1. The suit which has given rise to this appeal was brought by the appellant for possession of a half share of the village Wair Badshahpur in the District of Bulandshahr, which had been granted to his father Asghar Ali by the British Government for services rendered during the Mutiny of 1857. Asghar Ali was originally a resident of the town of Palwal in the Gurgaon District, now appertaining to the Punjab. He held various appointments and finally became Tahsildar of Azamgarh, where he rendered the good service for which he obtained the village of Wair Badshahpur. He died in 1876 leaving him surviving two widows, Moti Begam and Sakina Bagam, a son, Ali Asghar, the per sent plaintiff, and two daughters. Sughra Bagam and Saera Begam. The children were the issue of his marriage with Moti Begam. At the time of his death the son Ali Asghar was very young. Saera Begam is dead and her heirs are defendants to the suit, so also is Sughra Begam. In 1892 the widows applied to the Government to take over the estate in the Bulandshahr District under the management of the Court of Wards. An inquiry was held and it was reported that the property belonged to the two widows, the son and the daughters of Asghar Ali, they being his heirs under the Muhammadan Law. The Government declared the two widows and Sughra Begam, who were adults, to be disqualified proprietors and the Board of Revenue ordered that the Court of Wards should assume charge of the estate as the property of all the heirs of Asghar Ali (see page 78R).
2. In 1897 Ali Asghar attained majority, but it was not until 1910 that one half of the property was released in his favour. The remaining half is still under the management of the Court of Wards on behalf of Sughra Begam and the heirs of Saera Begam. For this reason the Court of Wards has been made a defendant to the suit. The widows of Asgbar Ali being dead, one half of the property devolved under the Muhammadan Law on Ali Asghar, the son, and the other half on his sisters or their heirs. It is this half share which is claimed by the plaintiff in this suit and his claim is founded on the allegation, as contained in the 7th paragraph of the plaint, that 'according to the personal law and the custom prevailing in Palwal, the residence of the plaintiff and his ancestors, and in the District of Gurgaon...and the entire Province of the Punjab, the daughters and their issue do not in any case get a share in the paternal estate in the presence of the son.'
3. A contention was raised that the alleged custom being contrary to Muhammadan Law which governs inheritance among Muhammadans, no evidence could be given to prove it. This contention is supported by the decision of a Full Bench of this Court in Surmuet Khan v. Kadir Dad Khan (1866) Agra F.B. Ruling 38 which was followed in Jammya v. Diwan 23 A. 20 : A.W.N. (1900) 181 and Ismail Khan v. Imtiaz-un-nisa 4 A.L.J. 792 : A.W.N. (1908) 7. In the case last mentioned an appeal was preferred to the Privy Council and their Lordships set aside the decision of this Court and remanded the case with directions to take evidence in proof of the alleged custom. The judgment of their Lordships is reported as Muhammad Ismail Khan v. Shecmukh Rai Imtioz-un-nissa 18 Ind. Cas. 571 : 17 C.W.N. 97 : 15 Bora. L.R. 76 : 17 C.L.J. 143 : 12 M.L T.614 : (1913) M.W.N. 27. We must, therefore, take it-that in the opinion of their Lordships evidence is admissible to prove the alleged custom, although it is at variance with Muhammadan Law. The Trial Court accordingly took evidence, but it came to the conclusion that the custom set up by the plaintiff was not proved and dismissed the suit. Upon appeal to this Court the learned Judges who heard the appeal differed in opinion on the question of custom, the learned Chief Justice holding that the custom was proved whilst the view of Mr. Justice Refigure was in accordance with that of the lower Court. Hence this appeal under the Letters Patent. I need hardly observe that the custom alleged by the plaintiff being contrary to the Muhammadan Law of inheritance, it lay heavily upon the plaintiff to prove it by very cogent evidence. He must show not only that the custom exists but also that it is ancient, certain and invariable; The plaintiff does not assert that the custom prevails in the District of Bulandshahr, where the property in dispute is situate but he alleges that it obtains in the whole of the Punjab, in the District of Gurgaon and in the town of Palwal and that it is the personal law of his family whereby inheritance to his family property is governed. It must be remembered that the District of Gurgaon was a part of the North-Western Provinces, now called the Province of Agra, and was not annexed to the Punjab until the year 1858. In order, therefore, to establish the antiquity of the alleged custom it was necessary for the plaintiff to prove that it prevailed in Gurgaon before its inclusion in the Punjab, This, in my opinion, he has entirely failed to do. Of the numerous instances mentioned by the plaintiff's witnesses only a very few, not more than eight at the most, relate to the period when Gurgaon was a part of these Provinces and as regards even these instances the statements of the witnesses are vague and it has not been alleged that daughters had claimed their legal share and were excluded from it. No documentary evidence has been produced on the point and it seems that none exists. The wajib-ul-arz of Palwal prepared at the Settlement of 1854 appears to be extant, as the defendants have filed an extract from it, showing the names of co-sharers in that town (R 99). Had any custom such as that alleged by the plaintiff prevailed at Palwal it would have been recorded in the wajib-ul-arz and the plaintiff would undoubtedly have produced a copy of the record. The non-prod action of the wajib-ul-are is, in my opinion, a very significant circumstance. I also find that in years subsequent to the annexation of Gurgaon, daughters succeeded to their father's property and transferred it by sale or mortgage. A number of documents have been produced and proved from which it appears:
(1) That on 1st January 1864 and 4th July 1864, the widows and sister of one Azimullah of Palwal sold property to a resident of the same place as their ancestral property (see R 41 and R 44);
(2) that on December 26tb, 1865, the son and the daughter of Wazir Ali of Palwal executed a sale deed of property inherited by them from their father (R 43);
(3) that in a sale-deed, dated 16th December 1867, it was stated that the son and daughters of Inayat Ali of Palwal were in possession of his property as heirs (R 48);
(4) that in 1868 three sale-deeds were executed on 23rd and 25th July and 13th December, respectively, the first by the daughter and the widow of Bakhsh Ullah, the second by the daughter of Ismat Ullah, Nur Mohammad and Pirbakhsh and the third by the daughter of Ghulam Ghaus, all of Palwal, in respect of their 'ancestral' shares in that town (R 50, R 53 and R 55); and
(5) that on 27th February 1869, the widow and daughter of Ghulam Ghaus of Palwal executed a mortgage (R 69).
