1. This appeal arises out of a suit instituted by the plaintiffs to recover possession of the lands in dispute which are stated to be paikan lands of the Billeswar temple, in the District of Kamrup.
2. It appears that the temple was endowed with lands and paiks by the Assam Kings. Various duties were assigned to the paiks, of whom there are several classes. The paiks were assigned lands for their maintenance and these lands are known as paikan lands.
3. It appears that one Tojo was the last male paikan and that, upon his death, his widow held the land and the services were performed by proxy, the defendant No. 1. The plaintiffs are the two surviving daughters of Tojo and each of them has a son.
4. The defendants, Dolois (managers of the temple), say that the daughters cannot succeed to paikan lands according to the custom of the temple. The defendant No. 1 supported that defence.
5. The Court of first instance held that the plaintiffs being the daughters were entitled to succeed under the ordinary Hindu Law, and that it was upon the defendants who set up a custom of exclusion of daughters to prove such a custom. It found that there was no instance of, exclusion of daughters from inheritance, that alienations to non-paiks were recognised and allowed, and that widows are entitled to succeed. That Court accordingly gave a decree to the plaintiffs.
6. On appeal, the learned Subordinate Judge has reversed that decree, holding that the onus of proof was upon the plaintiff to show that there was a custom allowing daughters to succeed, and that the plaintiffs had failed to prove such a custom.
7. We are of opinion that the learned Sub-Judge is wrong in the view he has taken as to the burden of proof. It is not as if the lands are not heritable at all; because the defendants admit that sons and grandsons succeed. As stated above, it is found that widows succeed and that alienations of lands in favour of non-paiks are recognised.
8. As the defendants set up a particular custom by which succession follows a particular line to the exclusion of daughters, it is for them to prove, such a custom.
9. The Court of first instance, therefore, was right in the view it took of the matter and the learned Subordinate Judge was wrong in placing the onus of proof upon the plaintiffs.
10. The decree of the lower Appellate Court must, therefore, be set aside, and the case remanded to that Court in order that it may be decided after placing the onus of proof upon the defendants.
11. Costs to abide the result.