Judgement Appeal from a decree of the above Court (May 29, 1907) reversing a decree of the Subordinate Judge of Tahsil Biswan District, Sitapur (October 22, 1906). The parties to this litigation were Ahban Thakurs, and the litigation related to the succession to the estate of Ratan Singh, who died sonless in 1899, possessed of considerable zamindari and house property. His widow, Moona Kunwar, succeeded him, and on her death in 1903 a dispute arose between the two surviving brothers of Ratan Singh, namely, Anant Singh (half-brother) and Durga Singh (full-brother). The former claimed to succeed to the estate of his deceased brother Ratan Singh in equal shares along with the latter by virtue of a custom prevalent among the family of the parties. The Deputy Commissioner ordered mutation of names in favour of both claimants, but on appeal his order was reversed, and mutation was finally effected in favour of Durga Singh, respondent, only. The appellant thereupon sued on December 8, 1905, for a declaration of his title and for possession. The respondent denied the existence of the said family custom and pleaded that he alone was entitled to succeed under the Hindu law, and that the plaintiff,- his half-brother, had no right whatever. The Subordinate Judge fixed the following issue —Is there a valid family custom whereby in the parties family a stepbrother is entitled to succeed along with the real brother of the deceased. The appellant produced twenty wajib-ul-arzes relating to the villages in dispute. They were said to have been prepared by Government officials in 1870-72 with reference to various villages comprised in the estate, some of which explicitly recorded the alleged custom. He also produced oral evidence of its existence. The respondent produced a wajib-ul-arz for village Deokalia, which omitted to record the custom, as well as other wajib-ul-arzes of villages of families to which some of the witnesses, but not the parties to the suit, belonged. These latter the Subordinate Judge decided were irrelevant. He accepted the appellants oral evidence of custom and, following the decision in Rani Lekraj Koer v. Mahpal Singh (( 1879) L. R. 7 Ind. Ap. 61.), held that the wajib-ul-arzes proved the family custom. These latter the Subordinate Judge decided were irrelevant. He accepted the appellants oral evidence of custom and, following the decision in Rani Lekraj Koer v. Mahpal Singh (( 1879) L. R. 7 Ind. Ap. 61.), held that the wajib-ul-arzes proved the family custom. In appeal the First Judicial Commissioner was of opinion that " the wajib-ul-arzes are no doubt correct, that is the entries regarding the haq or rasum wirasat were made from inquiries on the Settlement Officers part from the four surviving members of the family and are duly attested and signed," but he held that mere entries of a custom in wajib-ul-arzes were not sufficient. The latter was of opinion that the wajib-ul-arzes were " not records of an ancient and certain custom, but embody irresponsible and conflicting wishes of members of the family." The material portion of the judgment of the First Judicial Commissioner is as follows— "According to the Mitakshara law by which the family to which the parties belong is governed, the inheritance of a deceased brother without issue passes to the nearest sapinda and a brother of the full blood is a nearer sapinda than a brother of the half blood Suba Singh v. Sarapar Kunwar (( 1896) I. L. R. 19 Allah. 215, at p. 223.), where the principle of propinquity according to the Mitakshara is fully discussed. "The custom on which the plaintiff relies, namely, that the full and the half brothers are entitled to succeed equally to the property of the deceased brother without sons, is therefore one in derogation of the Mitakshara law. It is set forth in clause 4 of the wajib-ul-arz of three of the villages where portions of the property claimed lies, and in the wajib-ul-arzes of sixteen of the remaining villages, where other portions of the property of the late Ratan Singh lies, reference is made to clause 4 of these three wajib-ul-arzes. In the wajib-ul-arz of the remaining village, Deokalia, which gives its name to the estate of Ratan Singh, the custom is not set forth, but it is said that the heir-at-law, waris-jaiz, takes the property of the deceased brother. The alleged custom is the subject of a ruling in Chandika Baksh v. Muna Kuar (( 1902) L. R. 29 Ind. Ap. 70 ; S. C. I. L. R. 24 Allah. The alleged custom is the subject of a ruling in Chandika Baksh v. Muna Kuar (( 1902) L. R. 29 Ind. Ap. 70 ; S. C. I. L. R. 24 Allah. 