Sir John Wallis -

The main question in these consolidated appeals is whether in the family of the late Muzaffer Husain Khan who died without issue in 1865, leaving two widows, there is a customary rule of succession which supersedes the Mahomedan Law and entitles plaintiff 1 in this suit, Roshan Ali Khan, to succeed to his estate as his nearest male agnate on the death of the junior widow, Mahmudunnisa, who died on 16th May 1911, nearly forty-years after the death of the senior widow Mithanunnisa.

This suit, which was instituted on 15th May 1923. the day before it would have become barred, was brought for the recovery of the shares owned by Muzaffer Husain Khan, in the village of Dewa and the other villages in the pargana of the same name specified in Sch. B of the plaint, which at the date of suit were in possession of some of the defendants claiming under transfers from the widows themselves or from their heirs. To raise funds for this litigation plaintiff 1 has parted with three-fourths of his interest in the suit to Shankar Sahai plaintiff 2.

The family is a very ancient one, claiming descent from the earliest Mahomedan invaders from Afghanistan but the earlier steps in the pedigree will not bear examination. One Amir Ali in command of an armed force from Bagdad is said to have taken part in one of the numerous invasions by which Mahmud of Gahzni and his family harried northern India at the beginning of the eleventh century. He is said to have returned to Bagdad after marrying his son Ziauddin to the daughter of Syed Wesh, one of the Gahzni family who had conquered Dewa where their descendants have since resided. Aladad, the issue of this marriage, who must therefore have been born in the eleventh century, is shown in the pedigree as the father of Qazi Mahmud from whom this family is descended. This Qazi Mahmud's daughter is said to have been married to an Usmani Sheik from Persia and her son was Maulana Abdus Salam, who held high office in the reign of the Emperor Shah Jahan which ended in 1658. Obviously Qazi Mahmud cannot have had a father who was born before the Norman couquest and a grandson who was a contemporary of Cromwell.

The descendants of this Abdus Salam who are known as Usmani Sheiks subsequently resided in Dewa and shared the ownership of this village with Qazi Mahomed's descendants in the male line who are known as Hujjaji Sheiks, the two families being so closely connected that for the purpose of this case the Subordinate Judge has treated them as one.

According to the pedigree, which was drawn up in 1870 for the purposes of another suit and has been accepted in the Courts below, Qazi Mahmud had eight sons, four of whom were then represented by descendants in the male ine. It so happened that in this year the Wajibularz or Records-of-Rights of Dewa and the neighbouring villages were completed; and in them, pursuant to the directions in Oudh Circular No. 20 of 1863, the customary rules of succession observed by the cosharers in these villages were recorded and attested by or on behalf of the cosharers. These Wajibularz as held by the Board in Balgobind v. Badri Prasad, AIR 1923 PC 70=45 All 413=26 0C 217=50 IA 19G (PC) when properly used, afford most valuable evidence of custom and are much more realiable than oral evidence given after the event.) On the other hand, as observed by their Lordships in Uman Prasad v. Gandharp Singh, [1888] 15 Cal 20=14 IA 127=5 Sar 71 (PC) they at times, as is the easel here contain statements which would appear to have been concocted by the persons making them in their own interest and are therefore to be disregarded, being worse than useless.

The Subordinate Judge of Bara Banki in a careful and elaborate judgment found that in this family there existed a customary rule of succession under which in default of male heirs and of daughters each of the widows took an interest for life in a moiety of her husband's estate with reversion to the male agnate of the husband, and rightly disregarded the statement of the widows' agents, in the wajibularz that they had full powers of disposition over the properties inherited from their husband. He held, however, that there was no right of survivorship between the widows, and consequently that as regards the moiety of the senior widow who died in 1872 the suit was barred. Accordingly he gave the plaintiffs a decree for the properties which fell to the junior widow, with the exception of certain properties in the possession of the Court of Wards, as to which the suit failed for want of the statutory notice.

This judgment was reversed by the Chief Court of Oudh, which held that the plaintiffs had failed to establish the existence of any custom superseding the ordinary rules of Mahomedan Law. The learned Chief Judge, who delivered the judgment of the Court, would appear to have been of opinion that there was a strong presumption against the existence of the custom set up by the plaintiffs. Now the prevalence of customary rules of succession in this part of India has been recognized in the statute law of Oudh, as well as of the Punjab and the North Western Province, which provides that in matters of succession the ordinary rules of Mahomedan and Hindu law are only to be applied in the absence of such custom, though, as held by this Board in Abdul Hussein Khan v. Bibi Sona Dero, AIR 1917 PC 181=45 Cal 450= 12 SLR104=45 IA 10 (PC) the custom set up must be proved by satisfactory evidence, but without insisting, as Lord Buck-master was careful to point out, on the rigorous and technical rules which would be applicable to such a case in England.

In their Lordships' opinion the fact that on the death of Muzaffer Khan in 1863 his widows were allowed to succeed to his estate without any claim by his other heirs, and in accordance with the custom recorded a few years later in the wajibularz of the villages forming part of his estate sufficiently establishes that the ordinary rules of Mahomedan law were superseded in this family by a customary rule of succession; and they are unable to agree with the learned Chief Judge that these wajibularz are of no use to the plaintiffs, merely because they include an unfounded claim on the part of the widows to full powers of disposition over the estate.

