JUDGMENT

1. This second appeal of the plf. arises out of a suit for declaration that the decree dated 31-12-1937, obtained by deft. 1 & 2 in civil Suit No. 162 of 1937, in the Ct. of Subordinate, J., Jaora, against deft. 3 does not affect the rights of the pltf. as sole manager of the Bandakheli graveyard. The suit was decreed in the Ct. of first instance. The lower appellate Ct. reversed that decision & dismissed the suit. The plf. has, therefore, preferred this appeal.

2. The relations of the plf. & defts. will be dear from the following genealogy:

3. Appellant-pltf's. grandfather Mazarali Shah, got from the Nawab of Jaora State a Sanad for rights over Bandakbali Qabarstan (graveyard). This sanad is alleged to have been lost sixty years ago in floods. The original grantee died leaving three sons & two daughters. The pltf's. case is that the daughters were excluded from the earnings of the burial ground which were equally distributed between the three brothers who used to work, by tarn, for ten days in a month. After the death of Niyaz Ali Shah earnings were distributed half & half between the two brothers & after Wazic Ali's death the plf. became sole manager of the graveyard. It was only from charitable motives that he used to give to Nanhi, the wife of Wazir Ali, Shah, half of the earnings but he was the sole manager & did all the work of burial himself. When he fell ill then for a year, deft. 3 Ahmed Ali Shah worked for him. Wazir Ali Sbah bequeathed his property (including his rights over the Bandakhali graveyard) on 7-10-1918, to his daughter Mt. Naseeban (deft. 2) & her son, Mohammad Shah (daft rasp. 1) Ahmad Ali Shah (deft. 3) was excluded. Wazirali Shah's wife, Nanhi, on the other hand, at first gold her rights over burial ground for Rs. 100 to deft 2, & then on 3-5-1936 executed a Hibanama (deed of gift) in favour of Ahmad Ali Shah (deft. 3). The pltf. was as attesting witness to this deed of gift. Defendants 1 & 2 then brought a suit against deft. 3 in the Ct. of Subordinate, J., Jaora, for cancellation of the deed of gift dated 9-6-1936. The pltf. was produced as a witness on behalf of deft. 3. The suit was decreed & the said deed of gift was declared null & void. The Ct. upheld the will dated 7-10-1918 & declared defts. 1 & 2 as heirs of Wazir Ali Shah. Thia decision was upheld by the H.C in Jaora State, & 30 far as this Ct. is concerned, this is a final decision on the rights & interacts of delts. 1 & 2 vis-a-vis deft. 3.

4. Now the pltf.'s case is that in graveyards there is a custom of excluding females from the management & females have no rights of sharing in the income from the burial grounds; that after the death of Wazir Ali Shah, his daughter or daughter's son retained no right in the earnings from the burial ground & the pltf. became the sole manager. This plea has not been accepted by the lower appellate Ct.

5. The first contention in this appeal urged on behalf of the applt. is to the effect that the lower appellate Ct. was in error in holding that it is against the very conception of Muhammadan law to give legal recognition to a custom excluding females from the income of the burial grounds. I think there is some force in this argument.

6. Muhammadan law does not necessarily exclude a female from a religious office when it, by its nature, involves no religious or spiritual duties such as a woman cannot properly discharge in person or by deputy, Shah Banu v. Aga Mohommad, 34 Cal. 118 : 34 I.A 46 (P.C) & Amerunessa Beebee v. Hatim Ali, A.I.R (20) 1933 Cal. 739 : (146 I.C 919).

