Tyabji, J.
1. This appeal depends upon the system of law in accordance with which property owned by members of a Sunni Bohra family of Vallasan, in the Borsad taluka, must be deemed to have devolved on their deaths.
2. The material facts are that one Gafoor Kasim, a Sunni Bohra of Vallasan, in the Borsad taluka, died in February, 1922, at Petlad, leaving him surviving (1) a widow who was plaintiff No. 1 in the suit, and is now appellant No. 1; (2) a son by his first wife defendant No, 1, the first and the only active respondent; and (3) a son by his second wife, viz., Ibrahim who was at the time of Gafoor Kasim's death eight years old and who died in June, 1923, about sixteen months after the death of his father; (4) a posthumous daughter, plaintiff No. 2, now appellant No. 2, was born to Gaffoor Kasim. Defendant No. 2 to the suit was a surety for the due administration of the estate. He was a formal party and his name has been struck off. He need not be referred to any further. I will, therefore, speak of defendant No. 1 as the defendant. Plaintiff No. 3 is a transferee of a moiety of the interest (if any) of plaintiffs Nos. 1 and 2. No special mention need be made of him either.
3. The substantial questions before us are:
(1) whether on the death of Gafoor Kasim his estate devolved upon (a) his heirs as determined by Muhammadan law, or (b) upon his two sons, as joint property in the sense in which that expression is understood in the law of joint Hindu families; and
(2) whether subsequently on the death of Gafoor Kasim's infant son Ibrahim, (a) the infant's mother and full sister; succeed him under Muhammadan law to the exclusion of his half brother the defendant, or (b) (either because Ibrahim had no separate property, or for other reasons) the whole estate was subject to the law of survivorship applicable in the Hindu law of joint family property, and Ismail, defendant No, 1, became entitled thereto to the exclusion of the plaintiffs.
4. Besides these two alternatives,-viz. (a) succession under Muhammadan law arid (b) survivorship under the law of joint Hindu families,-there was a third alternative, (c) that the parties were governed by the Hindu law applicable in the case of an intestate separated Hindu possessed of self-acquired property, and that in the first instance the infant Ibrahim succeeded under the law so applicable to half of his father's estate, and that thereafter his half devolved under the same law upon his mother as his sole heir. This third alternative is advanced in the plaint only by implication: in that it is stated that if the Court holds (what the plaintiffs do not admit) that the parties are governed by the Hindu law in matters of succession and inheritance, in that alternative, plaintiff No. 1 claims a half share.
5. It is necessary to refer to the pleadings for determining the exact questions that were before the Court.
6. The plaint states the facts which I have narrated. Then it is claimed that plaintiffs Nos. 1 and 2 are entitled to their shares under the Muhammadan law-plaintiff No. 1 as the widow of Gafoor Kasim and the mother of Ibrahim, and plaintiff No. 2 as daughter and sister. Recitals follow of the defendant having obtained letters of administration to the estate of Gaffoor Kasim, and having partially administered the estate, and of the defendant's statement (in his petition for obtaining the letters) that the parties were governed in the matter of succession and inheritance by the Hindu law. The plaintiffs do not admit the last, but in this context the alternative thirdly stated by me is put forward.
7. In this Court the claim of the appellant plaintiff No. 1 was based entirely on the applicability of the Hindu law of separated property,-the third alternative as stated by me. It was not seriously pressed that the Muhammadan law applied: so that the first of the three alternatives stated by me is immaterial.
8. In the written statement the plaintiffs' claim is stated not to be true (paragraph 1). It is denied that plaintiffs Nos. 1 and 2 acquired any right whatsoever (paragraph 7), but it is stated (paragraph 8) that plaintiff No. 1 is entitled to maintenance only, and that plaintiff No. 2 is entitled ' up to the time she goes to her husband's place ' to maintenance.
9. The grounds of the denial of the plaintiffs' claims are: that the parties were of the Sunni Bohra community of Gujarat and their ancestors were originally Hindus; that they were converted to Islam but they continued to be governed by Hindu law and usage as regards their property and in their mutual family rights and in other matters; that accordingly the rule of survivorship continued to be applied in the joint family and the rules of inheritance and succession appertaining to Hindu law were applicable to them (paragraph 3); that in accordance with the rule of survivorship agreeably to the well-known usage followed in their community from time immemorial up to this day, they have been observing the right of inheritance over the property in their community; that therefore all the rules in respect of inheritance applicable to the Gujarat! Sunni Bohra community in accordance with the law as well as usage continued hitherto, as well as 'the rules of survivorship, etc., in the joint family according to Hindu law, were applicable to them; that notwithstanding that (fact), the plaintiffs had brought this suit to recover their share alleging that they were governed by the Muhammadan law, which is not admitted (paragraph 4); that the defendant, his brother Ibrahim, son of plaintiff No. 1 and the said Gafoor Kasim were living together, and that they all were members of a joint family, and that the whole property of the family was joint and undivided, and that the father of the defendant, the deceased Gafoor Kasim, was the manager of the property of the joint family (paragraph 5); that as the defendant's father Gafoor Kasim died in February of the year 1922 while they were joint, the defendant and his step-brother Ibrahim became owners of the property of the joint family by right of survivorship according to law and usage; and that Ibrahim having died without leaving any issue while the defendant and Ibrahim were living joint in estate, the defendant had become full owner of the property of the joint family according to law and usage (paragraph 6); that the defendant and plaintiffs Nos. 1 and 2 were living in union even after the death of the defendant's father, and that they were governed in the matter of their property by the rule of inheritance of the Hindu law, and by the rules of the joint family.
10. There are other allegations in the plaint and written statement which are not at present relevant.
11. On these allegations the only issue framed by the trial Court that is now material was issue No. 4. In its original form it stood as follows: 'Whether the principal parties herein are governed by the Hindu law of joint families according to immemorial usage ?' Two applications were made to the Court with reference to this issue on behalf of the defendant, and the words ' as to the rule of survivorship and succession and inheritance ' were ultimately introduced after the word 'families' (exhibit 109). After this addition the issue stood thus: '(4) Whether the principal parties herein are governed by the Hindu law of joint families as to the rule of survivorship and succession and inheritance according to immemorial usage ' So that the issue contained particulars of the Hindu law of joint families by which the parties were alleged to be governed according to immemorial usage; these particulars were put under two heads: first as to the rule of survivorship, and secondly, as to succession and inheritance.