4. The fact that daughters transferred property and described it as ancestral clearly shows that they inherited property and remained in possession thereof and were not excluded from inheritance. There is nothing to justify the assumption that they had acquired the property otherwise than by inheritance. It is said that the transferees, in order to secure themselves against any possible claim by the daughters, got them to join their male relatives in executing the documents, but this would have been unnecessary had an invariable custom of exclusion prevailed. The very fact of the purchasers being apprehensive of a claim by the daughters negatives the existence of a well established custom which was certain and invariable. The vendors and the purchasers were both residents of Palwal and the latter would have been well aware of the custom had any prevailed. Furthermore, the executants of most of the documents mentioned above were ladies only and there is, therefore, no room for the suggestion made on behalf of the plaintiff.
5. It appears that in 1876 a daughter--belonging to Palwal--claimed her share under the Muhammadan Law, in respect of property in that town, against her brother and transferees from him and obtained a decree on 31st May 1876 (R 70). The suit was contested by the brother but neither he nor his transferee set up the custom now put forward and alleged that a daughter was, by oustom excluded from inheritance. This also is, in my opinion, a strong circumstance against the existence of an invariable custom of exclusion of daughters.
6. The chief reliance of the plaintiff is on the document called the riwaj-i-am which records customs ascertained by the Settlement Officer as existing in particular localities. In the riwaj-i-am of Palwal and of the District of Gurgaon (A 225 and 227) it is stated that 'the right of inheritance does not devolve on a daughter in any case.' The custom prevailing among 18 castes is mentioned and it is recorded that 'in the caste of Saiyids and Sheikhs the right of inheritance devolves on the widow, son, grandson, and great-grandson in preference to a daughter.' The Settlement of the Gurgaon District was begun in 1865 and the riway-i-am was prepared in 1877. The mode in which an enquiry as to existing custom was made and the riwaj-i-am was prepared is narrated in Tupper's Punjab Customary Law and in the Settlement Report of the Gurgaon District. It appears that numbers of headmen were assembled and questioned and the result of the enquiry so made was recorded. It is more probable, so far as the Gurgaon District was concerned, that the custom recorded was the custom which the residents desired to adopt in common with the agriculturists of other neighbouring districts in the Punjab, where the custom was of great antiquity, than that it was a custom which had previously obtained in that district. As observed by Sir William Rattigan in his well-known work, The Digest of Civil Law for the Punjab, the evidential value of the riwaj-i-am 'varies considerably as to what that unwritten law is.' He says that...'when based on authenticated precedents the value of such records is great. But where the Settlement Officer, charged with the preparation of such records, has shaped public opinion on most questions in the direction in which he himself and others of longer experience thought equitable, as Mr. Thor-burn candidly acknowledges he did in the Bannu District, the value of entries purporting to expound local customs is obviously reduced to zero. And it must, I fear, be added, that in the Settlement Records of other districts also, although we may not have a similar candid avowal with respect to them on the part of the Settlement Officer, such as Mr. Thornburg supplies, identical influences would nevertheless explain many of the most dogmatic statements of alleged customs which occur in them, for which no precedents are pitted and fop which probably none would be found to exist' (page 2). In a foot note on page 13 he remarks that 'the riwaj-i-am not being a part of the Settlement Record, its authority is just that due to the precedents on which it rests, which should be examined and tested.' And in support of this opinion he has cited a number of rulings of the Punjab Chief Court. It does not appear what the precedents are on the authority of which the riwaj-i-am of Gurgaon was prepared, It is, therefore, difficult to place on that document the value which is claimed for it. Moreover, it is stated in the document itself that 'there are many instances...in which on the death of a father, the property devolves on his daughter,' but it is said 'that this does not appear to be by right of inheritance'.