7. Though the ground in which human remains are interred is regarded for ever as sacred, the manager of a graveyard is, however, concerned only with the temporal duties of digging the graves, of preserving the tombs, & of arranging customary rites to be performed by the family of the deceased, if they so desire. These duties appear to be more on a level with the secular duties of mutwalli than with the religious duties of Sajjadanasheen. In such a case there is no legal obstacle to the females sharing in the earning from the burial ground & getting their duties performed by proxy. Though there is no general rule of Muhammadan law prohibiting a woman from managing graveyards, yet prohibition can arise by local usage or custom. The statement that such usage or custom is against the principle of Muhammadan law appears to involve some confusion of thought. The two principal sources of Islamic Law are the Koran, as containing the words of God, & the Sunna or traditions, being the inspired utterances of the prophet of Arabia & precedents derived from his acts. Next in authority are Ijma, or consensus of opinion among the learned; & Qiyas, or analogical deductions from the above three. A custom or usage must not be opposed to a clear text of the Koran or the Sunnal but it can override any rule of law based on analogical deductions. The custom or usage of excluding females in certain localities or families is not opposed to any text of the Koran or the Sunna & can be allowed. By special family customs, females have actually been excluded from inheritance, Lakhamal v. Mulah, 21 P.R 1875 & amongst Muhammadans in the Punjab succession is held generally to run in the male line Meeran Buksh v. Peeroo, 29 P.R 1865. I am Quite clear in my mind that the learned Dist. J. was wrong in holding that exclusion of females from the management & the earnings of the burial ground was against the principles of Muhammadan law. Of course in all such cases where exclusion of females is recognised as a custom some caution is to be observed by the Cts.

8. In Sayad Rahim Shah v. Say ad Hasan Shah, 102 P.R 1901 p. 353 : 119 P.L.R 1901, Roheretson, J. observed that the male relations, in many cases at least, had been clearly more concerned for their own advantage than for the security of the rights of widows & other female relatives with rights or alleged rights over family property, & the statements of the male relatives in such matters have to be taken cum grano salis where they tend to minimise the rights of others & extend their own.

9. In fact, the burden of establishing that a female is precluded from managing a certain property or holding a certain office is on those who plead the exclusion; Munna Varu Begam v. Mir Mahapalli, 41 Mad. 1033 : (A.I.R (6) 1919 Mad. 202); & the Cts. are bound to carefully watch over the rights of the weaker party & to refuse to hold that they had ceased to exist unless a custom against them is most clearly established; Har Narain v. Mt. Deoki, 24 P.R 1893. In Rama Lakshmi Ammal v. Sivanatha Perumal, 14 M.I.A 570 : (17 W.R 552 P.C) the P.C laid it down that

“It is the essence of special usage modifying the ordinary law of succession that they should be ancient & invariable; & it is further essential that they should be established to be so by dear & unambiguous evidence.”

10. The same rule was reiterated in Abdul Hussain Khan v. Mt. Bibi Sona Dero, A.I.R (4) 1917 P.C 181 : (45 Cal. 450).

11. I have, therefore, to see whether the evidence adduced in this case satisfies the conditions so laid down. From a perusal of the evidence I find that the applt. tried to prove three things: (1) general custom prevalent amongst families of managers of graveyards, (2) usage prevalent in Jaora State, & lastly (3) special usage in his own family. The custom & usages aforesaid were held to have been proved by the trial Ct. but the first appellate Ct. held they had not been established. Learned counsel for the applt. Mr. Hingorani, contends that the first appellate Ct. ought to have agreed with the opinion which a Judge who had watched & listened to the witnesses had formed as to their credibility. The principles which should guide the appellate Ct. in deciding whether to reverse the trial Judge on question of fact have often been laid down & recently the Judicial Committee in Prem Singh v. Deb Singh, A.I.R (35) 1948 P.C 20 : (1947 A.L.J 613) reiterated the principles stated by Lord Thankerton in Watt v. Thomas, (1947) 1 All. E.R 582. The trial Judge in the case before me has not in the least, in the course of judgment, attempted a critical analysis of the evidence adduced. His judgment consists mainly of a mere resume of the evidence. It is the duty of the Judge presiding at the trial to do more than merely collect in his judgment, the statement of witnesses who give evidence before him. If the trial Judge does not even attempt a careful analysis & appraisement of the evidence adduced, the appellate Ct. can come to the conclusion that the trial Judge has not taken proper advantage of his having seen & heard the witnesses, & then, in my opinion the matter will become at large for the appellate Ct. In my judgment, therefore, under the circumstances described above, the first appellate Ct. rightly ignored the findings of the trial Judge.

