Judgement

Appeal (No. 17 of 1939) from a judgment and decree of the High Court (January 18, 1937), which reversed a decree of the Assistant Collector, First Grade, Lahore (May 8, 1935).

8 Law. Rep. 68 Ind. App. 104 ( 1940- 1941)

Sardar Nisar Ali Khan V. Fatima Sultan 19

The following facts are taken, substantially, from the judgment of the Judicial Committee The suit out of which this appeal arose was brought by three sons of the late Sir Fateh Ali Khan against seven defendants, namely, Sir Fatehs widow and his five daughters, and a fourth son, who was absent in England, and who was also joined as a defendant.

The relief claimed was a declaratory decree to the effect that the plaintiffs and the defendant son were the heirs of Sir Fateh, and exclusive owners of the lands specified in the plaint ; and that the defendants, the widow and daughters, had no right therein. The foundation of the claim was that by the custom of the family women did not inherit. The family were Shiah Mahomedans of the Asna Ashari sect.

The alleged custom was admitted by the widow and all the daughters, except one, namely, Fatima Sultan, the first respondent.

The Assistant Collector held that the alleged custom had been proved, and gave judgment decreeing the suit.

Fatima Sultan appealed to the High Court (Coldstream and Bhide JJ.) who allowed the appeal and dismissed the suit.

From that decision the four sons now appealed.

1941. March 20, 24. Wilfrid Barton K.C. and J. M. Pringle for the appellants. The judgment in the High Court, in three separate instances, draws attention to the fact that no claim to succeed to property has actually been made by females of this family. It is submitted that the judgment is giving undue importance to that sort of evidence ; where there is a custom one ought not to found on inferences of people not making claims contrary to the custom. [Having dealt with the relevant evidence, counsel contended that the appellants had discharged the burden which lay upon them of establishing that a custom of succession existed in the family according to which females were excluded from inheriting.] The appellants are the sole heirs of their father. [Reference was made to Mohammad Ali Khan v. Nisar Ali Khan (( 1928) A. I. R. (Oudh) 67.) ; Ameer Alis Mahommedan Law, 4th ed., vol. ii., pp. 66, 135, 137 ; Punjab Laws Act, IV. of 1872, s. 5 ; Aga Mahomed Jaffer Bindaneem v. Koolsom Bee Bee (( 1897) L. R. 24 I. A. 196.) ; Abdul Hussein Khan v. Bibi Sona Dero (( 1917) L. R. 45 I. A. 10.) ; Roshan Ali Khan v. Chaudhri Asghar Ali (( 1929) L. R. 57 I. A. 29, 33.) ; Ahmad Khan v. Channi Bibi (( 1925) L. R. 52 I. A. 379.).; and Ratilal v. Motilal (( 1925) A.

I. R. (Bom.) 380, 382,384.).]

J. M. Pringle followed, and referred to Musammat Subhani v. Nawab (( 1940)

L. R. 68 I. A. 1.).

Sir Thomas Strangman K.C. and Wallach for the respondents were not called upon to argue.

April 28. The judgment of their Lordships was delivered by Lord Russell of Killowen. [The judgment, after stating the. facts, continued] The question for their Lordships consideration Is whether the plaintiffs have proved the alleged family custom ; but before stating the conclusion which they have reached, their Lordships think it advisable to recall certain Statements previously made by the Board when dealing with alleged departures from the ordinary laws of succession.

In Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar (( 1872) 14 Moo. I. A. 570.) the Board stated that (Ibid. 585.) " It is of the essence of special "usages, modifying the ordinary law of

8 Law. Rep. 68 Ind. App. 104 ( 1940- 1941)

Sardar Nisar Ali Khan V. Fatima Sultan 20

succession, that they "should be ancient and invariable and it is further essential "that they should be established to be so by clear and unambiguous evidence," and in Abdul Hussein Khan v. Bibi Sona Dero (( 1917) L. R/ 45 I. A. 10.) their Lordships observed that (L. R. 45 I. A. 19.) " in every "case of this kind the burden of proof lies heavily upo