JUDGMENT

Broadway, J. - The plaintiff in this case Hayat, a Makwal Jat of Isan Mahar, Tahsil and District Muzaffargarh, instituted a suit challenging certain gifts made by Illam Din and Mubarak in favour of their sisters Alam Khatun and Mt. Roshan and the latter's son Ali Muhammad. The plaintiff's suit being dismissed ha (preferred an appeal to the District Court. This appeal having proved unsuccessful he has come up to this Court in second appeal armed with a certificate from the learned District Judge under Section 41 (3) of the Punjab Courts Act, III of 1914. The certificate in question states that there is a question regarding the validity of a custom, viz., the validity of a gift in favour of sisters and sister's sons as against collaterals.

2. Mr. Anant Ram on behalf of the appellant frankly and righty admitted that, so far as the evidence on the record was concerned, the appellant had failed entirely to prove that such gifts were invalid by custom. He, however, contended that the onus of proving the custom had been wrongly placed on him. Now, in the primary Court the onus was placed on him without any objection on his part. In the lower appellate Court it was never alleged that the onus had been wrongly placed. This is apparent from the grounds of appeal to the lower appellate Court as also from the judgment of the learned District Judge itself. The question of onus is however, one of law and so can be taken up in second appeal. In support of Mr. Anant Ram's contention that the onus should have been placed on the other side, he drew my attention to the Customary Law of Muzaffargarh District, page 32, and particularly to the answer to question No. 10. As, however, this question does not relate either to the succession by sisters or gifts to them it does not appear to have any bearing on the matter before me. On the other hand, the answer to question No. 26, read with the answer to question No. 21 (pages 37 and 36) renders it perfectly clear that all the tribes of this District recognise that on a man dying without male lineal descendant and leaving neither widow nor daughters nor daughter's sons the property passes to his (1) father, (2) brother or their descendants, and (3) sisters or their descendants. The position of a sister, therefore, in this District in matters of succession is a strong one. Mr. Anant Ram, then referred me to Hayat v. Rustam (1917) 48 P.R. 1917. That decision refers to Makwal Jats of Tahsil Alipur and, as the judgment shows, the decision was confined to that particular tribe in that particular Tahsil. At the same time, in that case itself it was recognised that the onus lay on the collaterals to establish a custom by which they excluded sisters. Mr. Anant Ram then cited Raniha v. Jindwaddi (1914) 104 P.R. 1914 in which it was held that among Biloches of the Muzaffargarh District collaterals in the 5th and 6th degree had failed to prove that they excluded sisters. It was specifically held that the entry in the Riwaj-i-am in favour of sisters threw the onus probandi on the collaterals. I have, therefore, no hesitation whatever in agreeing with the Courts below that it was for the plaintiff in this case to show that he had a preferential right to succeed as against the sisters of Mubarik and Ram Din. Admittedly, the appellant has adduced not a single instance in support of his case, whereas on the other side there are several instances established. Further, in the Muzaffargarh District the Jats, especially the Muhammadan Jats, have very large powers of alienation and gift, and Mr. Anant Ram admitted that be was unable to press the matter with regard to this portion of the case. I confess I am unable to see on what grounds the certificate was granted and the appeal is dismissed with costs.