Judgment Tarkeshwar Nath, J. 1. This appeal by defendants 1, 2, 5, 6 and 8 is directed against the judgment of this Court passed in First Appeal No. 476 of 1952 by a learned Judge sitting singly. The suit out of which this appeal arises was for partition of the plaintiffs one-tenth share in the properties described in the plaint. 2. It appears that Thaluirai Sakat Singh had two sons, Thakurai Senath Singh and Thakurai Bulaki Singh. Thakurai Senath Singh had a son, Thakurai Shiva Prasad Singh and the latter had a son, Thakurai Basant Singh. Thakurai Basant Singh had two sons, Rai Kishun Dayal Singh and Thakurai Mahipal Singh. Rai Kishun Dayal Singh died issue-less, but Thakurai Mahipal Singh bad three sons, Thakurai Devanath Singh, Rai Jadunath Singh Bahadur and Thakurai Dwarika Prasad Singh. Thakurai Devanath Singh had five sons, namely. Thakurai Janki prasad Singh., Tulsi Singh, Raja Govind Prasad Singh, Lachmi Prasad Singh and Adit Prasad Singh. Thakurai Janki Prasad Singh had one son, Thakurai Radha Binayak Singh who died while he was a minor. The third son, Raja Gpvind Prasad Singh had four sons, of whom the first one was Kumar Girwar Prasad Singh (Raja Bahadur). Rai Jadunath Singh Bahadur had two sons, Thakurai Bindeshwar Prasad Singh and Thakurai Parmesh-wari Prasad Singh. Defendant No. I is the first son of Thakurai Bindeshwar Prasad Singh. Thakurai Parmeshwari Prasad Singh had five sons and the fifth one was Baneshwar Prasad Singh whose widow is the plaintiff in the present suit. Defendant No. 9 is the widow of Thakurai Ambikeshwar Prasad Singh, the second son of Thakurai Bindeshwar Prasad Singh. Defendants 2 and 3 are the sons of defendant No. 9. Defendants 4, 5, 6, 7 and 8 are the branch of Thakurai Parmeshwari Prasad Singh. 3. The case of the plaintiff was that the immovable properties described in schedules, A and B of the plaint commonly known as Kanchanpur for and certain movable properties described in Schedule C were joint properties. Her case was that Thakurai Jadunath Singh had two sons, Thakurai Bindeshwari Prasad Singh and Thakurai Parmeshwari Prasad Singh and they jointly owned the properties. Thakurai Bindeshwari Prasad Singh was the karta of the joint family after the death of his father, and his brother Thakurai Parmeshwari Prasad Singh died during his (Bhideshwaris) life time. Her case was that Thakurai Jadunath Singh had two sons, Thakurai Bindeshwari Prasad Singh and Thakurai Parmeshwari Prasad Singh and they jointly owned the properties. Thakurai Bindeshwari Prasad Singh was the karta of the joint family after the death of his father, and his brother Thakurai Parmeshwari Prasad Singh died during his (Bhideshwaris) life time. In 1948 the husband of the plaintiff died as a member of the joint family and the plaintiff inherited her husbands share in the joint family properties according to the provisions of the Hindu Womens Right to Property Act and her share was one-tenth in those properties. With these allegations she instituted the suit on the 3rd July, 1950. 4. Defendant No. 4 supported the case of the plaintiff and he wanted a separate block of land for Ms one-twentieth share in the joint family proper- ties. The main contest to the suit was by the defendants-appellants and their case was that in the year 1842, the said Kanchanpur lot was given by way of Khorposh grant to Thakurai Mahipal Singh partly by his father, Thakurai Basant Singh and partly by his elder brother, Rai Kishun Dayal Singh, who had succeeded to the Ranka Raj. After the death of Thakurai Mahipal Singh, the said grant devolved on his eldest son, Thakurai Devanath Singh and on his death it was inherited by Thakurai Janki Prasad Singh, eldest son of Thakurai Devanath Singh. Later on, Rai Kishun Dayal Singh died issueless and Thakurai Janki Prasad Singh succeeded as the proprietor of the Ranka Raj. Janki Prasad Singh later on ceased to have any connection with the Khorposh grant and thus it came to be held by Rai Jadunath Singh Bahadur, as being the eldest member of his family. Their further case was that after the death of Jadunath Singh in 1921, the Kanchanpur lot was inherited by his eldest son, Thakurai Bindeshari Prasad Singh and on the lattcrs death, the said lot was inherited by defendant No. 1. In short, their case was that the succession to the above khorposh grant was governed by the rule of lineal primogeniture and as such the junior members of the family had neither any concern with nor interest in the inheritance of the said grant. According to them, the husband of the plaintiff had no interest in the Kanchanpur lot and her suit for partition was not at all maintainable. According to them, the husband of the plaintiff had no interest in the Kanchanpur lot and her suit for partition was not at all maintainable. 