Judgement These two appeals were heard consecutively and decided in one judgment. The first was from a decree of the Judicial Commissioners Court in Oudh (Aug. 19, 1898) reversing a decree of the Subordinate Judge of Sitapur (June 15, 1896). The second was from a decree of the same Court in Oudh (Aug. 30, 1898), which also reversed a decree of the Court at Sitapur of even date with the above. The first suit was brought by the respondents predecessors, as next heirs of Munna Singh, a divided member of the family of Rampershad (governed by the Mitakshara), to recover Munna Singhs property on the death of his widow, Umrai Kuar. The appellant represented a more distant branch of the same family. The Sitapur Court found in favour of the appellant. It found that a custom had been proved that, on the extinction of the line of one of several brothers, the descendants of other brothers took equally without reference to their nearness to the common ancestor. The nearest relative at the death of the widow was Ranjit, a predecessor of the respondents. In the absence of custom, Mahipat, the appellants predecessor, and Drigbijai, the appellant in the second case, as being one degree lower than Ranjit, would be excluded. In dealing with the alleged custom, reliance was placed upon the fact that the parties were Ahban Thakurs, who came from Gujarat, where they were known as Choaras, and that Gujarat is governed by the Mayukha ; and it was contended that, as by that law a brother and a nephew get equal shares, a custom to the same effect would probably have continued in the emigrating family. Reliance was also placed upon the wajib-ul-arzes of the villages of Bhidipur, Kalan, and Shahpur, in the adjacent district of Barabanki. These state that, after the death of the widow, the brothers and nephews of the deceased husband take, and, if there are none such, the near reversioner inherits. The oral evidence was directed to establish eighteen instances of the custom. The Subordinate Judge said " The defendant has exhaustively adduced evidence of zemindars, under-proprietors, sirholders and petty landholders, who are all Ahban Thakurs, and have sprung from the stock of Pitipal. They have cited eighteen instances of custom from their memory. The oral evidence was directed to establish eighteen instances of the custom. The Subordinate Judge said " The defendant has exhaustively adduced evidence of zemindars, under-proprietors, sirholders and petty landholders, who are all Ahban Thakurs, and have sprung from the stock of Pitipal. They have cited eighteen instances of custom from their memory. Besides one judgment of the Court and three wajib-ul-arzes, twenty were produced in support of the custom; but the plaintiffs failed to refute any of this vast number of evidence, and could not give any instance, except a decision in which Bais Thakurs were parties, to shew that the deceaseds property is divided according to the Hindu law. I myself examined Ratan Singh and Durga Singh, plaintiffs, and, although they were given a nights time to think over and cite any instance of Ahban Thakurs, either in support of their own allegation, or in rebutment of the defendants evidence, yet they failed to do so when they were examined the next morning. It is also worthy of consideration that such a large and diversified assembly of Ahban Thakurs—consisting of proprietors of various classes and ranks—should have been so much influenced by the defendant as to give false evidence to corroborate his state ment, while, in spite of there still existing many a village of Ahban Thakurs, the plaintiffs, who are wealthier than the defendant, could not procure even one witness of Ahban caste to support their allegations. It cannot be presumed that such a large and diversified assembly should come into Court to give false evidence in support of the defendants statements, to side with him in a certain suit for his benefit, to change all the customs of the family, and thereby bind their own progeny to abide by them." He concluded that, "as it is proved that this custom is based on the Mayukha Shastra, observed by the Chaora tribe, and has been followed in this country ever since the necessity for it arose, I think it is binding on the family of Earn Pershad." He accordingly found that Ranjit, Drigbijai, and Mahipat were entitled to equal shares in Munnas estate, and that the division should be made per capita. The Judicial Commissioner, on the other hand, after a minute examination of the eighteen instances, said "In the result, then, I am of opinion that instances 9, 14, 15, and 17 have not been established; that Nos. 6 and 13 may be taken as proved; that Nos. 3 and 18 may be, but are not necessarily, true examples of the custom; and that Nos. 1, 2, 4, 5, 7, 8, 10, 11, 12, and 16 must, for various reasons, be regarded as doubtful." He also thought that, even if all the instances had been established, they did not amount to such evidence as was required to prove a custom at variance with the law of inheritance. The other appeal raised the same point as against a different defendant. De Gruyther, for the appellant in the first case, contended that the evidence was sufficient to establish the custom relied upon, without the modification introduced by the Subordinate Judge to the effect that the rule of succession thereunder was per capita and not per stirpes. The probability was in its favour. The family came from a place where the custom prevailed, and were likely to adhere to it in the district to which they migrated. The custom, moreover, was known to Hindu law, and founded on the Mayukha; the rule of which treatise is that the sons of a deceased brother succeed along with the surviving brothers. See Stokes Hindu Law, p. 88, Mayukha, c. iv. s. 8, v. 17; and the rule as to partition, quoted at p. 53, to the effect that partitions among sons of different brothers is according to their fathers, and that brothers sons, or even their sons, share with their uncles. 