Judgement Appeal from a decree of the High Court (Feb. 7, 1893) reversing a decree of the Subordinate Judge of Aligarh (Jan. 14, 1889). Upon the death of Girparshad, the owner of the estate in suit, the appellant, as his elder son, took possession thereof, claiming that there existed in the Beswan family, to which the parties belonged, a custom of primogeniture by which the eldest son was entitled to succeed to the whole estate, the younger son being only entitled to maintenance. There upon the respondent, the younger of the two sons of Girparshad, sued on June 30, 1886, to recover half of the estate, alleging title thereto under the ordinary Hindu law. Law. Rep. 27 Ind. App. 238 ( 1899- 1900) Garurudhwaja Parshad Singh V. Saparandhwaja Parshad Singh 101 The question was whether, under the circumstances stated in the judgment of their Lordships, the appellant had proved the alleged custom. The Subordinate Judge held that the evidence proved the existence of a custom of succession by right of primogeniture in the family, and that such custom had been shewn to be of sufficiently long standing to have acquired legal force and validity as an ancient and good custom. The High Court (Blair and Tyrrell JJ.) held that the evidence established — 1st. That there was floating in the air an impression " current amongst many members of the Beswan family that inheritance in the family proceeded by the rule of primo geniture." 2nd. That such impression was due to the fact that in several successive devolutions the possession and control of the property fell to the eldest son, passing thus from Nawal to his eldest son, Harkishan, and then to Harkishans eldest son, Jey Kishore, and from him, after a brief tenure by his eldest son, Girdhar Singh, to Girparshad Singh, the father of the present litigants. 3rd. That such impression received from the period of Girparshads life a force and solidity probably unknown before. 4th. That Girparshad, a man of wealth and culture, finding such a custom obtained in two branches of his family, was not unnaturally ambitious to perpetuate and exalt his own family by a declaration that such a custom governed it. 5th. 3rd. That such impression received from the period of Girparshads life a force and solidity probably unknown before. 4th. That Girparshad, a man of wealth and culture, finding such a custom obtained in two branches of his family, was not unnaturally ambitious to perpetuate and exalt his own family by a declaration that such a custom governed it. 5th. That the customs of seating the head of the family on the gaddi, and presenting nazars to him, which the Subordinate Judge had accepted as evidence that in the Beswan family the rule of primogeniture obtained, did not in fact support any such conclusion, but only shewed that the Beswan family pretended to a dignity to which they conceived that their descent entitled them. 6th. That Girparshad availed himself of the impression which the accident of several devolutions to the eldest son had given rise to record in the wajib-ul-arzes that such had been the custom of the family, and that such was the law by which the family was to be ruled in the future. 7th. That, though the wajib-ul-arzes of 1873 stated the custom of primogeniture, earlier wajib-ul-arzes did not make mention of such custom, thereby affording strong evidence that no such custom existed. 8th. That in the earlier collectorate proceedings reference had been made to " the law and custom " of the Hindus as regulating the descent of the property of the family; and that, in the answer to the questions of the Collector as to the rules of succession of this estate, the Rajahs of Mursan and of Hathras had spoken of " the custom of the Hindus " as regulating the same, and not of any custom governing this particular family. 9th. That the wajib-ul-arzes prepared under the directions of Girparshad set out his pretensions as to the status of his family. 10th. That the failure of Jiwaram, the brother of Harkishan, to prove his right to one-half of the property in the Courts was due in the first instance to his poverty, and afterwards to disinclination to sue on grounds personal to himself. Branson, for the appellant, contended that on the evidence the High Court ought to have held that the custom of primo geniture had been well proved as a custom regulating the descent of property in the Beswan family and binding on its members. Branson, for the appellant, contended that on the evidence the High Court ought to have held that the custom of primo geniture had been well proved as a custom regulating the descent of property in the Beswan family and binding on its members. With regard to the admissibility of that portion of the oral evidence which consisted of the opinions of witnesses based upon statements made by persons who are dead, reference was made to Indian Evidence Act, ss. 35, 49, and 60. As to the effect to be attributed to statements contained in wajib-ul-arzes, see Rani Lekraj Kuar v. Mahpal Singh (( 1879) L. R. 7 Ind. Ap. 63.), Uman Pershad v. Gandharp Singh (( 1887) L. R. 14 Ind. Ap. 127.), and Thakur Nitrpal Singh v. Thakur Jai Singh Pal (( 1896) L. R. 23 Ind. Ap. 147.), which latter case contains a discussion as to the bearing of the custom of gaddinashini upon that of primogeniture. The respondent did not appear. 