7. The reason assigned appears to be merely a surmise but the fact remains that according to the particular riwaj-i-am on which the plaintiff relies the property of an owner has in many instances devolved on his daughter thus neatening the existence of an invariable custom. I notice that in certain recent decisions the Punjab Chief Court has held that the riwaj-i-am by itself is not sufficient to prove a custom and raises no presumption as to its existence. The value of each riwaj-i-am depends on its own circumstances.
8. It is conceded on behalf of the plaintiff that; the riwaj-i-am records customs by which agricultural tribes and agriculturists are governed. It has been held by the Punjab Chief Court that by an agricultural tribe is meant a tribe whose principal means of livelihood is agriculture see Muhammad Hayat Khan v. Sandhe Khan 55 P. R. 1908 : 105 P. W. R. 1908 and that a non-agricultural tribe is not governed by the custom recorded in the riwaj-i-am Gohra v. Hari Ram 115 P.R 1907. We have, therefore, to see whether, Asghar Ali was an agriculturist or biswadar. The evidence clearly shows that he was not originally a co-sharer (biswadar) in Palwal. An extract from the wajib-ul-arz of that town for 1854, which has been produced on behalf of the defendants, sets forth a complete list of the biswadars (proprietors) of kasba Palwal, but in that list the name of Asghar Ali or that of any of his ancestors finds no place. The great portion of his life was spent in service outside the Punjab and it was not until after the mutiny that he acquired some property in his native place Palwal. All that he owned was a few bighas of land attached to a well known as Sailahgarh Well. My learned colleague has dealt at some length with this part of the case and has referred to the evidence on the point. I deem it unnecessary to go over the same ground. It is sufficient to say that I fully agree with him in holding that it has not been proved that Asghar Ali was a biswadar and agriculturist. The custom recorded in the riwaj-i-am does not, therefore, govern the succession to his property.
9. A large amount of oral evidence has been adduced on behalf of the plaintiff to show that in numerous cases daughters have not succeeded to their father's property. I am unable to place much value on this evidence. The instances cited relate mostly to the period subsequent to the preparation of the riwaj-i-am and hardly any case has been cited to show that a daughter was excluded after contest. It may be that in the instances referred to, the daughters were married into well-to-do families and did not like to claim their shares from their brothers. It may also be that they lived with their brothers and were supported out of the income of the paternal estate. In the absence of clear and satisfactory evidence on these points the bare fact of daughters not taking a share proves very little. The witnesses for the defendants have, on the other hand, referred to a fairly large number of instances in which daughters have shared their father's property with their brothers. Although these instances are not as numerous as those mentioned by the plaintiff's witnesses, they clearly establish that an invariable custom of exclusion does not exist. It is noteworthy that we do not find in the Punjab Record any precedent in which in the district in question a brother was held to exclude a sister.
10. It is said that the fact of the name of the plaintiff alone being entered in the revenue papers of Wair Badshahpur after the death of Asghar Ali raises the inference that it was conceded by his daughters that they had no right because of the existence of the alleged custom. In my opinion this circumstance is entitled to very little weight. It is common knowledge that in many 4J8 tricts is this Province, where admittedly no custom of exclusion of daughters exists, the name of the brother alone is entered, specially when daughters live with their brother. In the present case the plaintiff was very young when Asghar Ali died. The whole family, consisting of the two widows, the son and the two daughters, lived together and were maintained out of the income of the property. Both the widows got them selves appointed guardians of the minor and both of them applied to Government to take over the estate and place it in charge of the Court of Wards. Asghar Ali had left heavy debts and the family was in an impecunious condition. It was for the payment of these debts that the widows prayed that the estate should be managed by the Court of Wards, the family undertaking to support itself, apparently in penury, from the income of the little property they had in Palwal. All this shows that it was never intended that the daughters had no interest in the property. I have already stated that the Court of Wards took charge of the estate not only on behalf of the plaintiff but also on, behalf of the widows and the daughters. It went so far as to fix a separate allowance for Sughra Begam. It is also a significant circumstance that although the plaintiff attained majority in 1897 he did not claim the whole estate until 1910.
11. After giving the case my beat consideration I am unable to hold that the plaintiff has proved an ancient invariable custom in derogation of Muhammadan Law, whereby a daughter is excluded from inheritance. The suit was, therefore, rightly dismissed and I would dismiss the appeal.
