Om Parkash, J.
1. The only question, which was canvassed, in this appeal, against the decree and judgment of the learned District Judge. Bilaspur was whether according to custom, prevalent in Bilaspur, a daughter was excluded from inheritance of her father, by near collaterals. That question had arisen in a case, relating to the estate of Gokal Gokal was a resident of Lahot village. Pargana Ajmerpur, District Bilaspur Appellant No. 1 is his daughter and appellants Nos. 2 and 3 are the sons of appellant No. 1. Respondent No. 1 is the nephew of Gokal and respondents Nos. 2 and 3 are his grand-nephews. Respondent No. 4 is another daughter of Gokal Gokal had no son. After his death, his estate was inherited by his widow Smt. Chukhri Smt. Chukhri alienated 22 bighas and 10 biswas of land out of the land inherited from Gokai. in favour of Jiwan Singh respondent No. 5. for Rs. 600. That alienation was set aside, on a suit, brought by respondent No. 1 and the father of respondents Nos. 2 and 3. Smt. Chukhri gifted that land to the appellants She died on 14-4-1960, before the coming into force of the Hindu Succession Act After her death, the appellants had taken possession of the entire estate of Gokal Respondents Nos. 1 to 3 filed a suit for the possession of the estate of Gokal on the allegation that, according to custom, they were entitled to succeed to the estate to the exclusion of the appellants and that Smt. Chukhri had no power to make a gift. Respondent No. 4. another daughter of Gokal, admitted the claim of respondents Nos. 1 to 3 but added that in case, her sister appellant No. t, was held to he an heir of Gokal, then she was also an heir and was entitled to take half the estate Respondent No. 5 also did not resist the suit. He stated that respondents Nos. 1 to 3 could get possession, on payment of Rs. 600 to him. The suit was resisted by the appellants. Their plea was that they were governed by their personal law, i.e., Hindu Law, and not by any custom and that under the personal law appellant No. 1 was the heir of Gokal and entitled to succeed to his estate to the exclusion of respondents Nos. 1 to 3.
2. The learned Senior Subordinate Judge, Bilaspur, who had tried the suit, held that the parties were governed by custom, and not by Hindu Law in matters of succession, and that according to custom, prevalent in Bilaspur, respondents Nos. 1 to 3 excluded appellant No. 1 from Inheritance of Gokal. The suit of respondents Nos. 1 to 3 was decreed, subject to the payment of Rs. 600 to respondent No. 5. The finding and decree of the Senior Subordinate Judge were affirmed, on appeal, by the learned District Judge, Bilaspur.
3. The appellants have come up in second appeal. There was an office objection that the appeal was barred by time. By its order dated 13-7-1962, this Court held that the appeal was within time.
4. As already stated, the only question, argued in the appeal, was whether according to custom, a daughter was excluded from succession, by near collaterals. It was contend ed, on behalf of the appellants, that the evidence, adduced by respondents Nos. 1 to 3, did not establish any custom excluding a daughter from the inheritance of her father by collaterals, and that both the lower Courts erred in holding that respondents Nos. 1 to 3 had established the custom, alleged by them. The contention does not appear to be well founded. The burden was, no doubt, on respondents Nos. 1 to 3, to establish the custom, set up by them. This burden was all the more heavier when the custom set up adversely affected the rights of females. But the respondents had discharged that heavy burden, by adducing satisfactory evidence, in support of the custom, that a daughter was excluded by collaterals. Gokal was a Rajput Ganu P. W. 1. Hari Man P. W. 2, Hari Singh P. W. 3 and Chhanga P. W. 4 slated that the predominant occupation of the Rajputs was agriculture and that they cultivated lands for themselves it was, further, stated, by the witnesses, that Rajputs are land owners and supply Lambardars. Balak Ram D. W. 3 also admitted the above facts. In the suit, instituted by respondent No. 1 and the father of respondents Nos. 2 and 3, for setting aside tbe alienation, made by Smt. Chukhri, in favour of respondent No. 5, it was held that Smt. Chukhri was governed by custom in matters of alienation The four witnesses of respondents Nos. 1 to 3 had stated that, in matters of alienation and succession, Rajputs were governed by custom and not by Hindu Law The above evidence established that in matters of alienation and succession. Gokal and the parties to the suit, were governed by custom and not by Hindu Law.
