Judgement Appeal from a decree of the Judicial Commissioners Court (March 2, 1905) affirming a decree of the Subordinate Judge of Kheri (March 31, 1904). The question decided in the appeal was as to the right of succession to an estate known as Majhgain Shahpur. It formed a portion of a larger estate known as Taluqa Bhira, and the last male owner of the taluqa was Raj Ganga Singh. He died in 1848, and was succeeded by his widow, with whom the first summary settlement was made on the annexation of Oudh in the year 1856. At that time the estate was an impartible raj, and the succession went to a single heir. After the Indian Mutiny the taluqa of Law Rep. 36 Ind. App. 125 ( 1908- 1909) Musammat Parbati Kunwar V. Rani Chandarpal Kunwar 49 Bhira was confiscated, and was, later, granted by the British Government in equal shares to the following four persons, namely, 1, Raj Ganga Singh; 2, Raj Sadho Singh ; 3, Raj Baryar Singh ; 4, Raj Ahlad Singh. In 1878 the taluqa was partitioned, and the share which fell to Raj Ganga Singhs representatives was called Taluqa Majhgain Shahpur and was the property in suit. On the passing of Act I. of 1869, the Oudh Estates Act, the names of the grantees of Taluqa Bhira were entered in List IV., the effect of the entry being that the succession to the estate was governed by the ordinary Hindu law of the Mitakshara school. The subsequent history of the taluqa is as follows. In 1867 Raj Ganga Singh died, and was succeeded by his widow, and then by Raj Milap Singh. He died in 1882, leaving him surviving a widow, Rani Dhan Kunwar, and two daughters, the appellant and Hem Kunwar, who died in 1887. Rani Dhan Kunwar died in 1891, and on her death the appellant became solely entitled to the estate of Raj Milap Singh. The Revenue Courts did not recognize her claim, and, in consequence, she on June 4, 1900, sued in the Court of the Subordinate Judge of Kheri to recover possession from the respondents of the estate of Milap Singh, basing her title as her fathers heiress, the succession opening on the death of her mother. The Revenue Courts did not recognize her claim, and, in consequence, she on June 4, 1900, sued in the Court of the Subordinate Judge of Kheri to recover possession from the respondents of the estate of Milap Singh, basing her title as her fathers heiress, the succession opening on the death of her mother. Under the Hindu law of inheritance according to the Mitakshara school the appellants title was clear; but in the written statement of the first three respondents, who were representatives of Milap Singhs brother, it was pleaded " that among all the Thakur zamindars of Oudh Province it is a common custom that daughters do not get inheritance, and especially among the Jangra Chauhans, and the other tribes of Chauhan Raj puts, and in the family of the defendants and father of the plaintiff this ancient custom obtains from time immemorial." The Subordinate Judge decided in favour of this custom and dismissed the suit. He dealt with the voluminous evidence relating to it in this manner. He classified the documentary evidence under six heads—(1.) Declarations; (2.) Wajib-ul-arzes ; (3.) Rewaj-i-am ; (4.) Judgments; (5.) Revenue Court orders ; (6.) Khewats ; and the oral evidence under two—(1.) Instances; (2) General statements, traditions and opinions. He then considered this evidence in connection with the family custom pleaded, and held that "the family custom, with regard to the exclusion of the plaintiff by the defendants, is fully established, and the proof in support of the custom is not opposed by any counter-proof whatsoever." He then dealt with the evidence in its bearing on tribal custom, and, having ruled that the word " tribe " covered all the sub-divisions of Chauhans enumerated and named by him, he decided that the words "tribal custom" would, in the case before him, indicate a custom that applied to all the sub-divisions of Chauhans. He then considered separately the evidence relating to (1.) " Chauhan Khas"; (2.) Bachgotis, Rajkumars and Raj wars, whom he described to be " offshoots of Chauhan Khas " ; and (3.) Khinchis, Haras, and Bhadwarias, three other sub-divisions of Chauhans. In the result he gave his decision on the custom pleaded in the