12. On this issue the finding of the trial Court was :
They are governed by Hindu law of inheritance and succession; as between .brothers, who have not divided their ancestral property, they are governed by the principle of survivorship obtaining in joint Hindu families.
In dealing with the 4th issue, the trial Court arrived at a preliminary conclusion, viz., that the Sunni Bohras of Dhandhuka and Kaira district must be taken to have been judicially declared to be governed by Hindu law in matters of inheritance and succession,-which proposition the learned counsel for the appellants stated that he would not controvert.
13. On reaching this conclusion the learned trial Judge formulated (paragraph :27 of his judgment) the second question with which he considered he had to deal, viz.,: ' who would take Ibrahim's share on his death in 1923,- his mother or his brother ' The answer, he proceeds, would depend upon the solution of the question whether the principle of survivorship applies: (a) if it applies, then on the father's death, the two sons (the defendant and the deceased Ibrahim) took the joint estate as coparceners, and on Ibrahim's death the defendant took the whole as survivor to the exclusion of the mother (plaintiff No. 1); (b) if, on the contrary the principle of survivorship does not apply, then the brothers were merely tenants-in-common and on the death of Ibrahim, his mother (plaintiff No. 1) would succeed according to the rules of Hindu law.
14. There is a slight inaccuracy in assuming that the question arises only on the death of the infant Ibrahim. The question first arose in the lifetime of Gafoor Kasim whether the property was held by him jointly with his sons. The question again arose on his death, whether on his death the property was joint-having been such prior to his death, or having on his death become converted in the hands of his sons into joint property, held by coparceners, in the sense understood in Hindu law, or whether it was held by them as tenants-in-common. This inaccuracy acquires consequence at a later stage when the evidence has to be considered. But for the present, it is enough to observe that the effective issue was recognized to be whether the defendant and the deceased Ibrahim held the estate as joint family property under the Hindu law with the incidents of survivorship, or whether it was held by the brothers as tenants-in-common. It was also stated that if the latter was the case, then according to the Hindu law the mother plaintiff No. 1 would succeed and the property would not survive to his brother the defendant.
15. The learned trial Judge then refers to the argument on behalf of the defendant that once it is conceded that the Hindu law applies, the Hindu law of joint family with all incidents including survivorship must apply: paragraphs. 28 and 29 of the judgment. But he holds, and, in my opinion, his conclusion is right, that the custom must be strictly proved by the party alleging it, i.e., the defendant. The ground on which he arrived at the conclusion was that there had been no judicial recognition of the applicability of the rule of survivorship to members of a Bohra family. I shall refer to the effect of judicial recognition of custom later. The ruling of the trial Court may be taken to be that though the plaintiffs asserted that the Muhammadan law applied, they alternatively claimed on the basis that the Hindu law of separate property applied and were not prepared to contest the allegation that those rules of Hindu law applied; that, on the other hand, there was some evidence adduced by the defendant on the applicability of those rules of Hindu law: that that evidence was hardly contradicted; that therefore he would assume that those rules of law applied. This view of the case was not controverted by the appellants.
16. The decision before the trial Court, therefore, turned upon the question whether the defendant had discharged the burden of proving the allegations in his written statement which I have stated at length-shortly that the Hindu law of joint families and survivorship applied. For the position was reached, as I have just stated, that if the defendant did not prove those allegations, the Hindu law applicable in the case of an intestate separated Hindu possessed of self-acquired property would be applied. It is convenient to speak of the defendant's allegation as an assertion of a custom, though, in view of the written statement, it would be more accurate to speak of an alleged election by the Community to retain the Hindu law after conversion. This inaccuracy is innocuous as there is no mode of proving this alleged election except by way of inference from actions and conduct that would establish custom: Muhammad Ibrahim, Rowther v. Shaikh Ibrahim Rowther I.L.R. (1922) Mad. 308
17. The learned trial Judge's findings on this issue are expressed in paragraph 44: (1) 'Taken as a whole, the witnesses on both sides are unanimous as to the rule that sons exclude the daughters and widow of the deceased '; (2) then he proceeds with the cases where (a) there is ancestral property in the hands of brothers, and (ft) when one of them dies before it is divided. In such cases he holds that the surviving brothers succeed to the exclusion of the daughters, widow and mother of the deceased brother. The learned Judge assumes that there must be some difference between the law applicable to ancestral and self-acquired property. But the parties being Muslims there was no warrant for the assumption. In any case though he is not prepared to lay down the general proposition that all the incidents of the Hindu joint family system apply to the parties, he does hold (paragraph 46) that in the case of ancestral estate which is not divided between brothers, the principle of survivorship applies, and that if one brother dies, the surviving brother takes the whole estate by survivorship in preference to the mother of the deceased. He considers it unnecessary to decide what is challenged even by the defendants' witnesses, viz., whether there is a vested right to claim partition during the father's life. Whether this particular incident of joint property had been adopted, he considered, he was not called upon to decide as there was no dispute about it. In his opinion what he calls the whole complex question whether all the incidents of the joint family system applied, was not before him.
18. It was argued that this finding must be taken as a finding substantially in accordance with the allegations in the written statement. In my opinion that view is not correct: the incident of joint property which the learned trial Judge considered unnecessary to decide was an integral part of the allegations of the defendant. I shall develop my opinion at a later stage when I come to deal with the standard of proof in regard to the existence of custom in supersession of the general law.
19. I proceed to consider the decision of the lower appellate Court. It framed for its own guidance six points for determination. Of these the first three alone are relevant. These with his answers are to this effect : (1) Whether the Sunni Bohras of Gujarat (plaintiffs being the same) are governed by the Hindu law of inheritance and succession? Answer: in the affirmative; (2) Whether they are also governed by the Hindu law of survivorship, in case the brothers are living in union or by a special custom, under which the joint brother excludes the females, e.g., mother, daughter, widow The answer is that they are not governed by the law of survivorship but by a special custom by which the joint brother excludes the females. (3) Whether the brothers who live in union take the inheritance, jointly or severally, i.e., as tenants-in-common or joint tenants The answer is ' Tenants-in-common.'