On the husband's death the senior widow took possession of the whole estate which she alleged had been constituted an impartible taluqdari. Otherwise it was admitted that both widows were entitled to succeed in equal shares. Something was no doubt said about Mahomedan Law in the pleadings and the judgments, but their Lordships cannot agree with the learned Chief Judge that the Oudh Courts before whom the case came laboured under the mistake that under the ordinary Mahomedan law widows succeeded to the whole of their husbands' property. In speaking of Mahomedan law they were in their Lordships' opinion merely referring to the customary law governing these parties who were Mahomedans.

As regards the wajibularz of the villages inherited by his widows from Muzaffar Hussain, who was descended from Qazi Mahomed's son Abdul Wahab, the first to be completed were those of Kundri, Ex. M. 27 and Karanjwara, Ex. M. 28, and the other wajibularz mostly refer to these two. In the case of Kundri it was said that the widows succeeded as maliks, a term which had not then been decided to import full ownership. This wajibularz was also signed on behalf of Ghulam Ali, the other cosharer who was descended from another son of Qazi Mahomed, and in a subsequent litigation was interpreted, by a former Judicial Commissioner of Oudh as only giving the widow a life interest, Ex. 44. In the wajibularz Karanjwara the agents of the widows stated that it was unnecessary to record the custom of succession because the two widows who were in possession were childless and after their deaths he in whose favour they might make a will would be owner. In their Lordships' opinion this interested statement, which is opposed to the other evidence in the case as well as to the accepted ideas on these subjects of Mahomedans and Hindus alike is entitled to no weight whatever.

As regards the other branches of the family, the custom of the descendants of Qazi Mahamud's son Niamatula was recorded in the wajibularz of Kundri on behalf of his descendant Ghulam Ali. This has just been dealt with.

As regards the descendants of Mohiudin, the eldest son, the custom was recorded in the wajibularz of Rampur which was signed by his descendant Fazl Husain. This wajibularz says that the estate descends to sons and fail-ling sons to daughters, but is manifestly incomplete as it fails to give the custom of descent failing issue. In the wajibularz of Dewa the widows of Muzaffer Husain and Fazl Husain had to state the custom in their families which they did by referring respectively, as it would appear, to the wajibularz of Kundri and Rampur; and it may well be that Fazl Husain refrained from stating the custom in full as he did not want to put himself in direct opposition to the widows.

As regards the wajibularz signed by the descendants of Qazi Mahmud's other son, Abdul Nabi, with which the widows' agents had nothing to do, they clearly state that the widows took only an interest for life; and in the wajibularz of Chak Khan Ex. 164, it is stated that whom there is no issue both wives remain in possession during their lives; upon their death whoever is nearest in kin in the family succeeds to the share.

"Accordingly the Jwives of Muzaffar Hussain are in possession of a half share."

The learned Chief Judge appears to have regarded this entry with some suspicion, but it is not unnatural that the attestors should have given this instance of the custom in their family. It is even possible that knowing of the pretensions of Muzaffer's widows, they may have thought it well to assert that they were governed by the same custom as themselves and took a life interest only.

Very lengthy and elaborate arguments were addressed to their Lordships on the plaintiff's contentions that Abdus Shakur, whose descendants attested some of the wajibularz exhibited in the case, and Ewaz Ali, who signed others, were descendants in the male line from Qazi Mahmud and not from Abdus Salam. As regards the descendants of Abdus Shakur their Lordships agree with the learned Chief Judge that the evidence of Mansur Ali, plaintiffs witness 8, which the Subordinate Judge accepted, is unworthy of credit. Their Lordships, however, observe that two of these wajibularz Shankurhur Ex. 13 and Sikandarpur Ex. 15, expressly state that the proprietors were Hujjaji Sheiks, though they mention that they had inherited their shares from their buzurg Abdus Shakur. That term does not exclude an ancestor in the female line, but however that may be, it is clear that the attestators regarded themselves as belonging to the family of Qazi Mahomed and not to the family of Abdus Salam who were Usmani Sheiks, and consequently that they must be taken as stating the custom among Hujjajis that is in Qazi Mahomed's family. Similarly as regards Ewaz Ali it is stated in some of the wajibularz which he signed that the proprietors were Usmani Sheiks, that is to say, descended from Abdus Salam and there is other evidence which points the same way. In their Lordship's opinion the wajibularz signed by him must be treated as signed by descendants of Abdus Salam.

The learned Chief Judge has rejected the evidence of custom among the descendants of Abdus Salam as irrelevant. Seeing that these two families both descended one in the male and the other in the female line from Qazi Mahomed have Lived so long under the same conditions in Dewa and have been so closely connected together as to be treated as one community their Lordships are of opinion that evidence of the custom observed by one family in supersession of the ordinary Mahomedan law is of high evidential value as to the custom in the other. As shown in the judgment of the Subordinate Judge the wajibularz signed by the descendants of Abdus Salam and Abdus Shakur strongly support the plaintiff's case as to the widow's succeeding to a life interest, and their Lordships consider it unnecessary to refer to them in detail, or to the oral evidence which supports the custom. In their Lordships' opinion it is most clearly established.

In the view taken by the appellate Court the question whether the husband's heirs were entitled on the death of the senior widow to succeed forthwith to the properties which had been in her enjoyment did not arise. The Subordinate Judge had held that they were and consequently that as regards these properties the plaintiff's suit was barred. He was of opinion that the wajibulars did not establish the right of the surviving widow to succeed to these properties for her life, and that it was more consistent with other recorded incidents of this particular custom to hold that she was not so entitled. Their Lordship are not prepared to differ from this finding. In the result their Lordships will humbly advise His Majesty that the appeal be allowed, the decrees of the Chief Court set aside with costs and the decree of the Subordinate Judge restored. The respondents will pay the appellants costs of the appeal.

Appeal allowed.