following terms "I therefore hold that it has been proved satisfactorily that there is a custom amongst the Chauhan tribe of Oudh that a daughter is excluded by the collaterals of the deceased from inheritance .... In the result he gave his decision on the custom pleaded in the following terms "I therefore hold that it has been proved satisfactorily that there is a custom amongst the Chauhan tribe of Oudh that a daughter is excluded by the collaterals of the deceased from inheritance .... I find the issue in defendants favour, so far as the family and tribal customs are concerned." The Appellate Court decided that the respondents had not offered proof of a custom different from that which they pleaded, and that they were entitled to set up both a family custom and what had been called a tribal custom. It observed that the evidence fell into three groups, namely, (1.) that relating to the family, i.e., the Jangra Songarhas in Kheri; (2.) that relating to Songarhas in Jhalaur; and (3.) that Law Rep. 36 Ind. App. 125 ( 1908- 1909) Musammat Parbati Kunwar V. Rani Chandarpal Kunwar 50 relating to other sub-divisions of Chauhans, namely, (a) Chauhan Khas who were said to have come from Delhi or Mainpuri; (b) Bachgotis, Rajkumars, and Raj wars; (c) Khinchis ; (d) Haras; and (e) Bhadwarias. The evidence was both oral and documentary, the former dealing with opinions, traditions, and instances in which the custom was followed or departed from, the latter including written declara tions, wajib-ul-arzes, rewaj-i-ams, and judgments. It considered that the decision of the case must depend " upon the evidence relating to the Songarhas in Kheri, i.e., the Jangra Chauhans." It decided in favour of the admissibility of the written declarations and the six wajib-ul-arzes. It relied on the oral evidence, which consisted of opinions" which were admittedly relevant, and on the evidence of certain witnesses who affirmed the existence of the custom in positive terms. In this context the Appellate Court observed " It appears that, with the exception of Sardar Singh, no one in the family has died leaving daughters or a daughter and no son at least during the last 250 years, and Mr. Lincoln contends that, under these circumstances, the custom, if it ever existed, must be taken to have fallen into desuetude. Lincoln contends that, under these circumstances, the custom, if it ever existed, must be taken to have fallen into desuetude. But the occurrence of instances is not necessary to keep a custom alive, and it seems to us that the fact that no instance, or only one instance, has occurred within the last 250 years in which a daughter was excluded from inheritance, makes the entries in the wajib-ul-arzes most important. They shew how definite the tradition was. The impression left on our minds by the evidence is that there is a firm conviction among Jangra Chauhans, founded upon well-known tradition, that daughters do not inherit in the presence of collaterals however remote.....One of the strongest points in favour of the defendants is that the plaintiff has been able to produce no witness except Ratan Singh, and no documentary evidence except the wajib-ul-arzes of Sujanpur, to meet the mass of evidence adduced by the defendants. Ratan Singh has been discredited, and the wajib-ul-arzes of Sujanpur do not help the plaintiff. If the alleged custom is not in force, the plaintiff, who is not without resources, would have been able to produce some evidence to rebut the defendants evidence. Upon the question whether the requisites of a valid custom have been established, the Subordinate Judge has pointed out that, if the declarations and wajib-ul-arzes are accepted, there is ample evidence that the custom is ancient and definite, and that it has been continuous. We agree with him. The reasonableness of the custom has not been disputed. " In our opinion it has been satisfactorily proved that among Jangra Songarha Chauhans daughters are excluded by brothers and uncle collaterals, however remote. This is sufficient for the disposal of the appeal, but, in the view of the possibility that the case will be carried further, we think it desirable to express our opinion upon the evidence from Jhalaur, and also upon parts of the evidence