Concurrent findings of lower courts regarding the existence of a custom governing succession to an impartible estate are conclusive unless a manifest error in law is proven, even if such custom derogates from the ordinary rule of seniority of birth.

Judgement

Appeal from a decree of the High Court (March 2, 1894) affirming a decree of the Subordinate Judge of Madura (Dec. 19, 1890) dismissing the appellants suit.

The facts are stated in the judgment of their Lordships.

Both Courts held that the respondent had the prior right of inheritance, finding (a) that the appellants mother was of a lower caste than that of the respondents mother ; (b) that the zemindary in suit descended according to custom and usage to the sons according to priority in order of the marriage of their mothers.

Mayne and Branson, for the appellant, contended that no evidence sufficient in law had been adduced to establish the custom set up by the respondent in derogation of the ordinary rule of law by which succession as between the brothers was regulated by seniority of birth. Two instances of recognition by the Collector of the existence of such custom was not legal evidence of its existence. The High Court was wrong in holding that the appellant had adduced no evidence against it. Sufficient evidence had been given to that effect. As to the nature and extent of evidence required to prove a custom, see Ramalakshmi Ammal v. Sivanantha Perumal (( 1872) 14 Moores Ind. Ap. Ca. 570, 585.); Laksmipathi v. Kandasami . ((1.892) Ind. L. R. 16 Mad. 54.)

Law. Rep. 26 Ind. App. 55 ( 1898- 1899) Sundaralingasawmi Kamaya Naik V. Ramasawmi Kamaya Naik 2

Cohen, Q.C., and Phillips, for the respondent, were not heard.

1899. March 11. The judgment of their Lordships was delivered by

SIR RICHARD COUCH. The question in this appeal is which of the two sons of Nagayasami Kamaya Naik, deceased, the proprietor of the zemindary or palayaput of Saptur in the talook of Trumangalam, Madura district, an impartible estate descending to a single heir according to the custom of primogeniture, is entitled to succeed to it on the death of their elder brother. The father died on or about October 14, 1885, leaving three minor sons, Nagayasami Kamaya Naik, the deceased, and the respondent by his wife Muthuverammal, and the appellant by his wife Nagammal and a daughter. On the death of the father the estate descended to the eldest son Nagayasami, and by reason of his minority the Court of Wards took charge of it under Regulation 5 of 1804 . He died on December 21, 1887, a minor and unmarried. The appellant is the senior in age to the respondent, and as such claimed to be entitled to succeed to the zemindary. The Court of Wards on behalf of the respondent asserted his title and assumed charge of the estate on his behalf and continued to manage it. The suit was brought by the appellant by his mother and guardian, and was defended by the respondents guardian and the Court of Wards. One ground of the defence was that the appellants mother was not the wife of Nagayasami, the father, but his mistress; and the other, that if she was legally married to him the appellant was not entitled to the zemindary in preference to the respondent, who is the son of the senior wife and the brother of the last owner. It was admitted at the trial in the First Court that the appellant was the senior in age to the respondent, and that the appellants mother was married after the respondents mother. It has been found by both the Lower Courts that the appellants mother was legally married, but that her status and rank were inferior to those of the respondents mother, the latter being the daughter of a zemindar, while the former was the daughter of an ordinary ryot. Upon this finding the First Court held that the appellant could not be preferred to the respondent, but must give way to him. This was also held by the High Court on appeal. It was treated by both Courts as a question of law, and was raised by the third of the settled issues. This question has not been argued before their Lord-ships, and it is not necessary to decide it, as the fourth issue was whether, as alleged by the defendant, he is entitled, by the custom prevailing in the Satpur zemindary and in