1900. June 27. The judgment of their Lordships was delivered by Law. Rep. 27 Ind. App. 238 ( 1899- 1900) Garurudhwaja Parshad Singh V. Saparandhwaja Parshad Singh 102 LORD DAVEY. The question on the appeal relates to the devolution of the ancestral estate of Thakur Girparshad Singh, who died in the year 1880. The defendant in the suit and present appellant is the eldest son of Girparshad, and contends that there is a custom of primogeniture in the family, and that, consequently, he is alone entitled to succeed to the estate. The plaintiff in the suit is his younger brother. He denies the existence of the alleged custom, and claims to share in the estate in accordance with the ordinary Hindu law of inheritance. The Subordinate Judge decided in favour of the alleged custom, and dismissed the suit with costs; but his decision was reversed by the High Court of Allahabad, and the appeal is from the judgment and decree of the latter Court. It is unfortunate that the plaintiff and present respondent has not appeared on this appeal. There are questions of the admissibility as well as the effect of evidence on which their Lordships would have been glad of the assistance of counsel for the respondent. The parties belong to a family known as the Beswan family. It is unfortunate that the plaintiff and present respondent has not appeared on this appeal. There are questions of the admissibility as well as the effect of evidence on which their Lordships would have been glad of the assistance of counsel for the respondent. The parties belong to a family known as the Beswan family. This family and two other families in the same district, called the Mursan and Hathras families, are Jat families of the Tenwa Clan, and are descended from a common ancestor named Nandram Faujdar, who is said to have died in the year 1695. The Mursan family is said to have been founded by Khushal, son of Zulkaran, one of the fourteen sons of Nandram. The Beswan and Hathras families alike have their descent from Jai Singh, another son of Nandram. The Hathras branch was divided from the Beswan branch in the person of Dyaram Singh in the fourth generation from Nandram, who died in the year 1823. The circumstances under which this separation took place are in controversy, and will be more fully considered hereafter. In the year 1817 Dyaram was deprived of the greater part of his possessions in consequence of his resistance to the British military forces, and his family do not now reside at Hathras. It appears from the evidence, and was accepted as a fact by both Courts, that the custom of primogeniture prevails in both the Mursan and the Hathras families. Their Lordships attach importance to this admitted fact. It points to a custom derived from a common ancestor, and lends strong antecedent probability to the appellants case. The present Rajah of Mursan was called as a witness by the appellant; but he was support ing the respondent with a loan of money to be used for the purpose of the litigation. He could not, therefore, be expected to be very friendly to the appellant. But he does not venture to deny the existence of the custom in the Beswan family, and, singularly enough, had made no inquiry on the subject. He says " In my family the custom of gaddinashini prevails. When a gaddinashini dies leaving several sons, one of them becomes gaddinashini and inherits all the property, and the others only get maintenance. I have heard that that custom of gaddinashini prevails in the Hathras Raj family. He says " In my family the custom of gaddinashini prevails. When a gaddinashini dies leaving several sons, one of them becomes gaddinashini and inherits all the property, and the others only get maintenance. I have heard that that custom of gaddinashini prevails in the Hathras Raj family. I do not know whether the custom of gaddinashini prevails in the Beswan family or not. I have no personal knowledge about it, and I did not make any inquiry on the point." Rajah Harnarain Singh, the present representative of the Hathras family, is a son adopted by the widow of the preceding Rajah, and was only twenty-two years of age at the time of the trial. He also is said to be unfriendly to the appellant on account of some previous litigation with Girparshad, in which the later claimed his estates. Rajah Harnarain does not profess to know anything about the question in issue. There are no records of any kind prior to the British conquest in 1803. The most important documentary evidence since that date is the record of a proceeding of the Court of the Collector of Aligarh district dated November 22, 1809. From the pedigree which is set out in the judgment of the Subordinate Judge and was accepted in the High Court, it appears that Bhuri Singh, the