relating to other sub-divisions of Chauhans." The learned judges did not rely on this " Jhalaur" evidence, and were also of opinion that the evidence relating to Chauhan Khas, Khinchis, Haras, and Bhadwarias and the offshoots above mentioned should have been excluded. But for the reasons stated by them they thought it desirable to examine portions of the evidence which had been given on tat part of the case. But for the reasons stated by them they thought it desirable to examine portions of the evidence which had been given on tat part of the case. With regard to the evidence regarding Chauhan Khas they summarized their examination of it as follows— "The result of this examination of the evidence regarding Chauhan Khas may be thus stated. The defendants produced forty-two wajib-ul-arzes and two extracts from rewaj-i-ams, all of which either expressly or impliedly lay down that a daughter does not inherit her fathers estate in the presence of any collateral, however remote. Other rewaj-i-ams were produced, but were irrevelant; eighty-four witnesses were called who either expressly affirmed the existence of the custom or stated that they had heard from their ancestors that there was such a custom. Satisfactory proof was given of Law Rep. 36 Ind. App. 125 ( 1908- 1909) Musammat Parbati Kunwar V. Rani Chandarpal Kunwar 51 twenty-six instances in which the daughter was excluded from inheritance by reason of the custom. The plaintiff on the other hand produced several wajib-ul-arzes of which one only allows a daughter to inherit, and that was probably the concoction of an interested person. She attempted to prove fifteen instances in which a daughter inherited to the exclusion of collaterals. Nine failed for want of proof, three are doubtful; in one, the daughter and the collaterals compromised and divided the property; and only two were proved in which the daughter succeeded. In both of these very little evidence was given in proof of the custom ; the present record shews what might have been given. One of the instances occurred in Mainpuri, not in Oudh. We do not hesitate to hold that the custom set up by the defendants is proved to obtain in this subdivision of the Chauhan tribe." The Court also examined the evidence regarding Bachgotis, Rajkumars, and Rajwars, but was of opinion that there was a degree of uncertainty in the evidence on that part of the case, which was not found in the evidence relating to Chauhan Khas. In regard to Khinchis, Haras, and Bhadwarias the evidence they held, was insufficient to shew that a custom to exclude daughters obtained among all Khinchis, Haras, and Bhadwarias in Oudh. In regard to Khinchis, Haras, and Bhadwarias the evidence they held, was insufficient to shew that a custom to exclude daughters obtained among all Khinchis, Haras, and Bhadwarias in Oudh. Upon the question of the admissibility of documents which relate to estates devolving upon a single heir in proof of a custom of succession to partible estates the Appellate Court referred to the Surajpur case, Lekraj Kunwar v. Mahpal Singh (( 1879) L. R. 7 Ind. Ap. 63.), the Sidhour case, Dan Bahadur v. Mahesh Bakhsh (Unreported.), and the Katiyari case, Kunwar Sanwal Singh v. Satrupa Kunwar. (( 1905) L. R. 33 Ind. Ap. 53 ; where the judgment relied on is affirmed in appeal.) "In the Surajpur case the question was whether a daughter was by custom excluded from inheriting her fathers estate. Her fathers name was entered in List II., prepared under s. 8 of Act I. of 1869, and his estate must therefore be taken to have been one which ordinarily devolved upon a single heir. Nevertheless wajib-ul-arzes relating to estates which did not devolve upon a single heir were admitted in evidence, and mainly upon the strength of those wajib-ul-arzes it was held that the custom set up by the defendant was proved. The Sidhour case was the converse of the Surajpur case, the question being whether daughters and daughters sons were excluded from inheriting an ordinary zamindari in the clan to which the parties in the Surajpur case belonged, but the exclusion of the daughter in the Surajpur case and the wajib-ul-arz of Surajpur were held to be relevant to the issue. In the Katiyari case the question was whether a daughters son was