20. The respondent, who had obtained a confirmation of the dismissal of the suit by the lower appellate Court, on the basis of these findings, argued that these findings were entirely in accordance with the allegations in the written statement and that they justified the decree dismissing the plaintiff's suit. In my opinion the findings were materially different from the allegations in the written statement. The findings of the two Courts differ. The lower appellate Court altered the nature of the custom. A custom is held to have been proved which had never been alleged by the defendant.
21. Reading the points for determination and the answers and comparing them with the allegations, there seems no doubt on the variance. The appellate Court distinctly divides the second point under two heads-the Hindu law of survivorship and a special custom under which a joint brother excludes the females, for instance, mother, daughter and widow. It is the second head, which, introduced for the first time, is entirely distinct from the first and which was never set up in the written statement.
22. There is no substance in the suggestion that the second head was intended merely to form a part of the general allegation of succession by survivorship, because-I have been at pains to point this out-the effective issue between the parties was unequivocally enunciated at an early stage of the proceedings. It was clearly understood by the parties. That issue was whether, the Hindu law being applicable, it was (a) the Hindu law applicable in the case of an intestate separated Hindu possessed of self-acquired property, or (b) the Hindu law governing joint family property, owned as coparcenary property by a Hindu joint family.
23. Nor does the judgment of the lower appellate Court leave any doubt on this point. The conclusion reached is that brothers-in this case Ibrahim and Ismail-do not take as joint tenants but as tenants-in-common. That was the one point for determination enunciated by the learned Judge himself: he finds definitely that brothers take not as joint tenants but as tenants-in-common. It was open to the respondent to say that the finding of the lower appellate Court on this point was erroneous, and to support the judgment on the basis that the finding should have been that the two brothers took as joint tenants governed by the law of survivorship. The learned and experienced counsel who appeared for the respondent did not take upon himself that task, but argued that the findings of the two Courts were in effect similar and in accordance with the allegations in the written statement.
24. Ultimately, the question must turn into a question of the standard of proof required for establishing a custom such as is alleged in the present case; and I think, I shall deal with the arguments placed before us best if I proceed immediately to consider the case from that aspect.
25. The nature and extent of proof required for establishing a custom has teen frequently considered by their Lordships of the Privy Council. It was the principal point for consideration in Abdul Hussein Khan v. Bibi Sana Dero (1917) L.R. 45 IndAp 10. That appeal was from the Court of the Judicial Commissioner of Sind. The judgment was delivered by Lord Buckmaster. He lays down certain general principles to define the standard that the evidence must attain, in order to succeed in altering the devolution of property according to Muhammadan law, to a devolution determined by custom. In the very forefront Lord Buckmaster cites a passage from Mr. Justice Robertson's judgment in Daya Ram v. Sohel Singh (1905) P. R. No. 110 of 1906, with the remark that the words so aptly and expressly declare the true relation of the necessity of proof as between customary and established law that they may with advantage be reproduced. In this passage Robertson J. lays down several propositions which for convenience I will state categorically:
(1) In all cases it lies upon the person asserting that he is ruled in regard to a particular matter by custom,-
(a) to prove that he is governed by custom and not by personal law, and
(b) to prove what the particular custom is, which he seeks to apply; if he fails to prove the custom, Section 5, Clause (b), of the Punjab Laws Act, applies, and the rule of decision must be the personal law of the parties subject to the other provisions of the clause.
(2) There is no presumption created in favour of custom,-
even if the legislative enactment which governs the Court provides that the law to be observed in the trial of suits shall be Acts of Parliament and Regulations of the Government and in the absence of Acts and Regulations, the usage of the country in which the suit absence the contrary, it is only when the custom is established that it is to be the rule of decision. (3) The Legislature (a) did not show itself enamoured of custom rather than law; nor (b) does it show any tendency to extend the 'principles' of custom to any matter to which a rule of custom is not clearly proved to apply, (c) It is not the spirit of Customary Law, nor any theory of custom or deductions from other customs which is to be a rule of decision, but only ' any custom applicable to the parties concerned which is not.,..'
(4) It is not sufficient to show that in regard to certain other matters the parties are governed by custom.
26. It seems to me that propositions (2) and (3) vindicate Mr. Justice Beaman's view in Jan Mahomed v. Datu Jaffer I.L.R. (1913) 38 Bom. 449. Prior to that decision, this Court, on the basis of the decisions commencing with the celebrated Kojahs and Memons' Case (1847) PO.C. 110 decided by Sir Erskine Perry in 1847, had; got into the way of presuming that the whole of Hindu law was applicable to Khojas and Memons-and other communities were easily put on the same footing and that the burden of proof must be thrown on any person belonging to such communities who denied any part of that proposition. That practice must, it seems to me, be attributable to notions similar to those controverted by Robertson J. and disapproved by the Privy Council. After Mr. Justice Beaman's elaborate judgments, followed by Macleod J. in Mangaldas v. Abdul Razak : AIR1914Bom17 , and by Shah Ag. C.J. and Pratt J, in Haji Oosman V. Haroon Saleh Mahomed I.L.R. (1922) 47 Bom. 369 the Courts do not presume that the Khojas and Memons in Bombay are governed by Hindu law except with reference to succession and inheritance, which are presumed to be governed by the Hindu law applicable to separate or self-acquired property.
27. I have put the first of Robertson J.'s propositions under two heads: (a) The assertion that a party is ruled in regard to a particular matter by custom must be proved; and (b) the particular custom must be proved. Involved with this latter question is however a third point, (c) which Robertson J. indicates in 3 (c) : the custom must be ancient and certain and not opposed to public policy. The exact; bearing of judicial decisions on the assertion and proof of custom is important, and in my opinion the judgments under appeal have misunderstood and misapplied the principles applicable. The fact that a particular custom has been judicially recognised establishes that the custom is reasonable, and not opposed to public policy : so that it will be upheld whenever it is proved. This is the legal aspect of the custom : Moult v. Halliday [1898] 1 Q.B. 125 But-subject to what I shall presently state-judicial recognition of a custom in another suit leaves untouched the proof of the fact that the custom is applicable to the particular parties who are before the Court: That is a question of fact to be established by the particular parties.
