JUDGMENT
1. This appeal arises out of a suit for possession of property and mesne profits. The plaintiffs are the reversioners of the last male owner and have brought their suit on the death of the last remaining widow against the daughters, and one daughter's son. Under Hindu Law, the daughters are entitled to succeed. The parties are Jats resident in the Sardliana Tahsil of the Meerut District. The plaintiffs, accordingly in para. 6 of the plaint, pleaded that according to a custom prevalent in the caste and brotherhood of their family, daughters and daughter's sons were excluded from inheritance and the defendants, therefore, had no title.
2. The main defence was a denial of the custom and a claim based on the ordinary Hindu Law.
3. The Court of first instance held that the evidence produced by the plaintiffs did not establish an immemorial invariable custom and dismissed the suit.
4. The lower Appellate Court held that the evidence sufficiently established the custom and decreed the suit. The defendants come here in second appeal and it is urged that accepting the evidence, it is insufficient in law to establish a custom in derogation of the ordinary rule of Hindu Law to which the parties are subject. To decide the point, we have had to examine the evidence and have been taken through all the details of it which bear upon the point,
5. There can be no doubt that the burden was upon the plaintiffs to prove a custom which overrides the ordinary Hindu law of inheritance.
6. They developed their case in the course of the evidence in the following manner. They tried to prove (1) that their class of Jats originally came from the Punjanb (2) that Jats in the Punjab follow the custom whereby daughters and their sons are excluded from inheritance; (3) that the custom prevailed in the two villages in which they own. property and in the surrounding villages
7. In the course of this appeal, we are asked to accept the lower Court's finding that the plaintiffs are Punjabi Jats and our attention has been called to the reports of various Settlement Officers in several districts of the Punjab in which the custom is said to exist in those districts among Jats. It is then argued that the presumption is that the Jats who emigrated to these provinces retained their old customs and, therefore, there is a presumption in favour of the existence of the custom now put forward.
8. The evidence, on which the lower Appellate Court held that the Jats to which the plaintiffs belong, came from the Punjab, consists of the bald statement of one plaintiff and a few of their witnesses that their forefathers emigrated from the Punjab. As to when the emigration took place and from which part of the Punjab, there is no knowledge whatever displayed by ' the witnesses. One does, indeed, give a name of a village, but cannot say even in what district of the Punjab it is situate.
9. As evidence of the origin of the plaintiff's caste and family, this is worthless and we find it difficult to understand how the lower Court could, on such bald and unconvincing statements, hold that the fact was proved.
10. But, granting that their forefathers came from the Punjab in the remote past, there is no evidence at all to show how many hundreds of years ago this occurred. None of the evidence on record goes back later than 40 years. As the witnesses can give us no help in the matter, the presumption is that the emigration took place so long ago that all knowledge of it has vanished,
11. In these circumstances, there can be no presumption that the plaintiff's caste fellows have not followed the same rule of law which prevails in these Provinces and which is an ordinary rule of Hindu Law. As the lower Court's judgment shows, there are many Jats in these Provinces who follow the rule of Hindu Law and only recently another Bench of this Court, in Lachhmi v. Sangram 14 Ind. Cas. 322, in a similar case from this same part of the Province, has held that the custom now put forward by the plaintiffs does not exist among Jats
12. We are, therefore, unable to approach the actual evidence in the case with a persumption in favour of the existence of the custom. As we have already said, it is one contrary to the rule of Hindu Law and, the parties being Hindus, must be, therefore, proved by clear and cogent evidence.
13. To establish the custom, the plaintiffs have produced entries made at the two Settlements of the district of Meerut which followed each other closely and that soon after the Mutiny of 1857.
14. The entries are to be found in the wajib-ul-arz of seven villages of the district, two being these in which the family owns property.
15. In addition to these documents, they have called witnesses who testify to instances in which the custom has been observed.
16. In regard to the entries in the wajib-ul-arz, these lay down that daughters and their sons shall not inherit where a Jot dies leaving collaterals alive. But it seems to us that these very documents contain within themselves intrinsic evidence to show that they are not relating actual existing customs as to the law of inheritance but rules which the persons who dictated them wished to be established.
17. They lay down the rule that a Jat cannot gift his property to his daughters or their sons as long as he has any collateral relatives alive. They place no restriction on his power to gift to a stranger.
18. Again, in one set of these documents, it is laid down as a rule of inheritance that where a man has two or more families by two or more wives, his estate will be divided up into a corresponding number of portions and the sons of each wife will divide their portion among themselves. But in the other set of wajib-ul -araiz, the rulelaid down is that his descendants will take per capita. These two sets of documents were drawn up at no great distance of time from each other and such customs do not alter so rapidly.. Under these circumstances, considerable doubt arises as to whether actual existing customs were recorded or whether the records contain merely those rules which the persons, who dictated them, desired to promulgate.
19. And our suspicions are greatly strengthened when we come to the oral evidence as to the instances of exclusion.
20. The plaintiff's chief witnesses were Niada (plaintiff), Rup Ram Kure, Lachmi Dat and Sis Ram; a few others were also examined. The evidence of these witnesses go to show some 13 to 20 instances having occurred within the last 30 or 40 years of the exclusion of daughters and their sons. At the same time, we note that they speak in some cases merely by hearsay and their cross-examination shows that in many cases, they have a woeful ignorance of the family and estate. The best witnesess to prove such instances would surely have been the persons who excluded the daughters and daughter's sons, or their immediate descendants.
21. But, putting this aside, these very witnesses have had to admit at least six instances within the same period of daughters and their sons having inherited, even in spite of the opposition of collaterals "in a few oases.
22. The defendants have called witnesses who similarly testify to instances the other way. Several of these are not real instances.
23. Stress is laid on the fact that in at least two cases, the daughters have sold the property to the collateral heirs of their fathers. This surely weighs against the plaintiff's case.
24. Some instances on both sides have occurred within the last 12 years and the persons in possession are liable to attack in the law Courts.
25. None of the instances are very old. We must note that the plaintiffs did not limit the custom to their own family. They distinctly pleaded a caste custom among Jats.
26. It comes then to this that about 18 instances of exclusion within. 30 or 40 years have been proved and about six cases where the daughters have inherited, custom has been defined as a rule of conduct uniformly governing a community from time immemorial. The Hindu Law of inheritance is itself based on immemorial custom, and the parties are Hindus. They put forward what they designate an immemorial custom divergent from the rule of Hindu Law. The utmost that their evidence proves is that there is a strong feeling in their caste that the daughter should not be allowed to inherit and that during the last 30 or 40 years, there have been 18 cases in which the daughters have been excluded and that there have been at least 6 instances in which they have asserted their right successfully, In our opinion, this evidence is insufficient to establish a general custom, binding on the whole community this rule of inheritance. There is no evidence to show that it has been uniformly followed over a considerable period of time so as to be binding on the community as a custom.
27. In this view, we must allow the appeal. We set aside the decree of the Court below and restore that of the Court of first instance with costs in all Courts including in this Court fees on the higher scale.