Judgement Appeal (No. 131 of 1923) from a decree of the High Court (July 23, 1921) varying a decree of the Senior Subordinate Judge, Rohtak. The suit was instituted by the present respondent; he claimed part of the estate of one Mir Barkhat Ali, deceased, which was in the possession of the defendants-appellants. The deceased was a Mahomedan Arab-Sayad of Kharkhauda in the Rohtak district, and the suit was instituted after the death of the last surviving of his three widows. The substantial question in the appeal was whether according to the customary rule of inheritance governing the family the plaintiff-appellant had a good title. The facts appear from the judgment of the Judicial Committee. The trial judges held that the plaintiff was entitled by the customary rule to inherit the estate of the deceased, but that two of the villages claimed did not form part of that estate. Upon cross-appeals to the High Court (Wilberforce and Martineau JJ.) a decree was made in favour of the plaintiff for the whole property claimed. Wilberforce J., in delivering the judgment, said that in matters of succession there could be no doubt that for a very long period the family had followed custom. There were decisions of the Chief Court holding that the right of representation of a deceased heir existed in the family, both in the case of males and of females. The evidence adduced also showed many recognitions of that right in the case of females, and no authenticated case to the contrary. 1924. Nov. 21, 24, 25, 27. Dunne K.C. and Parikh for the appellants. De Gruyther K.C. and Wallach for the respondent. In addition to numerous decisions in the Punjab Record mentioned in the judgment of the High Court, reported at I.L.R. 2 L. 383, reference was made to Abdul Hussein Khan v. Sona Dero (( 1917) L. R. 45 I. A. 10.) and the Punjab Laws Act (IV. of 1872), s. 5. Dec. 22. The judgment of their Lordships was delivered by SIR LAWRENCE JENKINS. This is an appeal from a decree dated July 23, 1921, of the High Court of Judicature at Lahore, varying a decree, dated May 28, 1915, of the Court of the Senior Subordinate Judge of Rohtak. of 1872), s. 5. Dec. 22. The judgment of their Lordships was delivered by SIR LAWRENCE JENKINS. This is an appeal from a decree dated July 23, 1921, of the High Court of Judicature at Lahore, varying a decree, dated May 28, 1915, of the Court of the Senior Subordinate Judge of Rohtak. The suit is brought by Musammat Nasib-ul-Nisa to recover possession of immovable property described in the plaint on the ground that it formed part of the inheritance left by her uncle, Mir Barkhat Ali, and on the death of Musammat Bismillah Begam, his last surviving widow, devolved on her as his customary heir. Though the record is voluminous, the points now in issue are narrowed down to two (a) whether the whole of the property claimed formed part of Barkhat Alis estate, and (b) whether the plaintiff has established that she is his customary heir. The items claimed include a moiety of the villages of Salakhni and Kanal. Up to the mutiny the entirety of these villages belonged to Bisharat Ali. They were then confiscated for his alleged default of duty. But on the application of Barkhat Ali, whose military service had earned him the good will of the authorities, the villages in 1858 were restored to him and Umrao, Bisharats son, and their names were entered in the revenue records. The Subordinate Judge held that the name of Barkhat Ali was included as part owner without any apparent rhyme or reason by Barkhat Ali himself when Umrao was a mere boy of fourteen, that Barkhat Ali had never been in actual possession or enjoyment of the villages, and that the defendants had so long been in adverse possession of them against Barkhat Ali and his successors that the plaintiff was not entitled to lay any claim to them. The High Court, for reasons which appear in its judgment, took a different view and held that the moiety of these villages belonged to Barkhat Ali. Their Lordships agree with that conclusion. Has then the plaintiff established her claim to be the customary heir of Barkhat Ali? The members of his family are Mahomedan Arab-Sayads of Kharkhauda, and it is among them that the heir to his property is to be found. Their relationship to him is shown in the following pedigree. Their Lordships agree with that conclusion. Has then the plaintiff established her claim to be the customary heir of Barkhat Ali? The members of his family are Mahomedan Arab-Sayads of Kharkhauda, and it is among them that the heir to his property is to be found. Their relationship to him is shown in the following pedigree. Barkhat Ali died in 1872 without issue, but survived by the three widows shown in the pedigree. Contrary to the rule of Mahomedan law, they succeeded to the whole of his estate, for an interest terminable with their lives and with a right of survivorship as between themselves. Musammat Bismillah Begam was the survivor, and on her death in 1909, three members of the family instituted three separate suits, each claiming as heir of Barkhat Ali to recover possession of the property now in suit. One was brought by Musammat Nasib-ul-Nisa, one by Musammat Ahmadi-ul-Nisa, and the third by Mir Afzal Ali. They were consolidated and heard together. The second and third failed, and no appeal has been preferred; in Nasib-ul-Nisas a decree