the Court of first instance and has dismissed the claim holding that the custom set up by the defendant was proved.
4. It is contended in this appeal that the Court below was wrong in holding that a reasonable, continuous and ancient custom had been established. According to the recent Full Bench ruling in Ram Bilas v. Lal Bahadur 30 A. 311 : 1903 A.W.N. 112 : 5 A.L.J. 456 : 4 M.H.T. 169 the question as to the existence or non-existence of a particular custom is one of law, and the High Court is entitled in second appeal to consider whether the finding of the Court below on such a question is based upon sufficient evidence. We have considered the evidence in this case and are surprised on the basis of such evidence, the learned Judge has held that the alleged custom was established. The custom set up is one in derrogation of the ordinary law of inheritance among Hindus. It was, therefore, the duty of the defendant, who set up such a custom, to establish it by cogent and conclusive evidence.
5. The only evidence he adduced consisted of the evidence of four witnesses besides his own statement. He himself was not aware of any instance save one, namely that of Kishen, whose property he said had been divided by his widow and his mother. The witnesses Badli and Ghunchi prove nothing. They only mention the case of one Puran whose property had, they said, been divided between his widow and his mother, but their statement on the point was hearsay. They were unable to refer to any other instance. The witness Kashi Prasad mentioned the case of his own sister who jointly with her mother-in-law is said to have inherited her husband's property. He also mentioned the case of one Rajju but whether his knowledge in regard to the succession to Rajju's property was derived from hearsay or he was personally acquainted with the facts does not appear from Kashi Prasad's. evidence. A witness Ganpat mentions the case of Puran but he does not say whether he had personal knowledge of Puran's wife having divided the property with his mother after his death. He says that in Lalitpur and Tikamgurh there are many Parwar Jains but he is not aware of any other instance in which property was divided between the widow and the mother of a deceased person who died childless.
6. We have thus the evidence of only one witness Kashi Prasad, who speak of one instance in which property was divided between the mother-in-law and daughter-in-law. But one instance certainly cannot establish a custom. A custom, the effect of which is to vary the ordinary law of inheritance prevailing among Hindus, must be proved to be ancient and invariable. The evidence of a single witness and the fact that in one instance, and probably another, property was divided between a deceased person's widow and his mother cannot be regarded as evidence establishing the existence of a custom.
7. Furthermore there is no evidence whatever to prove that even if the mother gets share in the estate of her son jointly with his widow the share so obtained is her absolute estate. There is absolutely no evidence in the present case to prove the nature of the estate acquired by the mother even if the alleged custom be held to be established. The learned Judge says that the witnesses do not 'Make mention of any limitation of the mother's interest,' and it is for this reason that he holds that the mother acquired an absolute interest in the property. We are wholly unable to accept the view adopted by the learned Judge. It was for the defendant not only to prove that the mother of the deceased succeeded to his' estate jointly with his widow but he had also to prove that the mother took an absolute estate. The defendant has utterly failed to do so. The plaintiff upon the death of her husband became entitled to the whole of his estate' and she certainly became entitled to it upon the death of Musammat Sobrani.
8. As to the claim for mesne profits the defendant raised no plea in his memorandum of appeal to the lower appellate Court in respect of the finding of the Court of first instance on the point. We must, therefore, accept that finding as correct.
9. The result is that we allow the appeal and setting aside the decree of the Court below restore that of the Court of first instance with costs in all Courts.