28. The question of fact-whether the parties before the Court are bound by the custom-must be determined by appropriate evidence in that very case. When it is alleged that a custom is binding upon a particular body of persons united by ties of religion, common descent, etc.-this distinguishes it from a local custom : Narayan Singh v. Nnanjan Chakravarti 60,-the evidence appropriate for establishing that the custom is binding on the particular parties must ultimately include proof of the fact that the parties before the Court have adopted it as a rule of conduct; have consciously accepted it as having the force of law; that the particular parties have been governing their conduct in accordance with the custom : Mirabivi V. Vellayanna I.L.R. (1885) Mad. 464 and Kunhambi v. Kalanthar I.L.R. (1914) Mad. 1052. The matter must depend on an inquiry as to ' What has been de facto the practice ' : Khatubdi v. Mahomed Haji Abu I.L.R. (1922) 47 Bom. 146 As stated in Hirbai v. Sonabai, Kojahs and Memons' Case (1847) PO.C. 110 ff, such a custom originates as a rule framed or at any rate followed by the parties (or their predecessors) for the conduct of daily life: the rule so framed grows up into a custom. Proof of this ultimate fact-that the parties have adopted the rule of conduct-may consist of adducing previous instances in which the particular parties themselves have followed the rule. Secondly, it may consist of instances concerning other persons belonging to the same community or group as the particular parties: in which case it is matter of inference that the particular parties would have acted in a similar way. To justify this inference, however, the link must necessarily be established that the particular parties and the third parties whose conduct is actually proved stand on the same footing either by belonging to the same community or group, or-and here we take a further step-to a community so similar to the one in question that the inference in question may be legitimately drawn. That the instance relied upon consists of an instance proved in Court,-an instance ' moreover in which the Court delivered judgment on the basis that the particular parties then before the Court had adopted a particular rule of conduct,-does not (in respect of the aspect with which I have so far dealt) differentiate the instance from other instances. Thus, Sir Lawrence Jenkins, delivering the decision of the Privy Council in Muhammad Ibrahim Rowther V. Shaikh Ibrahim Rowther I.L.R. (1922) Mad. 308 alludes to the previous decrees and judgments as documentary evidence and not as binding decisions having the force of law. The distinction between such an instance followed by a judgment and other instances consists in the weight to be attached to the instance. The judgment may of course make the matter res judicata if all the requirements of Section 11 of the Civil Procedure Code are satisfied. On the other hand, the previous judgment may be merely evidence under Sections 40, 41, 49, 87, 32(4) or similar sections of the Indian Evidence Act; or as in Gobinda Narain Singh V. Sham Lal Singh the judgment may be admissible under the provisions of Sections 13 and 43 of the Indian Evidence Act as only establishing a particular transaction in which the custom was asserted and recognized. ' The reasons upon which the judgment is founded,' said Sir George Lowndes, ' are no part of the transaction and cannot be regarded, nor can any finding of fact there come to, other than the transaction itself, be relevant in the present case.' Even in such cases the practical effect of the previous judgment or decision may by reason of the quantity and nature of the evidence then adduced be that third parties may not consider it worth their while to contest once more the applicability of the customary rule to themselves, although they were not strictly bound by the previous decision, and although the decision did not make the matter res judicata : Mirabivi v. Vellayanna (1865) I.L.R. 8 Mad. 464 Les Affreteurs Reunis Societe Anonyme V. Leopold Walfold (London), Limited [1919] A.C. 801 Mussumat Bebee Bachun V. Sheikh Hamid Hossein (1871) 14 M.I.A. 377. Or the custom may have been continually put forward and proved by evidence, so that the time has come when a Judge may say that he no longer requires it to be proved, but that he will take judicial notice of it: George v. Davies [1911] 2 K.B. 445 cited in Kunhambi v. Kalanthar I.L.R. (1914) Mad. 1052 1061; cf. Vaishno Ditti v. Rameshri (1928) L.R. 55 IndAp 407. This last case refers; not to decisions but to the record of custom in the riwaj-i-am.
29. Then there was a second set of principles that Lord Buckmaster enunciated with reference to the standard of proof in Abdul Hussein Khan v. Bibi Sona Dero (1917) L.R. 45 L A. 10. These had reference to the fact that ' the position and relationship of the different members of the family must always be considered in determining whether claims are not met because the rights to which they related do not exist, or whether they are put on one side because, in the circumstances, there is no need that they should be asserted.' In this connection a part of Turner C. J.'s and Hutchins J.'s judgment in Mirabivi V. Vellayanna was cited, and entire agreement was expressed with it. There, instances had been adduced in which-
(1) claims of daughters and sisters to a share had been ignored, or
(2) they had been allotted maintenance, or
(3) married daughters had been treated as estranged from the family.
It was held however that instances of this kind did not count for much, because,-
(i) they will be found to occur where there is no doubt that the family is governed by pure Muhammadan law,
(ii) indeed in many parts of the country it is unusual for Muhammadan ladies to insist on their unquestioned rights,
(iii) they will often prefer being maintained by their brothers to taking a separate share for themselves, and
(iv) when they are married the marriage expenses and presents are often, by express or implied agreement, taken as equivalent to the share which they would claim. Moreover,
(v) Muhammadan 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.
30. Lord Buckmaster alludes to the provisions of the Quran by which women are not to be excluded from a share of inheritances : Abdul Hussein Khan v. Bibi Sana Dero (1917) L.R. 45 IndAp 10 The law of Islam is insistent on this point. Female relations are not only included in the list of persons entitled to inherit under special conditions. The Quran lays it down as an independent principle of general applicability in these terms : ' Men ought to have a part of what their parents and kindred leave; and women a part of what their parents and kindred leave.' This principle is contained in the Quran IV, 8 (Surat-un-Nissa). The object of enunciating this principle was to remedy the pre-Islamic law under which women were incompetent to inherit. The importance of the principle cannot be overlooked. The state of the pre-Islamic law which this provision of the Quran was intended to abrogate is strikingly brought before us in Robertson Smith's well-known work on ' Kinship and Marriage in Ancient Arabia.'
