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Musammat Bhagwani and anr. Vs. Khushi Ram and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All496; 24Ind.Cas.997
AppellantMusammat Bhagwani and anr.
RespondentKhushi Ram and anr.
Cases ReferredAsa Ram v. Musammat Bajwan and Ramji Lal
Excerpt:
hindu law - succession--jats--exclusion of daughter--custom--onus--bengal, n.w. p. and assam civil courts act (xii of 1887), section 37(1). - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - 5. the plaintiffs, stated that theirs was a family of punjabi jats whose ancestors had come from the villages of charkhi dadri (sic) the jhind state and among them the custom stated held good. on their behalf it is urged--that jats being hindus are prima facie in this province governed by the rules of -the mitakshara which prevail in these provinces--that the custom alleged is unreasonable, unnatural and unjust and, moreover, is uncertain--that the plaintiffs' evidence is.....1. this is a defendants' appeal arising out of a suit for possession of the estate of one harbans, by caste jat, who died about august 17th, 1907, leaving him surviving his two daughters, musammat bhagwani and musammat risal kunwar, the defendants-appellants, and three reversioners khushi ram, nihal and jhanku, harbans was the son of shadi ram who had two brothers, neehal and ganga ram the three reversioners were all grandsons of neehal through his sons heth ram,har lal and pat ram.2. the first plaintiff is khushi ram, plaintiffs nos. 2--6 are the sons of nihal and plaintiff no. 7 is the son of jhanku. nihal and jhanku have died since the death of harbans. on the death of harbans his two daughters obtained possession of his estate and secured mutation of names by an order dated 9th.....
Judgment:

1. This is a defendants' appeal arising out of a suit for possession of the estate of one Harbans, by caste Jat, who died about August 17th, 1907, leaving him surviving his two daughters, Musammat Bhagwani and Musammat Risal Kunwar, the defendants-appellants, and three reversioners Khushi Ram, Nihal and Jhanku, Harbans was the son of Shadi Ram who had two brothers, Neehal and Ganga Ram The three reversioners were all grandsons of Neehal through his sons Heth Ram,Har Lal and Pat Ram.

2. The first plaintiff is Khushi Ram, plaintiffs Nos. 2--6 are the sons of Nihal and plaintiff No. 7 is the son of Jhanku. Nihal and Jhanku have died since the death of Harbans. On the death of Harbans his two daughters obtained possession of his estate and secured mutation of names by an order dated 9th October 1907.

3. The parties are Jats resident in the Meerut District of the Province of Agra. The plaintiffs pleaded (vide paragraph 2 of the plaint) that according to a custom (1) of the family, (2) of the village, (3) prevailing in the neighbourhood and (4) among Jats in general, daughters and daughters' sons have no right of inheritance.

4. The property in suit consists of zemindari in the villages of Dungar and Arnaoli and some house property in the latter village. The daughters applied for partition of their recorded shares in Arnaoli and the plaintiffs filed objections thereto and were referred by the Revenue Court to a civil suit in the year 1910. Hence the suit out of which this appeal has arisen.

5. The plaintiffs, stated that theirs was a family of Punjabi Jats whose ancestors had come from the villages of Charkhi Dadri (sic) the Jhind State and among them the custom stated held good.

6. The defendants pleaded that no such custom prevailed either in the family of Harbans or in the villages in question or in the neighbourhood or among Jats resident in these Provinces : that no custom or practice prevailing in the Punjab in relation to inheritance had ever been binding on the family : that the inheritance was governed by the rule of Hindu Law in force in these Provinces : that the custom alleged was contrary to Hindu Law, the principles of justice and equity and was unreasonable and should not be upheld by the Courts. There was but one issue in the case which was framed as follows by the lower Court.' 'Whether there is a valid and binding custom in the community to which the parties belong excluding the daughters from inheritance.'

7. It must be carefully noted that the custom put forward is one under which daughters are completely excluded from inheritance, so that even in the total absence of reversioners, they would have no right to succeed by inheritance.

8. The Court below held on the evidence that 'There is a valid and binding custom in the community ( Tats) to which the parties belong (call them Deshi Jats or Punjabi Jats) excluding the daughters from inheritance.'

9. It accordingly decreed the claim.

10. The defendants appeal. On their behalf it is Urged--that Jats being Hindus are prima facie in this Province governed by the rules of - the Mitakshara which prevail in these Provinces--that the custom alleged is unreasonable, unnatural and unjust and, moreover, is uncertain--that the plaintiffs' evidence is insufficient to establish the custom and has, moreover, been rebutted by the evidence for the defence :--that the burden lay heavily upon the plaintiffs to establish a custom in derogation of the rule of Hindu Law : that they had failed to show that the ancestors of Harbans came from Charkhi Dadri in the Jhind State or that any custom obtaining in the Punjab was binding on the members of the family.

11. Harbans admittedly was a Jat of the Sangwan got.

12. In the beginning it was urged on behalf of the appellants that as Jats are Hindus, the burden of proving a custom in derogation of the Hindu Law was very heavy upon the respondents and they must prove it by clear and cogent evidence and that in testing the evidence produced to prove it, the Court should apply the strict rules laid down by the English Courts in the matter of custom.'

13. This led to a good deal of argument as to' whether Jats were or were not Hindus, whether they were aborigines of the country or were of Scythian or Aryan origin. It was urged for the respondents that they were not of Hindu origin and there was no presumption that the Hindu Law of inheritance as laid down in the Mitakshara applied to them, that they were governed by their own special customs and that he who alleged that any rule of Hindu Law (generally so called) prevailed among Jats would have to prove that that rule had been adopted by the Jat community : that it is not necessary for the plaintiffs to prove a custom in derogation of Hindu Law but that they have merely to prove the existence of a custom among Jats in the ordinary way and that the Court should not be too strict and should not adopt the strict rules of practice of the English Courts.

14. It seems to us futile to follow up and discuss the various theories as to the origin of Jats. Very few, if any, of the plaintiff witnesses attempt to say that the Jats are not Hindus. Some say that they are not bound by the Dharam Shastras but by their customs, whereas the defendants' witnesses state that they are bound by the Dharam Shastras. Very many Jats have become Sikhs. There is a very large body of what are called Musalman Jats. Jats are to be found in great numbers in Sind (where they are called Jats)., in the Punjab, Rajputana and in the western districts of this Province, i.e., Agra, Muttra, Aligarh, Bulandshahr, Meerut, Saharanpur, Mozaffarnagar, Moradabad and Bijnor. They are also to be found in great numbers in the Native States in the North of India.