5. Ganu P. W. 1, Hari Man P. W. 2, Hari Singh P. W. 3 and Chhanga P. W. 4 staled that according to custom, prevalent in Bilaspur, a daughter was excluded, from the Inheritance of her father, by near collaterals. Hari Man P. W. 2 cited an instance of the exclusion of daughters. Hari Man stated that Smt. Barfo had three daughters but that after her death. Chaudhry, her husband's brother's son succeeded to the estate, to the exclusion of daughters. Ex. P7, a copy of the mutation, effected after the death of Smt. Burfo, corroborates the statement of Hari Man. Chhanga P. W. 4 also cited an instance of the exclusion of daughters by a collateral. Ex. P8 and Ex. P9, copies of judgments, are not relevant for the purposes of the present case, as in Ex. P8, an alienation by a male was in dispute, and in Ex. P9 an alienation by a widow in favour of strangers, was in dispute. In none of those cases, the contest was between a daughter and a collateral.
Ex. P. 10 is a copy of the judgment, in a case, brought by a collateral, for setting aside a gift, made by a widow in favour of her daughter. In this case, it was held, by the Court, that according to custom, a daughter was excluded from inheritance by a collateral and the gift was set aside. Ex. P11 is a copy of the judgment, in a case, brought by collaterals for setting aside a gift, made by a widow in favour of her (laughter's son. In this case, also, it was held that neither a daughter nor a daughter's son could succeed in the presence of near collaterals. Ex P12, Ex. Pt3 and Ex. P14 are copies of judgments in cases, where a widow had made a gift in favour of her daughter, and the collaterals had brought a suit for setting aside the gift. It was held, in all these rases, that collaterals excluded a daughter from inheritance, according to custom.
Respondents Nos. 1 to 3 had, also produced a copy of a judgment of this Court delivered in R. S A. No. 9 of 1953. That case related to Bilaspur district, and it was held that the parties, in that case, were governed by custom by which daughters were excluded from succession by collaterals. In that case, five instances of daughters, being excluded by collaterals were cited The judgment of this Court in R S A No. 9 of 1953 (Him. Pra.) is not only relevant, under Sections 13 and 42 Evidence Act, as forming in itself a transaction by which the custom in question was recognized, but is also relevant to show that it contains live specific instances relating to the custom of exclusion of daughters, vide Mt. Subhani v. Nawab, AIR 1941 PC 21. Ramji Dass D. W. 1 admitted that according to custom, prevalent in Bilaspur a daughter was excluded from succession by collaterals. The admission made by this witness was an important piece of evidence as he had been working, in the erstwhile Bilaspur State, for the last 40 years as a petition writer and was well acquainted with the customs, prevalent in that State.
6. As against the above evidence, adduced by respondents Nos. 1 to 3, with respect to the custom of exclusion of daughters, the appellants could not prove a single instance in which a daughter had excluded near collaterals. Ex. D. W. 4/E is a copy of the judgment in a case, brought by collaterals for setting aside a gift made by a widow in favour of her daughter. The suit was dismissed on the basis of a compromise, entered into on 20-12-1958. It may be that as the Hindu Succession Act had come into force, the collaterals thought it expedient to compromise the suit, In any case, no finding was recorded that a daughter excluded collaterals. Ex. D. W. 4/E cannot be regarded as an instance of exclusion of collaterals by a daughter. Ex. D. W. 4/A is a copy of the judgment in a suit, brought by a daughter, for setting nside an order of the Government, escheating the estate of her father. The suit WHS decreed. In this case, there was no contest between a daughter and a collateral. The contest was between the daughter and the Government.
Ex. D. W. 4/B and Ex. D. W. 4/C are copies of judgments in cases of pre-emption. A widow had sold properties to different vendees, who were not, in any way, connected with her husband's family. A daughter of the widow had brought two suits for pre-empting the sales. Her suits were decreed on the ground that she was an heir to the vendor and had a preferential right of pre-emption as against the vendees who were strangers. There was no contest, in the suits, between a collateral and the daughter. Some of the observations, made in Ex. D. W. 4/B and Ex. D. W. 4/C go against the appellants. It has been observed, in both the judgments, that the vendees had established a custom that collaterals excluded a daughter from inheritance. Similarly, in the case, copy of judgment Ex. D. W. 4/D, there was no contest between a daughter and a collateral. The evidence, adduced by the appellants, did not, in the least, rebut the evidence adduced by respondents Nos. 1 to 3, in support of the custom, that a daughter was excluded from succession, by near collaterals.
