A settlement record (wajib-ul-arz) is highly reliable evidence of a custom if it is unambiguous and there is no evidence that the settlement officer was misled or negligent, outweighing subsequent oral evidence provided after a dispute has arisen.

Judgement

Appeal (No. 19 of 1922) from a judgment and decree of the Court of the Judicial Commissioner of Oudh (July 15, 1919) reversing a decree of the Subordinate Judge of Gonda.

The only question upon the appeal was whether the deceased appellant (the plaintiff) had established a custom applicable to a village in Oudh named Aunian Durga, whereby daughters and their issue were excluded from inheritance as against himself, the sole surviving brother of the last holder.

The facts appear from the judgment of the Judicial I Committee.

The Subordinate Judge held that the custom alleged was established by the oral evidence and by a wajib-ul-arz, the material part of which appears in the judgment. The Court of the Judicial Commissioner reversed that decision and dismissed the suit; the learned judges considered that the wajib-ul-arz, though applicable to the village in suit, was ambiguous and the evidence unsatisfactory.

1923. April 20. De Gruyther K.C. and Dube for the appellants relied on the oral evidence and the wajib-ul-arz, and referred to Sheo Mangal v. Jagpal Singh . (( 1905) 12 Oudh Cases, 63, 69.)

Kenworthy Brown and Hyams for the respondents referred to Parbati Kunwar v. Chandarpal Kunwar (( 1909) L. R. 361. A. 125,136.) and Anant Singh v. Durga Singh (( 1910) L.R. 37 I. A. 191,197.), contending that the wajib-ul-arz was ambiguous and should not be acted upon in the absence of proof of instances, especially having regard to the facts (1.) that the suit was for ejectment, (2,) that the custom varied HINDU LAW to which the parties were subject.

Dube replied.

May 10. The judgment of their Lordships was delivered by

SIR JOHN EDGE. This is an appeal from a decree of the Court of the Judicial Commissioner of Oudh, which reversed a decree of the Subordinate Judge of Gonda, and dismissed the suit. The suit was for the possession of the village Aunian Durga in the District of Gonda, and for mesne profits, and it depended on whether there was or was not a family custom in the village by which daughters and their issue were excluded from inheritance. The Subordinate Judge found that there was such a custom and decreed the suit. The Court of the Judicial Commissioner on appeal found that the custom was not proved, and accordingly dismissed the suit.

In order to understand how this question as to a custom excluding daughters and their issue from inheritance has arisen in this suit, it is necessary to refer briefly to the family to which the plaintiff, Balgobind Pande, had belonged. Balgobind Pande and his three elder brothers, Sital Prasad Pande, Radha Pande, and Raghubar Pande, had, with their father, Narain Dat Pande, constituted a joint Hindu family which was governed by the law of the Mitakshara subject to any lawful variation of that law by custom. A custom which excluded daughters and their issue from inheritance would be a lawful variation of that law. Such a custom is not uncommon in Oudh and in other parts of India.

The elder brother of Narain Dat Pande was Harnarain Pande, who was a sanad holder, and was possessed of con siderable immovable property in Oudh. Harnarain Pande gave some of his villages to Narain Dat Pande absolutely. Narain Dat Pande also acquired other villages, one of which was the village Binduli. Their Lordships do not know when Narain Dat Pande died. At the settlement in Oudh after the mutiny, the villages which Narain Dat Pande had self-acquired and those which he had acquired by gift from his elder brother were by courtesy described as taluqa Binduli, and the property was in the settlement papers referred to as a taluqa. It is not necessary to consider whether that property was or was not correctly described as a taluqa. Sital Prasad Pande was at the time of the settlement the manager on behalf of the then joint family, and he was also the lambardar of some, if not of all, the villages included in the taluqa.

The settlement officer prepared a wajib-ul-arz for each of the villages. The fourth paragrap