JUDGMENT

1. Allah Dad, a Kahut of Mauza Korchasham in the Chakwal Tahsil of the Jhelum District, made a Will in respect of a portion of his ancestral land in favour of his five daughters in July, 1897. Allah Dad died in 1912 and on his death his entire land was mutated in favour of his grandsons to the exclusion of his daughters his son Muhammad having predeceased him. In March, 1915, the daughters of Allah Dad sued for the recovery of their shares in their father's inheritance, basing their claim, among other grounds, on the strength of the Will of 1897, with reference to which it was alleged that it had been assented to by Muhammad, the father of the defendants. The execution of the Will has been proved and is not now in dispute.

2. The First Court decreed the suit, finding that the plaintiffs had succeeded in establishing a custom by which a Kahut proprietor was empowered to make a bequest in favour of his daughters in the presence of his sons. It also found that the defendant's father had given his consent to the Will. On appeal the District Judge has held that no such custom had been established, and that no consent on the part of the defendant's father has been proved. He has, therefore, dismissed the plaintiffs' suit. The plaintiffs have appealed to this Court after having obtained a certificate from the District Judge.

3. It appears that Musammat Hafizan, one of the appellants, died on or about the 3rd February, 1920, and that the application to have her representatives impleaded was not made within the period prescribed by law, but was made on the 9th March, 1921, after the appeal had abated against her. No sufficient cause has been shown for the appellants not applying within the prescribed period, and we must consequently decline to make an order for setting aside the abatement.

4. On the merits, the case has been argued before us at some length by the appellants' Counsel, but the question for decision is very simple. It is whether by custom applicable to the parties a proprietor has the power to bequeath by Will a portion of his ancestral property in favour of his daughters in the presence of his sons. In our opinion the plaintiffs have entirely failed to establish such a custom.

5. The oral evidence produced is practically of no value, the witnesses giving us instances to show that such Wills having been made without the consent of the sons have been maintained even after contest. The oral evidence may, therefore, be disregarded.

6. As to the documentary evidence on the record, our attention has been drawn to copies of two judicial decisions which are referred to in detail in the judgment of the First Court.

7. One is a case of a gift to a khana damad belonging to the weaver tribe and consequently of no practical help to the present parties, who are Kahuts, and the other of a gift by a sonless proprietor, which also can have obviously no relevancy to a case where the validity of a bequest made by a proprietor having sons in existence is in question.

8. Reliance has also been placed on some reported decisions of this Court, viz., Sabalam v. Sarfaraz (1884) 122 P.R. 1884, Fazal v. Mst. Bhagbari (1885) 93 P.R. 1885, Muhammad Hussan v. Muhammad (1910) 81 P.R. 1910 and Khuda Bakhsh v. Shamas (1910) 68 P.R. 1910, but it is clear from an examination of these decisions that none are in point, and that they do not help the plaintiffs in establishing the special custom set up.

9. As to the second ground of appeal the District Judge has found that the evidence on the record is sufficient to establish Muhammad's assent to the Will. This is clearly a finding of fact which we, sitting here as a Court of second appeal must accept as final.

10. The result is that the appeal fails and is dismissed with costs.