15. In his Memoirs on the History, Folklore and Distribution of the Races of the North -Western Provinces of India' (now the Province of Agra) Sir Henry Elliot speculates considerably as to the origin of the Jats. At page 135 of Volume I he remarks : That they can scarcely be called pure Hindus for they have many observances both domestic and religious not consonant with Hindu precepts : second marriages are common and they are still accused by their neighbours of having a community of wives.' The Editor of these memoirs has appended a note which sums up the situation as follows : ' Much ingenuity has been wasted in guesses as to the origin of the Jat or Jats. The hypothesis which is gaining ground among sound, philologists and which, moreover, rests on universal native tradition makes them either Rajputs who have lost caste or the offspring of Rajputs and some lower caste.'

16. Some Jats, we would note, aver that they are descended from a Rajput Prince and a Jat woman and some that they sprang from a hair of the deity Mahadeo.

17. But whatever their origin Jats are and always have been held to be Hindus (as the lower Court has expressed it) for all practical purposes and especially for the purposes of Section 37(1) of the Civil Courts Act (XII of 1837) in force ' in these Provinces. Hindu Law has always been applied to them except where any special customs) have been alleged and established.

18. It is equally clear that the Jut is a Shudra. He is neither Brahmin. Chattri nor Vaish. If he alleges a custom governing his law of inheritance which does not accord with the rule of Hindu Law, the onus is upon him and he must satisfy the Court by clear and cogent evidence that the custom exists.

19. In the present case the plaintiffs put forward a custom which is not in accord with the ordinary rule of Hindu Lav. They plead that the daughter, who is a natural heir, is totally excluded from inheritance. This rule of exclusion appears to us to be harsh and unnatural. It is true that the rights of a female in Hindu Law are much inferior to those of a male in the matter of inheritance, still they are not lightly to be further reduced or totally extinguished except on the strength of good and cogent evidence. It is true that this custom of excluding the daughters from inheritance has been established and upheld by the Courts in certain cases among Rajputs in the sister Provinces of Oudh, so that the rule is not unknown in the country, but this does not make it any the less imperative for the plaintiffs to establish the rule in the present case beyond all reasonable doubt and by clear and convincing evidence. They have put forward the custom as existing and being binding

(1) in their family :

(2) in the villages in question :

(3) in the neighbourhood :

(4) among Jats in general, Vide paragraph 2 of their plaint.

20. In regard to the existence of a family custom, we may note here that there is no evidence of any such custom prevailing specially in their family as distinguished from the other families which constitute the Jat community. If the plaintiffs' case had rested there it would have to fail. Nor is there any evidence of any volume or weight to show that there is any such special custom prevailing in the villages of Arnaoli and Dungar, as distinguished from, otter villages inhabited by Jats.

21. The plaintiffs have devoted their efforts to producing evidence to show that the Custom prevails among Jats in general and specially in the Sangwan got to which they belong. They have also adduced evidence to prove that it prevails and is binding among Jats in the Meerut District and specially in those villages where Juts of their got reside. In the pleadings, however, there is no mention of the custom being one specially binding on Jats of the Sangwan got, unless indeed the word family was used as a synonym for got, which it is not either in ordinary or legal parlance.

22. We, therefore, have to consider the evidence produced on both sides in respect to the existence or non-existence of the custom

(a) among Jats in general :

(b) in the neighbourhood of the property in suit, i.e., presumably in the Meerut District

23. The Court below has decreed the claim holding that the existence of the custom among Jats in general has been established.

(a) In regard to the custom existing among Jats in general the case for the plaintiffs has been put in this way :

(1) We are Punjabi Jats. Government records and decided cases in the Punjab Province show that the custom prevails in that Province in many places among Jats.

(2) We are Jats of the Sangwan got who came from Charkhi Dadri in the State of Jhind. We call evidence to prove that the custom prevails there and as we came from a place where the custom exists, presumably we brought our custom with us.

(3) We reside in the Meerut District of these Provinces. We produce oral and documentary evidence to prove that the custom prevails there and also among Jats generally. We also produce judicial decisions in cases where the custom has been judicially upheld.

24. To meet this case the defendants-appellants plead :

(1) The plaintiffs lire not Punjabi Jats in the true sense. Charkhi Dadri is in Jhind, a Native State, and up to the time of the Mutiny of 1857, had never formed a part of the Punjab and it was only subsequently to the Mutiny that the Delhi Division was transferred from these Provinces to form a part of the Punjab Province. It does not follow that customs prevailing in the Punjab Proper, i.e., the trans-Sutlej Districts, prevail in these Provinces. Moreover, the custom there is, not the total exclusion of daughters from inheritance, but an exclusion only by certain near relatives, that the further East one goes in Northern India the greater is he influence of Brahminism on the customs of Hindus. That on the showing of the witnesses produced the plaintiffs' ancestors migrated to these Provinces many hundreds of years ago and customs become affected by local surroundings : that the evidence of the witnesses from Jhind is unconvincing and unsupported by documentary evidence : that they (defendants) have established by both oral and documentary evidence that daughters have in many cases inherited and that there are many more judicial decisions in favour of the daughter's right than against it : that on the evidence produced it is impossible to hold the existence of a well established ancient, unvarying and reason' able custom. We note here that the volume of evidence both oral and documentary is very considerable on both sides.

25. We take first the plea that the plaintiffs, are Punjabi Jats and that the custom is shown to exist in some of the Punjab Districts. It is the plaintiffs' case that their forefathers come from Charkhi Dadri in the Jhind State and settled in some twelve villages round and about the villages now in dispute in the Meerut District. Of their witnesses (they have no documentary evidence on the point) some state that the migration took place 200 years ago. Others put it at 300 or more and one puts it at 1,000 to 1,200 years ago. Some 17 or 18 witnesses have been called from the Jhind State. There can be no doubt that Jats of the Sangwan got exist in considerable numbers in that State. These witnesses state that they call themselves Punjabi Jats because they live in the Punjab. Most of the plaintiffs' witnesses state that they know of no other Jats but Punjabi Jats, and that they know not aught of Hele Jats or Dhe Jats. The defendants' witnesses, who are also Jats, state that the plaintiffs are ordinary Jats usually called Deshi Jats, i.e., Jats of this part of the country.

26. The witnesses on both sides are clearly ready to swear to anything favourable to their own party. Elliot in his Memoirs of the Races of this Province at page 131, Volume I, tells us that the Jats of this Province are separated into two grand divisions, called the Dhe and the Held in the Doab and the Pachade and Deshwale in Rohilkhand and Delhi. At the time when the Momoir were written the Delhi Division was included in these Provinces. The Dhe or Pachade, he says, scarcely date their residence beyond a century before the present time', and are frequently called Punjabis and are somewhat despised by the Hele, or Deshwale, and the two-classes had then only recently commenced to intermarry.