12. The suit out of which this appeal arises relates to a portion of the estate left by one Saiyed Asghar Ali, who died as long ago as the year 1876. His personal history requires to be noticed as an aid to the correct appreciation of the questions which arise for disposal. He was born at the town of Palwal in the Gurgaon District, at a time when that district formed part of the territories administered by the Lieutenant-Governor of the North-West Provinces. He went abroad at an early age to seek his fortune. He first enlisted as a sipahi with the Raja of Ballabgarhbut afterwards took service under the District Government, becoming a Sub-Inspector of Police and later a Tahsildar. During the mutiny he was stationed at Azamgarh, where heiendered faithful and distinguished service. As a reward he received from Government a grant of the entire village of Wair Badshahpur in the Bulandshahr District. The same sort of influence which made William Shakespeare in later life a landed proprietor at Stratford on-Avon drew Saiyed Asghar All back to his native town. He made purchases of land there; and it seems fair matter of inference from the evidence that he must have lived beyond his means in order to cut a figure in the eyes of his townfolk. He left him surviving two widows, Moti Begam and Sakina Begam, a son named Ali Asghar and two daughters, Sughra Begam and Saera Begam. In the Bulandshahr District the son, Ali Asghar, was recorded as sole proprietor of Wair Badshahpur, under the guardianship of his mother and step-mother. The estate, however, was crippled with the debts contracted by the father, and in 1&88 we find a decree for a large amount passed in favour of the Bank of Upper India, Limited. In 1893 the two widows threw themselves on the mercy of Government, asking that the Bulandshahr property might be taken under the management of the Court of Wards and nursed into solvency. The ladies offered to support themselves and their minor children on the income of the Palwal property, though protesting that it was barely sufficient for the purpose, and to leave the entire income of Wair Badshahpur available for clearing off the debts. The Court of Wards took over the village, substantially on these terms. The usual preliminary inquiries were made as to the names of the owners of the property and it was assumed, without question raised at the time, that it had devolved in accordance with the rules of the Muhammadan Law of inheritance and belonged to the two widows, the son and the two daughters of the original grantee. The question of ownership was raised later, when Ali Asghar opposed an application by one of his sisters for the grant of a maintenance allowance out of the income of the village. It was brought to a head when the Court of Wards released only half the village to Ali Asghar on the latter's attaining majority. One of the daughters, Saera Begam, is now dead; and it has been assumed in argument before us that the present possession of the parties represents correctly the devolution of the property concerned according to the rules of the Muhamraadan Law. The plaintiff Ali Asghar is in possession of one half of the village of Wair Badhshahpur; he is suing to recover possession of the other half from the Court of Wards, which is holding the same on behalf of the surviving sister, Sughra Begarn, and of the heirs of Saera Begam.
13. The parties are Sunni Muhammdans, and it lies on the plaintiff to satisfy the Court that he is not bound by the law of inheritance generally applicable to his coreligionists. He is in fact seeking to deprive his sisters of a right expressly conferred on them by the revealed law. The directions on the subject are to be found in the Fourth Chapiter of the Koran, entitled 'Women.' I quote the relevant passages from Sale's Translation: 'Men ought to have a part of what their parents and kindred leave behind them when they die and women also ought to have a part of what their parents and kindred leave, whether it be little, or whether it be much, a determinate part is due to them.' Then a few lines further on, prefaced by the emphatic words, 'God hath thus commanded you concerning your children,' comes the definite rule: 'A male shall have as much as the share of two females, but if they be females only and above two in number, they shall have two-thirds of what the deceased shall leave.'
14. The plea with which the plaintiff came into Court was that 'according to the personal law and the custom prevailing in Palwal, the residence of the plaintiff and his ancestors, and in the District of Gurgaon, part of the Province of the Punjab, and the entire Province of the Punjab, the daughters and their issue do not in any case get a share in the paternal estate in the presence of a son.' In the witness-box the plaintiff stated his case thus: 'in our family the daughters do not get the inheritance in the presence of sons, widows and greatgrand-son's. Daughters do not get a share even in the presence of near relatives. The custom prevails among both the Hindus and the Muhammadans. It has been in vogue from the time of the ancestors.... I have never come across any instance of a girl who may have inherited any property, nor did any girl of our family ever inherit any property.' The first Court having decided against the plaintiff, the latter's position is thus defined in the memorandum of appeal to this Court: 'The succession to the estate of Asghar Ali is governed by the personal and Customary Law governing the succession to the estates of the members of his community at Palwal.'
15. The defendants in reply may be said to have entrenched themselves behind a triple line of defence:
(I) First they plead that it was not open to the plaintiff to set up, or to prove, any custom in derogation of the Muhammadan Law of inheritance.
(II) Secondly, while admitting that there is 'a local custom at Palwal' under which daughters do not succeed to any share in the paternal inheritance in the presence of sons, they plead that this custom prevails only amongst 'old biswadars,' that is, co-sharers in landed property, and that neither the plaintiff himself, nor his father before him, nor the immediate ancestors of family could be correctly described as 'old biswadars.'
(III) Thirdly, they plead that the alleged custom, even to the limited extent to which its existence is admitted, is 'one of the incidents' of the ownership of agricultural land in Palwal, and could in no case govern the succession to property situated in the District of Bulandshahr.
16. It is an essential part of the plaintiff's case, as laid before us in argument, that the evidence on the record should first of all be considered in reference to the pleadings of the defendants as above set forth. He claim, if I may so express it, that he has carried these three lines of entrenchments by direct assault. He denies the proposition of law enunciated in the first plea. He claims to have proved that his family are 'old biswadars' of Palwal, within the meaning of the admission contained in the second plea; and he contends that, if this be once established, there is nothing on the record to warrant the limitation sought to be imposed by the third plea on the admission contained in the second.
17. Over and above this, the plaintiff claims to have turned the second and third lines of entrenchments by a wide flanking movement. He is in no way bound to establish a custom limited to 'old biswadars' of Palwal. He sets up a custom which the Court is at liberty to call a 'local', a 'tribal' or a 'family' custom, as it may think proper, but at any rate he claims to have established that, in the family to which the parties belong, daughters take no share in the paternal inheritance in the presence of sons.