third in descent from Nandram, died in the year 1775, leaving two sons, Nawal and Dyaram, who, as already mentioned, was the founder of the Hathras family. Nawal Singh is stated to have died before 1800, leaving two legitimate sons, Harkishan (the eldest) and Jiwaram, and three illegitimate sons. Harkishan succeeded to Beswan in exclusion of Jiwaram, his younger brother, and Law. Rep. 27 Ind. App. 238 ( 1899- 1900) Garurudhwaja Parshad Singh V. Saparandhwaja Parshad Singh 103 died in 1808. He had two legitimate sons (who are stated to have been uterine brothers), Jey Kishore and Jogul Kishore. It is disputed whether Jogul Kishore survived his father; but for reasons to be presently stated, their Lordships think, with the Subordinate Judge, that the weight of evidence is in favour of his having done so, and of his having died without issue shortly afterwards. Harkishan also left three illegitimate sons. By his order of November 22, 1809, Mr. It is disputed whether Jogul Kishore survived his father; but for reasons to be presently stated, their Lordships think, with the Subordinate Judge, that the weight of evidence is in favour of his having done so, and of his having died without issue shortly afterwards. Harkishan also left three illegitimate sons. By his order of November 22, 1809, Mr. Elliot, the Collector of Aligarh, directed that a parwana be issued to Dyaram and Rajah Bhagwant Singh (the then representative of the Mursan family) asking them to give information whether there is any son of Harkishan other than Jey Kishore, and whether, according to the custom of Hindus, the property of Harkishan devolves upon Jey Kishore, and whether the sanads of jagir and istimrar should be granted to Jey Kishore. The reply of Dyaram to this request was in the following terms— " After paying my compliments and expressing my wish to pay my respects to you, I beg to state that I received your kind note inquiring whether Jey Kishore was the rightful person, owing to the death of Thakur Harkishan, and granting the sanad of jagir and istimrar to Barkhurdar (Literally may you eat the fruit of life.) Jey Kishore on condition of its being ascertained that he was entitled to it under the custom of the Hindus. It is known to you that Thakur Harkishen and others, and now Jey Kishore, are among my farzands (Literally means children.) (sons). Formerly Thakur Harkishen, who was senior in age to his other four brothers, was distinguished from, and surpassed them all, by his qualities as a sirdar and head, and also during his lifetime his four other brothers were of one mind with him and obedient to his orders, and carried on the affairs zealously. In the time of Thakur Harkishen Barkhurdar, Jey Kishore, who is also senior in age to his other four brothers, and is distinguished from, and surpasses them all, used to be called the heir-apparent and successor. At present, after the death 01 the said Thakur, he has the control of all the affairs, small and great, of his father, and it is Jey Kishore who is entitled to the favours of the British Company. In accordance with their usual practice, the turban of Sirdari was tied round the head of Jey Kishore. At present, after the death 01 the said Thakur, he has the control of all the affairs, small and great, of his father, and it is Jey Kishore who is entitled to the favours of the British Company. In accordance with their usual practice, the turban of Sirdari was tied round the head of Jey Kishore. It is hoped that the sanads of jagir and istimrar will be kindly granted to the said Barkhurdar. ,, " Submitted for information. Further respects. " (Sd.) Thakur Dayaram Singh, of Hathras, son of Shipuri (?)." The reply of the Rajah of Mursan was in almost the same words, and they were evidently written in concert. Upon these reports a further order, dated December 18,1809, was made by the Collector in the following terms— " On the 14th petition was made by Thakur Dyaram stating that after the death of Thakur Harkishen his estate devolves upon Thakur Jey Kishore, his eldest son, and to-day a petition was made by Rajah Bhagwant Singh, stating that Thakur Jey Kishore was the eldest son of Thakur Jey Harkishan, deceased, and that the estate of the deceased Thakur devolved upon him, and consequently all the brethren, deeming Thakur Jey to be the rightful person and eldest son, tied the turban of the Sirdari." The petitions were then ordered to be forwarded to the Board. The terms of this order clearly shew the sense in which the Collector understood the reports of Dyaram and the Rajah of Mursan. Accordingly two sanads, dated January 19, 1810, were granted by the Government to Jey Kishore. By the first of these documents, after noticing that under the orders of the Governor-General Taluka Beswan had been settled with and granted to Harkishan for his lifetime and his death before the issue of the perpetual sanad of the taluka, it was stated that his Excellency Law. Rep. 27 Ind. App. 238 ( 1899- 1900) Garurudhwaja Parshad Singh V. Saparandhwaja Parshad