JUDGMENT : TUDBALL, J.:— This appeal arises out of a suit for possession of the estate of one Sher Singh Jat. The plaintiffs respondents are the nearest male agnates of Sher Singh. 2. The defendant is the daughter of Sher Singh. The plaintiffs pleaded a special custom in their family, village, the neighbourhood and the caste, under which a daughter is excluded from inheritance. The court of first instance on the evidence held that the custom alleged had not been established. The lower appellate court held that the evidence was sufficient to prove the existence of the custom. The only point before me is whether taking the evidence, as accepted by the court below it is sufficient in law to establish an immemorial invariable custom. 3. There is no plea that the parties are not Hindus. The custom alleged is one at variance with the ordinary rule of Hindu Law and is both harsh and unnatural and it lay on the plaintiffs to prove it by clear and cogent evidence. 4. The parties are Balayan Jats and the story is that this class of Jats inhabited 84 villages in the Meerut Division, that they come from Malanai in the Delhi District and are therefore Punjabi Jats as having come from the Punjab. 5. The plaintiffs called in evidence some 18 witnesses who mentioned 36 instances (some 5 or 6 from this very village) of the custom having been followed. These were not supported by any documentary evidence relating to these instances. 6. Fifteen wajib-ul-araiz were produced. In only one of these was the daughter expressly excluded in terms, though the inference to be drawn from the others is that the daughter was to be excluded. Some six judgments were quoted in cases in which the custom was upheld, one at least being connected with this very village. 7. On the other hand the defendant also called witnesses who quoted 24 instances (some 4 or 5 from this very village) in which the daughter had inherited her father's estate, one being in the very family of the parties. Khewats were produced in support of this oral evidence to show that the instances were genuine and not imaginary. 8. 7. On the other hand the defendant also called witnesses who quoted 24 instances (some 4 or 5 from this very village) in which the daughter had inherited her father's estate, one being in the very family of the parties. Khewats were produced in support of this oral evidence to show that the instances were genuine and not imaginary. 8. Several judgments have also been quoted in cases in which it was held that the custom did not exist, the latest being that in F.A. 173 of 1912 (to which I myself was a party) decided on 16th June, 1914. 9. In regard to the claim that the plaintiffs are Punjabi Jats (among whom the custom prevails) in that they came from the Delhi Division, I need only point out that prior to the Mutiny of 1857 the Delhi Division had never at any time formed part of the Punjab. Till then under the British rule it was part of these provinces and as far as can be discovered from historical records it was not at any time included in the Punjab. 10. What is now called the Punjab province includes a considerable area outside the Punjab proper. Jats who lived in the Delhi district prior to the Mutiny were not and could not have been Punjabi Jats at that time. The Balayan Jats settled in the Meerut Division long long prior to the Mutiny. The claim to be called Punjabi Jats has no real basis in history. The lower court started with a presumption that being Punjabi Jats, the Balayan Jats brought with them their own customs from the Punjab, but they came not from the Punjab. Taking the evidence accepted by the lower court, the case is:— (1) That 36 instances one way and 24 the other way have been established. (2) That there are decisions in cases both ways. (3) That 15 wajib-ul-araiz of the year 1863, contain entries which support the plaintiffs and at least go to show that even if there was no universal custom at least there was a strong feeling among the Jats of this province in the 15 villages, that daughters should not be allowed to inherit. But it must be proved that the custom is at least both immemorial and invariable before the courts can uphold it, as it is at variance with the rule of Hindu Law. But it must be proved that the custom is at least both immemorial and invariable before the courts can uphold it, as it is at variance with the rule of Hindu Law. It is impossible to say in the state of the evidence that either of these two necessary qualifications has been proved when we find that in so large a proportion of instances the daughters have actually inherited within the memory of man. 11. The evidence taken as it stands is clearly insufficient to establish this custom. I allow the appeal set aside the decree of the court below, restore that of the court of first instance. The appellant will have her costs in both this and the lower appellate court.