18. The first line of defence the plaintiff may be said to have carried, though not without appreciable losses. A few years ago it would have been held by this Court to be impregnable. For many years this Court adhered inflexibly to a principle first laid down in Surmust Khan v. Kadir Dad Khan (1866) Agra F.B. Ruling 38 and re-affirmed in Jammya v. Diwan 23 A. 20 : A.W.N. (1900) 181. This principle was, in effect, that the provisions of Section 37 of the Bengal Civil Courts Act of 1887 forbade the Civil Courts of this Province to entertain a plea that Muhammadan litigants, admittedy governed in a general way by the ordinary rules of Muhammadan Law, were subject in matters of inheritance to any custom of succession at variance with that law. It so happened that the question came up again before this Court in connection with a litigation the parties to which were not residents of this Province, but belonged to a family of immigrants from Baluchistan. In that case Ismail Khan v. Imtiaz-un-nisa 4 A.L.J. 792 : A.W.N. (1908) 7 this Court applied the old rule. The case was taken to the Privy Council in appeal, and their Lordships directed evidence to be taken in proof of the alleged tribal or family custom. Vide Muhammad Ismail Khan v. Sheomukh Rai (Imtiaz-un-nissa) 18 Ind. Cas. 571 : 17 C.W.N. 97 : 15 Bora. L.R. 76 : 17 C.L.J. 143 : 12 M.L T. 614 : (1913) M.W.N. 27. The Court below has, therefore, rightly permitted the plaintiff to adduce evidence in proof of the custom set up by him, and that evidence it is our duty to consider.
19. It seems important, however, to appreciate fully what it is that the plaintiff sets out to prove. He belongs to an ancient family of Saiyeds, claiming descent from the Founder of Islam. The presumption is that there was a time when this family observed the riles of inheritance as laid down in the revealed law. The first we hear of them in India is as a family of settlers in the town of Palwal, living presumably under Muhammadan rule and at no great distance from the capital of the Moghal Empire. From the rule of the Moghals the District of Gurgaon passes under the control of the British Government, and it belongs thereafter to a Province where the Bengal Civil Courts Act enjoins upon the Local Courts to administer to Muhammadan litigants the Muhammadan Law on questions of inheritance. It seems to lie very heavily on the plaintiff to satisfy the Court as to when and how, under the circumstances above stated, it first became an established custom in his family for the sons to deprive the daughters of the share in the paternal inheritance expressly and emphatically reserved to the latter by the words of the Prophet himself.
20. The second line of defence is not to be carried by direct assault in the manner suggested on behalf of the plaintiff. I feel no hesitation in holding that neither Syed Asghar Ali himself nor any of his ancestors, as to whom information is available on this record, can be correetly described as an 'old biswadar' of Palwal. The word 'biswadar' is derived from the biswa, the twentieth portion of a bighas, the common land measure unit of Northern India. It is defined in Platt's Dictionary as meaning the holder of a share or shares in a co-parcenary village.' It crops up again in a judgment printed at pages 132A et seq. of this record, a judgment arising out of a litigation in this very town of Palwal, in which it is clearly explained that Muhammadan residents of that town who are not biswadars are presumably governed by the ordinary law in matters of inheritance, though it is presumed that biswadars are not. Elsewhere in this record it is used as the equivalent of the common word 'biswadars' or 'co-sharers,' familiar in the revenue records of these Provinces. The defendants have placed on the record (pages 99 and 100 R) a copy of the list of biswadars of patti Khel and malguzars of Kasba Palwal, prepared at the Settlement of 1854. This list does not Contain the name of Syed Asghar Ali or of any ancestor of his, or of any member of his family. There are only two Syeds in the list, and they are recorded as in possession as 'lessees' pre-sumebly holding on a farming lease the shares of certain defaulting co-sharers. Their possession must have ripened later into full ownership) for we find Syed Asghar Ali purchasing land in Palwal from these men, or their descendants. Palwal itself is not an agricultural village, it is a small town. It has been a Municipality since 1880, and its population at the census of 1901 was close on thirteen thousand souls. Its agricultural lands seem to be divided, so far as this record shows, into 'patti Khel' and 'Khel Khurd.' In the latter the plaintiff admitted that he held no landed property. The houses in kasba Palwal and the bulk of the lands in patti Khel at present in his possession the plaintiff admitted to have been purchased by his father. The defendants document above referred to seems to prove incontestable that Syed Asghar Ali owned no agricultural land in patti Khel in the year 1854. Nevertheless, the plaintiff claims to have proved the contrary, and to have proved it mainly out of the mouth of Sarfaraz Ali, the principal witness for the defendants, whose evidence is at pages 9, 10 and 11 of the respondents book. The witness begins by deposing in unqualified terms that there was no ancestral property in Palwal in Asghar Ali's family. Asghar Ali was not an old biswadar. The members of his family and mine used to take up service from of old.' In cross-examination he was asked first about a place called 'Hajipura', which seems to be a portion of the town of Palwal. He said there was an old graveyard there and a grove, which belonged to the family of which Asghar Ali and himself are members; also that Asghar Ali had, presumably after his return to Palwal with his fortune made, settled certain Chamars in 'Hajipura.' It was not seriously contended