5. The learned Subordinate Judge held that the custom of impartibility and the exclusion of females from the khorposh could not be established by the defendants and the plaintiff had interest and title in the Kanchanpur lot jointly with the other members of the family. In this view of the matter, he decreed the plaintiffs suit in part for partition of one-tenth share in the immovable properties only. Against that decree, there was a first appeal in this Court by these defendants, but the appeal was dismissed and the findings arrived at by the trial court were affirmed. Hence these defendants have preferred this Letters Patent appeal. 6. The sole question for determination in this appeal is, as to whether the appellants have been able to establish that the succession to the Kanchanpur lot was governed by the rule of lineal primo-geniture, in which case only they would be able to non-suit the plaintiff. There was no document in support of their case and they depended entirely on oral evidence in order to prove the said manner of succession. In order to prove a custom of this kind, the evidence must be cogent, above board and unimpeachable and it should be further established that this custom was an ancient one. The evidence adduced by them has to be judged and scrutinised in this light. Learned counsel for the appellants placed before us the evidence of D. W.s 1, 2, 4 and 5 who, according to him, had spoken about this custom. Before dealing with the evidence, it has to be kept in view that the evidence about this custom has to be looked into for finding out as to what was the position up to the time when Rai Jadunath Singh Bahadur got this khorpos grant and what happened during the period after his death in 1921. The learned Judge in deciding the first appeal observed that as regards the inheritance up to the Lime when Rai Jadunath Singh Bahadur got the grant, the evidence worth the name was completely lacking and there was no document to support the case of the defendants. 6a. The learned Judge in deciding the first appeal observed that as regards the inheritance up to the Lime when Rai Jadunath Singh Bahadur got the grant, the evidence worth the name was completely lacking and there was no document to support the case of the defendants. 6a. Coming to the oral evidence, the position is that Ramjatan Tewari (D, W. 1) stated in his examination in chief that on the death of Mahipal Singh, the khorposh came in possession of Deonath Singh. He stated in his cross examination that he had heard from his ancestors that in the plaintiffs family the junior male members had no right to the khorpos properties. He was a tenant in one of the villages which also appertained to the Kanchan-pur lot and he frankly conceded that he had no concern with the estate except that he paid rent. According to him the original khorpos grant was made by a "sada paper" with the seal of the estate, but he had not seen the document of grant. He had further stated that after the death of Deonath Singh, the khorposh grant came in possession of Janki Singh, the eldest son of Deonath Singh. The learned Judge observed that this witness was born nearabout 1881 and he was absolutely incompelent to speak about the incident, which had happened before his birth. It is true that about an incident, which happened a long lime ago, say about 100 years ago, it is difficult to expect direct testimony of persons who were living then and in such a case a party has to remain content by examining witnesses who may otherwise be competent to speak cither about the inheritance or the custom governing succession of the property belonging to any family. The question still remains for consideration as to whether the witness who comes to depose about this custom heard this from his ancestors and whether there was any occasion for his having any conversation with his ancestors about that custom. This D. W. 1 made a general statement that he had only heard from his ancestors that the junior members had no right to the khorposh grant-He did not indicate the occasion when he came tu have conversation of this kind. Apart from this, he being a tenant, his testimony cannot be safely relied upon. 7. This D. W. 1 made a general statement that he had only heard from his ancestors that the junior members had no right to the khorposh grant-He did not indicate the occasion when he came tu have conversation of this kind. Apart from this, he being a tenant, his testimony cannot be safely relied upon. 7. The next witness is Thakurai Tarkeshwar Prasad Singh, D. W. 2, who was a junior member of the Ranka Raj family. He supported the case of the defendants in his examination in chief but he admitted in cross examination that the sanads which were on "sada papers" did not mention that the rule of primogeniture applied to the khorpos properties. He did not disclose as to how he knew about the above devolution and he could not sav anything about the devolution of the grant from Mahipal to Deonath Singh. He was born sometime in the year 1906 and his age at the time of the evidence was about 46 years. 