A custom excluding daughters from inheritance may by implication exclude the daughter's sons but not the daughter's daughter from such inheritance.

T. S. MISRA, J.:- The following question has been referred to the Full Bench for opinion:-

"Whether a custom under which daughters are excluded from inheriting the property of their father can by implication exclude the daughters' issues both males and females, also from such inheritance ?"

The facts to the extent they are material are these. Ghurpattari and others filed Suit No. 180 of 1964 for securing possession of a house situated in Mauza Nasirpur, pergana Bidhar, Tehsil Tanda, Dist. Faizabad, alleging that the suit house belonged to Lautan, ancestor of the parties, that Khilawan great grandson of Lautan had illicit relations with Smt. Jaggo who gave birth to three daughters, but all of them died of Cholera, and that Jaggo's sister had two daughters, Baldei and Rajdei who were brought up by Khilawan and Jaggo as their own daughters. Sarju Din defendant No. 2 was son of Baldei, Khilawan died about 20 years before the institution of the suit. Smt. Jaggoo had no right in the property, but in order to provide her maintenance, she was kept in the house and her name was not entered in the revenue papers. Jaggoo died 10 or 11 years before the institution of the suit and Raj Dei got her name entered in the revenue papers, Sarju Din filed a collusive suit against Raj Dei and entered into a compromise in terms whereof a decree declaring his right was passed. It was alternatively pleaded that even if Smt. Baldei and Rajdei were held to be daughters of Khilawan, they were excluded from inheritance because of a family custom. It was alleged Sarju Din had executed a fictitious sale deed in favour of Mangaru and Lalai, defendants 1 and 2 and while the plaintiffs were absent, the defendants 1 to 3 got illegal possession of the house. That sale deed was said to be void. The plaintiffs, therefore, claimed possession of the house. In reply, the defendants pleaded that Smt. Jaggo was a legally wedded wife of Khilawan and Rajdei and Baldei were their daughters, that the house in dispute did not belong to Lautan but was built by Prahlad and Khilawan and after the death of Prahlad, Khilawan became the owner of the house and on his demise Smt. Jaggo succeeded to all of his property. After the death of Jaggo, her daughters Rajdei and Baldei succeeded to the property. The sale deed in favour of defendants 1 and 2 had been executed with the consent of Baldei by Suraj Din, Rajdei also sold her half share. They denied that there was any custom excluding daughters from inheritance.

2. The trial court decresed the suit on 23rd December, 1964. Against that decision an appeal was preferred by the defendants. They got their written statement amended to the effect that Smt. Sampatti, daughter of Smt. Baldei was alive when Smt. Jaggo died; hence even if there was a custom excluding daughters from inheritance, the daughter's daughter was not excluded from inheritance and the plaintiffs had, therefore, no title in the house in dispute. The appellate court below allowed the appeal and remanded the case to the trial court. Thereafter Smt. Sampati filed a Suit No. 119 of 1965 claiming relief for possession over the property in dispute and alleging that she had succeeded to Smt. Jaggo, her mothers' mother. Both the suits were tried together by the trial court which found that Smt. Jaggo was legally wedded wife of Khilawan, that Smt. Baldei and Smt. Rajdei were daughters of Khilawan and Smt. Jaggo; that Smt. Sampati was daughter of Baldei but she was not born when Smt. Jaggo died; that under the cusom among the Ahirs of the village to which caste the parties belonged there was a custom excluding daughters from inheritance, hence Smt. Sampati and Sarju Din being daughter and son of Baldei could not inherit. On these findings Suit No. 180 of 1964 was decreed and Suit No. 119 of 1965 was dismissed. Smt. Sampati preferred an appeal No. 21 of 1966, whereas Lalai and Mangaru, defendants Nos. 1 and 2 of Suit No. 180 of 1964 preferred Civil Appeal No. 22 of 1966. Th