31. Thirdly, in laying down the standard that the evidence must attain in order that a custom may be held to be proved, Lord Buckmaster also cited two observations of Crouch A. J. C. 45 I. A. 15 which I will presently cite. These observations were approved with the reservation that (a) an example of each of the conditions there laid down ought certainly to be established by some witness; but (b) that it is not necessary that all should be proved in every case, as this might greatly weaken the evidence by tradition to which in a custom of the character under consideration great weight is due.
32. Crouch A.J.C. had observed :-(1) That it was necessary to reject as useless for proving the custom all the instances (i) where there was no evidence that the deceased left any estate at all, or (H) where there was no evidence to show its nature or value, or (in) the amount of liability against it, e.g.,-whether or not it consisted merely of a jagir, or mafi land, or of heirlooms, or of land heavily mortgaged, or of the family demesne; (iv) where there was no proof and no admission that the lady said to have been excluded had a legal claim to a share under the ordinary law; (v) where, in case of a married lady, there is no evidence showing the actual amount of dowry received; ('') where, in case of married ladies, there is no proof that they knew of the custom and stood aside in obedience to it.
(2) 'In all those cases where a witness states that he has himself excluded his own sisters, or nieces, our judgment as to the value of such statement as evidence of the custom having been enforced must be held in suspense until there is also evidence before us that the ladies had independent advice, and, with full and intelligent knowledge of the custom, voluntarily acquiesced in their exclusion.'
33. Accordingly when Lord Buckmaster examined the evidence in the case before him he alluded to the circumstances that (1) in certain instances there was no substantial evidence of the property to be divided; (2) that in the most recent cases of all there was only one witness who spoke in their support though there must have been others who could have spoken upon the matter; (3) that the revenue records were not produced.
34. Connected with the last matter are a fourth set of principles, which are brought out in the judgment of Lord Buckmaster. Logically I ought to have mentioned them first. Custom when relied upon as modifying the ordinary law of succession must be a custom well-known and distinctly ascertained. It must be pleaded specifically and with certainty and proved as it is pleaded. It must be established to be so (i.e. ancient and invariable) ' by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends/' Lord Buckmaster therefore in dealing with the case before him first undertook to define the custom that the appellant alleged. It was alleged in three different forms (1) in a plaint in another suit, (2) in an affidavit two days before that plaint, and (3) in the plaint in the proceedings under appeal. Though their Lordships observe that there was a marked difference between the different customs they were not prepared to give this fact such a weight as to crush the appellant's case. The real significance of this observation can only be appreciated if the difference in the three allegations-which their Lordships characterize as a marked difference-is compared and it is borne in mind that two out of the three were not in the proceedings under appeal. Again in Muhammad Ibrahim Rowther v. Shaikh Ibrahim Rowthet (1922) L.R. 49 IndAp 119 the custom was stated in the written statement in a wider and a narrower form and Sir Lawrence Jenkins observes (p. 122) :
The custom ' has been forcibly criticised by the learned Subordinate Judge in the course of his careful and discriminating judgment. He points out that in its wider assertion it is untenable, and even in its narrower form it is not established. He might even have gone further and pronounced the pleadings bad.
35. I have extracted these principles defining the standard of proof for establishing a custom as it seems obvious that they have been disregarded by the lower Courts, carefully though the evidence has been considered. I will proceed to apply the principles to the evidence before us.
36. As I have already stated the custom considered to be proved in the present case was very different from that which was pleaded.
37. With reference to the decision of the trial Court that a custom of survivorship in particular circumstances had been proved, in my opinion, on the evidence there can be no finding in favour of survivorship at all consistent with the allegations in the written statement. The allegations in the written statement proceed on the basis of the existence of the joint family system and the law of survivorship being applicable. The rule of survivorship in the joint family according to Hindu law and usage as regards property and family rights is said to apply to them; and it is observed that the two brothers were living together as members of a joint family, and that the whole property of the family was joint and undivided, and the father was the manager of the joint family. The law of joint family and survivorship depends on there being persons who are jointly interested in the property and that implies a right to demand partition : see Rani Sartaj Kuan v. Rani Deoraj Kuari (1888) L.R. 15 IndAp 51 referred to by Mr. Justice Beaman in Jan Mahomed v. Datu Jaffer. It is admitted by the witnesses for the defendant that no right to demand partition is recognised by the custom by which the defendant says that the Sunni Bohras of Borsad taluka are bound.
38. It was pressed upon us that there was no misunderstanding on the part of the plaintiffs with regard to the allegations relating to the custom; that the trial had proceeded on a clear appreciation of what those allegations were; and that it may be taken that the whole of the evidence referred to the allegations as actually intended to be made by defendant No. 1 and as in fact understood by the plaintiffs. This argument is based on the unwarranted assumption that the custom prevails as alleged by the defendant, and that therefore it must be known to the plaintiff. Alternatively it is argued that defendant No. 1 should not, in regard to the allegations of the custom, be held strictly to his written statement. In my opinion the principles I have just extracted are emphatically opposed to any such procedure. The foundation on which a custom is enforced by the Courts is that the parties have been guiding themselves by a particular course of conduct of their own volition. Adoption of the custom by their own volition is the basis on which customs are enforced. It is deemed to be contrary to justice, equity and good conscience to make the parties act in disregard of their habits, their methods of dealing with property, and the expectations formed as to the devolution of estates, succession and inheritance. It seems obvious in view of these considerations that a person who comes forward stating that there is a particular customary rule, should be able without any great effort on his part to enunciate the custom with certainty and precision. It is difficult to believe in the existence of a custom, the propounder of which is himself unable to state it in precise and clear terms. It is the foundation on which the force of the custom rests that the custom should be well-known, should be clearly understood and should be the standard by which the parties have been guided in their conduct. I cannot therefore consider that the enunciation of the custom in the written statement can be allowed to be altered on the ground that it must be taken as a loose statement on the strength of which any allegations supporting the defendant's case may be entertained.