8. Thakurai Narbadeshwari Prasad Singh (D. W. 4) was defendant No. 2 himself and he was born sometime in the year 1920 as ho gave his age to be 32 years in the year 1952. He did not give the source of his knowledge except that he had heard from his ancestors about this devoluion. 9. Defendant No. 1 Kameshwar Prasad Singh, figured as D. W. 5 and he supported his case in examination in Chief. The learned Judge observed that this witness was bom sometime in 1888 and as such he was incompetent to speak about this devolution which took place before 1883. The evidence of these witnesses was scrutinised with great care and caution by the two courts and (hey came to the conclusion that the defendants have failed to prove the custom alleged by them, by the oral evidence adduced on their behalf. Unless there is something basically wrong in the appreciation of the evidence either by the Subordinate Judge or by the learned Judge who heard the first appeal or any error in the approach of the case, it is not possible to interfere with the concurrent finding arrived at by them. 10. The Khewat (Ext. E(1)) prepared sometime in 1916 is in respect of village Pendli and it records the name of Thakurai Jadunath Prasad Singh Bahadur as being a person interested in this Khewat. 10. The Khewat (Ext. E(1)) prepared sometime in 1916 is in respect of village Pendli and it records the name of Thakurai Jadunath Prasad Singh Bahadur as being a person interested in this Khewat. In the remarks column there is a reference to a sanad dated the 27th. Ashin, 1267 Sambat executed by Rai Kishun Dayaf Singh in favour of Deonah Singh. Another sanad also, dated the 3rd. Aghan, 1898 Sambat corresponding to 1249 Fs. executed by Kishun Dayal Singh in favour of Mahipal Singh has been referred to in Ihe same remarks column. Thereafter it mentions the names of various villages which are the subject matter of partition in the present suit. Learned counsel for the appellants submitted that the villages in question were granted by the two sanads and after the death of Thakurai Janki Prasad Singh, these villages which formed part of the Khorpos grant came in possession of Jadunath Pd. Singh. The entries in this Khewat do not lend support to the case of the defendants that Jadunath Pd. Singh got the grant on the basis that the rule of primogeniture was prevalent in the family of these parties. The defendants have filed a number of rent receipts (Exts. B to B (7)) which indicate that rent was paid by Thakurai Jadhunath Singh in various years. The first receipt is Ext. B of the year 1883 when Thakurai Janki Prasad Singh was the proprietor of Ranka Raj. The next receipt is Ext. B1 of the year 1884 and this receipt also indicates the same position. Ext. B2 da ed 16-4-1886 indicates that Thakurai Radhabinaik Prasad Singh minor, was the proprietor of village Ranka, and the receipt was granted on his behalf. This gives an indication that after the death of Janki Prasad Singh, his minor son, Radha Binaik Pd. Singh, became the proprietor of Ranka Raj. After the death of Thakurai Radhabinaik Pd. Singh, Tulsi Singh was entitled to be in possession of the properties. But, Tulsi Singh being dead, it appears that Raja Govind Pd. Singh, brother of Tulsi Singh, became the proprietor of Ranka Raj and this fact is borne out by the receipt Ext. B(3) dated 26-4"! 887. In this connection, it is important to mention the case of the defendants as observed by the rial court. But, Tulsi Singh being dead, it appears that Raja Govind Pd. Singh, brother of Tulsi Singh, became the proprietor of Ranka Raj and this fact is borne out by the receipt Ext. B(3) dated 26-4"! 