Singh 104 therefore thought it advisable and proper that instead of the said deceased the taluka should be maintained in the name of his eldest son, Thakur Jey Kishore, for his lifetime at the jama therein mentioned. The second sanad contained the gra of a village called Jhanga by way of jagir in similar terms. The second sanad contained the gra of a village called Jhanga by way of jagir in similar terms. From the two letters of Dyaram and the Rajah of Mursan, it appears that Jey Kishore had then four brothers living. The inference is that Jogul Kishore, his uterine brother, was then living. It is true that in two documents, dated March 16, 1845, it is stated by Tikam, then Rajah of Mirsan, and by a tehsildar named Sayed Hardar Ali, that Harkishan had four sons only, Jey Kishore and three illegitimate sons. It is more probable that (Jogul Kishore having died young and childless) his existence was forgotten or overlooked after a lapse of nearly forty years, than that Dyaram and the Rajah Bhagwant were mistaken, and their Lordships agree with the Subordinate Judge that the balance of evidence is in favour of Jogul Kishore having survived his father. The witness Dharag Singh, whose evidence is vouched by Blair J., says, indeed, that Jogul Kishore died in his fathers lifetime; but in an earlier part of his examination he had said that he " did not know whether Jogul Kishore died in his fathers lifetime or after his death." This witness was born some years after Jogul Kishores death and was speaking from hearsay only, and there are many witnesses of the same kind, some of whom say that Jogul Kishore died in his fathers lifetime, and "others of whom say he survived him. The oral evidence (even if admissible) is quite inconclusive. Jiwaram might have claimed to share the taluka with his brother Harkishan, and he as well as Jogul Kishore (if living) might have claimed to share it with Jey Kishore if the succession was regulated by the ordinary Hindu law. From the record of a proceeding before the Deputy Collector and Settlement Officer of the District of Aligarh on April 30, 1846, it appears that on the death of Jey Kishore, which took place in 1844 or 1845, Ram Pershad and others, sons of Jiwaram, who was also then dead, claimed to be entitled to one-half of the estate of Beswan, and to have a settlement thereof made in their names. This claim was dismissed by the Collector, The document contains a history of the case gathered from a perusal of " the papers in the records of the Collectorate and those received from the Commissioners office, as well as those filed in the Settlement Department, together with the records of the Khazis office, civil side, relating to Jiwaram and Jey . Kishore, deceased minor, and fixing a monthly allowance for Jiwaram/ Shortly told, the story is that Jiwaram was appointed manager of the estate during Jey Kishores minority, but in consequence of some irregular proceedings on his part, which were thought to manifest an intention to dispossess his nephew, litigation ensued, with the result that Jiwaram was deprived of the management of the estate, and subsequently an allowance of Rs. 400 a month was made to him, which he continued to receive during his lifetime. On his death Jey Kishore stopped the payment, but the Commissioner by a rubkar of August 12, 1836, directed that until an order should be made to the contrary, or till the institution of a civil suit to establish right by the heirs of Jiwaram, it should be continued as theretofore, and the heirs of Jiwaram received the monthly allowance during the life of Jey Kishore. There is other evidence that Jiwaram enjoyed an allowance of Rs. 400 per mensem for maintenance, and there is no evidence whatever that he brought any suit in the Civil Court to dispute his brothers or his nephews possession of the family estate. Nor did the sons of Jiwaram ever bring any suit to contest the possession of Girdhar, the eldest son and successor of Jey Kishore. The Collector by a subsequent proceeding held the allowance of Rs. 400 per mensem to be a pension only, and he reduced the allowance to Rs. 120 per mensem, divisible between the sons of Jiwaram. They thereupon commenced a suit to establish their right to the Rs. 400 as a malikana allowance, and applied for leave to sue in form pauperis, but the claim was rejected by the judgment of the District Judge of June 25, 1856. It thus appears that Harkishan succeeded his father Nawal in exclusion of his younger brother Jiwaram, and on his death in 1808 Jey Kishore succeeded in, exclusion, not only of his younger brother Law. Rep. 27 Ind. App. It thus appears that Harkishan succeeded his father Nawal in exclusion of his younger brother Jiwaram, and on his death in 1808 Jey Kishore succeeded in, exclusion, not only of his younger brother Law. Rep. 27 Ind. App. 238 ( 1899- 1900) Garurudhwaja Parshad Singh V. Saparandhwaja Parshad Singh 105 Jogul Kishore, but also of his uncle Jiwaram, and, on Jey Kishores death in 1844 or 1845, Girdhar, his eldest son, succeeded