39. In another form, the argument was that because the defendant asserted the custom too broadly he should not be prevented from proving it in a narrower form, provided that the form in which it is proved is sufficient for success in the suit; that, speaking with reference to the case, it is enough if it is shown that there are cases where women have been excluded if there are sons or brothers, and that the rest of the allegation in the written statement may be treated as surplusage. I will assume that a party may plead custom in broader terms than he is able to prove and may yet succeed. But this assumption must in any event be subject to the case coming within the principle alluded to by Lord Buckmaster, viz., where the applicability of the custom in its narrower form is not contradictory of the allegation that it prevailed in the broader form. Here the defendant asserted that the law of joint family property prevailed. At the trial one necessary condition of joint family property was shown to be absent. If a new custom is allowed to be proved which is consistent with the absence of that condition, that custom is necessarily inconsistent with the custom alleged : since the new allegation is reconcilable with that which is inconsistent with the original allegation. The two cannot be said to be merely a broader or narrower form of the same custom. In such a case the plaintiffs who deny the existence of the custom may well say that though the burden was on the defendant to prove the custom which had been pleaded, as a matter of fact, its existence had been disproved by positive evidence adduced by the defendant himself, and that the plaintiffs were not concerned with any other part of the evidence, notwithstanding that that other part of the evidence taken by itself may tend to prove what was not alleged and was not in issue. The lower appellate Court does not consider the custom of survivorship proved; on the contrary it expressly finds it disproved. The trial Court considered it unnecessary to decide whether it had been proved that partition could not be claimed by the son from the father; and yet if this fact were held to be proved the allegations in the written statement were disproved.
40. But putting aside variation from the allegations in the written statement, and taking the evidence as it stands, it seems to me to be quite inadequate for deducing from it any consistent custom in a form that will enable the defendant to deny the plaintiffs' claim. There are witnesses who admit that the mother of the brother is either entitled to a life estate in the property of her deceased son, or to receive such compensation as would satisfy her : exhibits 90, 91 and 93. Other witnesses disprove the recognition of any joint property, and therefore disprove the allegation that the community to which the parties belong is governed by the law of joint family property and the law of survivorship.
41. Coming to the instances mentioned in evidence, they have been carefully stated by the learned Judge under fifteen items. They cannot stand scrutiny in the light of the principles to which I have referred, I will not go through the instances in detail, but will be content to refer to some of them, indicating the criticism that must be levelled against the evidence as a whole.
42. The first instance referred to in the lower appellate Court's judgment is quite inconsequential. There were three brothers of whom one Asmal died first. His widow and daughter continued to live with Karim, the eldest brother. The widow remarried after two or three years and left the daughter with Karim, who continued to look after her. There was no partition of the property. The eldest brother Karim was looked upon as the head of the family. He supported and took care of all the younger members. The facts are consistent with any of the three alternative modes of succession stated by me.
43. In the second instance, Nurji and Abhram were brothers. Abhram was the younger brother. He died first leaving a son and daughter. Nurji's widow is alive and is not called. Exhibits 38 and 39 who speak to the instance do not know of the arrangements made. There was an oil mill about which there is no information. The widow is evidently living in comfort. The evidence does not explain the situation with any details. Why is this instance to be taken to support the defendant and not the plaintiff ?
44. Miyaji, exhibit 39, examined on commission, speaks to instance No. 3. He is himself a party interested in it. He states that he himself, Miyaji, Rasul and Rehman were three brothers; and that Rasul's mother Sakarbai was excluded. But on examination it is found that after one of the three brothers died, the two others continued to live with the mother Sakarbai for many years; and it was only after her death that the two brothers came to a partition.
45. The evidence does not refer to any case where the status of jointness has been brought into antithesis with that of tenancy-in-common. There is no case sufficiently clear and with adequate particulars relating to the mother. Taking it all together it creates no definite effect on the mind that either the witnesses or the parties concerned knew of the rules of law of which the witnesses purport to speak or to distinguish between joint tenants and tenants-in-common. The impression produced is that each witness deposes to what he thinks would be most in his own interest. Certain vague notions as to what is proper or what members of a family are expected to do seem to be the springs of action and the basis of the evidence given. Each witness states the law as suits his own situation. Evidence of such notions cannot establish a custom so as to control the rights of parties in opposition to established law. No woman is called. Men depose, whose interest it is to deny all rights to women, A good example of the hazy notions in the minds of the witnesses is the way in which they refer to brothers living in union. The learned Judges in the Courts below also seem to be imbued with the notion that the parties must necessarily be governed by the law of survivorship. They introduce notions of property and rights exclusively Hindu, without any of the witnesses having spoken to them. They are willing to strip the doctrine of survivorship of the characteristic features of the joint family in order to fit it to the evidence that has been adduced. Any rule that will exclude females or introduce the Hindu law is deemed sufficient. In exhibit 112 (judgment in Civil Suit No. 104 of 1920) the learned Judge holds that Karanji's husband had separated from his brother. But this is a mere assumption. There is no ground for holding that there was a separation. The Judge's preconceived notions-notions that have evidently found their way in the Judge's mind by the processes whose fallacy is exposed by Robertson J.- must somehow be satisfied. If it is necessary to assume a partition, let a partition be assumed. In the arguments before us it was suggested that when the defendant says that sons take by survivorship, he means that female heirs who would have taken under Muhammadan law are excluded. Exhibits 93 and 94 speak of widows being entitled to life estates. They are ignored. Occasionally an exclusion of women even beyond the rules of Hindu law is suggested and apparently accepted. Exhibit 91 admits that he does not know of any case in which a woman fought for getting her share and was refused. The judgment, exhibit 119, applies Muhammadan law to the parties there concerned. No attempt is made to apply to any of the witnesses the tests that Lord Buckmaster requires to be applied, before it can be held that women are excluded entirely from all rights of inheritance. I have already stated why I attach special importance to this particular aspect.
46. It seems to me therefore that when the evidence is considered by the standard to which I have alluded, it entirely fails to attain the standard necessary for establishing that any such custom has been proved as the defendant took upon himself to set up and prove.