12. Now, there is no hard & fast rule as to how much evidence would be sufficient to prove the existence of a custom or usage. This question depends entirely on the nature of the evidence, as well as on the circumstances of each case. In some cases a large number of instances may be insufficient, while in others a much smaller number may be quite sufficient in the present case the evidence of three witnesses produced by the pltf. does not appear to be sufficient. The statement of P.W 3 Nazir Mohammad is too vague to merit any consideration. Sikandar Shah P.W 4 is a manager & owner of a graveyard in the town of Mandsaur, but his daughter is married to the pltf's. son. He is not a disinterested witness & both the Cts. have held his statement to be unworthy of credence. The only witness then is Hafiz Nissar Ahmad P.W 2. His sister's sons are owners & managers of Abu Syedi graveyard in Jaora town. He deposes that even in that family females do not share in earnings from the graveyard. But he has not been able to explain how his brother got a share in the earnings from the said graveyard. He has further not been able to explain fully the reason of litigation with one Maseeta Shah & what the result of such litigation was. He does not give instances when & how & in what cases, either in litigation, or in arbitration, a custom was held to have existed of rights over Qabristan devolving only on male heirs in male line. It may be that in the said family of his nephews there may have been agreements in which voluntarily, or for some consideration, or under advice on mediators, the females of that family might have simply abstained from pressing their claims. What the witness asserts as custom may be a mere practice. It does not seem to have the characteristic of a genuine custom viz. that it is consciously accepted as having the force of law (Mirabivi v. Vallayana, 8 Mad. 464). I do not think the statement of Hafiz Nissar Ahmad is sufficient to establish a custom or even usage, in the families of the managers of graveyards, of excluding the females from the earnings from the burial ground.

13. Then I come to the deposition of the pltf. himself about the usage in his own family, A custom it a family usage do not stand on the same footing. A custom carries with it an idea of some antiquity, & derives its origin & force from its observance by successive generations of men belonging is different families, castes it tribes. No such antiquity is necessary to prove a family usage. As observed by Kanhiayalal A.J.C in a D.B case in Yasin Ali Khan v. Murtaza Hussain Khan, 22 I.C 577 : (16 I.C 290), there is some affinity between a family usage & a usage of trade, for the essential condition in regard to each is that it must have “fructuated into maturity” & that it must not be growing. In my opinion, uniformity of practice for some generations in a family with respect to certain matters or things is necessary to prove that the practice “fructuated into maturity”. The family usage in the case before me is reported to have originated from the Sanad granted by the Nawab of Jaora to the grantee Mazar Ali Shah. This sanad is not produced. The lower appellate Ct. did not believe that it was lost in the floods & this finding of fact is binding on me in second appeal. The witnesses apeak only of a tradition that they beard the story that it was lost in floods. This tradition is all hearsay evidence not admissible under the provisions of Section 32 of the Evidence Act, Sris Chandra v. Rakhalananda, A.I.R (28) 1941 P.C 16 : (I.L.R (1941) 1 Cal. 468).

14. In the absence of the sanad or any other documentary evidence, the pltf's. statement that his aunts, Zahooran and Ayiman wore excluded from the earnings of graveyard does not indicate in what manner it actually took place; whether his aunts asserted & disputed their claims & were silenced, or, they themselves agreed to the exclusion. What happened till 1918 can then beat be left to conjecture. Possibly in this family the practice or rights over Qabaristan devolving only on male heirs in male line & of excluding the females from the rights in the earnings from the burial ground was only growing. There is no indication that this practice had fructuated into maturity; otherwise, in 1913, Wazir Ali would not have bequeathed his rights over burial ground to his daughter & his daughter's son; & subsequently Wazir Ali's wife; Nanbi, would not have sold rights over burial ground to her daughter it then would not have made a gift of this right to deft. 3. In fact, events in the family from 1918 to 1938 & then till 1945 a sufficiently long period clearly negative the existence of any such usage in the family as is stated by the pltf. in his evidence, Either the practice had not fructuated into maturity, or, if it had so fructuated, the usage was lost in the family by desuetude. If it was a change the change may have been deliberate; at least it was publicly acted upon & tolerated by the pltf. for a period of 27 years. Customs & usages, as to dealing with property, unless their continuance is enjoined by law, as they are adopted voluntarily, so they may be changed or lost by desuetude. Abraham v. Abraham, 9 M.I.A 199 at p. 199 : (I W.R 1 P.C) The Judicial Committee in this case were clearly of opinion that the abandoned usages cannot be treated by a sort of fictio juris as still the enduring customs of the family; & the Cts. were asked rather to proceed on what actually exists than on what bad existed, & in forming their own presumptions the Cts. were advised to have regard to a man's own way of life than to that of his predecessors. Though race & blood are independent of volition, usage is not.