273.), wherein the parties relying on it said that it is prevalent amongst the Ahban Thakurs who migrated from Gujrat to Oudh several centuries ago. Several well-known rulings lay down that a custom as used in the sense of a rule which in a particular district, clan, or family has from long usage obtained the force of law must be ancient, continued, unaltered, uninterrupted, uniform, constant, peaceable, and acquiesced in, reasonable, certain and definite, compulsory and not optional to every person to follow or not. These words are quoted from Ameer Alis Evidence Act, 4th ed., p. 65, and in the footnote the authorities on which the statement is based are quoted. These being the requisites of a custom, it follows that it must be established by clear and unambiguous evidence. The evidence on which the plaintiff-respondent relies consists of the twenty wajib-ul-arzes already mentioned, and the oral testimony of two witnesses." He then found that the oral evidence was of no help to the plaintiff and that the proof of the custom rested on the twenty wajib-ul-arzes. With regard to the effect to be attributed to them, after referring to Uman Parshad, v. Gandharp Singh (( 1887) L. R. 14 Ind. Ap. 127 ; I. L. R. 15 Calc. 20.) and Ratan Singh v. Chandika Baksh (No. 85 of 1896.), he proceeded "There are many rulings in which the necessity of evidence in support of an entry in a wajib-ul-arz of a custom in derogation of Hindu law is represented, even though no rebutting evidence has been produced. I agree with the principle Laid down in them. In the judgment in Ratan Singh v. Chandika Baksh(No. 85 of 1896.) Mr. Chamier held that although a large number of the clan came forward and declared themselves bound by the alleged custom and though the defendant had given Ali the evidence which in the nature of things was possible, while no rebutting evidence had been given by the plaintiff, it was for the former to establish the custom, and if the evidence in support of it is in itself insuffi cient, failure on the plaintiffs part to rebut that evidence will not render it sufficient. This decision was upheld by their Lordships of the Privy Council in L. E. 29 Ind. Ap. 70; S. C. I. L. R. 24 Allah, p. 280. " In Musammat Ram Kali Kunwar v. Girja Dat (( 1905) 8 Oudh Cases, p. 142.) a wajib-ul-arz was attested by fifteen co-sharers. The custom recorded in it was recognized in an award prepared in 1866 and several persons deposed to the existence of the custom. Mr. Ross Scott held that it was proved. In I. L. R. 28 Allah. 496 it is Laid down that in the absence of other evidence of a custom an entry of it in a wajib-ul-arz is insufficient proof of it. " In the cases to which the ruling in 24 A., p. 280, belongs, and in the judgment of Mr. Chamier, First Civil Appeal No. 67 of 1901, the evidence of numerous witnesses as to instances of the observance of the alleged custom has been discussed. The importance therefore of such evidence is not to be questioned. In 24 A. their Lordships of the Privy Council agreed with Mr. Chamier that four instances of comparatively recent date were not sufficient proof of the custom. The result of these rulings is that mere entries of a custom in derogation of Hindu law in a wajib-ul-arz or in several wajib-ul-arzes unsupported by other evidence, even though not rebutted by evidence on the other side, are not sufficient proof of the existence of the custom, and I think that it would be unsafe to hold otherwise. " My conclusion therefore is that the so-called custom is not proved, and that it is a mere tradition of the family which has never been acted on." Dube, for the appellant, contended that the custom alleged was sufficiently proved. The wajib-ul-arzes produced by him were shewn to have been accurate and official records of the custom actually prevailing in the family of the parties. They recorded the custom in clear and certain terms, and it was contended that the evidence shewed that they were prepared by Government officials more than forty years ago; and that Ali the then existing members of the family were unanimous in getting the custom duly recorded therein. They recorded the custom in clear and certain terms, and it was contended that the evidence shewed that they were prepared by Government officials more than forty years ago; and that Ali the then existing members of the family were unanimous in getting the custom duly recorded therein. Besides this documentary evidence he relied on the oral testimony of two witnesses who were the only surviving members of the family besides the parties to the suit, and whose credibility the respondent could not impugn, as he had himself relied upon their evidence and cited them as his witnesses. With regard to the weight to be attached under the circumstances to the wajib-ul-arzes reference was made to Lekhraj Kunwar v. Mahpal Singh (( 1879) L. R 7 Ind. Ap. 63, 67.); Oudh Settlement Circular No. 20 of 1863; Parliamentary papers relating to Oudh, 1869; Maheshar Baksh Singh v. Ratan Singh (( 1896) L. R. 23 Ind. Ap. 57.); Chandika Baksh v. Mima Kuar (L. R. 29 Ind. Ap. 70, 72.); Bajrangi Singh v. Manokarnika Baksh Singh (( 1907) L. R. 35 Ind. Ap. 1.) ; Muhammad Imam Ali Khan v. Husain Khan (( 1898) L. R. 25 Ind. Ap. 161, 169.) ; Sheikh Hub Ali v. Wazirunnissa (( 1906) L. R. 33 Ind. Ap. 107, 116.) ; Parbati Kunwar v. Chandarpal Kun-tear (( 1909) L. R. 36 Ind. Ap. 125, 131) ; Nandi Singh v. Sitaram (( 1888) L. R. 16 Ind. Ap. 44,46.); Sarwari Begum v. Khatimunnisa (( 1908) 12 Oudh Cases, 111, 122.); Ali Nasir Khan v. Manik Chand (( 1902) I. L. R. 25 Allah. 