to his estate. Jiwaram and his sons, though challenged to assert their claim to share in the estate by a civil suit, abstained from doing so, and contented themselves with an allowance for maintenance. Girdhar died about eighteen months after his father, and was succeeded by his only brother, Gir Parshad. But as the latter was a minor through out his elder brothers tenure of the estate, no strong inference can be drawn from his not claiming to share in the estate. Gir Parshad died early in 1880. It results that, for a period of nearly eighty years from the time of the British occupation, the enjoyment has been consistent with the alleged custom, and for the earlier and greater part of that term has been inconsistent with any other legal basis. The High Court minimize the inference to be drawn from these successive descents of the estate to an eldest son in three generations and the circumstances accompanying them. (1.) They say that the inquiry made by order of the Collector of Dyaram and Rajah Bhagwant Singh in 1809 was directed to the custom of Hindus, and not to the custom peculiar to this family, and they suggest that the reports made in pursuance of that inquiry related only to management and control of the estate, not to property. (2.) It is suggested that Jiwaram was awarded his allowance of Rs. 400 a month as compensation for being dispossessed of the zemindari, and, being content with his position, did not care to claim a share in the estate. Their Lordships observe on the first point that the customs of Hindus would include any custom regulating the succession in a particular family, and that the inquiry was whether the property "devolves on Thakur Jey Kishore." They have already observed that the Collector evidently understood the replies of Dyaram and the Rajah of Muran as directed to the question who was entitled to the property. The sanads were grants of the property to Jey Kishore, described as eldest son, and in short the transaction was not merely a settlement of the estate in his name for the purpose of revenue as suggested in the High Court. On the second point, it is extremely unlikely that Jiwaram would have rested content with an allowance if he had a claim to one-half the estate which he could prosecute with any prospect of success. Jiwaran (apparently) and his sons certainly asserted a claim to be sharers in the estate, though they never ventured to bring their claims to the test of a legal decision. The records of the Collectorate, so far as concerns the relations between Jiwaram and his sons on the one hand and Jey Kishore, and afterwards Girdhar on the other, do not disclose a picture of a perfectly united and contented family. But the learned judge in the High Court thought that the acquiescence of the descendants of Nawal Singh in the usurpation of Dyaram was far more impressive than the acquiescence of Jiwaram and his descendants. Their Lordships must, therefore, examine what is known of the relations between Nawal Singh and Dyaram and their respective descendants. Nawal Singh and Dyaram were sons and, so far as appears, the only sons of Bhuri Singh, who is said to have died in the year 1775. The Subordinate Judge says that Dyaram forcibly wrested the bulk of his fathers property, including taluka Hathras, from his elder brother on their fathers death, and, being a man of great energy, he managed to dispossess the other descendants of Nandram from their estates and annex their estates to his extensive possessions. His authorities for this statement are apparently the settlement reports of Aligarh made by Mr. Thornton in 1834, and by Mr. Smith in 1874, and Atkinsons Gazetteer published in 1875. These works are not before their Lordships, and they cannot say whether they bear out the learned judges statement, which, however, seems tc go further than the oral evidence of tradition warrants. It may be that the reports and gazetteer in question are not strictly evidence of the truth of all the statements contained in them ; and it may be that if examined they would not bear out the conclusions drawn from them by the Subordinate Judge. It may be that the reports and gazetteer in question are not strictly evidence of the truth of all the statements contained in them ; and it may be that if examined they would not bear out the conclusions drawn from them by the Subordinate Judge. They were, however, used apparently without objection, and probably no objection would be taken to their being read for what they are worth in a similar case in this country. But if you exclude evidence of tradition, what evidence is there that Law. Rep. 27 Ind. App. 238 ( 1899- 1900) Garurudhwaja Parshad Singh V. Saparandhwaja Parshad Singh 106 Hathras ever was part of the ancestral property of Bhuri Singh? In the last century, when the Mogul Empire was breaking up, and when (to quote Blair J.) " law was in abeyance," it was not uncommon for an able and energetic man to carve out a large property for himself by the sword at the expense either of his own relatives