was passed in her favour on appeal, and it is against that decree that the present appeal has been preferred. One was brought by Musammat Nasib-ul-Nisa, one by Musammat Ahmadi-ul-Nisa, and the third by Mir Afzal Ali. They were consolidated and heard together. The second and third failed, and no appeal has been preferred; in Nasib-ul-Nisas a decree was passed in her favour on appeal, and it is against that decree that the present appeal has been preferred. Mir Ibadullah | | | Mir Mir Inayat Hidat Ali Ali | | | | | Mir Raushan Mir Iradat Ali Ali Rahmat | | Ali, whose | | widow, | | Musammat | | Meero, | | died | | childless | | | | | | | Mir Barkat Mir Musammat Musammat Musam Akbar Ali Ali, died Sarfaraz Azim-un-N Umdat-un- mat | childless in Ali, died isa Nisa Rafi-un- | 1872, leaving before | | Nisa | three widows, 1872 | | | (1) | | | Musammat | | Bismillah | | Begam, who | | died in 1909 | | | | (2) | | | | | | Musammat Musammat | Majid Ali Mumtaz Mir | Masiha Nasib-un- | Ali Aman | Begam, who Nisa, | Ali, | died in 1888, plaintiff, | married | and wife of | the | (3) Mir Aman | plaintiff | Musammat Ali | | Moti Begam, | | who died in | | 1882 | | | | | | | | | Mir Afzal Ali, Jawa Shamshad Sikhawat Sadiq Ali Mansab Himayat Musammat claimant No. d Ali Ali Ali Ali Ali Ahmadi-ul- 3 Nisa, claimant No. 2 wife of Khurshaid Ali, defendant No. 2 For Nasib-ul-Nisa it has been argued that, as the heirship of her two rival claimants has been negatived, hers must be taken to be established even as against the defendants. But their Lordships cannot assent to this contention. The defendants, though without title, are in possession, and the plaintiff can only recover that possession by establishing her own title as against them, regardless of what has been determined in the other two suits. Appended to the Subordinate Judges judgment are nine pedigrees, G I to G IX, showing the family relationship at the dates of the several successions said to support the customary rules of succession on which the plaintiff relies. Appended to the Subordinate Judges judgment are nine pedigrees, G I to G IX, showing the family relationship at the dates of the several successions said to support the customary rules of succession on which the plaintiff relies. Their correctness is not questioned and the actual succession in each case is proved, not merely by oral evidence, but by judicial decisions or revenue orders made in mutation proceedings. The devolutions to which they relate have been accurately investigated by the High Court, and it would serve no useful purpose for their Lordships to travel over the same ground. What has to be determined is the inference to be drawn from them as to the rules of succession relevant to the plaintiffs claim in this suit. They corroborate the oral evidence that in this family custom is followed in matters of inheritance, and this, in their Lordships opinion, is established beyond controversy. So the present inquiry is not whether in relation to the particular succession now in question the ordinary personal law is superseded by a custom, but what is the customary rule that regulates it. That there is a customary rule which entitled Barkhat Alis widows to succeed as heirs to his estate for limited interests is not disputed; it is equally clear that there is a rule of inheritance in this family which entitles brothers to succeed to the exclusion of sisters. Applying these two rules to the succession on the surviving widows death, if Sarfaraz Ali had survived, he would have inherited Barkhat Alis property to the exclusion of his sisters. But Sarfaraz Ali was dead, and the plaintiff, his daughter, alleges that by the code of customary rules regulating succession in this family, the principle of representation is sanctioned, and she claims that by virtue of it she, as Sarfaraz Alis daughter, in the absence of male issue, represents him and stands in his place. Their Lordships agree that representation is a part of the rules of succession in this family. It is settled by judicial decision that a son in matters of inheritance represents his deceased father, and the record discloses instances of succession in which a widow was recognized as the representative of her husband, and a daughter as the representative of a deceased uncle. It is settled by judicial decision that a son in matters of inheritance represents his deceased father, and the record discloses instances of succession in which a widow was recognized as the representative of her husband, and a daughter as the representative of a deceased uncle. It is thus shown that sex is not a bar to representation, but that widows and daughters in the absence of sons can claim the right in their favour. But then it is said that no instance is proved of an actual succession by a brothers daughter, and therefore, it is argued the necessary custom that precisely covers this case has not been proved. But if there be a rule that entitles an uncles daughter to be her fathers representative for the purpose of inheritance, it would be anomalous and arbitrary to withhold from a brothers daughter the same right, and their Lordships hold that the High Court rightly decided in Nasib-ui-Nisas favour. In their opinion, therefore, this appeal should be dismissed, and they will humbly advise His Majesty accordingly. The appellants must pay the costs of this appeal.