excluded. The property in suit was a taluqa entered in List II., prepared under Act I. of 1869, and therefore ordinarily devolved upon a single heir. Wajib-ul-arzes relating to thirteen villages which set out that the daughters son was excluded were admitted in evidence, although those villages were not subject to the rule of succession to a single heir." The Court accordingly ruled in favour of their admissibility. De Gruyther, K.C., and Kyffin, for the appellant, contended that, notwithstanding concurrent findings in favour of the alleged custom by the Courts below, the decree should be reversed on the ground that there was no reasonable evidence legally admissible on which they could be supported. De Gruyther, K.C., and Kyffin, for the appellant, contended that, notwithstanding concurrent findings in favour of the alleged custom by the Courts below, the decree should be reversed on the ground that there was no reasonable evidence legally admissible on which they could be supported. The appellant was the next heir by the ordinary Mitakshara law, which by s. 23 of Act I. of 1869 governed the succession to a taluqdar entered in List IV. under the Act, and was entitled to have the special custom relied upon by the respondents strictly proved by evidence which was relevant and admissible under the Evidence Act I. of 1872. Reference was made to Sykes Compendium, pp. 343, 386, 405, 407 ; Act I. of 1869, ss. 3, 10, 22, and 23; the letter scheduled thereto of October 10, 1859 ; and Brij Indar Bahadur Singh v. Janki Koer. (( 1877) L. R. 5 Ind. Ap. 1.) Law Rep. 36 Ind. App. 125 ( 1908- 1909) Musammat Parbati Kunwar V. Rani Chandarpal Kunwar 52 With regard to the declarations alluded to above as forming the first head of evidence to which great weight had been attached as statements by members of the family in support of the custom, it was contended that when examined some of them did not state a custom of exclusion, but only of postponement of daughters in favour of male collaterals. Others were answers to the Chief Commissioners circular and dealt with the succession to an impartible raj or estate under s. 22 of Act I. of 1869, naming the next heir. These were not admissible under s. 32, 3ub-s. 4, of Act I. of 1872; and see Sykes, pp. 389, 391. Other documents were objected to as relating exclusively to impartible estates in the district; while under Act I. of 1869 this estate had become partible. Wajib-ul-arzes had been admitted, and great weight attached to them without regard to the circumstances under which they were prepared. They did not record a uniform order of succession, and many of them were not the result of official inquiries into village customs, but were mere statements by interested persons. They were not prepared in accordance with Regulation VII. of 1822 or the Oudh Settlement Circular 20 of 1863. Reference was made to Narindar Bahadur Singh v. Achal Ravi (( 1893) L. R 20 Ind. Ap. They were not prepared in accordance with Regulation VII. of 1822 or the Oudh Settlement Circular 20 of 1863. Reference was made to Narindar Bahadur Singh v. Achal Ravi (( 1893) L. R 20 Ind. Ap. 77.) ; Lekraj Kunwar v. Mahpal Singh (L. R. 7 Ind. Ap. 63.); Lali v. Murlidhar(( 1906) L. R. 33 Ind. Ap. 97.); Act I. of 1869, s. 22, sub-s. 11; Directions for Revenue Officers in the North West Provinces ( 1858), 76, s. 167 ; Report of Chief Commissioner of Oudh on the Administration of the Province and Minute thereon of Governor-General of India, April 22, 1859, Oudh Papers, 1859- 1865 ; Uman Parshad v. Gandharp Singh. (( 1887) L. R. 14 Ind. Ap. 127, 134.) In the mass of evidence recorded there was only one instance of a daughter being excluded, and that was in favour of one of her uncles. A custom to exclude cannot be proved by even a long series of instances of postponement to persons regarded either by the ordinary law or by custom as preferable heirs. A custom must be strictly proved as alleged ; and after excluding the evidence improperly admitted, the remainder was insufficient to establish a custom of exclusion. Reference was made to Ramalakshmi Ammal v. Sivanantha Perumal Sethuraya(( 1872) 14 Moo. Ind. Ap. 570, 585.); Hurpurshad v. Sheo Dyal (( 1876) L. R. 3 Ind. Ap. 259, 285.); Shafiqunnisa v. Shaban