or of strangers. If you look to tradition as disclosed by the oral evidence, the t statements as to Hathras are conflicting. Indeed, Keheri Singh says that Dyaram acquired the Hathras estate from the Poreh Thakurs. In the opinion of their Lordships, it is impossible to presume a partition between the brothers, or to say with any approach to certainty whether any or what portion of Dyarams possessions was or was not ancestral property, or from whom or by what means they were acquired. All that can be said is that tradition points to his having acquired them by force and not by right. Dyaram was at first confirmed in possession of his estates by the British Government, but in 1817 was deprived of the bulk of them for rebellion. It appears from documents in evidence that twenty of Dyarams villages under the appellation of taluka Shahzodpur were conferred on Jey Kishore, and thirty-one were conferred on Jiwaram. It is probable that these villages were only a comparatively small part of the estates confiscated by the Government. The learned judges in the High Court ask why the heirs of Nawal Singh did not then ask for reinstatement in the fiefs which had been seized by Dyaram, as had been alleged, in violation of Nawal Singhs right of primogeniture. And it is this acquiescence to which they attach so much importance. The learned judges in the High Court ask why the heirs of Nawal Singh did not then ask for reinstatement in the fiefs which had been seized by Dyaram, as had been alleged, in violation of Nawal Singhs right of primogeniture. And it is this acquiescence to which they attach so much importance. Their Lordships cannot agree, for the simple reason that they do not know enough of the facts or circumstances, or of the motives or policy of the British Government, to form any reliable opinion on the subject. Their Lordships now turn to the oral evidence in the case. No less than fifty-six witnesses were called and examined on behalf of the appellants. Their evidence mainly divides itself into two branches (1.) Evidence of the existence of the custom of gaddinashini in the Beswan taluka, and of the successive holders of the taluka within living memory having sat on the gaddi and received the customary offerings. (2.) Evidence of tradition relating to the family learnt by the witnesses from their deceased relatives and others. In commenting on the evidence of the custom of gaddi-nashini, the High Court say " In order to constitute that a valid argument it ought to have been shewn, not only that - gaddinashini and the presentation of nazars was the ordinary concomitant of the possession of an impartible Raj, but also that it was an exclusive attribute of families in whom the custom of primogeniture prevails." The judgment of the High Court was delivered on February 7, 1893. Subsequently to that date a case of Thakur Nitrpal Singh v. Thakur Jai Singh Pal (L. R. 23 Ind. Ap. 147.) (which in many of its circumstances is strikingly like the present one) was before this Board. (L. R. 23 Ind. Ap. 147.) The case related to the succession to the ancestral property of a Rajpoot family long settled in the Agra district. In delivering the judgment of their Lordships, Lord Hobhouse observes — " The other remark is a suggestion that there is no necessary connection between gaddinashini and primogeniture. That may be so; but it is impossible to read the evidence without seeing that the witnesses on both sides treat the two as identical, or the former as proving the latter. In delivering the judgment of their Lordships, Lord Hobhouse observes — " The other remark is a suggestion that there is no necessary connection between gaddinashini and primogeniture. That may be so; but it is impossible to read the evidence without seeing that the witnesses on both sides treat the two as identical, or the former as proving the latter. Not a single question is put to any witness who has affirmed or denied gaddinashini for the purpose of disconnecting it from primogeniture .... It is clear that the Subordinate Judge had no suspicion that the evidence applying to gaddinashini could be taken as not applying to primogeniture. The first suggestion of such a distinction comes from the High Court. Their Lordships think that when the witnesses affirm or deny gaddinashini they mean to affirm or deny primogeniture ; and their constant identification of the two things shews how closely they are connected in the minds of the families of that part of the country. The custom of gaddinashini has clearly an important bearing on that of primogeniture, though the connection between them may not be a necessary one." Law. Rep. 27 Ind. App. 238 ( 1899- 1900) Garurudhwaja Parshad Singh V. Saparandhwaja Parshad Singh 107 Their Lordships think that these observations are directly applicable to the case before them. The language in which the Rajah of Mursan spoke of the custom of gaddinashini has already been referred to. The respondent himself, in denying that the custom prevailed in his family, says " By gaddinashini