27. The plaintiffs' ancestors according to their witnesses migrated from Charkhi Dadri anything from 300 to 1,000 years ago. Presumably they had settled at Charkhi Dadri prior to that. Charkhi Dadri originally was a part of the Bahadurgarh State which was confiscated at the time of the Mutiny and subsequently given over to Jhind. Bahadurgarh lies some 18 miles west of Delhi. Charkhi Dadri lies completely outside of the Punjab Proper i.e., the land of the five rivers, and no one residing there prior to the Mutiny of 1857 would have called himself a Punjabi on the ground that ho lived in the Punjab, as the plaintiffs' witnesses state. We have considerable doubts of the right of the plaintiffs to call themselves Punjabi Jats, and that doubt is intensified when we see that many of their witnesses pretend that they know nothing of Dhe or Hele Jats. It appears that the hand, which is guiding this litigation has thought it best to lay stress on the plaintiffs being Punjabi Jats so as to be able to rely on decisions and Revenue Records from the Punjab in support of his case. We have no hesitation in holding that the plaintiffs have not satisfactorily established that they are Punjabi Jats. It is true they have called a large number of witnesses who support them but oral evidence of this sort is easily obtainable and circumstances show that the evidence given by the defendants' witnesses on the point is nearer the truth, i.e., that the : plaintiffs are Hele or Deshwale Jats, whose family has been settled in these Provinces for many generations and for more than 200 years.

28. Punjab Custom :--In regard to the customs of the Punjab we have been referred to the Volumes on Customary Law drawn up by various Settlement Officers for certain Districts and Tahsils of that Province and Tupper's Customary Law, Volume II, and Rattigan's Digest of Customary Law in the Punjab. In Volume VIII of the first which is the Riwaj-i-am of Tahsil Kaithal of the Karnal District at page 11 it is laid down that daughters have no right of inheritance : This seems to refer to all castes including Jats. At page 12, however, there is a note that the Rors admitted that in Sikh times daughter's sons were allowed to succeed.

29. In the Volume relating to the Ambala District at page 18 the Settlement Officer records that the commonly received , custom for all tribes except Saiyids and some Rains is to exclude the daughter wherever collaterals can be traced up to the great-greatgrandfather. Jats and Gujars are inclined to} go still further and to say that daughters never succeed, but this is doubtful as an actual custom though correct as to the feeling of the people.' In the Volume relating to Ferozepore, which is much further West, it is stated that the Jats are either Sikhs or Musalmans and that among them daughters do not inherit.

30. In Volume V relating to the Ludhiana-District, page 60, it is recorded that Hindu Jats will not admit the right of a daughter,' to inherit, except one group in the Ludhiana district which allow her to inherit in the absence of male collaterals related through., the great-great-grandfather. This is also, a western district of the Punjab. In Volume II of Topper's Customary Law we,' find the customs of the Gurgaon. District which borders on these Provinces and at the :-time of the. Mutiny formed. ,&, part thereof,. The answers given by the Settlement Officer, to the questions relating to the succession of daughter are to be found at pages 145 to,-147. The first of the answers is that among-all castes daughters are not usually, allowed to inherit, but it is by no means uncommon, -especially where there are no male lineal descendants, to find a man succeeded by his daughter's son-in-law or daughter's son,,, though this seems to have taken place by means of gift or adoption to which the . other male relatives have given express or, tacit consent : that when the daughter has, been allowed to succeed the land descends to her sons : and on page 147 is a note that-the custom of allowing land to go to a daughter's son in default of a son is increasing. , This was written shortly before 1881, the date of the publication of the volume.

31. In the Rohtak District (page 197) it is recorded that daughters have no right of inheritance, anything they get is by gift of the heirs. In the Multan District(pages 271 and 272) the custom appears, to be by no means uniform among the various tribes mentioned the Jats are not expressly mentioned. The Hindus of Multan limit the rule of exclusion to brothers and their descendants. And those of Shajahabad say that the custom is not uniform.

32. In Rattigan's Digest the rule as to the succession of daughters is No. 23 at page 22. It runs as follows : 'A daughter only succeeds to the ancestral landed property of her father in default of

(1) the heirs mentioned in the preceding paragraphs (sons etc, and widow),

(2) near male collaterals of her father.

33. Three exceptions to the rule are given chiefly existing among Musalmans (at page 25) : exceptions among Hindus are also mentioned (being reported judicial decisions) where daughters have excluded even nephews, and one Jal case from Ambala where she excluded distant cousins.

34. One point is obvious, and that is that the rule of the exclusion of daughters by collaterals is by no means uniform throughout the Punjab, that though there is a strong foaling especially among Jats against their being allowed to succeed, that that feeling is- strongest in the west and becomes weaker as one goes east, till in Gurgaon we find a note that it is by no means uncommon to find a daughter succeeding in the absence of sons and that the custom of allowing a daughter's son to succeed in default of a son is increasing.

35. It is a well-known fact that in Northern India at least, the further east one goes the greater the influence and effect one finds of Brahminism, over the customs of the those castes which are not twice born. Even at the present day one sees castes, that have ' hitherto boon deemed outside the inner 'circle, claiming to be entitled to wear the sacred thread. The rule of the total exclusion of daughters is by no means universal even in the Punjab and it weakens apparently as one travels eastward. It will be seen later on when we coma to consider the judicial decisions put forward in the present casa that in this Province of Agra here have been dispates between near collateral and daughter among Jats, both 'sides claiming the inheritance, where the collaterals , have not even pleaded that daughters are excluded, i.e., where they have not even denied the ordinary rule of Hindu Law prevailing in this Province.

36. The utmost that can be said, therefore, in regard to the Punjab is that daughters there are ordinarily excluded under Customary Law by near male collaterals, and that even in 1880 in Gurgaon at least the custom of allowing their sons to inherit was on the increase and it was not uncommon to find daughters in possession of their fathers' estate. It is as well to point out here that under Section 5, Act IV of 1872 '(The Punjab Laws Act), in questions relating to succession, the rule of decision is, primarily, any custom relating to the parties concerned, secondly, Hindu Law, in the case of Hindus as modified by Statute : whereas under Section 37, Act XII of 1887, the Civil Courts Act in force in these Provinces, the rule of decision is, primarily, the Hindu Law in the case of Hindus. Therefore in these Provinces, he who pleads a special custom in derogation of Hindu Law has to prove such custom by clear and cogent evidence and such a custom must have all the attributes of a legal and binding custom. It must be ancient and invariable, continuous and uniform,. reasonable and not immoral, certain and definite, compulsory and consistent : . The [course of practice on which a custom rests must not be left in doubt but be proved with certainty. The custom in regard to the succession of daughters in the Punjab as disclosed by the authorities mentioned above is by no. : means uniform all over that Province among Jats and in at least one district daughters and their sons appear to have received greater recognition of their right to succeed to the father's estate.

37. We now come to the evidence adduced by both parties for and against the alleged custom.

38. That of the plaintiffs consists of

(1) The oral testimony of a large number of witnesses who state that daughters are excluded and who give instances c of that exclusion.

