In matters of succession, custom may prevail over personal law, and a daughter may be excluded from inheritance by near collaterals if a valid and ancient custom exists to that effect.

JUDGMENT :- The only question, which was canvassed in this appeal, against the decree and judgment of the learned District Judge, Bilaspur, was whether according to custom, prevalent in Bilaspur, a daughter was excluded from inheritance of her father by near collaterals. That question had arisen in a case, relating to the estate of Gokal. Gokal was a resident of Lahot village. Pargana Ajmerpur, District Bilaspur Appellant No. 1 is his daughter and appellants Nos. 2 and 3, are the sons of appellant No. 1 Respondent No. 1 is the nephew of Gokal and respondents Nos. 2 and 3 are his grand nephews Respondent No. 4 is another daughter of Gokal. Gokal had no son. After his death, his estate was inherited by his widow Smt. Chukhri, Smt Chukhri alienated 22 bighas and 10 Biswas of land out of the land inherited from Gokal, in favour of Jiwan Singh respondent No. 5 for Rs. 600. That alienation was set aside, on a suit, brought by respondent No. 1 and the father of respondents Nos. 2 and 3 Smt Chukhri gifted that land to the appellants. She died on 14-4-1956, before the coming into force of the Hindu Succession Act. After her death, the appellants had taken possession of the entire estate of Gokal Respondents Nos. 1 and 3 filed a suit for the possession of the estate of Gokal on the allegation that according to custom, they were entitled to succeed in the estate to the exclusion of the appellants and that Smt Chukhri had no power to make a gift Respondent No. 4, another daughter of Gokal, admitted the claim of respondent Nos. 1 to 3 but added that in case, her sister appellant No. 1 was held to be an heir of Gokal, then she was also an heir and was entitled to take half the estate. Respondent No.5 also did not resist the suit. He stated that respondent Nos. 1 to 3 could get possession, on payment of

Rs. 600 to him. The suit was resisted by the appellants. Their plea was that they were governed by their personal law, i.e., Hindu Law, and not by any custom and that under the personal law appellant No. 1 was the heir of Gokal and entitled to succeed to his estate to the exclusion of respondents Nos. 1 to 3.

2. The learned Senior Subordinate Judge. Bilaspur, who had tried the suit, held that the parties were governed by custom, and not be Hindu Law in matters of succession, and that according to custom, prevalent in Bilaspur, respondents Nos. 1 to 3 excluded appellant No. 1 from inheritance of Gokal. The suit of respondents Nos. 1 to 3 was decreed, subject to the payment of Rs. 600 to respondent No. 5. The finding and decree of the Senior Subordinate Judge were affirmed, on appeal, by the learned District Judge, Bilaspur.

3. The appellants have come up in second appeal. There was an office objection that the appeal was barred by time by its order dated 13-7-62 this Court held that the appeal was within time.

4. As already stated, the only question, argued in the appeal, was whether according to custom, a daughter was excluded from succession, by near collaterals. It was contended, on behalf of the appellants, that the evidence, adduced by respondents Nos. 1 to 3, did not establish any custom excluding a daughter from the inheritance of her father by collaterals and that both the lower Courts erred in holding that respondents Nos. 1 to 3 had established the custom, alleged by them. The contention does not appear to be well founded. The burden was, no doubt, on respondents Nos. 1 to 3, to establish the custom, set up by them. This burden was all the more heavier when the custom set up adversely affected the rights of females Hut the respondents had discharged Hint heavy burden, by adducing satisfactory evidence, in support of the custom, that a daughter was excluded by collaterals. Gokal was a Rajput Ganu P.W. 1, Hari Man P.W. 2, Hari Singh P.W. 3 and Chhanga P.W. 4 stated that the predominant occupation of the Rajputs was agriculture and that they cultivated lands for themselves it was further, stated, by the witnesses, that Rajputs are