7. The learned counsel for the appellants contended that the evidence, adduced by respondents Nos. 1 to 3, did not establish the custom, set up by them. He urged various grounds in support of this contention. The first ground, urged by him, was that the instances of exclusion of daughters, adduced by respondents Nos. 1 to 3, were not the result of any custom, prevalent in Bilaspur, but daughters were excluded from inheritance under the Lawarsi Rules which had the force of a statute. The Lawarsi Rules were embodied in two Robkars of 1982 and 1995 Sambat. This Court had the occasion in consider the two Robkars in Jindu v State, AIR 1957 Him Pra 61. It WHS held, by this Court, that the two Robkars were mere departmental instructions meant for the guidance of the revenue officers and did not amount to a statute. It will not, therefore, be correct to say that the Lawarsi Rules had the force of law and that the daughters were excluded under those Rules, and not under custom. Moreover, Lawarsi Rules dealt with cases of escheal by Govt. and the disposal of escheated properly. Those Rules did not govern succession to the estate of a proprietor. The Lawarsi Rules could not be an impediment in the way of a daughter to succeed to the estate of her father, if she had otherwise the right to do so. The exclusion of daughters from succession, in the instances, proved on behalf of respondents Nos. 1 to 3, cannot be attributed to Lawarsi Rules, but is to be attributed to custom.
8. The second ground urged, by the learned counsel for the appellants, was that most of the instance adduced, on behalf of respondents Nos. 1 to 3 related to Brahmans and that those may be relevant to prove a custom applicable to Brahmans but cannot be relied upon for proving a custom applicable to Rajputs, The learned counsel, in this connection, pointed out that Bilaspur District was inhabited by different tribes and customs differ from tribe to tribe. It is true that custom cannot be extended by analogy and that customs of one tribe may differ from those of another tribe. But in the present case, witnesses had stated that custom with respect to succession was the same amongst Brahmans and Rajputs. In view of this evidence, instances relating to the exclusion of daughters amongst Brahmans can be relied upon for proving a custom amongst Rajputs.
9. The third ground, urged by the learned counsel for the appellants, was that a custom adversely affecting the rights of females cannot be said to have been established unless instances were brought on record, in which females had asserted their right to succeed, but that right was rejected by the Courts and that such instances were lacking in the present case. Learned counsel placed reliance on the following observations, made in Mt. Sharifa Begam v. Court of Wards, AIR 1940 Lal 475:
'It is well known that female heirs seldom contest their inheritance with male heirs and that mothers and sisters are always complaisant enough not to insist on their 'pound of flesh'. It is in such circumstances that this Court as well as its predecessor, the Punjab Chief Court and Courts in other provinces too have held that such instances are not sufficient to determine that the parties do not follow their personal law unless there has been a clear demand and refusal.'
10. In the present case, the context is between a daughter and collaterals and not between a mother and a son or between a brother and a sister. Moreover, six judicial decisions have been brought, on record, in which daughters had asserted their right to succeed to the estate of their father, against the collaterals, hut that right was not accepted, by Courts. In those cases, daughter's right to succeed was denied by collaterals.
11. The last ground, urged by the learned counsel for the appellants, was that the custom of the exclusion of daughters was not proved to be ancient and was, therefore, not a valid one. It is true that a custom to be binding must be ancient. But the English rule that 'a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary' is not applicable to Indian conditions. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent been submitted to as the established governing rule of a particular district, vide AIR 1941 PC 21 (supra). The evidence, adduced by respondents Nos. 1 to 3, established that the custom of exclusion of daughters has been acted upon for a sufficiently long time in Bilaspur District, The fact that not a single instance was cited where a daughter had excluded a collateral from succession proved that the custom of exclusion of daughters was uncontroverted and well-recognized. It is, therefore, to be held that respondents Nos. 1 to 3 had proved that the custom of the exclusion of daughters in Bilaspur District was ancient, in the sense in which the word, 'ancient' has been interpreted in AIR 1941 PC 21, (supra).
12. The conclusion from the above discussion is that respondents Nos. 1 to 3 hadproved the custom, set up by them, namely,that daughters were excluded from successionby near collaterals amongst Rajputs in BilaspurDistrict. Respondents Nos. 1 to 3 were verynear collaterals of Gokal. They, under custom,excluded the appellants from inheritance ofGokal. Smt. Chukhri held only a widow'sestate. She had no power to make a gift ofthe estate of Gokal or of any portion thereof,in favour of the appellants. The suit of respondents Nos. 1 to 3 was rightly decreed. Theappeal fails and is dismissed with costs ofrespondents Nos. 1 to 3.