before us that anything could be made in favour of the plaintiff out of these admissions, which constitute the whole available evidence as to any family property in 'Hajipura.' The witness went on to depose: 'Sailahgarh is four or five hundred years old. It belongs to Asghar Ali and his ancestors. Asghar Ali purchased 500 bighas of land and included it in that very land. , The well that is in Sailahgarh is an old one; it was built by Asghar Ali's ancestors. That well appertains to a cultivator holding and cultivators use it. Formerly Asghar Ali used to realise the rent of that land.' Along with this statement the plaintiff relies on documents printed at pages 72A, 248A, and 250A for further information about this well. On this evidence the learned Chief Justice of this Court has been satisfied that the ancestors of Saiyed Aaghar Ali must have been originally landed proprietors in Palwal, and that Asghar Ali himself also must, despite the testimony to the contrary afforded by the Settlement Record of 1854, have always retained some fragment of proprietary interest in agricultural lands appertaining to that town. I admit that the evidence is somewhat doubtful and is susceptible of inferences favourable to the plaintiff's case; but on the whole I cannot see that it bears the weight of the superstructure sought to be raised thereon. To begin with, the plaintiff himself has explained precisely what the parties meant by the word Sailahgarh.' He says, Sailahgarh is a well, and has been in our possession since the time of our ancestors. About 5 or 6 bighas of culturable land appertain to it.' The first and oldest document, that at page 72A, simply shows that there is 'in Kasha Palwal' an ancient well, believed to have been built by one Muhammad Salah, that it holds drinkable water, but is used to a small extent for irrigation purposes. It is so used under the supervision of the lessees of patti Khel. This was the state of things in 1863. The later documents printed at pages 248A and 250A were prepared in 1877 and in 1907-08. It is quite probable that some of the remarks entered in these papers represent merely attempts on the part of Sayed Asghar Ali, and of the plaintiff after him, to enhance their dignity in the eyes of their neighbours by claiming connection with the old proprietary body of Kasba Palwal on the strength of an ancient well, known by the name of one of their ancestors. The area actually irrigated from the well is only six or seven bighas in any one year; for many years in succession there is no land irrigated from it at all, and a note in the latest document shows that the well is no longer used for irrigation purposes. In any case these last two papers were prepared long after Saiyed Asghar Ali had acquired land in Palwal, in the neighbourhood of this well and had acquired it from the very lessees referred to in the paper of 1863 the evidence of Sarfaraz Ali on the point seems to have been recorded in a somewhat confused fashion; but I do not understand him to mean that Saiyed Asghar Ah was collecting the rents of any cultivated lands in Pawal during the years that he was away on service. On the whole, what seems to me to be proved is something of this sort. There is in, or on the out skirts of, the town of Palwal an old well as to which the tradition is that it was buit by one Muhammad Salah, this tradition may be accepted as well founded, and the evidence makes it fairly certain that this Muhammad Salah was an ancestor of Saiyed Asghar Ali Near this well is a small patch of cultivated land which used at times to be irrigated from it. I consider it not proved that this well was primarily an irrigation well; the record of 1863 seems rather to suggest the contrary. I am not satisfied that it is proved that this land was regularly in the cultivation of the plaintiff s ancestors; but 1 am quite satisfied that it is not proved that, if they did cultivate it, they ever did so otherwise than as tenants holding from the nro prietors of patti Khel. The testimony of the Settlement Record of 1854 to the effect that neither Syed Asghar Ali, nor any ancestor of his, held any proprietary rights in agricultural lands appertaining to Kasba Palwal stands, in my opinion, sub stantially unrebutted In fact, the plaintiff's family are not old biswadars of Palwal The plaintiff's direct assault having thus failed at the second line of defence, I do not think it necessary to discuss the third. In the form in which the plea is taken in the written statement I do not think there is much in it. What the evidence on the record does suggest to my mind is that a distinction is often drawn in the Customary Law of the Punjab between ancestral and self-acquired property. If I thought that the plaintiff had made out a strong case for the proposition that his family was governed by a tribal custom under which the ancestral lands of the family descended to the sons, to the exclusion of daughters, I might find it necessary to inquire further whether it was certain that the custom applied to property so very definitely and peculiarly self-acquired' as the estate of Wair Badshahpur. Looking at the fact that the grant was made by the Government of the North-Western Provinces of land situated in those Provinces, there seem 3 an opening for the presumption that it was intended to be a grant subject to the ordinary incidents of the Muhammadan Law of inheritance.
21. I do not press this point further because, in my opinion, the plaintiff has failed to prove that the devolution of property in his family is subject to any custom, whether local &r; tribal, entitling the' sons of a deceased member of that family to deprive their sisters of the share in the paternal inheritance reserved to the latter by the law of Muhammad. In my opinion the plaintiff's turning movement fails as completely as his direct assault on the position taken up by the defendants.
