JUDGMENT

Kisch, J - This is a plaintiffs' second appeal arising out of a suit for the recovery of possession of certain under-proprietary plots in village Ichauli, District Bara Banki which has been dismissed by both the Courts below. The property in suit belonged to one Wajid Ali who had no children. On his death his widow entered into possession of the property and remained in possession until her death on 16th July 1920. After her death the present defendant who was her second husband entered into possession of the property. His application for mutation was contested by the present plaintiffs Waris Ali and Sabit Ali, who are brothers of Wajid Ali, but without success. The present suit was instituted on 17th November 1930 by the brothers of Wajid Ali to get possession of the plots. It was contested by the defendant on the ground that under the village custom as recorded in the wajibularz, if there is one widow of the owner who is without issue, she inherits her husband's property with power of alienation, which it is contended in defence constituted absolute ownership in such widow. Both the Courts below held that the custom that such widow became the owner of her husband's property was established.

2. Besides the wajibularz in question the defendant produced no other evidence. The plaintiffs produced one witness who gave two instances in which he alleged that such a widow in the village had only obtained a life estate in her husband's property. His evidence however was disbelieved by both the Courts below and therefore the case turns solely on the question whether the wajibularz produced establishes the custom set up by the defendant. The first contention put forward by the learned Counsel for the appellants is that the evidence of the wajibularz alone, unsupported by instance, is not sufficient to prove a custom. In Beg v. Allah Ditta, AIR 1916 PC 129, it was held by their Lordships of the Judicial Committee that a riwajiam (a document similar to a wajibularz) was very strong evidence of the custom recorded therein subject to rebuttal. In the -present case there is no rebuttal. In a case decided by a Bench of the late Court of the Judicial Commissioner of Oudh, Baij Nath Singh v. Bajju Singh, AIR 1926 Oudh 101, it was held that it is not necessary that the existence of a custom recorded in a wajibularz or riwajiam should be supported by instances. I have not beer shown any decision of this Court to the contrary. In my qpinion therefore the Court below was justified in holding that the wajibularz unsupported by specific instances is sufficient to establish the custom. The second contention put forward in support of the appeal is that the wording of the wajibularz does not clearly and unambiguously lay down that the childless widow of the last owner shall be the absolute owner of his estate. The passage in the wajibularz runs as follows:

Agar ek hi aurat hai aur aulad pesari ya dukhtari nahin hai to bhi hissa shauhari par ba ikhtiyar intiqal qabiz rahti hai.

3. It seems to me that there can be no ambiguity about such an entry. It is recited that the widow shall have power of transfer and no provision is made for the devolution of the property on her decease. An argument has been sought to be based on the use of the word "qabiz" in the wajibularz as meaning something less than "malik." There appears to be no force in this contention. Beading the whole of the clause in the wajibularz relating to succession it appears that the word "malik" and the word "qabiz" are somewhat loosely used, the word qabiz" appearing in some places where, even according to the argument of the learned Counsel for the appellants, the word "malik" would be more appropriate. In a very similar case Bhagwan Bakhsh Singh v. Digbijai Singh, AIR 1931 Oudh 301 an almost identical provision in an Oudh wajibularz was interpreted by a Bench of this Court to record a custom by which a single childless widow obtained an absolute right in her husband's estate. The