(2) Documentary evidence of two classes', (a) entries in a large number of Wajib-ul-araiz drawn up at the Settlement bf 1861 in the Meerut District called the Settlement of Mohair Singh, and at the Settlement of Nazir Ali Khan which was made some 10 years after the former.

(b) Copies of judgments and decrees in which the custom has been upheld by the Courts.

To rebut this evidence the defendants-appellants have produced

(1) Oral testimony to the effect that the custom does not exist, the witnesses giving instances in which daughters have inherited.

(2) Documentary evidence of three classes (a) Judgments and decrees in suits in which the existence of the custom was in issue and in which the Courts have held against the custom or in which the parties compromised dividing the estate between them.

(b) Judgments and decrees in suits in which the estates of Jats were in dispute between alleged daughters and reversioners in which though the latter contested the claims of the females, they did not plead that daughters were by custom excluded from inheritance.

(f) Copies of khewats showing instances in which daughters had succeeded to their fathers' estates in the presence of collaterals.

39. Plaintiffs' oral evidence.--We take first the plaintiffs' oral evidence. They examined .105 witnesses and also rely on alleged admissions made by three of the defendants' witnesses. Of those 105 witnesses all but one, a Brahmin, are Jats. Seventeen of them come from Jhind including the Brahmin. A very few are from the districts of the Delhi Division. The great majority are from various villages of the Meerut District. Practically with one accord they say they are Punjabi Jats and that daughters do not inherit at all. Thirteen of them give no instances of the exclusion of the daughters and make bald statements as to the custom. Most of them pretend not to know of any other class of Jats or to have heard of Hele or Dim Jats. Many of them claim to be descended from Jats who migrated from the Districts of the Delhi Division or from Jhind. Most of the Jhind witnesses and several of the Meerut witnesses state that the plaintiffs like themselves are the descendants of one Sangoo who had 11 sons. Some of thorn give the names of some of the alleged sons of Sangoo and some go a certain though very short way along a pedigree, but they failed utterly when cross-examined on the point. They claim to speak of matters 200 years and more in age and have no real basis for their knowledge. It is quite clear that they have come prepared to give evidence on a pre-arranged plan, and in suits of this class the oral evidence where it is uncorroborated by documentary evidence is not of much value. The plaintiffs have not attempted, except in a very few instances, to produce the evidence of public records to support the numerous instances of succession by collaterals which the witnesses have alleged. All are instances of succession to interests in land, and in respect to those within these Provinces at least, there must have been mutation cases and entries in khewats. It is an easy matter' for a Jat witness from an obscure village of the Meerut District or a still more obscure village in the Jhind State to state 'that one Indro', for example of his village died at some vague period in the past leaving a daughter who was excluded from inheritance. Mutation records and mutation registers are maintained in this Province and a large amount of documentary evidence would be available to support all true instances. We, therefore, feel that it is difficult to place any great reliance on the oral evidence as to alleged instances of exclusion or the opposite, as mentioned by the witnesses on both sides, unless they are supported by documentary evidence which is not often the case. This is more specially so in the case of the Jhind witnesses. Their statements may be true or untrue. It is impossible to properly check or test them.

40. The plaintiffs' witnesses who mention or claim to point to actual instances of exclusion are 92 in number. They put forward 134 instances. Plaintiffs also claim that three of the defendants' witnesses have admitted four instances. Out of these 134 instances 27 are those mentioned by the witnesses from Jhind and the Punjab as having occurred in their villages. A careful examination of these shows that 16 appear to be good instances of exclusion, eight are doubtful and three are not instances at all, one being the exclusion of a sister, one being a case of a joint family and one that of the daughter of Lekaji, leged by the witness Sanwal, in,.

41. which the witness is not sure that Lekha had a daughter.

42. In the case of several of the doubtful instances the witnesses have given only hearsay evidence.

43. The witnesses who have testified to these 27 instances have had to admit five cases in which daughters or daughter's sons have taken the father's estate. These are the cases of Kapur Singh, Indro, Dalu, Agda and Doda Ram. In the case of Indro and Doda Bam, they allege that the daughter's son was adopted and in the cases of Dalu and Agda some allege that the property was gifted. Kapur Singh's case is that of a large estate and one witness has clearly admitted that he was allowed to inherit his maternal grandfather's estate. These are cases of daughter's sons, not daughters, but in the custom alleged by the witnesses, the daughter and her sons have throughout been coupled together and are, if excluded at all, excluded on one and the same principle, i.e., agnatic succession.

44. We next come to the instances alleged in cases from the Meerut and other districts of this Province. An analysis of the evidence will show that they claim to put forward 110 instances of exclusion. A careful examination of their evidence shows that, if they are to be believed, they prove clearly only 62 instances. Of the balance, 37 are not clear cases, and in general are cases of joint families or are supported by hearsay evidence.

45. Eleven cases are clearly not instances at all of the exclusion of daughters and their sons. In the case of one of these latter the daughters or their sons are shown to have actually inherited and the claim was won after suit in Court. [Vide Nand Ham v. Bhopal Singh 16 Ind. Cas. 1 : 10 A.L.J. 180 34 A. 592.].

46. In the cases of 97 out of these 110 instances there is only one witness to testify to the instances. Where the witness is a member of the family concerned his evidence carries some weight, but this is the case in but a small minority and excepting these, the oral evidence is not of any great weight. We take for example the evidence of Chandan Singh at page 27 of the respondents' book. He is a resident of Kalinjari in the Meerut District. After testifying to the custom of the exclusion of daughters he had to admit that he carried on the defence in the Kuehesar ease when the reversioner Umrao Singh sued the two daughters Rani Raghubans Kuar and Chandar Kuar for the estate of their father. The point in issue in that and the present oases was the same and in fact the evidence for the plaintiffs in the present case is at least as to documents the same practically as in the Kuehesar case. The estate in this latter case was much more valuable than in the present suit. In that case on behalf of his mistress Chandan Singh called evidence against the alleged custom and in the end the parties compromised, the two daughters taking 2/3rds of the estate and the reversioners the remainder. Yet in the present case Chandan Singh testifies the opposite way to that for which he fought in the other case.

47. The next witness Nahar Singh also of Kalanjari, when cross-examined in respect to the estate of one Kure of his village, stated ' that he does not know whether it was inherited by Kure's daughters though he must know all about it.

48. Chandan Singh No. 2 is the witness who states that Jats of the Sangwan got came to the Meerut District 1,000 to 1,200 years ago. Ha states that he is not a Hindu but an Arya Samijist, that all Jats are Punjabi Jats but that he does not know whether all Punjabi Jats have the same customs. Dharam Singh (R. 35) and Hargian Singh practically admit that the wife of one Dallel Singh has been allowed to inherit her father's estate, though a prior witness Pema pretended that he did not know of the fact though he knew Dallel Singh. '

49. We Quote the above to show how partisan is all the oral evidence in this case and how impossible it is to place reliance on it. The evidence of a few females has been given for the plaintiffs and it mikes interesting reading. One Musamat Badamo admits that the Jats of Meerut are Desi Jats, which is the case for the other side, and Musummat Bhuro says there are no Punjabi Jats here.