22. The principal piece of evidence relied on for the plaintiff is the document known as the riwaj-i-am (see page 225A of the record), supported by the extract from the record of the general customs prevailing in the Gurgaon District prepared in 1877--vide page 227A. These documents record the existence, amongst the old Saiyed families of that district, of a custom under which the right of inheritance devolves on the s n, grandson or greatgrand-son, and even on the widow to the exclusion of the' daughters of the deceased. No doubt this custom applies to Saiyeds belonging to the agricultural classes in Palwal as well as in other parts of the district, but the conclusion I have come to is that these documents have no real bearing on the present case because we are not dealing with a family of agriculturists at all. I have already dealt with the evidence bearing on this point. In my opinion the statement of Sarfaraz Ali to the effect that from of old the occupation of members of this family was 'to take up Service' stands unshaken by anything in his cross-examination and is supported by the list of proprietors prepared in 1851. The Settlement Records which include the riwaj-i-am were drawn up years later. We know what the Settlement Officer was told as to the Customary Law of succession among3t the Saiyeis and Sheikhs, bat we have nothing on the record as to the instances put forward at the time to prove the existence of this custom amongst the Saiyed families of Palwal. It was contended that this particular riwaj-i-am had been accepted by the Punjab Chief Court as a particularly reliable record of custom; but we were referred on behalf of the defendants to another case in which the same Court had refused to act upon it, in the absence of evidence as to the instances put forward at the time as the basis for the Settlement Officer's conclusions. When this Settlement took place the. District of Gurgaon had not long been transferred to the Punjab Government, it was not difficult for any Saiyed family or for any group of such families to agree amongst themselves that they would find it convenient to accept a custom generally prevalent amongst Hindus and amongst the descendants of Hindus converted to Islam, and so rid themselves from the irksome obligation of following the strict requirements of Muhammadan Law on the subject of female inheritance. The mere fact that those leaders of the Saiyed community in the Gurgaon District or in kasba Palwal in particular, who were questioned on the subject by the Settlement Officer, told him that in their community the daughters did not inherit in the presence of sons, grandsons, great-grandsons or widows does not seem to me a very strong piece of evidence, when I Jo not know what instances they laid before the Settlement Officer in proof of their assertion. In any case the Settlement Officer's inquiries were limited to the question of the customs prevailing amongst agriculturists; he had nothing to do with the question whether what one may call 'Punjab custom' had or had not ousted Muhammadan Law on questions of inheritance amongst ancient Saiyed families residing in the town of Palwal, holding no share in the proprietary rights in respect of the agricultural lands appertaining to Palwal and depending for their livelihood, in the main, on military or other service.
23. One aspect of the case which I must not ignore, and which I can most conveniently deal with at this point, is the argument by which the plaintiff seeks to support his case by inferences drawn from the conduct of other members of his family, and more particularly of his mother and step-mother. Stress is laid on the fact, already noticed, that the plaintiff Ali Asghar was recorded as sole proprietor of Wair Badshahpur after his father's death. Even more emphatically our attention is called to the fact that the plaintiff is in sole and undisputed possession of the property at Palwal itself. The argument is that this state of things would be impossible if the widows of Saiyed Asghar Ali, and his daughters as they came of age, had not known perfectly well that they had no claim to succeed to any portion of the estate in the presence of the plaintiff. There is no question of any stopple ; it is merely a matter or inference from conduct. To my mind the possession of the property at Palwal means nothing. The ladies may have considered themselves bound by an 'incident' of the tenure of landed property in that place, such as they have (I think erroneously) set up in the pleadings. Apart from this, it remains to be proved that the property at Palwal is worth fighting about, The papers of 1907 08 (page 250A) show that even the lands acquired by Saiyed Asghar Ali near the ancestral well were, at that date, still in possession of the mortgagees. The old gentleman left a heavily encumbered estate behind him ; the Palwal property was thought to be barely sufficient to support the widows and young children. Later on we find them complaining that they cannot live on it at all. For aught that appears from this record, the Palwal property may consist wholly of mortgaged lands and residential houses acquired by Saiyed Asghar Ali in the days of his greatness, which the family does not care to part with but finds it a burden on their resources to keep up. As for the conduct of the two widow ladies, it was at most ambiguous and capable of more than one interpretation. Certainly, when they were importuning the Local Government to take the Bulandshahr property under the Court of Wards they put the plaintiff well into the background and themselves forward as the widows of a man who had deserved well of the Government, who had an interest of their own in what remained of his estate. The very fact that both the widows jointly obtained the guardianship of the minor plaintiff is inconsistent with the idea that they regarded him as sole owner of Wair Badshahpur. A very shady episode in this litigation is represented by certain evidence as to attempts made by the plaintiff to obtain from his sister Sughra Begam some sort of relinquishment of her rights, or admission that she had none. This evidence was touched on very lightly in argument on behalf of the appellant, it is enough to say that it does not help his case.
