THAKUR HARIHAR BUKSH Vs. THAKUR UMAN PARSHAD

JUDGEMENT

(1.) THEIR Lordships do not think it necessary to call upon counsel for the Respondent.

(2.) THIS case has been put before their Lordships by Mr. Branson with great fullness, and they consider that he has argued it with great lucidity and force, and said everything that is possible in favour of his client; but it is put before them in so clear and perspicuous a manner that they are able to deal with it on the opening.

(3.) TO take the last question first, the Plaintiff alleges that by a certain custom prevalent among the Punwar Eajputs, if a branch of a family has become extinct the other branches take the estate in equal shares, which means in equal shares as between those branches, without regard to their being more or less remote in kinship to the deceased. That question was tried in the Courts below, and both Courts, the District Judge and the Judicial Commissioner, have come to the same conclusion upon it, adverse to the Plaintiff. Two lines of evidence appear to have been pursued, one consisting of instances of successions in kindred families, and the other of records of rights in wajib-ul-arzees. Upon the first line of evidence the Judicial Commissioner, who seems to have examined the case with care, has come to the conclusion that, balancing case against case, there is no certain invariable custom proved on this point. He also states, and the District Judge states, that the wajib-ul-arzees do not support the custom. In their Lordships' judgment the wajib-ul-arzees to which they have been referred seem to go further. A document appearing in the record is a specimen, and it states that brothers or nephews of the deceased are to succeed, regard being had to the nearness of kinship. That is a statement contrary to the statement in the plaint and to the custom which the Plaintiff alleges. Therefore their Lordships have not considered it proper to go through the mass of oral evidence given in this case, because, if the Courts below concur in their conclusion upon such a matter as a family custom, their Lordships are very reluctant to disturb the judgment of those Courts. If there had been any principle of evidence not properly applied; if there had been written documents referred to on which the Appellant could shew that the Courts below had been led into error, their Lordships might re-examine the case; but in the absence of any such ground they decline to do so.