50. Taking then the oral evidence for the plaintiffs, if it could be accepted it would establish some 78 instances of exclusion, excluding doubtful cases. It admits at least eight cases in - which the daughters or-their sons have taken the estate.

51. We next take the oral evidence for the defendants-appellants. It is much less in volume. Some 16 witnesses only were examined and they testify to 48 cases. An examination of their evidence shows that they establish 28 oases where daughters have inherited their fathers' estate. In 11 cases it is doubtful as to how they got it, but the daughters are in possession. In 11 cases they admitted that daughters had been excluded. Putting aside cases which are clearly doubtful, the result of the oral evidence so far as instances go is 89 cases of exclusion and 34 cases of inheritance.

52. To these will have to be added those cases of inheritance or exclusion which have been established by the documentary evidence (judgments and khercats.)

53. The plaintiffs-respondents filed judgments and decrees of Original and Appellate Courts in 12 suits.

(1).In Mir Singh v. Musammat Jeoni, decided by the Munsif of Meerut on 20th July 1882 (the suit also went up in second appeal to the High Court)., the plaintiffs sued the daughter of a deceased Jat on the ground that they and he formed a joint Hindu family and that a deed of gift by the widow was of no force. The Courts held the family was joint and the deed of no force. The custom of exclusion' was not in issue nor decided and the Munsif s remarks thereon wore purely obiter dicta. This case, does not uphold the custom.

(2) In Hukum Kuar v. Ram Diyal, decided in 1895, the custom was alleged and upheld. Vide the District Judge's decision of 4th December 1895.

(3) In Dipa v. Musammat Jawahiro {vide respondents' book page 252) decided by the Munsif of Meerut, on 17th July 1902, the custom was net up, but there was no decision of the point as the case was decided on another point.'

(4) In Dipa v. Musammat Chhoti (it. 256), decided by the Munsif of Meerut , on 25th July 1903, the Court held that there'' was a custom under which near male co-relatives such as brothers and nephews' excluded daughters. Though this favours the respondents'- case, it does not support the 'total exlufsion of daughters,

(5) In Sheo Ram. 'v.' Musammat Nawli (Munsif of Meerut 1905) the custom of total exclusion was upheld.

(6) and (7) In Seth Earn Lal v. Jewan (Meerut Munsif) and Musammat Bam Dei v. Niadar (Sub-Judge Meerut 1907), it was held that a Custom existed under which near male relations (brothers and nephews) excluded daughters.

(8) In Beni v. Musammat Chandan Kuar (Munsif of Meerut 1908), the claim was submitted to arbitration and it was held that the woman was not the daughter of the deceased and so her claim was bad. The arbitrator in his judgment stated as a general rule among us Jats daughters do not inherit.' But the decision was unnecessary in view of the finding of fact.

(9) In Meda v. Musammat : Mano and Khazano- (Additional Judge Meerut of 29th October 1908), the custom was upheld by the Court. Appeal was preferred to the High Court. It was dismissed because the parties had come to terms. The sale-deed dated 12th September 1909 {vide A 147) shows that the daughter Khazano sold the estate to the reversioner Meda by deed and he (Meda) presented it for registration. The issue was thus not finally decided between the parties. ,

(10) In Shibbo Risali v. Balak Ram, the custom was alleged and an issue framed and decided , and the suit dismissed. On appeal the High Court decreed the, plaintiff's claim, pointing out that the issue as-to the alleged custom did not really arise and no decision on the point was necessary [vide Risali v. Balak Ram 14 Ind. Cas. 639 : 9A.L.J. 367 : 34 A 351.].

(11)and(12) In Mare v. Musammat Jarman, (Additional Subordinate, Judge Meerut, : dated 5th August .1910) and in, Kundan v. Kanwoli (Additional District Judge, Meerut, 23rd November 1911), the custom of exclusion was judicially upheld. There are then some nine decisions of the Courts upholding either the total exclusion of the daughters or exclusion by near male relatives such as brothers and nephews. In one of these nine cases the parties came to terms and the reversioner' took a sale-deed from the daughter so this is really not a good instance... .

54. We must also mention again the well-known Kuchesar, case, Rao Umrao Singh v. Rani Harbans Kuar (R. 127, decided on 7th July 1907 by the Subordinate Judge of Meerut). The custom of exclusion was held proved by the first Court, but on appeal the parties came to terms, the two daughters taking 2/3rd of the estate which was very large and of great value.

55. It will be noticed that all the above are cases from the Meerut District.

56. We next take the judicial decisions where-' in the right of the daughters to succeed has been upheld. It will be noticed in several of these cases that though the next reversioners and the daughters or daughters' sons were arrayed on opposite sides each claiming the estate, the reversioners did not raise the plea that among Jats there was a custom under which the daughters or their sons were excluded from inheritance.

(1) The first case is that of Umrao Singh v. Sil Chand (Subordinate Judge, Moradabad, dated 27th June 1868). The parties were Jats of the Bijnor District and certain transferees. No custom of exclusion was pleaded and the ordinary rule of Hindu Law was applied.

(2) The next case is of the Meerut District and was n suit brought by a daughter to recover her father's estate from the possession of his near male reversioners (vide A 26, District Judge, Meerut, dated 27th May 1875). No plea was set up that the daughter was excluded by custom.

(3) Uda v. Musammat Shibga (District Judge, Meerut, dated 7th April 1887) is similar to the suit of 1875, No. 2, above.

(4) Judgment of the High Court dated 11th January 1888 in Naurang v. Musammat Fahimo. This was a case among Jats from the Meerut District and the claim was by a daughter to her father's estate.

No custom of exclusion was pleaded-.

(5) The case of Naicho v. Musammat Kesri is irrelevant to the point.

(6) Nihahle v. Ballu (Munsif of Meerut, 7th December 1885) is similar to No. 4 above, so also is

(7) Musammat Sundar v. Din Dgal (Subordinate Judge, Meerut, dated 5th June, 1886).

(8) In Musammat Lalli v. Bharat Singh (Subordinate Judge, Meerut, 4th January 1887), a daughter sued to set aside a gift by her mother in favour of another daughter's son the latter pleaded that he .. : was the adopted son. No plea taken that daughters were excluded, though it might have been raised but the case is not of much value.

(9) In Musammat Mehro v. Musammat, Darbo also from the Meerut District (Subordinate Judge, dated 13th February 1888),-a daughter sued to set aside a transfer by her own mother to others. There was no plea that as a daughter she had no right.

