JUDGMENT

Wazir Hasan, A J C - Judgment-This is the defendants appeal from the decree of the Additional Subordinate Judge of Lucknow, dated the 26th November 1923. The property in suit belonged to one Jang Bahadur Singh. On his death his sister's son, Shamsher Bahadur Singh, obtained mutation of names in his favour and entered into possession of the estate of Jang Bahadur Singh. Shamsher Bahadur Singh produced a will alleged to have been executed by Jang Bahadur Singh in his favour under which he claimed title to the whole estate. The Court of Revenue accepted the will and ordered mutation of names in his favour as already mentioned. Thereupon the defendants-appellants brought a suit for possession of the entire estate of Jang Bahadur Singh as against Shamsher Bahadur Singh on the ground that title to that estate had devolved on them and some other persons arrayed as defendants by the law of inheritance. The suit was eventually compromised and the present appellants obtained possession of the property in terms of that compromise on payment of a sum of Rs. 7,300 to Shamsher Bahadur Singh.

2. The plaintiffs to the present suit are purchasers from Nage Singh, Narpat Singh, Sheo Singh and Subba, Singh of one moiety of the estate of Jang Bahadur Singh under two sale-deeds dated the 11th March 1921 and the 17th March 1921. The other moiety admittedly belongs to the defendants-appellants. The defence to this simple suit proceeded on numerous and various grounds. The pedigree showing the relationship of the vendors of the plaintiffs was disputed. The sales were challenged as opposed to public policy, a custom was set up to the effect that the succession devolved per stirpes and not per capita plea of res judicata was raised, Jang Bahadur Singh's will in favour of Shamsher Bahadur Singh was also put forward and finally in this Court an additional defence was raised that the sale-deeds of the 11th March 1921 and the 17th March 1921 were invalid under Clause (e) of Section 6 of the Transfer of Property Act. All these defences were more or less insisted upon in the course of the arguments advanced in this Court in support of the appeal but except two they were all disposed of by me in the course of the arguments and I heard the respondent's counsel in reply only on those two grounds.

3. On the question of the pedigree, the finding of the Court below is absolutely unassailable. Apart from other evidence the pedigree is supported by the admission of the present appellants in the previous suit and I hold that it is fully proved.

4. On the question of custom, reliance is placed upon a passage in the statement of Sheo Singh (P.W. 9). The learned Additional Subordinate Judge has considered that statement carefully. I am of opinion that statement is neither definite nor sufficient to prove the alleged custom. The only other evidence on which reliance was placed is the statement of Gangadin, one of the appellants in that case. In the absence of any other reliable and independent evidence Gangadin's statement cannot be accepted as sufficient; proof of the custom in question. In agreement with the Court below I hold that the custom is not proved.

5. On the question of res judicata much need not be said. The plaintiff's vendors were parties to the previous litigation but they were discharged on a compromise having been reached between the plaintiffs of that suit and Shamsher Bahadur Singh. There is no question of the applicability of the rule of res judicata on those facts.

6. As to the will of Jang Bahadur Singh the Court below has discussed the evidence now produced by the defendants carefully and fully and in agreement with the opinion of that Court I hold that Will is not proved.

7. The additional ground of appeal was not pressed.

8. It now remains to consider the two grounds which were seriously pressed on behalf of the appellants. The first of them is that the sales of the 11th March 1921 and the 17th March 1921 were opposed to public policy. T