1. This second appeal arises oat of a suit by the plaintiff-respondent Musammat Menda, as heir of her father Ram Anand for possession of the share of the latter, which is now in possession of his nephews, the defendants Bodhi Ram and Mahabir. The defendants resisted the suit on the ground that they were joint with their uncle, but this has been found against them and is not now in dispute. The two pleas which are pressed in this appeal are (1) that there is in this family a custom excluding daughters from inheritance and (2) that the plaintiff is estopped from bringing the suit.
2. In support of the custom the defendants produced certain evidence which was rejected as worthless by the lower Courts and produced also a copy of the waiib-ul-arz in which the custom relied on is stated and which,itis claimed, was wrongly rejected by the lower Appellate Court. The lower Appellate Court has no doubt fallen into an error in law in stating that a wajib ul-arz unsupported by other evidence could not be sufficient to establish a family custom. The dictum to this effect in a case reported as Bandi Bibi v. Musharraf 42 Ind. Cas. 199 : 4 O.L.J. 509 is in my opinion too broadly stated and is inconsistent with other rulings of this Court and in particular with the case of Tilak Ram v. Sita Ram. 30 Ind. Cas. 503 : 20 L.J. 388 decided by the Judicial Commissioner and reported in 2 Oudh Law Journal page 388. There is nothing illegal in a Court decreeing a custom on the evidence of the wajib-ul-art alone if it ends the particular wajib-ularz before it sufficient to establish the custom. On the other hand there is certainly no rule of law which compels it to do so. As was pointed out by their Lordships of the Privy Council in Thakur Anant Singh v. Thakur Durga Singh 6 Ind. Cas. 787 : 13 O.C. 163 : 12 Bom. L.R. 504 : 8 M.L.T. 79 : (1910) M.W.N. 324 : 14 C.W.N. 770 : 7 A.L.J. 701 : 12 C.L.J. 36 : 32 A. 363 : 37 I.A. 91 : 30 M.L.J. 604 (P.C.) there is no class of evidence which varies more in value than that of wajib-ul-arzes.
3. Where the Court below has rejected a wajib-ul are under an erroneous view of the law it is no doubt open to this Court to interfere in second appeal. The question is whether in this particular case it should do so. The Court of first instance considered the evidential value of the wajib-ul-arz together with the other evidence produced by the plaintiff and held on a review of the whole evidence that the custom set up was not proved, and there are indications in the judgment of the lower Appellate Court that even if the learned Subordinate Judge had considered himself at liberty to decree the suit on the evidence of the wajib ularz alone he would not have been prepared to do so. He begins his discussion of the issue by stating that he agrees with the Munsif that the evidence is extremely meagre and proceeds to lay stress on the fact that, though oral evidence was adduced by the defendants, not a single instance of exclusion is forthcoming. On the 'whole, therefore, I do not consider that this is a case in which I should set aside the finding of the lower Appellate Court and come to a decision of my own on a question of fact, on account of the error of law which is contained in the lower Court's judgment.
4. On the issue of estoppel I agree with, the lower Court that this plea is clearly untenable. The estoppel relied on is based on the fact that the plaintiff applied for mutation as guardian of her minor son and afterwards compromised with the defendants', and withdrew her application. The terms of the compromise are not on the record and, putting aside the fact that the plaintiff was not acting on her own behalf in the transaction, there is nothing to show that the defendants were induced to alter their position for the worse in any way.
5. For the reasons given above the appeal fails and it is accordingly dismissed with costs.