(10) In Musammat Durgia v. Sita Ram (Subordinate Judge of Moradabad, dated 3rd October 1838), a daughter claimed her father's estate as his heir on the death of her mother. The defendant claimed under an alleged adoption as a son and under a Will. No plea taken that a daughter was excluded by custom. The daughter succeeded.

(11) Musammat Chatto v. Musammat Shibbo (Munsif, Meerut, dated 27th February 1890) only discloses an instance of succession by daughters to the estate of a deceased 'Jat in' the Meerut District. There was no judicial decision as to her right to succeed.

(12) In Musammat Mahabali v. Musammat. Parasaimi, (District Judge, Meerut, dated 21st March 1890), a daughter recovered the estate of her father, a Jat. No plea of exclusion was ever raised. The parties were Jats.

(13) In Dhapo v. Uda Kuar (Subordinate Judge, Meerut, dated 19th January 1891), a daughter's right to succeed on her mother's death was upheld. All the parties were Jats. No plea of exclusion was even taken.

(14). In musammat Natho y., Mehr. Singh (Subordinate Judge, Meerut, dated 4th August 1891), the daughter claimed her father's estate as against the nearest male reversioners and her claim was decreed after contest. No custom or exclusion of the daughter was ever pleaded though other defences were taken.

(15) In Natho v. Baldeo Sahai, (Subordinate Judge, Meerut, dated 30th May 1893), a daughter's son's suit was dismissed as his aunt (mother's sister) was alive, but though the parties were Jats no plea of exclusion was taken. This might be called negative evidence.

(16) Dhan Singh Gulzair Singh (Subordinate Judge, Moradabad, dated 3rd April 1893). The parties were Jats and the daughter's son claimed the estate as against the male agnates of his maternal... : grandfather.

His claim was decreed. Though the ease was contested no plea of a custom, of exclusion was even raised.

(17) In Musammat Nihalo v. Rajwanti, (Subordinate Judge, Meeurt, dated 18th August 1893), a daughter's right to succeed on her mother's death was declared.

(18), (19) and (20) In Musammat Teja v. Partab, (Subordinate Judge, Meerut, dated 27th September 1894) and Musammat Bhupia v. Khub Ram (Subordinate Judge, Aligarh, dated 28th February 1895) and Musammat Soulan v. Dhian Singh- (Subordinate Judge, Aligarh, dated 25th February 1896), the claims of daughters to succeed to their fathers' estates were decreed. In two the defendants were the male agnates. In none was any custom of exclusion ever pleaded.

(21) and (22) The eases of Musammat Behari v. Musammat Premo and Musammat Tajo v. Sewa Ram, one of the Meerut and one of the Aligarh District are similar in nature.

(23), (24), (25), (26), (27) and (28) In Musammat Hanso v. Sunehra, and Musammat Tadzaoli v. Baghubir (both of the Meerut District) and in Badami v. Shiam Lal (Aligarh District) and Shibia v. Tulshi Bam, Meerut, and Collector of Aligarh v. Kalyan Singh (Aligarh District) and Jiwan v. Musammat Kanwali, Meerut, the custom now in dispute was actually pleaded as against the daughters but the Courts held it not proved.

(29) and (30) There was the same decision in the judgments delivered by this Court in the case reported in Lachhmi v. Sangram 14 Ind. Cas. 322 : 10 A.L.J. 136. and in Nauli v. Kheri 15 Ind. Cas. 607.

(31) In the cases of Shibia v. Dilip (Meerut).

(32) Chuni v. Koka (Aligarh).

(33) Sri Ram v. Ram Kuar (Meerut).

(34) Tulso Kuar v. Gulab Dei (Moradabad).

(35) Asa Ram v. Musammat Bajwan and Ramji Lal (Meerut). The claim of the daughter to succeed was upheld, no custom of exclusion being pleaded.

(36) The appellants also point to the compromise in the Kuchesar case of which mention has already been made. The daughters recovered 2/3rds of the estate.

57. We may fairly say that there are 38 judicial decisions which go to negative the existence of the custom, in eight of which the Courts distinctly held against the custom. The great majority of these suits come from the Meerut District and the others from adjoining districts.

58. We now take those instances which the defendants-appellants claim to have established in their own favour by the production* of Khewats.

59. Of these only 33 require consideration, the learned Advocate for this party having admitted that the others are of no use for his purpose.

60. Of these there are five good instances of daughters and daughters' sons inheriting in the presence of collaterals.

61. In the village of Chur in the Meerut District there was one Shitaba who had three brothers, Bakshi, Mani and Bhura. On his death his widow succeeded to his eultivatory holding and to her succeeded his daughter Musammat Kauli {vide 225, 227A). At page 245 (appellants' book) we see that Musammat Kauli was recorded as owner of his zemindari share in Patti Bakshi in 1313 Fasli and at page 262A we see that this was repeated in 1316 Fasli. The same documents show that Shitaba's brother Bhura was still alive and in possession of his own share of the zemindar.i

62. In Mauza Banmauli, District Meerut, Durjan died and his daughter Musammat Khairati succeeded to his estate by inheritance in 1318 Fasli, though she resided in another village and Durjan's two brothers were alive (vide 332, 333 A).

63. In Mauza Jallabad, Ram Sukh died and was succeeded by his' three daughters in 1318 Fasli. The record does not show that there were any collaterals, but the custom pleaded is the total exclusion of daughters (vide 335A).

64. In Mauza Ruri, Chattar Singh was succeeded as to half his estate by his living daughter Musammat Bhuro, and as to the other half by the sons of another daughter Musammat Birji, though his two brothers Bhagwan and Kesri survived him (vide 346A).

65. The khewat of Maaaa Kelote for 1318 Fasli shows that Musammat Medo succeeded to her father Kalla and then sold the estate for Rs. 3,000 to the two reversioners, Shoo Sahai and Ghasita. Of the remaining 28 instances one or two are clearly not instances at all, and in the cases of the others though the khewats show that daughters have taken property -(zemindar), they do not show clearly that these were cases of inheritance. Though' in many of these there is a great probability that the daughters took by inheritance we cannot hold it proved that they did do so. We, therefore, have to reject them.

66. The respondents filed certain 'khewats, chiefly for other purposes, and we have not been referred to any for the purpose of showing that reversioners inherited to the exclusion of daughters?.

67. We have thus examined all the evidence as to instances on both sides and the result is as follows :

68. Instances of exclusion of daughters proved

(a) by oral evidence 89

(b) by judicial decisions 9

Total 98

69. Instances in which daughters or their sons have inherited

(a) by oral, evidence 34

(b) by judicial decisions 33

(c) by khewats 5

Total, 72

70. The figures under 33 include those cases in which though the daughters' right was contested there was no plea taken that they were by custom excluded from inheritance.