887. In this connection, it is important to mention the case of the defendants as observed by the rial court. The Subordinate Judge held that there was no satisfactory reason as to why Jankis rext brother Tulsi did not get the Kanchanpur Khorposh when Janki succeeded to Ranka Gaddi. I was urged before him at the time of argument on behalf of the defendants "that by an agreement Janki took all his brothers with him when he succeeded to the Gaddi of Ranka Raj and so the Khorposh went to Jadunath Singh. The learned Subordinate Judge pointed out that there was no evidence to support that arrangement. These rent receipts do no at all indicate that the devolutions took place in the manner alleged by the defendants. On a review of the evidence, I would thus affirm the findings arrived at by the two Courts that the defendants failed to establish that inheritance and succession were governed by the rule of lineal primogeniture. 11. learned counsel for the appellants further contended that there were some other khorposh grants by the Rauka Raj and the successions thereof were governed by the rule of primogeniture and that being so, it should be presumed that the same rule of primogeniture was applicable in the branch of the parties of this suit. He referred in this connection to the case of Garuradhwaja Prasad V/s. Superundhwaja Pd., ILR 23 All 37 (PC) wherein it was held that the burden of proving that the custom in a particular family of primogeniture regulated the succession to their property was upon a person who claimed to inherit in that right It appears that in that case there were three families all descending from a common ancestor and in the two families the rule of primogeniture was prevalent It was thus held that it gave rise to a probability that this custom was prevalent in the third family as well. In the case of Gajendra Nath Sahi Deo V/s. Mathurlal Nath Sahi Deo, 1 Pat LJ 109: (AIR 1916 Pat 337) as well it was held that where a custom prevailed in one branch of a family, it was a strong evidence to be relied on that it applied with equal force to another branch of the same family. In this reported case their Lordships found on a consideration of the entire evidence that the custom alleged by defendant No. 1 was fully established to be a custom invariable, certain, continuous and ancient. The oral evidence was no doubt conflicting, but on a full consideration of all the evidence their Lordships took the view that the evidence adduced by defendant No. 1 was more reliable and trustworthy and consistent with the facts and the history of the case than the evidence adduced by the plaintiffs. Their Lordships further held that the onus which lay on the defendant to prove the custom relied upon by him was discharged. It is true that if a custom of succession by the rule of primogeniture has been established in wo branches of a family, it gives rise to a probability that the same custom was prevalent in the other branch of that family. But, before reliance upon a custom prevalent in the two branches can be placed, the party setting up this custom has io adduce proper and cogent evidence about this custom in the family of the contesting parties. By mere probability, the party cannot be held to have discharged the onus which lay upon it. 12. Learned counsel submitted that there were three other Khorposh grants by the Raja of Ranka. The first one was in respect of Geruasoti which was granted to Dwarika Prasad Singh. The evidence of D. W. 2, Thakurai Tarkeshwar Prasad Singh was that this Geruasoti lot was granted to Dwarika Prasad Singh and it was la er on in possession of Rameshwar Prasad Singh alias Balram Singh. It was thus urged by learned counsel that the custom of Succession in the family of Dwarika Prasad Singh as regards the khorppsh grant made to him according to the rule of primogeniture had been established and that rule should be applied to the khorposh grant of Rai Jadhunath Singh Bahadur as well. It was thus urged by learned counsel that the custom of Succession in the family of Dwarika Prasad Singh as regards the khorppsh grant made to him according to the rule of primogeniture had been established and that rule should be applied to the khorposh grant of Rai Jadhunath Singh Bahadur as well. D. W. 4 did not say anything about the devolution of this Geruasoti grant which was given to Dwarika Prasad Singh. D. W. 5 no doubt said about this grant given to Dwarika Prasad Singh, but he could not say as to when it was given. He had no idea as to in which year Thakurai Janki Prasad Singh became the proprietor of Ranka Raj. The position thus remains that barring D. W. 2, no other witness has given any satisfactory evidence about the devolution of this Khorposh grant in the branch of Dwarka Prasad Singh. The evidence regarding the other khorposh grant relating to Kha-pro in favour of Jagdish Prasad Singh will not be at all relvant inasmuch as Jagdish Prasad Singh is still alive and he is the son of Lachmi Prasad Singh, who was one of the sons of Thakurai Devanath Singh. The other grant was in respect of Burhibir. D. Ws. 4 