24. Having said all this, I feel that 1 have not yet dealt with the most substantial, certainly the bulkiest, part of the appellant's case. He has tendered a mass of oral evidence directed towards proving the prevalence in the Punjab generally, in the District of Gurgaon in particular, and even in the town of Palwal, of the custom that daughters do not take any share in the paternal inheritance. He claims to have proved at least one hundred instances in which daughters have been excluded from the share in the inheritance reserved to them under the Muhammadan Law. Of these instances thirty-four are claimed as coming from Palwal itself, thirty-one more from other villages in the same Tahsil, and seventeen more from other parts of the Gurgaon District. Now it can be readily ascertained from any standard book of reference, or digest of the decisions of the Punjab Chief Court, that the custom of excluding daughters and their issue from all share in the paternal inheritance is widely prevalent amongst the agriculturists of the Punjab. The custom is of Hindu origin, arising from the custom of exogamy and the reluctance to see an. central landed property pass out of the possession of the family, slept or clan. It is beyond question that many Muhammadan families, descendants of converts from Hinduism, have never consented to follow the precepts 'of Islam in this matter, but have retained the ancient custom in their families of excluding daughters from inheritance. It cannot be denied there is abundant evidence of the fact on this record, that the position of Saiyed and other families claiming descent from Muhammadan immigrants is not quite the same. Even the riwaj-i-am on which the plaintiff so greatly relies distinguishes the case of the Saiyeds and other ancient Muhammadan families from that of the majority of their co-religionists; it represents them as permitting daughters to inherit in preference to more distant kindred, but excluding them only in favour of a son, a grandson or a widow of their deceased father. The oral evidence tendered by the plaintiff betrays a constant fluctuation and conflict of testimony On this point, some witnesses say bluntly, 'in our family daughters never succeed,' others limit the custom of exclusion in the manner suggested by the riwaj-i-an or to some lesser extent. Oar attention was drawn in argument to a significant passage in the last Punjab Census Report as illustrating the attitude of old Muhammadan families on this point ; they constantly betrayed marked reluctance to admit that they did not follow the precepts of the Koran in matters of inheritance as in all others ; but would sometimes put forward the explanation that, in their families, daughters were always persuaded to renounce their right of inheritance.
25. This suggests an aspect of the case which I think of considerable importance. In Muhammadan families generally the girls are married young, almost certainly while still minors. In the case of an inheritance opening in favour of a married daughter the question of her claiming the share reserved to her by Muhammadan Law would be a matter for her husband and his family to decide. She may have married into a family in which the custom of daughters' exclusion prevails and her husband's people may have felt that they could not consistently claim a share for a daughter-in-law while refusing a share to their own daughters. Or again the whole question may have been settled by a bargain, express or understood, between the two families at the time of the marriage. In cases where the inheritance opens in favour of unmarried girls, the management of the property would naturally pass into the hands of a brother, mother or stepmother. The question whether any of the girls would ever claim her strict rights in the matter of the paternal inheritance would depend on the extent of the property, the way in which the girls were treated, and more particularly, on the arrangements made for their marriage.
26. In view of these considerations the mass of oral evidence relied on by the plaintiff does not greatly impress me, Much of it is devoted to proving the general prevalence of the custom, and has but little bearing on the case of a Saiyed family, residents of a town and not primarily agriculturists. Then again, there is no definite instance of a brother depriving a sister of her share in the paternal inheritance, after contest, or in the teeth of her protests. Out of the whole number of instances sought to be proved there are only eight in which the persons concerned are both Saiyeds and residents of Palwal. In two of these cases, those of the family of Yakub Ali (deposed to by Mohammad Yasin, page A3, and a number of other witnesses) and of Amir Ali (vide the witness Ali Abbas, page 52A), the persons concerned are old biswadars of Palwal. That leaves six instances, Irshad Ali (page A3), Barkat (page A27), Ausaf Ali (pages A32 and A35), Irshad Ali II (page A52), Jiwan Ali (page A 56) and Bahadur Ali (page A58), in which the exclusion is alleged to have taken place in families mainly non-agricultural, and in respect of property consisting principally of dwelling-houses. Except for Ausaf Ali's case, each of these instances is proved by a, single witness. We know nothing of the circumstances beyond the bald statement that the daughter or daughters concerned did not receive a share in the house property. To take the last instance, that of Saiyed Bahadur Ali (page A58), we are told that he left four sons and two daughters and that the daughters took no share in the paternal estate. We do not know to whom and under what circumstances the girls were married or where they were living at the time of their father's death : the alleged 'exclusion' may amount to nothing more than this, that the sons occupied and shared amongst themselves residential houses for which the daughters had no use, and that the whole matter was amicably settled by some assignment of jewelry or other moveable property of which the witness knew nothing. I do not say that the whole of the evidence can be disposed of by considerations such as these. Instances like those of Ausaf Ali (deposed to by his own son Imtiaz Ali, page A35) and Irshad Ali, who is said to have owned some land as well as house property, must be regarded as going some way in support of the plaintiff's case. On the whole, however, the oral evidence seems to me to fall a good deal short of proving an ancient, certain and invariable custom.
27. I would, therefore, concur in dismissing this appeal with costs, including fees on the higher scale.
28. The appeal is dismissed with costs, including fees on the higher scale.