15. It is quite clear from the conduct & behaviour of the pltf. applt. in the case before me that he had acquiesced in everything that had been happening during this period in the family. He himself, during all this period had been giving to the wife of Wazir Ali Shah, the latter's share in the income from the burial, ground. When the executed a deed of gift in favour of deft. 3, the pltf. applt. was an attesting witness to this deed & in the litigation that followed subsequently the pltf. appeared as a witness on behalf of deft. 3 & tendered his evidence on 15-9-1938. In this statement the pltf. bad clearly conceded that Mt. Nanhi had rights over the burial ground. It was only when that case wae decided against deft. 3 Ahmad Shah & when the latter was to be ousted from possession that the pltf. filed this present suit on the basis of a family usage excluding females from the earnings of the burial ground. The stand taken by the pltf.-applt. is clearly inconsistent with his previous conduct. Mr. Hingorani, learned counsel for the applt. has not been able to explain this inconsistency but he has raised some technical objections to the proceedings. The first point urged by him is that the pltf's. signature on the Hibanama dated 8-6-1938, is that of an attesting witness; and attestation of a deed does not, by itself, prove that the person attesting it had knowledge of its contents or consented to the transaction Pandurang Krishnaji v. Markandey Tukaram, A.I.R (9) 1922 P.C 20 : 49 I.A 16 : 49 Cal. 334. I agree that attestation of a deed by itself estops a man from denying nothing whatever excepting that he has witnessed the execution of the deed. But there are cases, & this is one of them, where the fast of attestation has to be taken in conjunction with other circumstance & other connected events which may justify an inference that the attesting, witness had knowledge of the contents of the document & had agreed to them, Jasodar Dusadhin v. Sukumarmani, A.I.R (24) 1937 Pat. 353 : 170 I.C 1005; & Lachhmi Narain v. Ram Saran, 196 I.C 380 (Pat). In fact, this attestation is to be considered along with & in the light of the pltf. a statement dated 15-9-1938, in Civil Suit No. 162 of 1937, in the Ct. of the Subordinate Judge, at Jaora, a true copy of which is placed on the file in this case. Mr. Hingorani contenda that this statement has not been duly proved. Under Section 80 of the Evidence Act the presumption can be made only as to the genuineness of the statement recorded in a deposition. I agree that no presumption can be made regardiog the identity of the deponent. But if the deponent admits, as has been done in this case in the pltf's. rejoinder, that on a particular date in a particular suit his deposition had been recorded, & a true copy of such statement is produced in the Ct, then, in my judgment, do further proof of identity is necessary. The Ct. can turn to the deposition itself to find out whether there is inherent evidence of the identity of the deponent. I, therefore, hold that the said statement was duly proved & that the pltf. had knowledge of the contents of the Hibanama before he put his signature on it as an attesting witness. A perusal of the said statement leads me to the conclusion that the present suit is misconceived & has lost much of its force. I, however, do not agree with the remarks in the judgment of the lower appellate Ct. suggesting that the pltf. was estopped from bringing this suit. The principle of estoppel can only come into play, when by a party's conduct the other party has changed his position in any way to his prejudice or detriment Pkoenix Mills Ltd. v. M.H Dinshaw & Co., A.I.R (33) 1946 Bom. 469 : (226 I.C 503). In this case the pltf's. statement was not in any way responsible for any change its the position of the defts. to their prejudice or detriment. The doctrine of estoppel, therefore, does not apply here, though the conduct of the pltf. weakens his case to a considerable extent. Taking all these circumstances into consideration, my opinion is that the custom of rights over graveyard devolving only on male heirs in male lines was not proved in this case; that usage in the pltf's. family of excluding females from the rights over the burial ground of bandakhali was not established, that if there was any such practice in former days it had been lost by desuetude & that the pltf. had acquiesced in it. This naturally leads me to the conclusion that the pltf. a suit was rightly dismissed. The appeal, therefore, fails & is dismissed with costs.

16. Appeal dismissed.