Ali Khan (( 1904) L. R. 31 Ind. Ap. 217.); Jagatpal Singh v. Jogeshar Baksh Singh (( 1902) L. R. 30 Ind. Ap. 27, 34.); and as to the admissibility in evidence of opinions and traditions see Garurudhwaja Parshad v. Saparandhwaja Parshad (( 1900) 27 Ind. Ap. 238, 251.) ; Indian Evidence Act, ss. 48 and 49 ; Rahimatbai v. Hirbai. (( 1877) I. L. R. 3 Bomb. 34.) Sir R. Finlay, K.C., Ross, and Kenworthy Brown, for the three first respondents, contended that concurrent findings of fact based on the oral and documentary evidence adduced to the effect that the appellant is excluded from the inheritance by family custom ought not to be disturbed. Reference was made to Kunwar Sanwal Singh v. Satrupa Kunwar (L. R. 33 Ind. Ap. 53.) and Sheo Singh v. Raghubans Kunwar. (( 1905) L. R. 32 Ind. Ap. Reference was made to Kunwar Sanwal Singh v. Satrupa Kunwar (L. R. 33 Ind. Ap. 53.) and Sheo Singh v. Raghubans Kunwar. (( 1905) L. R. 32 Ind. Ap. 203, 210.) With regard to the contention that the evidence only shewed that the daughters had been postponed to male collaterals and that a custom to exclude was not proved thereby, no such point was raised in the Courts below, and there is no practical difference. Exclusion can always be regarded as postponement so long as any heir succeeds and the inheritance does not remain vacant. The evidence shewed that for more than 250 years no daughter had succeeded. Then it is urged that the estate is a partible one, having regard to Act I. of 1869, and that customs proved as relating to impartible estates do not apply. This is a fallacy. Partibility only means that the estate goes to all the heirs in the same degree, and not to one only, and family custom applies equally to both, for there is no reason why it should not. Reference was made to Maynes Hindu Law, 7th ed., p. 763, par. 561; Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh (( 1890) L. R. 17 Ind. Ap. 128, 131.) ; Muttuxaduganadha Tevar v. Periasami Tevar (( 1896) L. R. 23 Ind. Ap. 128, 136.) ; Subramanya Pandya Chokka Talavar v. Siva Subramanya Pillai (( 1894) I. L. R. 17 Mad. 316, 325.); Narindar Bahadur Singh v. Achal Ram (L. R. 20 Ind. Ap. 77.) ; Kunwar Sanwal Singh v. Satrupa Kunwar (L. R. 33 Ind. Ap 53.); Lekraj Kunwar v. Mahpal Singh (L. R. 7 Ind. Ap. 63.) ; and Dan Bahadur v. Mahesh Baksh. (Unreported.) With regard to the contentions raised as to the declarations and Law Rep. 36 Ind. App. 125 ( 1908- 1909) Musammat Parbati Kunwar V. Rani Chandarpal Kunwar 53 wajib-ul-arzes, it was argued that the former had been rightly received by both Courts and that the latter had been shewn to have been regularly prepared having regard to statutory requirements see Regulation VII. of 1822, s. 9; Settlement Circular 20 of 1863 in "Settlement Circulars, 1863- 1867 " ; Act XVII. of 1876 (Oudh Land Revenue Act), ss. 14, 16, and 17 ; Sykes Compendium, p. 397 ; Uman Parshad v. Gandharp Singh (L. R. 14 Ind. Ap. 127.); Bajranji Singh v. Manokarinka Baksh Singh. of 1822, s. 9; Settlement Circular 20 of 1863 in "Settlement Circulars, 1863- 1867 " ; Act XVII. of 1876 (Oudh Land Revenue Act), ss. 14, 16, and 17 ; Sykes Compendium, p. 397 ; Uman Parshad v. Gandharp Singh (L. R. 14 Ind. Ap. 127.); Bajranji Singh v. Manokarinka Baksh Singh. (( 1907) L. R. 35 Ind. Ap. 1.) De Gruyther, K.C., replied, contending that concurrent findings of fact were binding only where the issue was purely one of fact, and here it was one of mixed law and fact Mahomed Ali Haidar Khan v. Secretary of State for India (( 1908) L. R. 35 Ind. Ap. 195, 204.); Venkateswara Iyan v. Shekhari Varma. (( 1881) L. R. 8 Ind. Ap. 143.) He further argued that evidence of custom relating to impartible estates did not apply, and cited, in addition to authorities already referred to, Venkata Row v. Court of Wards (( 1879) L. R. 7 Ind. Ap. 38.), Ishri Singh v. Baldeo Singh (( 1884) L. R. 11 Ind. Ap. 135, 148.), Jagdish Bahadur v. Sheo Partab Singh (( 1901) L. R. 28 Ind. Ap. 100, 110.), and Ram Nundun Singh v. Janki Koer. (( 1902) L. R. 29 Ind. Ap. 178.) The judgment of their Lordships was delivered by LORD COLLINS. The question on this appeal relates to the right to succession to a taluqa known as the Majhgain estate, or the Majhgain Shahpur estate, to which the appellant (the plaintiff) claims to be entitled. The plaintiff is the daughter of Milap Singh, who died in possession of the estate in 1882, leaving two daughters (the plaintiff and another since deceased) and a widow, Rani Dhan Kunwar, but no male issue. Rani Dhan Kunwar died on August 16, 1891. On her death Raj Dillipat Singh, brother of Milap Singh, got possession, and died without leaving issue, but leaving a widow, who succeeded him and died on January 28, 1899. On April 17 following mutation of names in respect of the taluqa in question, and also of another of Dillipats own, was effected by the Revenue Court in favour of the first, second, and third defendants. It is not disputed that, if there were no binding custom to the contrary, the appellant (the plaintiff) would be entitled to succeed to the taluqa in question. It is not disputed that, if there were no binding custom to the contrary, the appellant (the plaintiff) would be entitled to succeed to the taluqa in question. It has, however, been found by the Subordinate Judge, and confirmed by the Court of the Judicial Commissioner on appeal, that there is a custom in the family of the plaintiff and the defendants " that a daughter is excluded by the collaterals of the deceased from inheritance." If and so far as this is a conclusion of fact, it is a concurrent finding of two Courts, and, though not absolutely binding on this Committee, is entitled to the greatest weight. Accepting this view, the appellant has boldly contended that there was, in effect, no reasonable evidence legally admissible which could justify such a finding. The evidence, however, was most elaborately and minutely criticized in all its bearings both by the Subordinate Judge, himself a Hindu, and by the Court of the Judicial Commissioner, and both Courts were fully satisfied both as to its relevancy and its cogency, and also as to the complete absence of any rebutting evidence on the part of the plaintiff. Though, in their Lordships opinion, it is not desirable to attempt again what has been so completely carried out by the Courts below— a minute examination of the evidence in detail—it is, perhaps, desirable to sketch it in outline so as to make intelligible the objections urged against it by the appellant. The taluqa in question comprised one fourth part of a larger area called the Bhira estate, which, under the provisions of Act I. of 1869, had been granted by the British Government to four taluqdars, namely, Raj Ganga Singh, Raj Sadho Singh, Raj Baryar Singh, and Raj Ahlad Singh, whose names were accordingly entered in respect of it in Lists I. and IV., prepared under the provisions of the statute. In 1878 there was a partition of the Bhira estate, upon which the villages allotted to Milap Singh, who had then succeeded to Raj Ganga Singhs estate, were, together Law Rep. 36 Ind. App. 125 ( 1908- 1909) Musammat Parbati Kunwar V. Rani Chandarpal Kunwar 54 with some other villages already held by him separately, formed into an estate called the Majhgain or Majhgain Shahpur Estate, which is the subject-matter of the present suit. 36 Ind. App. 125 ( 1908- 1909) Musammat Parbati Kunwar V. Rani Chandarpal Kunwar 54 with some other villages already held by him separately, formed into an estate called the Majhgain or Majhgain Shahpur Estate, which is the subject-matter of the present suit. Under Act I. of 1869 the succession to estates in List IV. is regulated by " the ordinary law to which members of the intestates tribe and religion are subject" (Act I. of 1869, s. 23), which has been held to embrace any " family custom." (Narindar Bahadur Singh v. Achal Ram L. R. 20 Ind. Ap. at p. 79.) The evidence adduced by the defendants in support of the custom was partly documentary and partly oral. It has been analysed and carefully dealt with under different heads in the Courts below. Various technical objections to declarations, such as those of the Kanungos, to entries made in the village records by the officer charged by Government with that duty, and to answers given to official inquiries made under Government direction as to the rules of succession prevailing in particular families were urged by the plaintiff. Speaking broadly, these objections seem to their Lordships to have been