90.); Uman Par shad v. Gandharp Singh (L. R. 14 Ind. Ap. 127.); and the Oudh Land Revenue Act (XVII. of 1876), ss. 3 and 17. De Gruyther, K. C., and Kenworthy Brown, for the respondent, contended that neither the oral testimony nor the wajib-ul-arzes relied upon by the appellant proved the existence of any family custom to the effect pleaded. On the contrary, the evidence given by the respondent disproved it. In Maynes Hindu Law, 7th ed., p. 57, the requisites for the proof of custom are stated which are not complied with by the evidence in this case, which does not establish a single instance of a succession in accordance with the alleged custom. Statements in the wajib-ul-arzes should be received with caution. In Maynes Hindu Law, 7th ed., p. 57, the requisites for the proof of custom are stated which are not complied with by the evidence in this case, which does not establish a single instance of a succession in accordance with the alleged custom. Statements in the wajib-ul-arzes should be received with caution. In those pro duced as prepared in 1870-72 statements of customary succession inconsistent with the ordinary law were recorded on information supplied by some of the owners or their agents. It has been contended during the history of this family that a widow by its custom had unrestricted powers of alienation, also that by the custom the reversionary heirs of the husband living at her death had not the sole right of inheritance. Those contentions did not prevail. Reference was made to Chandika Baksh v. Muna Kunwar (L. R. 29 Ind. Ap. 70.), where some of the wajib-ul-arzes produced in this case were held insufficient to establish the custom there relied upon. The entries in these documents were shewn to be conflicting and to be inserted according to the wishes of the various proprietors, who cannot be allowed even by consent to concoct evidence in this way. Reference was made to Oudh Land Revenue Act, 1876, s. 17; Parbati Kunwar v. Chandarpal Kunwar (L. R. 36 Ind. Ap. 125, 135.); Nandi Singh v. Sitaram (L. R. 16 Ind. Ap. 44.); Lekraj Kunwar v. Mahpal Singh (L. R. 7 Ind. Ap. 63.) ; Uman Parshad v. Gandharp Singh. (L. R. 14 Ind. Ap. 127.) Dube in reply. The judgment of their Lordships was delivered by LORD COLLINS. The question on this appeal is as to the right of a step-brother in a Hindu family to share equally with a brother of the whole blood in the succession of a deceased brother. Ratan Singh died in 1899, leaving certain shares in the Deokalia estate as well as some house property. He was succeeded by his widow, who died in April, 1903. On her death the appellant Anant Singh, his step-brother, claimed to be equally entitled with Durga Singh, his sole surviving brother of the whole blood, to share in his succession. His contention was upheld by the Subordinate Judge, but on appeal the learned Judicial Commissioners overruled his decision and held that the succession passed to the brother of the whole blood, the now respondent, alone. His contention was upheld by the Subordinate Judge, but on appeal the learned Judicial Commissioners overruled his decision and held that the succession passed to the brother of the whole blood, the now respondent, alone. The learned Judicial Commissioners, in their Lordships opinion, gave excellent reasons for refusing to regard the evidence adduced by the plaintiff as sufficient to establish such a special custom in the family as to rebut the ordinary presumption that the Mitakshara law prevailed. It has been pointed out more than once at this Board that there is no class of evidence that is more likely to vary in value according to circumstances than that of the wajib-ul-arzes (Muhammad Imam Ali Khan v. Husain Khan (L. R. 25 Ind. Ap. 161, 169.) and Parbati Kunwar v. Chandarpal Kunwar (L. R. 36 Ind. Ap. 125.)), and where, as here, from internal evidence it seems probable that the entries recorded connote the views of individuals as to the practice that they would wish to see prevailing rather than the ascertained fact of a well-established custom, the learned Judicial Commissioners properly attached weight to the fact that no evidence at Ali was forthcoming of any instance in which the alleged custom had been observed. The question involved was one of fact only, and their Lordships see no reason whatever to differ from the opinion of the learned Judicial Commissioners. Their Lordships will humbly advise His Majesty that the appeal be dismissed with costs.