47. In my opinion the appeal must be allowed and a preliminary decree passed under Order XX, Rule 13. The case must go back to the trial Court for taking accounts of the property of the deceased Gafoor Kasim as mentioned in prayers 1 and 2 to the plaint, paragraph 14, on the footing that plaintiff No. 1 is entitled to' a half share in the property as heir of Ibrahim under Hindu law. The appellants will be entitled to their costs throughout.
Broomfield, J.
48. This is a second appeal arising out of an administration, suit relating to an estate formerly belonging to one Gafoor Kasim, a Sunni Bohra of Vallasan in the Borsad Taluka. The case raises an important and difficult question as to the application of the Hindu law of inheritance, succession and survivorship to Sunni Bohras of Gujarat.
49. Gafoor, former owner of the estate to be administered, died in February, 1922, leaving him surviving Ismail (defendant No. 1) a son by his first wife, Sakar (plaintiff No, 1) his second wife, and Ibrahim a son by Sakar. Asan (plaintiff No. 2), a daughter by Sakar, was born posthumously. Ibrahim was only eight when his father died, and himself died in June, 1923. The plaintiffs, who alleged that Mahomedan law applies, claimed 8|15ths of the estate, that being the sum of their shares as wife and daughter of Gafoor and mother and sister of Ibrahim. In the alternative it was claimed that if Hindu law applies, Ibrahim got a half share in Gafoor's estate which went to his mother, plaintiff No. 1, on his death.
50. The defence set up in the written statement was that the parties are governed by the Hindu joint family law and that, on Ibrahim's death, defendant No. 1 became owner of the whole estate by survivorship to the exclusion of the plaintiffs, who are entitled to maintenance only.
51. Both the lower Courts have held that the Mahomedan law does not apply and the plaintiffs are not entitled to any share in the estate. The trial Judge finds that the parties are governed by the Hindu law of inheritance and succession and that as between brothers who have not divided their ancestral property they are governed by the principle of survivorship obtaining in joint Hindu families. He does not hold that all the incidents of the Hindu joint system apply, and he has given no clear finding on the question whether on Gafoor's death Ismail and Ibrahim became joint tenants or tenants-in-common. But he thinks the evidence in the case proves the proposition that in the case of an ancestral estate which is not divided between brothers the principle of survivorship applies, and if one brother dies, the surviving brother takes the whole estate by survivorship in preference to the mother of the deceased. The learned First Class Subordinate Judge 'who heard the appeal was not prepared to accept the principle of survivorship at all. His finding on the material issue is that the parties are governed by the Hindu law of inheritance and succession, but not by the law of survivorship. He holds that the evidence establishes a special custom by which a joint brother excludes females. When he speaks of brothers being joint, however, he makes it quite clear, in my opinion, that he does not mean joint in estate. He finds in fact that Ismail and Ibrahim were tenants-in-common and not joint tenants. The learned counsel for the respondent attempted to argue that the learned Judge did not really intend to postulate a separation in interest between them. But when an experienced First Class Subordinate Judge uses the expression ' tenants-in-common' in contradistinction to ' joint tenants' and expressly negatives the application of the doctrine of survivorship, we must take it that he uses these expressions in their ordinary legal sense. The learned Judge's view is that if brothers arc living together, and there is no actual visible division of the property, when one brother dies the whole estate goes to the surviving brother or brothers not by the law of survivorship but by what he takes to be the custom which excludes females in such a case.
52. The learned counsel for the plaintiff-appellants has not seriously disputed the finding that Mahomedan law does not apply, and in this respect there seems to be no good reason to differentiate the Sunni Bohras of Borsad taluka from other Sunni Bohras of Gujarat or from1 the Memons and Khojas in whose case the law is well settled. The presumption is that these Hindu converts to Islam are governed by the Hindu law of inheritance and succession, though since Jan Mahomed v. Datu Jaffer I.L.R. (1913) 38 Bom. 449 and Advocate-General of Bombay v. Jimbabafi I.L.R. (1915) 41 Bom. 181 that presumption has been held to be limited to the law of inheritance and succession in the strict sense, i.e., as applicable to the estate of a separated Hindu. In Jan Mahomed V. Datu Jaffer Mr. Justice Beaman pointed out the difficulties in the way of applying the law of the coparcenary to Mahomedans. There can be no presumption that that law applies as a whole to a Mahomedan community. It is possible that that law or a particular incident of that law may form part of the customary law of a community, but that can only be so by a special custom which must be alleged and proved. I must confess that I had some difficulty in understanding the position of the learned counsel for the respondent. He drew our attention to the earlier decisions of this Court such as Shivji Hasam v. Datu Mavji Khoja (1874) 12 B.H.C.R. 281 and Ashabai v. Haji Tyeb Haji Rahimtullah I.L.R. (1882) 9 Bom. 115 in which the law of the coparcenary was applied to Mahomedans, and he pointed out that the propositions enunciated by Mr. Justice Beaman in Jan Mahomed v. Datu Jaffer were not strictly necessary for the decision of the case before him. But the conclusions at which that learned Judge arrived after an exhaustive discussion of the whole of the case-law cannot possibly be regarded as mere obiter dicta. These conclusions were endorsed in Haji Oosman V. Haroon Saleh Mahomed I.L.R. (1922) 47 Bom. 369 and in essence have never been dissented from since. Ultimately, Mr. Coyajee, if I understood him correctly, did not dispute the position that the presumption as to the application of Hindu law extends only to the simple law of inheritance and succession as in the case of separate property, and that the application of the coparcenary law is not to be presumed and must be proved.
53. Mr. Jayakar for the appellants, relying on the findings of both Courts that the law of the coparcenary cannot be applied as a whole and especially on the finding of the Court of first appeal that Ismail and Ibrahim were tenants-in-common, argues that according to the law of inheritance to a separate Hindu, plaintiff No. 1 as mother must succeed to her son in preference to his divided brother. He contends that the defendant in his written statement alleged nothing less than that the law of the joint family applies; that the trial Judge did not accept that plea; that the Court of first appeal expressly negatived it; and that a special custom of exclusion of females as something distinct from the law of joint ownership and survivorship was never alleged and ought not to be made the basis of the decision. He contends further that in any case there is no satisfactory evidence of any such custom.
