Judgement Appeal (No. 17 of 1939) from a judgment and decree of the High Court (January 18, 1937), which reversed a decree of the Assistant Collector, First Grade, Lahore (May 8, 1935). 8 Law. Rep. 68 Ind. App. 104 ( 1940- 1941) Sardar Nisar Ali Khan V. Fatima Sultan 19 The following facts are taken, substantially, from the judgment of the Judicial Committee The suit out of which this appeal arose was brought by three sons of the late Sir Fateh Ali Khan against seven defendants, namely, Sir Fatehs widow and his five daughters, and a fourth son, who was absent in England, and who was also joined as a defendant. The relief claimed was a declaratory decree to the effect that the plaintiffs and the defendant son were the heirs of Sir Fateh, and exclusive owners of the lands specified in the plaint ; and that the defendants, the widow and daughters, had no right therein. The foundation of the claim was that by the custom of the family women did not inherit. The family were Shiah Mahomedans of the Asna Ashari sect. The alleged custom was admitted by the widow and all the daughters, except one, namely, Fatima Sultan, the first respondent. The Assistant Collector held that the alleged custom had been proved, and gave judgment decreeing the suit. Fatima Sultan appealed to the High Court (Coldstream and Bhide JJ.) who allowed the appeal and dismissed the suit. From that decision the four sons now appealed. 1941. March 20, 24. Wilfrid Barton K.C. and J. M. Pringle for the appellants. The judgment in the High Court, in three separate instances, draws attention to the fact that no claim to succeed to property has actually been made by females of this family. It is submitted that the judgment is giving undue importance to that sort of evidence ; where there is a custom one ought not to found on inferences of people not making claims contrary to the custom. [Having dealt with the relevant evidence, counsel contended that the appellants had discharged the burden which lay upon them of establishing that a custom of succession existed in the family according to which females were excluded from inheriting.] The appellants are the sole heirs of their father. [Having dealt with the relevant evidence, counsel contended that the appellants had discharged the burden which lay upon them of establishing that a custom of succession existed in the family according to which females were excluded from inheriting.] The appellants are the sole heirs of their father. [Reference was made to Mohammad Ali Khan v. Nisar Ali Khan (( 1928) A. I. R. (Oudh) 67.) ; Ameer Alis Mahommedan Law, 4th ed., vol. ii., pp. 66, 135, 137 ; Punjab Laws Act, IV. of 1872, s. 5 ; Aga Mahomed Jaffer Bindaneem v. Koolsom Bee Bee (( 1897) L. R. 24 I. A. 196.) ; Abdul Hussein Khan v. Bibi Sona Dero (( 1917) L. R. 45 I. A. 10.) ; Roshan Ali Khan v. Chaudhri Asghar Ali (( 1929) L. R. 57 I. A. 29, 33.) ; Ahmad Khan v. Channi Bibi (( 1925) L. R. 52 I. A. 379.).; and Ratilal v. Motilal (( 1925) A. I. R. (Bom.) 380, 382,384.).] J. M. Pringle followed, and referred to Musammat Subhani v. Nawab (( 1940) L. R. 68 I. A. 1.). Sir Thomas Strangman K.C. and Wallach for the respondents were not called upon to argue. April 28. The judgment of their Lordships was delivered by Lord Russell of Killowen. [The judgment, after stating the. facts, continued] The question for their Lordships consideration Is whether the plaintiffs have proved the alleged family custom ; but before stating the conclusion which they have reached, their Lordships think it advisable to recall certain Statements previously made by the Board when dealing with alleged departures from the ordinary laws of succession. In Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar (( 1872) 14 Moo. I. A. 570.) the Board stated that (Ibid. 585.) " It is of the essence of special "usages, modifying the ordinary law of 8 Law. Rep. 68 Ind. App. In Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar (( 1872) 14 Moo. I. A. 570.) the Board stated that (Ibid. 585.) " It is of the essence of special "usages, modifying the ordinary law of 8 Law. Rep. 68 Ind. App. 104 ( 1940- 1941) Sardar Nisar Ali Khan V. Fatima Sultan 20 succession, that they "should be ancient and invariable and it is further essential "that they should be established to be so by clear and unambiguous evidence," and in Abdul Hussein Khan v. Bibi Sona Dero (( 1917) L. R/ 45 I. A. 10.) their Lordships observed that (L. R. 45 I. A. 19.) " in every "case of this kind the burden of proof lies heavily upon the "plaintiff." Furthermore, their Lordships in the last-mentioned case repeated with approval a passage from the judgment in Mirabivi v. Vellayanna (( 1885) I. L. R. 8 M. 464.) which runs thus (Ibid. 465.) "But instances of "this kind will be found to occur where there is no doubt " that the family is governed by pure Mahomedan law. Indeed, "in many parts of the country it is unusual for Mahomedan "ladies to insist on their unquestioned rights. They will "often prefer being maintained by their brothers to taking "a separate share for themselves. . . . Moreover, Mahomedan "females are so much under the influence of their male relations, that the mere partition of the property among the "males without reference to them, cannot count for much." In the present case the evidence is neither clear nor uambiguous. The cases deposed to of successions in the family by males only are of comparatively recent date, and are all capable of some explanation other than the alleged custom. No case of any such succession was proved which was consistent only with the existence of the alleged custom, i.e., which could only have taken place if the alleged custom in fact prevailed in the family. No case of any such succession was proved which was consistent only with the existence of the alleged custom, i.e., which could only have taken place if the alleged custom in fact prevailed in the family. Their Lordships agree with the conclusion which the High Court reached after a careful examination and analysis of the evidence adduced by the plaintiffs ; and they concur in the view that (1.) the plaintiff Nisar Alis former denial of the alleged custom, (2.) the recording of Ali Mahamad Khans land (after inquiry from his son) as having devolved upon his heirs according to Mahomedan law, and (3.) the mutation of land in favour of Sir Fatehs widow and daughters as well as his sons, are three strong pieces of evidence against the contentions of the plaintiffs. After considering the evidence adduced, their Lordships feel no doubt that the plaintiffs have failed to prove that the alleged custom of excluding women from succession exists in the family. Their Lordships think it right to add that they have an uneasy feeling that the Assistant Collector was to some extent influenced in arriving at a view in favour of the plaintiffs by certain words used by Lord Tomlin in. delivering the judgment of the Board in Nisar Ali Khan v. Mohammad Ali Khan (( 1932) L. R. 59 I. A. 268.). In the course of the judgment it was stated that this family " are Shiah Mahomedans of the Asna Ashari sect governed by the Imamia Law. By family custom "women do not inherit" (Ibid. 272.. The question of the existence of such a family custom was in no way before the Board for consideration, or determination. The sentence was taken from the respondents printed case merely as a description, and what was thought to be a proper description, of the family. It was in no sense, nor was it intended to be, a pronouncement, much less a decision, upon this vexed question of family custom. It should not have been counted as of any weight in arriving at a decision in the present litigation. It was, in their Lordships1 opinion, unfortunate that the Assistant Collector should have been misled into regarding it as a pro nouncement of importance and relevant to the present case. It should not have been counted as of any weight in arriving at a decision in the present litigation. It was, in their Lordships1 opinion, unfortunate that the Assistant Collector should have been misled into regarding it as a pro nouncement of importance and relevant to the present case. For the reasons which they have indicated, their Lordships are of opinion that this appeal should be dismissed, and they will humbly advise His Majesty accordingly. The appellants will pay the costs of the appeal.