Henry Richards, C.J.
1. This appeal arises out of a suit, in which the plaintiffs claimed a declaration that they are entitled to certain zemindari property. Mukh Ram, Sis Ram and Nichal were three brothers, who, according to the finding of the Court below, were separate Nichal died leaving his son Mula. Mula died, and after his death his mother Musammat Dharman was recorded? After her death Sis Ram succeeded to the property and thus became the owner of two-thirds. Sis Ram died without a son but, according to the finding of the Court below, (which upon this question, as also upon the question of the family being separate, is not challenged), Musammat Lachhmi was the legitimate daughter of Sis Ram. The plaintiffs allege that according to custom Musammat Lachhmi is excluded from all right to the property of Sis Ram. The custom, is set forth in paragraph 8 of the plaint as follows: 'The parties are Jats. The ancestors of the parties and the other members of the Jat community had come from the Punjab. Among all the members of the Jats, the custom is that the daughters and their descendants do not in general get any share by right of inheritance out of the property left by the daughter's father. Therefore, according to the custom obtaining among the members of the Jat community, the defendant has no right of inheritance.'
2. It will be seen here that the custom is alleged in very vague terms. It is said that the daughters and their descendants do not in general get any share by right of inheritance. From the evidence which was given in the present case, it seems that the allegation of the custom as being in general' (bilamum) was not a mere inadvertence because there were many instances given in which the alleged custom was not observed amongst the members of this very community. It must further be remarked that if the custom exists, as set forth in the plaint, it is a very harsh and unnatural custom, because the daughter, except by way of charity, has not a right even to maintenance or to have her marriage expenses defrayed. The evidence given in the case consisted of the wajib-ul-arz of the two villages in which the property is situate, and the oral evidence of a number of witnesses who stated that the custom existed, and gave certain instances in which it was observed. It is possible to look upon the case from two aspects. First, as the allegation of a general custom amongst the whole of the Hela Jats, and secondly, as the allegation of a custom which exists in a general way amongst the Hela Jats but is an established custom prevailing among the community who reside in the villages in which the property is situate. Looking at the case from the latter point of view first, I find that according to the evidence, there are more instances of the non-ob3ervance of the alleged custom in these villages than there are instances in which the custom was observed. The wajib-ul-arz is, no doubt, entitled to be duly considered. The custom is there set forth almost as vaguely as it is set forth in the plaint. There is no mention of the incidents of the custom, such as the maintenance of daughters and the defraying of their marriage expenses. Under these circumstances, I think that no Court would be justified in holding that this particular custom has been proved by the evidence in the present case 'to be an established custom prevailing in the villages in which the property is situate. Looking at it from the other point of view, namely, as to whether or not the evidence establishes an universal custom amongst the Hela Jats, I think that the plaintiffs' case even more signally fails and that it would be quite impossible for any Court to hold on the evidence that there is an universal custom amongst the Hela Jats. The Court below took a view different from the view which we take but it is to be borne in mind that the Judge was in no better position than we are in coming to a conclusion upon the evidence. The learned Judge who gave the judgment was not the Judge who heard the witnesses. I have no hesitation in saying that in the present case, the appeal should be allowed and the decree of the Court below set aside.
3. I am of the same opinion. The plaintiffs admittedly have accepted the position that in certain respects they are governed by the Hindu Law. When they assert that one rule of Hindu Law does not apply to them in consequence of the existence of a custom which prevails among the community to which the parties belong, it is incumbent on them clearly to state that custom and all its incidents and to establish it by unmistakable evidence. Not only have they to establish that the custom exists, but they have also to prove that it is ancient and invariable. The evidence in this case falls far short of establishing the existence of an ancient and invariable custom. If we confine ourselves to the villages in which the property in suit is situate and in which the parties reside, we have according to the witnesses only four instances of exclusion of daughters from inheritance to their father's estate. Those instances are the cases of Kewal, Ghisa, Bhup and Chumba. In the case of Ghisa, there is a minor daughter who may put forward a claim to her father's estate. She is now living apparently on friendly terms with the persons who are in possession of Ghisa's estate. There is time enough for her to assert her right to that estate when she attains majority. The case of Ghisa, therefore, should be left out of consideration. We have thus only three instances in these villages in which the daughter was excluded. But, on the other hand, we have five instances of the succession of daughters in these very villages. No sufficient explanation has been given by the witnesses who speak of the existence of a general custom as to the reason for the succession of the daughter in the five cases mentioned. As regards two of them, it is said that there were no near relations who could claim the estate, but the custom as alleged totally excludes daughters. In one other village in the Muzaffarnagar district, namely Shamli, mention is made of only one instance, namely, that of the estate left by Milkif which did not go to his daughters; but Milkif appears from the evidence to have died only two years ago, so that this case cannot be regarded as one in which the daughter was totally excluded. It often happens that daughters are married into rich families and go to reside with their husbands and do not claim their fathers' estate. In the absence of sufficient evidence showing that in spite of a claim asserted by the daughters, they were excluded from inheritance by the male relations of the deceased, mere exclusion in certain instances would not be sufficient to establish a custom such as that alleged. The witnesses for the plaintiff admit that in three other instances as to which there is no clear evidence, whether they are instances, relating to the villages Bhikhi Kundana and Kundana, the daughters did succeed to their fathers' estate. Therefore, if we confined ourselves to the villages in which the property in suit is situate, the alleged custom is not established by the oral evidence adduced. The wajib-ul-arz, no doubt, mentions that daughters are excluded, but, as pointed out by the learned Chief Justice, the custom set forth in the wazib-ul-arz is too vague to be accepted as a prevailing custom. The antiquity of the custom alleged by the plaintiffs is not proved, and, as has been pointed out above, it has been proved that it is not invariable. In view of these facts, it would not be proper to consider whether the custom prevails among Jats of the Hela tribe, in other parts of the Province. If we were to consider the existence of such a custom among all Juts of the Rein community, the evidence is altogether insufficient to establish the alleged custom. The plaintiffs, therefore, failed to prove the case they set up, and their suit ought to have been dismissed instead of being decreed. I would allow the appeal.
4. The order of the Court is that the appeal is allowed, the decree of the Court set aside and the plaintiffs' suit dismissed with costs in both Courts including fees in this Court on the higher scale.