and 5 admitted that it was a Khidmati Jagir. I should mention here hat so far as the evidence with regard to the inheritance of the grant, which is the subject matter of the present appeal, after the death of Raj Jadunath Singh Bahadur, which event took place in the year 1921, is concerned, it will not be at all relevant inasmuch as the suit was instituted in 1950 and any succession within a period of 30 years will not establish a custom of inheritance according to the rule of lineal primo- geniture. In this view of the matter, it is not necessary to refer to the evidence of these very witnesses, whose evidence has not been found to be trustwor by and reliable, for establishing the rule of succession alleged by the defendants. 13. Learned counsel pointed out that the plaintiff (P. W. 1) admitted in her cross-examination that her family members and the Raja of Ranka were descendants from a common ancestor and that there was a custom of inheritance according to the rule of lineal primogeniture in the family of the Raja of Ranka. 13. Learned counsel pointed out that the plaintiff (P. W. 1) admitted in her cross-examination that her family members and the Raja of Ranka were descendants from a common ancestor and that there was a custom of inheritance according to the rule of lineal primogeniture in the family of the Raja of Ranka. He urged that this admission of the plaintiff supported the case of the defendants. But, I must say that there is no admission about any custom of inheritance prevalent in the families of the plaintiff and the present defendant. These statements thus are of no avail to the defendants. The relevant question for determination in the present suit was as to whether the custom alleged by the defendants with regard to the inheritance of Kanchanpur lot was according to the rule of primogeniture and not with regard to the other properties which might have belonged to the Raja Bahadur of Ranka. 14. In the result the appeal fails and js dismissed with costs payable to the plaintiff respondent No. 1. H.Mahapatra, J. 15 I agree. In view of the strenuous argument advanced for the appellant, I would like to add a few words. There cannot be any presumption of law in respect of rule of primogeniture being applicable to any particular family. Neither of the two cases cited by the defendants, which have already been discussed by my Lord in his Judgment, lays down the principle that a family can fall back upon a presumption of law in support of his claim, to succeed to an estate of a deceased person by the rule of primogeniture. The usual rule of succession in a Mitakshara family is not that. The best that can be gathered from these two cases is that if one family has branched out into more families and if in one or more such branches rule of primogeniture governs the succession to properties, the greater possibility is that such custom may also prevail in other branches. This is neither a presump-tion of law nor fact. It is only a rule of probable inference. No party can succeed on the probability of such inference alone. His evidence about its existence, if any, can get strength from that probability. In the present case there is no dependable evidence in support of the defendants claim of the custom of primogeniture. It is only a rule of probable inference. No party can succeed on the probability of such inference alone. His evidence about its existence, if any, can get strength from that probability. In the present case there is no dependable evidence in support of the defendants claim of the custom of primogeniture. On the other hand, the departure of the alleged custom is admitted, in as much as when Thakurai Janki Prasad Singh (who was the holder of the Khorpqsh grant of Kanchan-pur) succeeded to the Gaddi of Ranka Raj, the Khorposh did not devolve upon his only son but went to his uncle Rai Jadunath Singh Bahadur. Thai Janki Prasads son was alive and later succeeded to the Gaddi of the Ranka Raj after his father, is well borne out by the rent receipt Ext. B(5) filed; by the defendants. In this position, the defendants cannot have any advantage from the admission of the plaintiff that the family of the parties to the suit and that of Ranka Raj came from one common stock and the rule of primogeniture prevailed in the Ranka Raj family. On this slender fact and in face of the evidence of failure of the alleged cus-torn at the time when Janki Prasad came in possession of Kanchanpur Khorposh, the rule of probability as laid down in the two reported decisions, namely, ILR 23 All 37 (PC) and 1 Pat LJ 109; (AIR 1916 Pat 337) cannot be availed of by the appellant in an abstract sense.