( 1 ) THIS appeal has been filed by Raja Ajai Verma of Pawayan. The appellant, Raja Ajai Verma, filed an application under Section 4, Encumbered Estates Act in the Court of the Special Judge, first grade, Shahjahanpur, on 27-1-1936. At the time when he filed the application there was an appeal pending before their Lordships of the Privy Council relating to the property known as the pawayan Estate.

( 2 ) RAJA Fateh Singh, the Raja of Pawayan, died on 28-12-1921, leaving two sons Raja Indra vikram Singh and Kunwar Vijai Verma. Kunwar Vijai Verma claimed that the property left by his father Raja Fateh Singh was not impartible as was claimed by his elder brother and in the alternative that his father had left a will dated 2-8-1918, under which he had given him half the property. On these allegations Kunwar Vijai Verma filed Suit No. 53 of 1922 against Raja Indra vikram Singh for partition and possession of half share in the entire properties. Raja Indra vikram Singh claimed that the properties appertained to the Pawayan Raj were impartible and contested the validity of the will.

( 3 ) THE first Court decided the suit on 16-9-1926, and held that eight villages were impartible property and the rest partible. The learned Subordinate Judge was not satisfied that the will was duly executed. He, therefore, dismissed the plaintiffs suit as regards the eight villages but decreed it as regards the other property which had belonged to Raja Fateh Singh and which the learned Judge held was partible.

( 4 ) THERE were two appeals in the High Court. Raja Indra Vikram Singh filed First Appeal No. 482 of 1926, while Kunwar Vijai Verma filed First Appeal No. 52 of 1927. During the pendency of the appeals the plaintiff and the defendant both died. Raja Indra Vikram Singh died on 28-5-1928, and Kunwar Vijai Verma died on 12-9-1929. Raja Indra Vikram Singh left two sons, raja Ajai Verma and Kunwar Kesho Verma. Kunwar Vijai Verma left a daughter Shrimati Vijai kunwari. On the death of Raja Indra Vikram Singh Kunwar Vijai Verma, the appellant in First appeal No. 52 of 1927, applied that the names of Raja Ajai Verma and Kunwar Kesho Verma be brought on the record. The High Court, without going into the question whether Raja Ajai verma was the sole representative of Raja Indra Vikram Singh, directed that the names of both raja Ajai Verma and Kunwar Kesho Verma be brought on the record as respondents, Kunwar kesho Verma being impleaded under the guardianship of his mother Rani Indraj Lakshmi Devi, and the question of the rights of the parties was left to be adjudicated upon at the time of the hearing of the appeal. In First Appeal No. 482 of 1926 on the death of Raja Indra Vikram Singh the name of Raja Ajai Verma was substituted as appellant and Kunwar Kesho Verma was impleaded as respondent to the appeal.

( 5 ) ON the death of Kunwar Vijai Verma the name of his daughter Shrimati Vijai Kunwari was brought on the record in the two appeals as the legal representative of her father though it was pleaded on behalf of Raja Ajai Verma and Kunwar Kesho Verma that there was a custom in the family under which daughters were excluded from inheritance. The decision of the question whether there was such a custom was left for decision by the bench at the time of the hearing of the appeal.

( 6 ) THE High Court heard the appeals and disagreeing with the judgment of the trial Court came to the conclusion that the entire property belonging to Raja Fateh Singh was impartible. It was, however, of the opinion that the will was proved. The High Court remitted an issue for determination of the question whether there was a custom in the family by which a daughter was excluded from inheritance.

( 7 ) THE trial Court held that the custom of exclusion of daughters was proved.

( 8 ) AFTER the receipt of the finding the High Court went into the question and disagreeing with the view of the lower Court held that the custom was not proved with the result that Kunwar Vijai v