A family custom excluding daughters from inheritance can be established through village records, oral testimony, and family tradition. Such a primitive, family-wide custom can be presumed to have existed from an earlier date and applies across different branches of the family sharing a common ancestry.

Sir George Lowndes:-

These consolidated appeals arise out of a suit filed by Kunwar Vijai Verma to make good his claim to a moiety of the Pawayan Estate in the Shahjahanpur District of the United Provinces. The litigation has been protracted and in some ways singularly unfortunate, and the appeals as they come before this Board have little resemblance to the case originally tried. Only one of the issues originally raised is now in dispute and upon it their Lordships have not deemed it necessary to hear argument. It has been found by the Indian Courts, and is now admitted, that the Pawayan Estate was in the hands of Raja Fateh Singh, the father of Vijai Verma, an impartible Raj descending by the custom of male primogeniture, under which, on the Raja's death in December 1921, it would, in the absence of any testamentary disposition by him, have passed intact to his eldest son, Raja Indra Bikram Singh, the original defendant in the suit. His younger brother however claimed that the Estate was joint family property subject to the ordinary Mitakshara law, and alternatively that by the duly executed will of his father, half the Estate was devised to him. The trial Court held that the Estate was as to some portions impartible, but as to others partible and gave the plaintiff a decree for his share of the latter with mesne profits. It held the will not to be proved. The High Court on appeal found the whole estate to be impartible, but upheld the will so that the plaintiff, if he had then been alive, would have succeeded in his suit. Unfortunately however he died before the decision of the Appellate Court was given leaving an only daughter who was under protest from the other side substituted for him on the record. This brought an entirely new issue into the field of dispute, as the daughter's right of inheritance to her father was denied on the ground of family custom. It necessitated a remand to the lower Court to try the validity of the custom on which evidence was recorded at great length. The trial Judge found the custom proved the result of which would have been to deprive the daughter of all the fruits of her dead father's success, but on his finding being returned to the High Court the learned Judges there disagreed with his conclusion and held that the custom was not established that the daughter inherited under the Mitakshara law and was therefore entitled to half the estate with a large sum for mesne profits. The matter now comes before the Board with two questions in dispute, viz. whether the validity of the will was established and whether the custom excluding the daughter from inheritance was proved. With the consent of the parties their Lordships took up first the question of custom, and having come, somewhat reluctantly, to the conclusion that the custom is proved, they have not found it necessary to go into the question of the will.

It is desirable in the first place to set out in more detail the course which the litigation took in the Indian Courts. Raja Fateh Singh died on 28th December 1921, leaving two sons, Indra Bikram Singh, the elder, who succeeded to the hereditary title of Raja and Vijai Verma. The latter, on 7th March 1922, instituted his suit in the Court of the Subordinate Judge of Shahjahanpur, making his brother defendant. After recording a mass of evidence, both oral and documentary, the Subordinate Judge delivered his judgment on 16th September 1926. He held (as already stated) that the will of Rajah Fateh Singh was not proved, that certain of the Pawayan villages were impartible and passed to the defendant, but that others were in the nature of ordinary joint family property in which the plaintiff was entitled to share equally with the defendant. He passed a decree to this effect and directed an enquiry on the usual lines as to mesne profits, in respect of which a sum of about 2½ lakhs of rupees was eventually decreed on 17th January 1928. In the meantime both parties appealed to the High Court at Allah