3V The reason for the rule is that brothers include cousins. See West & B. (3rd ed.), bk. 1, p. 108, and Introduction (2nd ed.), p. 51. It was contended that cousins and cousins sons succeeded together, and stood in the same degree of heritable precedence. Reference was made to Garurudhwaja Parshad Singh v. Saparandhwaja Parshad Singh. (( 1900) L.R. 27 Ind. Ap. 238.) As regards the value to be attributed to a wajib-ul-arz, see Uman Parshad v. Gandharp Singh (( 1887) L. R. 14 Ind. Ap. 127,) and Rani Lekraj Kuar v. Baboo Mahpal Singh. (( 1880) L. R. 7 Ind. Ap. Reference was made to Garurudhwaja Parshad Singh v. Saparandhwaja Parshad Singh. (( 1900) L.R. 27 Ind. Ap. 238.) As regards the value to be attributed to a wajib-ul-arz, see Uman Parshad v. Gandharp Singh (( 1887) L. R. 14 Ind. Ap. 127,) and Rani Lekraj Kuar v. Baboo Mahpal Singh. (( 1880) L. R. 7 Ind. Ap. 63.) Mayne, for the respondents, contended that the evidence was insufficient to establish the alleged custom. To make it sufficient, it would be necessary to prove that when a family is divided into separate branches, and any single branch becomes extinct, its property will devolve equally on the representatives of the other branches per stirpes, irrespective of distance from the common ancestor. "With one exception, the eighteen instances relied upon were cases where the next of kin to the deceased were his brothers, some of whom died before him, their sons being allowed to represent their fathers. Probably in most Cases the brothers and their nephews were members of a joint family. In the one exceptional instance, as in this, the next of kin were first-cousins and their children; but so little is known of the surrounding circumstances as to the joint character of the family, or as to the reasons for the mode of descent, that no weight can be attached to it as evidence of a binding custom. The majority of the cases follow the rule of the Mayukha. The extension of that rule sought to be established by the alleged custom is contrary to the principles of Hindu law. See Stokes Hindu Law, pp. 443,445; Mitakshara, c. 2, s. 4, vv. 1, 8; Jamiyatram v. Bai Jamna (( 1864) 2 Bomb. H. C. 11. 134.) ; Lakshmibai v. Ganpat Moroba (( 1868) 5 Bomb. H. C. (O.C.J.) 128, 139); Sant Kumar v. Deo Saran. (( 1886) Ind. L. R. 8 Allah. 365 ,369.) All the statements of the witnesses were a reproduction of a text of the Mayukha, c. 4, s. 8, v. 17 Stokes, p. 88. De Gruyther replied. In the second appeal, Ross, for the appellant. C. W. Arathoon, for the respondents. The judgment of their Lordships was delivered by LORD MACNAGHTEN. The question involved in these appeals may be disposed of in a few words. De Gruyther replied. In the second appeal, Ross, for the appellant. C. W. Arathoon, for the respondents. The judgment of their Lordships was delivered by LORD MACNAGHTEN. The question involved in these appeals may be disposed of in a few words. In the first case the Subordinate Judge of Sitapur found in favour of the appellant (the principal defendant in the suit) on the ground of an alleged family custom that, on the extinction of the line of one of several brothers, the descendants of all the other brothers take equally without reference to their nearness to the common ancestor. The Judicial Commissioners reversed this decision and adjudged the estate in dispute to the respondents, who were plaintiffs in the suit, holding that the alleged custom had not been made out. The parties to this litigation are Ahban Thakurs. It seems that the tribe known in Oudh as Ahban Thakurs came originally from Gujarat and settled in Oudh many centuries ago. In Gujarat the Mayukha is recognised as an authority of paramount importance when it differs from the Mitakshara. According to the Mayukha, sons of a brother who is dead share along with surviving brothers. The rule, however, as found in the Mayukha, does not go beyond brothers and brothers children. Although the migration of the Ahban Thakurs took place before the Mayukha was written, it may well be that the rule was in force in earlier times, and that on this point the Mayukha only embodied and defined a pre-existing custom. The argument of the learned counsel on behalf of the appellant was to this effect It is to be assumed (he said) that the tribe known as the Ahban Thakurs brought with them from Gujarat the law of the Mayukha. It is quite true that the Mayukha deals only with the case of a deceased brother; but it is a legitimate and, under the circumstances, a natural extension of the doctrine to apply it to cases of more distant relationship. It is a development of the law which might be expected to grow up among a tribe settled in a foreign land and there living apart. It is a development of the law which might be expected to grow up among a tribe settled in a foreign land and there living apart. In support of the appellants claim there was in evidence a judgment which was not much to the point, some oral testimony which was anything but satisfactory, certain wajib-ul-arzes which on examination are found to prove nothing, and eighteen instances of succession which were put forward as demonstrating the existence of the alleged custom. The judge of first instance considered these instances conclusive. The Judicial Commissioner who delivered the judgment of the Court examined them in detail. He found that four had not been established, that ten must be regarded as doubtful, that two were not necessarily true examples of the alleged custom, and that the remaining two might be taken as proved. But his opinion was that if all the eighteen instances had been established the evidence must on the authorities still be held insufficient. Mr. Mayne, for the respondents, contended that the suggested extension of the Mayukha rule would be abhorrent to the fundamental principles of Hindu law. He was willing to concede for the purposes of this case that the Ahban Thakurs settled in Oudh were governed by the Mayukha; but if that position was accepted it was, he said, destructive of the appellants case. He discussed the eighteen instances, and shewed that all but three were true examples of the Mayukha rule, and nothing more. This result was not really contested by the learned counsel for the appellant in his reply. He could do no more than add one of the other cases as an instance of the alleged custom, contending on the evidence that it was not simply an example of the Mayukha rule. The result is that in support of the alleged custom four instances at most can be adduced, and those of a comparatively modern date, and that there is no other evidence. It is obvious that a family custom in derogation of the ordinary law cannot be supported on so slender a foundation. The appeal of Drigbijai Singh fails on precisely the same ground. Their Lordships will, therefore, humbly advise His Majesty that these appeals should be dismissed. In each case the costs will be borne by the appellant.