54. Although the learned counsel for the respondent attempted to argue the contrary, there cannot be the slightest doubt in my opinion that the Court of first appeal decided the case on the basis of a custom which was not set up in the written statement. I cannot put any interpretation on the written statement except that the defendant alleged that the parties are governed by the Hindu joint family law. There are several references to usage, no doubt, but only in respect of the application of the Hindu coparcenary law and survivorship as an incident of that. There is no reference to a special custom of excluding females. Issue No. 4 as finally framed by the trial Court after much discussion (see exhibit 109) correctly represents the pleadings. As the case was understood by the pleaders and the Court, the point in dispute was whether the Hindu law was to be applied, and if so, whether it was to be the Hindu law of joint families, in which case the defendant would take the estate by survivorship, or the Hindu law of inheritance and succession in the case of persons separated in interest, in which case plaintiff No. 1 would succeed as heir to her son. If the defendant had proved part of his case, if while failing to prove that the joint family law applies as a whole, he had proved that some particular incident or incidents of that law applied, that would have been a case of the whole including the part or the greater including the less. It could not be said to be a new case. But the special custom which the defendant was allowed to set up in appeal is not an incident of Hindu law at all. Under Hindu law there can be no exclusion of Ibrahim's mother by his brother except on the footing that Ibrahim and his brother were joint in estate. It has been held that they were not joint in estate. When the Court of first appeal therefore framed the issue as to a special custom of exclusion of females, it was undoubtedly allowing a new case to be set up.
55. Speaking for myself, I should not be prepared to go so far as to say that this is necessarily fatal to the respondent's case. In Abdul Hussein Khan v. Bibi Sona Dero (1917) L.R. 45 IndAp 10 there was considerable variation in the description of the custom alleged, but their Lordships of the Privy Council did not consider that that fact had sufficient weight to crash the appellant's case. But the fact that the special custom in question was never specifically alleged is undoubtedly a strong point against the defendant on the merits. If the party who relies on the custom is unable to define it, and leaves it to be deduced from evidence called to prove something quite different, the Court may well be suspicious as to whether there is such a degree of certainty about the custom that it is deserving of recognition by the Courts.
56. We have carefully scrutinized the evidence in the case which consists almost entirely of depositions of witnesses examined by the defendant. As my learned brother has dealt with it, I shall only do so on general lines. In my opinion the defendant has failed to establish either that the principle of survivorship applies, or that there is any certain invariable custom by which plaintiff No. 1 is excluded from succeeding to her son's estate. The fundamental doctrine of the coparcenary that a son acquires an interest in the family estate by birth is not even suggested in the evidence. It is admitted that a son cannot claim partition during his father's lifetime. Joint-ness is only predicated of brothers, and though the witnesses speak of 'joint' and ' separate' brothers, the idea of joint ownership of property in the former case and separate ownership in the latter is not insisted upon and seldom even definitely stated. In fact the evidence is mainly directed to show that in certain cases females are excluded. It is remarkable how little evidence there is bearing on the case of the mother. In fact there seems to be no authentic instance deposed to of a mother being excluded from a share. Some witnesses assert that she would be excluded, like the widow and daughter, without referring to any cases in which this has actually happened. On the other hand others admit that the mother may take a life estate.
57. Mr. Coyajee has argued that if the exclusion of a widow and daughter is proved, they being nearer heirs under Hindu law, exclusion of the mother may be presumed. But the custom is by no means clear, even in the case of the widow and daughter. It was admitted by some witnesses that the widow of a ' separate' brother gets a life estate. As regards daughters, the evidence, if it proves anything at all, proves that they are always excluded independently of any question of jointness or separation. Instances such as Nos. 9, 10 and 11 in the judgment of the Court of first appeal prove nothing to the purpose, or at any rate, nothing more than that Mahomedan law does not apply, for daughters would always be excluded by sons by the Hindu law of inheritance. The evidence as to exclusion of daughters by brothers or other agnates appears to have no necessary reference to any doctrine of jointness. Thus witnesses exhibits, 89, 90 and 93 assert that the daughter and also the sister never inherit in any circumstances. To hold that daughters can never be heirs and therefore inferentially that a mother can never be an heir, would be too flagrant a departure from the case set up in the written statement and the arguments.
58. There is surprisingly little evidence of judicial pronouncements as to the law by which this community is governed. Exhibit 119 is a judgment in a suit brought by a daughter to recover her share of her father's property, and the defendants were a brother and a nephew of the father. The defence set up was that daughters are excluded by custom, but no evidence whatever was produced in support of the custom which was held not proved. The suit was therefore decreed. But as the plaintiff had claimed her share under Mahomedan law, i.e., one-half, she was given that share and not the whole estate to which she would appear to have been entitled under Hindu law. Exhibit 112 is a judgment in a suit brought by an alienee from the widow of the last male holder against a brother of her husband. It was held that the Hindu law of succession applied and that the widow had a Hindu widow's estate. But the learned Subordinate Judge who decided the suit took the view that there had been a partition between the brothers. Exhibit 117 is a judgment of this Court confirming the decision of the Courts below and holding the widow to be entitled to succeed to the estate of her deceased husband in preference to the agnates. It does not appear from the judgment who these agnates were. These judgments perhaps do not take us very far, but the one in the daughter's case, at any rate, is inconsistent with the defendant's contention. On the other hand there is no evidence that it has ever been held by any Court either that the principle of joint ownership and survivorship applies to this community, or that there is any custom of exclusion of females here which would defeat the claim of plaintiff No. 1.
59. I therefore agree with the conclusions at which my learned brother has arrived and with the order which he proposes to make.
60. I need only add in that connection that the view which the learned First Class Subordinate Judge (A. P.) appears to have taken (vide last paragraph of his judgment) that even if plaintiff No. 1 is entitled to a share she must sue for partition, and cannot maintain an administration suit, has not been supported in the arguments before us. It is in fact conceded that it is a mistaken view.