71. We next come to the most important branch of the plaintiffs' evidence, i.e., the extracts from a large number of Wajib-ul-araiz of the Meerut District. A fresh Settlement of the Meerut District was made in the year 1861, i, e, us soon as possible after the Mutiny (when fill records were destroyed). It, was more or less summary and was followed by a revision some ten years later. The first was known as Mohar Singh's Settlement and the later one as Nasir Ali's Settlement after the names of certain officials employed therein.

72. There is no class of evidence which varies in value so much as this one, especially in delation to customs. It repeatedly is found that those, who dictated the so called customs recorded therein,, dictated not so much preexisting customs as the usages they wished' to see prevailing. Some of these documents in the present case are not free from this taint.

73 Take for example the Wajih-ul-arz of Kazimibad Gaon for 1831 and that for the next Settlement of the same village at pages 356 and 366 of the respondents' book. At the earlier Settlement the record states that all co-sharers have full power to transfer their property (no restriction as to gifts) : that if one widow have no issue, then the issue by the other wife must arrange for her maintenance and if they fail to do so, she has a right to take possession of half the estate and hold it for her life'-time unless she should re-marry : that if a co-sharer die childless (lawalad) the widow will be the owner of the property : that the daughter and a son-in-law get no share. At the later Settlement (Nasir All's) the record sets forth that the co-sharer can only adopt or make a gift to his own nephew or near male relative : that if two widows be left and one be childless then the latter is only entitled to a right of maintenance : (no mention of her right to take half the estate is made) : that if a co-sharer die childless (lawalad') leaving a widow she is entitled to hold for' life and on her death her husband's male relations will take.

74. There is no specific mention of the daughters* exclusion from inheritance unless wo narrow the moaning of the word lawalad' to son-less' from its true meaning 'childless.'

75. According to the older document the owner of property had full power to gift to whomsoever he wished, but under the later one he can only gift to a near relative. And at the end of the later document we find one co-sharer, Phul Singh recorded as having stated that ho had fall proprietors right over the property which had been gifted to him by his maternal grandfather. The older document does not restrict the co-sharer in the matter of adoption. The later document restricts him to near male relatives.

76. Similar differences will be found in the records of the village of Timakiya for those two Settlements. In the later one there is no language at' all which can be construed even as excluding a, daughter from inheritance (vide R. 354, 364)

77. Khitauli village (R. 355, 364) is another instance.

78. Customs clearly de not vary like this in the : short course of ton years and one's faith in these documents as evidence of custom is considerably shaken.

79. Again, take the case of Muhammad Morar-pore (388 R.) The document sets forth that a co-sharer having male issue cannot gift away his ancestral property bat can do so in the case of self-acquired property. This is the rule of Hindu Law (with certain exceptions), bat the document goes further and states that a childless owner cannot make a gift at all and can only adopt a member of his own family. This document gives a childless co-widow a right to retain possession of half the estate as against the sons of her co-wife. The village of Yusufpore Minota is a glaring instance (vide 332 and 37,1 R.) The earlier record distinctly states that a co-sharer may gift his property to his daughter and her husband by a document duly stamped and attested by the brotherhood. The later document restricts the recipients of gifts to near male relatives of the donor.

80. Again see the Wajib-ul-arz of Banauli (393 R.) wherein one Ha tan Jab expressly sets forth what clearly was the wish of his heart, that his khadela (step-son) should get half his estate on his death.

81. In Azadnagar (33.1 It.) in 1831 there was oiks proprietor only who stated : 'l have power to transfer the whole village, but I shall do so first to my own and near brother and if he refuse to whomsoever I like...my daughter or son-in-law shall have no right.'

82. Other instances are to be found in the villages of Hisanpore (R. 410), Fakharpore (R. 429), Tikri (R. 312) and other villages. And in this connection we would point to the : note of the Settlement Officer of the Ambala District, already mentioned, where he says : Jabs and Gujars are inclined to go still, further and to say that daughters never succeed, but this is doubtful as : an actual custom enough correct tough correct as to the fealing of the people.' An I a porusal of the Wajib-ul-arz on the record 1 leaves no doubt that in 1331 (and also to the same extent in 1871.) the Jots and Gujars, Ahira and in some, cases Mahajans and Brahmins in the Meerut District at Settlement time expressed this same feeling towards daughters, even to laying down the rules that a man could not gift his property to them or their sons, though in this respect there was by no means uniformity.

83. It is not necessary to set out in this judgment a list of the villages the Wajib-ul-araiz of which have been filed by the plaintiffs. They are set out in that of the Court below. In many cases, the documents of both Settlements have been filed.

84. In all there are 152 such documents. In 125 of these it is expressly stated that daughters are totally excluded from inheritance.

85. In 27 (and the majority of these are of the later Settlement of Nasir Ali) the exclusion of daughters is not mentioned, though (in some cases) it had been mentioned at the earlier Settlement of Mohar Singh. It is urged that the word 'childless' (lawalad) really means 'sonless,' and that where the document sets forth that if a man die childless his widow takes and after her the male agnates, it should be read, if a man die 'sonless,' and that, therefore, all these Wajib-ul-araiz really exclude 'daughters :' but we cannot accept this for in many other cases we find that the language used is 'if a man died without male issue' and we cannot give to the word any but its natural mean-in.?.

86. In eight of these documents we find that gifts to daughters are allowed and in eight cases the exclusion of daughters is said to prevail in other castes as already mentioned above. In the case of Tikri, (R. 365) we find Chanda Mai stating that he is a Mahajan, that on his death his property will go to his sons or in accordance with his Will if he should make one, but that his daughters should have no right.

87. It is pleaded that the Settlement of Nasir Ali should be taken as supplement to that of Mohar Singh and that where the Wajib-ul-arz is silent on the point in the former but the point was noted in the latter, they should be road together. There is no force in this for in five or six cases at least the record of Mohar Singh is silent on the point and at a revision of Settlement all records are revised.

88. We find the ,custom in question mentioned in many of Nasir Ali's records.

89. No records of customs as drawn up at the last and current Settlement have been produced.They are said to be silent on the point and in modern times the Settlement Officer records those customs which he is 'specially invited by co-sharers to record. Nevertheless it is curious that : no one should have asked that officer to record the custom now in dispute especially if the custom prevails universally among Jats and if the feeling of the community has not altered on the subject.

90. While, therefore, we find that in a large number of villages in the Meerut District it was recorded that daughters were excluded, we find also that in some there is no mention of it and that in several cases where it was mentioned at the earlier Settlement it was not mentioned in the later one of Nasir Ali. At the current Settlement the Jots apparently did not think it worth while to have any such, custom recorded.

