JUDGMENT

1. This is a plaintiff's appeal. The plaintiff, Saiyyed Mohommad. Zafar, son of the late Saiyyed Mohommadl Baqar, filed a suit in the Court of the" Additional Subordinate Judge of Sultanpur to recover the whole of the property in the Sultanpur District which had been held by his father Saiyyed Mohammad Baqar, who died on 23rd October 1922. He filed this suit against his sister Kaniz; Saiyada, another sister, who died during, the pendency of the proceedings, and his-mother Mt. Mukarranrunnisa alleging, that there was a special custom in his community, in his father's family and/ in his mother's family, by which females were excluded from inheritance in the presence of male issue. Only Kaniz Saiyada contested the suit. The second sister, Nabi-un-nisa, and the mother agreed that there was such a-custom and admitted judgment. After contest the learned trial Judge, finding that no custom existed excluding females in the presence of males and that the inheritance was according to Muhammadan law, dismissed the plaintiff's suit in so far as Kaniz Saiyada was concerned. The plaintiff appeals against the decree in so far as it dismissed his claim.

2. The plaintiff's father Mohommad Baqar was the son of Bahadur Husain and Ummat-ul-Fatima. Ummat-ul-Fatima was a lady who owned property situated' in the Sultanpur District. Bahadur Husain was a man who possessed a very small zemindari property in the village of Mangalsi, Fyzabad District. He resided originally in Mangalsi. He married Mt. Ummat-ul-Fatima, who was a well-to-do-lady and left Mangalsi for Isauli, where his wife resided. He predeceased his wife. The whole of her property (Bahadur Husain left practically no property) descended to Mohommad Baqar. It may be here stated in the beginning that it is agreed by the learned Counsel for the appellant that there was no custom by which females were excluded from inheritance in the presence of male issue in the family of Ummat-ul-Fatima. He further abandons the position that there was a custom in the tribe to which Bahadur Husain belonged by which females were excluded in the presence of males. He bases his claim to succeed in his appeal upon a plea that on the evidence it is established that there is a custom in the family of Bahadur Husain and Mohommad Baqar by which a sister is excluded in the presence of a brother.

3. He relies mainly upon the entries in certain extracts from replies to questions regarding general customs or riwaj-i-am put to the zemindars in the Mangalsi pargana, in the Fyzabad District, during the settlement proceedings which lasted from 1860 to 1879, and upon certain entries made in the khewat of Mangalsi village during the same settlement proceedings. Mangalsi village is one village out of a large number of villages in the Mangalsi pargana. Para. 750 of the Report of the Settlement in question shows that at the time of the settlement there were 126 villages in the Mangalsi pargana, which had an area of 125 square miles and a population of 84,743. To show some of our difficulties in the matter para. 1398, however, states that the Mangalsi pargana consists of 114 villages with an area of 116 square miles. The method of recording customs in the Mangalsi pargana during the settlement operations in question was not the method generally in use in the North-West Provinces and Oudh. In the settlement operations from 1860 to 1880 in the N.W.P. and Oudh the ordinary method of recording customs was to record them in a document known as the wajib-ul-arz which was prepared separately for each village. In a portion of the Fyzabad District a different procedure was adopted. This procedure was followed in a few other places in Oudh. Para. 1628 of the Report shows that in five parganas of the Fyzabad District what was known as the North-Western Provinces system under which a wajib-ul-arz was prepared was adopted. In the remaining eight parganas, which included Mangalsi, what was known as the Punjab system' under which, a wajib