or masnadnashini I mean the practice of one person or the .eldest son succeeding to the whole estate, and the other sons only getting maintenance." Kharag (a son of Jiwaram) says " By gaddinashini I mean that he (gaddi nashin) used to sit on a gaddi and receive nazar, and one son inherited the property, while the other sons received maintenance." Kashi Ram, the jaga (bard or genealogist) of the Beswan family (whose father and grandfather were jagas before him), after deposing to the custom, says " I call that gaddinashini, that is, that the eldest son sits on the gaddi, and younger sons receive maintenance." And expressions of this kind, shewing the identification in the minds of the witnesses of the right of sitting on the gaddi with succession to the estate, constantly occur in the course of the evidence. There are five witnesses who say they saw Jey Kishore sit on the gaddi and receive nazar. There are seven witnesses who say they saw Girdhar do so, and there are numerous witnesses who saw Girparshad. Their Lordships agree with the High Court that a good deal of the evidence of statements made by deceased persons is of doubtful admissibility. By s. 32, sub-s. 5, of the Evidence Act, such statements are relevant when they relate to the existence of any relationship between persons as to whose relationship the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. For this purpose, and to this extent, statements of deceased relatives and servants and dependents of the family are admissible. By s. 49, when the Court has to form an opinion on (inter alia) the usages of any family, the opinions of persons having special means of knowledge thereon are also relevant. But by s. 60, if oral evidence refers to an opinion or the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. Their Lordships think it is admis sible evidence for a living witness to state his opinion on the existence of a family custom, and to state as the grounds of that opinion information derived from deceased persons, and the weight of the evidence would depend on the position and character of the witness and of the persons on whose statements he has formed his opinion. But it must be the expression of independent opinion based on hearsay, and not mere repetition of hearsay. In this way some of the evidence of such witnesses as Kharag, a son of Jiwaram, of Parshad, a nephew of Lala Lachminarain, who was dewan at Beswan for about twenty-five years, of Keheri Singh a descendant of Sakat, who made out a genealogical tree of Nandrams family from the information of his grandfather, of Ganga Ballabh, and others of the same class, would, perhaps, be admissible evidence of the custom, and when corroborated by the proved facts, as to the descent of the estate during the last eighty years, is not without value. But their Lordships would not be disposed to place much reliance upon it standing alone. But their Lordships would not be disposed to place much reliance upon it standing alone. Another case of evidence consists of the wajib-ul-arzes of various villages comprised in the taluka. The plaintiff put in evidence ten of these documents compiled in the years 1862 and 1863. They do not support the appellants case, and they afford negative evidence against it, because they contain a provision for the appointment of lambardar in certain events according to the will of the co-sharers, and in one of them, relating to the village Bhawan, it is said that if there be no son then one of the heirs shall be the lambardar with the consent of the other heirs. On the other hand, the appellant also put in evidence the wajib-ul-arzes of ten villages compiled in the year 1873. They contain a declaration by Girparshad himself of the custom " After my death my eldest son, if he is fit and well behaved, shall, according to the custom and usage of my family, succeed me to the gaddi, and the other sons, if they are fit, shall receive Rs. 200 a month, and if they are unfit, Rs. 50 a month." Their Lordships do not place much reliance on these later documents, which are only an expression of the opinion or aspiration of Girparshad himself. The documents of 1862 and 1863 are no doubt evidence in favour of the respondent, but their Lordships do not think that they are sufficient to outweigh the evidence Law. Rep. 27 Ind. App. 238 ( 1899- 1900) Garurudhwaja Parshad Singh V. Saparandhwaja Parshad Singh 108 afforded by the actings of the parties and actual descent of the estate, and other evidence in favour of the appellant to which they have already adverted. Their Lordships are fully sensible of the importance of requiring that a special family custom involving a departure from the ordinary Hindu law should be properly proved, but they think that in this case the appellant has satisfied the burden of proof. They will, therefore, humbly advise Her Majesty that the decree of the High Court be reversed, and instead thereof the respondents appeal to that Court be dismissed with costs. The respondent will also pay the costs of this appeal.