91. It must be admitted that documents of this, class are important evidence one way or the other but they are not sacred documents to be blindly accepted as conclusive evidence of custom. Both our own experience and judicial decisions show clearly that in many cases these documents were not drawn up with proper care to distinguish between actual existing customs and the wishes (of those who dictated them) that certain usages ought to prevail. Moreover, we have to hold as to the existence or non-existence of the custom at the present time and not in regard to the remote past. The people of this country have developed and many old customs have died and are dying out. These Wajib-ul-araiz were recorded in 1861 and 1871 and the later ones, in the case of the custom in question, show a decided weakening of the feeling among Jats and the influence of the law of nature which makes a man love his daughter. The causes which brought about the rule of the exclusion of daughters in the remote past can hardly be said to be of any force in later years, but natural love for one's progeny is a constant and ever-present force and when we see that from 1868 onwards there have been a large number of cases in which daughters and their sons have succeeded, as they do under the ordinary Brahminical Law, we find it impossible to say that there is an invariable custom in this Province among Jats under which the daughters are excluded. Tribal feeling in the Punjab no doubt is much stronger but even there, as noted by the Settlement Officer of Gurgaon, the recognition of the daughters' right was growing so far back as 1880. The Jats have been settled in our Province for many hundreds of years, rubbing shoulders with other castes which allow their daughters to inherit. It is little wonder that the harsh and unnatural rule of exclusion should slowly break down when the causes which brought it into existence have almost, if not quite, disappeared. While, therefore, we are ready to give to the Wajib-ul-arz its true weight as evidence of customs, we cannot give it that overwhelming weight which we are asked to do on behalf of the plaintiffs. Judging fairly between the parties, the plaintiffshave shown some 98 actual cases of exclusion and the defendants some 72 cases of inheritance within the last forty-five years. There are also some cases like the Kuchesar case where the parties have compromised and divided the estate. These facts weigh heavily against the custom. We must point out that the analysis by the Subordinate Judge of the judicial decisions is not correct. Several decisions of this Court were not brought to his notice and one case which he held to be in the plaintiffs' favour was reversed by this Court on appeal.

92. As matters stand, it is impossible to hold on the evidence that the custom of total, or partial exclusion of daughters exists among Jats in general in these Provinces. No doubt there is a large mass of opinion that they ought not to inherit and perchance in the dim past they were not allowed to do so : still there remains the facts, so far as the evidence goes, that they have succeeded in almost as many cases as they have failed, in the course of the last forty-five years, in obtaining their fathers' estate as heirs in the absence of sons.

93. It remains to be seen whether the plaintiffs have succeeded in establishing any local or family custom.

94. It will be remembered that in their plaint they pleaded that the custom existed not only generally among all Jats but also in their family, their village and in the neighbourhood.

95. So far as the family is concerned, there is a, total absence of evidence. No special instances of the family are given. It is urged that the plaintiffs are of the Sangwan got, that many witnesses of that got have been called and have given several instances, whereas the defendants have not been able to call any witnesses of the got or to give counter-instances there from. We would point out that nowhere in the pleadings did the plaintiffs set forth that the custom was a special one of the Sangwan got. The word used was 'family' and a got consists of very many families most of which are unconnected with each other except by tradition. It was a family custom that was pleaded and the defendants are not to be prejudiced because none of their witnesses are of this got. The plaintiffs have utterly failed to prove a special family custom. As to the village, the plaintiffs reside in Jhajhokar and the property in suit lies in 'Arnaoli and Dungar. As regards Dungar no witness is called or Wajib-ul-arz produce or instance quoted. As regards Arnaoli no Wajib-ul-arz is produced and no instance quoted. Two witnesses who are residents of this village were examined. Both stated that the custom exists among Jats in general. Ono Tejram (R. 97) gave no instances, the other Ramjilal gave an distance in his wife's family of the village of Shikorepore. In the case of these two villages at least there is no evidence of such a custom existing within their boundaries. There remains Jhajokar which presumably is the village' referred to in paragraph 2 of the plaint, though its name is not specially given. Two Wajib-ul-araiz (one of each of the two Settlements) are produced. In that of Mohar Singh's Settlement it is distinctly stated that the daughter and step-son have no right at all. The document of Nasir Ali's Settlement nowhere excludes the daughter from inheritance, though it expressly mentions that the step-son has no right. It shows that Brahmans and Jats own the village and excepting the matter of a Karao marriage all the so-called customs set forth apply equally to both castes. We would point out that there is in this document an entry to the effect that a childless wife has power like her husband to adopt a son from amongst the members of her husband's family 'excepting the wife of one Balkishan.' This entry roads more like the expression of a wish than the relation of a custom. The two Wajib-ul-araiz, therefore do not agree as to the daughter, the later one not excluding her. Three witnesses from the village were called. They swore to the existence of the custom among Jats in general. One Sondu Singh could give no instance whatsoever.

96. Nawal Singh mentions one instance of another village, Phogana, whence his brother Birbal had obtained a wife. Ram Newaz mentions two instances of Mauza Jhajokar, one of Mehar Singh's estate and one of Khushba Jats estate. In the case of the former he stated that the nephews took the estate though separate in every way. In the case of Khushba he says that the estate was taken by two brothers, and the grandson of a third. Ha , admitted that the Khewat of Mehar Singh and his nephews was joint, i.e., that they jointly held their land, and the case appears to be one of a joint family, though he stated that they were ' separate. Ha admitted that Khushba and his brothers lived in one house and the fact that a grandson of a brother was not excluded points to the family here also having been joint, otherwise the brother's grandson would have no right in the presence of brothers. This is the evidence of the existence of the custom in 'the village,' and it is utterly inadequate to prove the custom.

97. Lastly there is the question of the custom existing in the neighbourhood.' What was' exactly meant by the word has not bean' explained to us. If by it is meant the Meerut District then the state of the evidence is very much the same as that of the evidence called to prove the custom among Jats in general. The greater number of instances on both sides are from the Meerut District and if we remove all external instances on both sides, the figures are varied somewhat but leave the proportion very much the same. The learned Advocate for the plaintiffs has not attempted to specify the villages which go to constitute the neighbourhood' mentioned in the plaint. It is said that Jats of the Sangwan got reside in 12 villages within the boundaries of the district. These scattered villages hardly constitute a neighbourhood.

98. If we take the alleged instances from these 12 villages we find that they are : 11 in number (from the Sangwan got) and all appertain to six of the twelve villages, i.e., in six villages there are no instances. Of the 11 we find that 5 may be accepted as good instances.

99. The main case of the plaintiffs and that which they set out to prove was that the custom existed among Jats in general and they exhausted their energy in attempting to prove that case the vague word 'neighbourhood' was entered to prove the necessary loophole for argument on appeal. In our opinion the evidence produced by the plaintiffs does not establish any custom in the neighbourhood.' the case for the plaintiffs was strongly rebutted by the evidence produced by the defendants which establishes the succession of daughters in a large number of cases and an invariable custom, regularly followed in the caste, has not been established. The rule of Hindu Law must prevail. We, therefore, allow 'the appeal and sot aside the decree , of the Court below the suit is dismissed with costs in both Courts including in this Court fees on the higher scale.


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