material rather to the weight than to the admissibility of the particular evidence, which was prima facie admissible as purporting to be made by the proper officer in performance of a special duty and, presumably, with due regard to the rules laid down for his guidance. The learned judges in both Courts below in particular regarded the evidence furnished by the wajib-ul-arzes as most important, and treated their admissibility and relevance as indisputable. In the Court of first instance the learned Subordinate Judge, in dealing with the objection to this class of evidence, quotes s. 17 of the Oudh Land Revenue Act, 1876, as follows "Every entry in such Settlement Record duly made and attested shall, until the contrary is proved, be presumed to be a correct record of the fact entered," but adds a quotation from a ruling of this Board in Muhammad Imam All Khan v. Sardar Husain Khan (( 1898) L. R. 25 Ind. Ap. Ap. 161, 169.) " Its weight may be very slight or may be considerable according to circumstances." Passing from these special objections, their Lordships now come to the broader ground on which this appeal was mainly argued, namely, that evidence of a custom regulating the succession to impartible estates, such as rajhes where the rule of gaddi-nashin prevailed, was altogether inadmissible on a question as to the custom of succession to a partible estate governed by the ordinary Hindu law applicable to estates in List IV. In their Lordships opinion this objection is met by the authorities cited in the judgment of the Court of the Judicial Commissioner (ante, p. 180). In a judgment of the Appellate Civil Court of Madras (Subramanya Pandya Chok k a Talavar v. Siva Subramanya Pillai, 17 I. L. R. Mad. 316, at p. 325.) there is the following passage—" The first of them [i.e., the first principle] is that a rule of decision in regard to succession to impartible property is to be found in the Mitakshara law applicable to partible property, subject to such modifications as naturally flow from the character of the property as an impartible estate. The second principle is that the only modification which impartiality suggests in regard to the right of succession is the existence of a special rule for the selection of a single heir when there are several heirs of the same class who would be entitled to succeed to the property if it were partible under the general Hindu law .... We have first to ascertain the class .... and we have next to select the single heir applying the special rule." In laying down these propositions the learned judges relied, among others, on the Shivagunga Case. (( 1863) 9 Moo. Ind. Ap. 539.) That case was referred to in these terms by Sir R. Couch in delivering the judgment of this Board in Raja Jogendra v. Nityanund Mansingh (L. R. 17 Ind. Ap. At p. 131.) "According to the decision in the Shivagunga Case (( 1863) 9 Moo. Ind. Ap. 539.), which, as their Lordships understand, is not now disputed, the fact of the raj being impartible does not affect the rule of succession. Ap. At p. 131.) "According to the decision in the Shivagunga Case (( 1863) 9 Moo. Ind. Ap. 539.), which, as their Lordships understand, is not now disputed, the fact of the raj being impartible does not affect the rule of succession. In considering who is to succeed on the death of the Raja, the rules which govern the suc cession to a partible estate are to be looked at, and therefore the question in this case is, what would be the right of succession, sup posing instead of being an impartible estate it were a partible one?" There is nothing, therefore, in the mere fact of partibility to make evidence of a family custom Law Rep. 36 Ind. App. 125 ( 1908- 1909) Musammat Parbati Kunwar V. Rani Chandarpal Kunwar 55 excluding or postponing daughters to collaterals in impartible estates necessarily inapplicable to partible estates. This objection falling to the ground, the concurrent finding remains, after due allowance for all limitations and qualifications, abundantly justified by overwhelming evidence. The Lordships will therefore humbly advise His Majesty that this appeal be dismissed and the decree of the Court of the Judicial Commissioner dated March 2, 1905, affirmed. The appellant will pay the costs of the appeal.