JUDGMENT

1. This is an appeal against the decision dated 20th May 1931 of the Additional District Judge of Fyzabad modifying the decision dated 4th November 1930 of the Subordinate Judge of that place. The facts of this case so far as they are material for the purpose of this appeal are that on 5th October 1875 four persons, Audan, Sarabjit, Debi and Mathura, obtained a decree for birt rights in Debi Saraiyan from the Settlement Court. The plaintiffs' case was that each of the decree-holders was entitled to a one-fourth share in the decreed lands. Chandrika, grandson of Debi, transferred his share to defendant 2. Ram Balli, the grandson of Audan, died childless, and on his death his share devolved on Kamta, son of Sarabjit, and Sheo Prasad, son of Mathura. Kamta died without a son, and on his death defendant 1 obtained mutation in respect of Kamta's property in the right of his being Kamta's daughter's son. The plaintiffs pleaded that owing to a custom obtaining in pargana Khandasa, in which village Debi Saraiyan was situate, daughters and daughter's sons were excluded from inheritance. The plaintiff 1, Sheo Prasad, jointly with plaintiff 2, to whom he had transferred a two-third share in the property in consideration of his financing the litigation, therefore claimed a 12 annas share out of the property in respect of which a decree has been passed by the Settlement Court. The defendants denied that plaintiff 1 was the son of Mathura. They also denied the custom set up by the plaintiffs, and pleaded that Mathura had been excluded from possession of the property decreed by the Settlement Court, by the other member of the family, for over 12 years, and that the claim was therefore barred by limitation. The learned Subordinate Judge held that each of the persons in whose favour the Settlement Court decree had been passed had a one-fourth share in the decreed land.

2. He found that the custom embodied in the riwajiam of Khandasa did not apply to village Deli Saraiyan, and held the custom not proved. On the question of the exclusion of Mathura, his finding was against the defendants. In the result he passed a decree for joint possession of a one-fourth share in the plaintiffs' favour. On appeal, the lower appellate Court held that Debi, who represented one branch of the family, had a half share in the decreed lands, and that Audan, Mathura and Sarabjit, who be-longed to the other branch were between themselves entitled to the other half. He also disagreed with the finding of the trial Court on the question of custom, and relying on the riwajiam of Khandasa held the custom established. He agreed with the trial Court that the defendants had failed to establish the plea of the exclusion of Mathura. He also agreed with the finding of the lower Court that plaintiff 1 was the son of Mathura. As a result of these findings, he modified the decree of the lower Court, and passed a decree for joint possession over a half share in the property in suit in favour of the plaintiff. The learned Counsel for the defendant-appellant (Raghu-nandan) has challenged the correctness of the lower Court's finding on the question of custom. He does not deny that Ex. 9, the riwajiam of Pergana Khandasa, contains a clear record of the custom of exclusion of daughters for in-heritance, but he has argued that the custom in question does not apply to the family of plaintiff 1. His argument is that it applies only to Brahman landholders, and had no application to the family of Mathura, who was not a landholder. We are of opinion that thia contention is without force. The preamble of Ex. 9 shows that it records the custom obtaining amongst the various castes in the pergana, including Brah-mans.

3. It further shows that the riwajiam was based on declarations made by lam-bardars and hissadars. We are not prepared to agree with the contention of the appellant that because only lambardars and hissadars were the declarants, therefore the custom stated by them has no appl