Case: Mohammad Baqar &amp; Others Vs. Naim-Un-Nisa Bibi &amp; Others

died, and his three sons and two daughters were brought on record as his legal representatives on 4-1-1943. These were the persons who were interested in the subject-matter of the decree, which was under appeal.Now, the document on which the appellants rely as being the compromise is signed by the second defendant, Sheik Mohammad Baqar, but the heirs of the deceased first defendants are not parties thereto. On the side of the plaintiffs, the document purports to bear the thumb-impression of the first plaintiff, and of three of the children of the deceased second plaintiff, Mohammad Ibrahim, one of the sons of the second plaintiff, and the son and the daughter of the deceased Zainab Bi are not eo nomine parties to it.Mohamed Ibrahim, having subsequently died, his three sons have been brought on record as his legal representatives, and they do not admit the genuineness of this document, and further contend that even if true, it is ineffective as neither the heirs of the deceased first defendant nor some of the heirs of the deceased second plaintiff are parties thereto.They contend that as the compromise relates to a partition decree, and as under the proposed compromise the plaintiffs are to take one group, it was impossible to give effect to that compromise, unless all the parties to the decree consented, and that as some of them have admittedly not joined in the compromise, it could not be made a rule of court under O. 23, R. 3.5. In our opinion, the application must fail on the short ground that the compromise is not proved. The appellants applied to the High Court to have the compromise recorded and transmitted to this Court. In their application, they stated that the sons of the first defendant, though agreeable to the terms of the compromise at one stage, changed their mind later on.Even with reference to the parties whose names appeared on the document, as the compromises was not admitted the High Court called for a report from the Civil Judge Jaunpur as to the truth thereof. But none of the parties turned up at the hearing before the Civil Judge though the matter was before him twice, with the result that he sent a report that the compromise had not been verified.This report was accepted by the learned Judges in their order dated 29-7-1949. On the materials before us, there is no. proof that there was any compromise between the parties and the petition under O. 23, R. 3 to pass a decree in terms of compromise must accordingly be dismissed.6. On the merits, two contentions have been pressed before us : (1) that the family custom excluding the females from taking as heirs must be held to be established, and (2) that the claim of the plaintiffs is barred by limitation. The burden of proving a custom in derogation of the general law being heavily on the party who sets it up, it was incumbent on the appellants to prove by clear and cogent evidence that there was such a custom as was pleaded by them.It is admitted that there is no. documentary evidence in support of it. The appellants examined six witnesses in proof of it. The trial Judge was not impressed by their evidence, and has given good reasons for rejecting it. No. serious attempt appears to have been made before the High Court to rehabilitate them.The strongest piece of evidence relied on by the appellants, is an entry in the mutation of records made in 1893, in which it is stated that the daughters are excluded by custom for sharing in the inheritance, and that therefore the names of the sons of Ataullah alone are entered as his heirs. It appears from this very record that the source of this information was the first defendant himself, who at that time is stated to have been about 22 years old.It is obvious that a statement as to custom from a person of that age cannot command much weight, as that must largely depend on his means of knowledge. In view of the fact that he was himself a person interacted, his statement must be discarded as too slender for supporting the custom. We do not find any sufficient grounds for disturbing the concurrent findings of the Courts below on this point, and the custom pleaded by the defendants must, therefore, be held not to have been established.7. Then, there is the question of limitation. The parties to the action are co-sharers, and as under the law, possession of one co-sharer is possession of all co-sharers it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period.The facts found are that the plaintiffs were minors at the time of their fathers death, that they continued to live with their brothers in the same house down to the year 1918, that thereafter they went to reside with their husbands but that they continued to draw from the family chest for all expenses.The Courts below have found that as the plaintiffs were in enjoyment of the income from the estate there was no. ouster; and that is clearly right. It was not until 1933 when the defendants executed the waqf deed that there was any denial of the title of the plaintiffs, an down to that date, they had been in enjoyment of the properties.It was argued that what the plaintiffs received was only maintenance, and could not be attributed to their right to a share in the properties. But the evidence shows that the receipts were not merely for maintenance, and that they were of the same character as the receipts by the defendants themselves from the estate during this period. Moreover, there can be no. question of ouster, if there is participation in the profits to any degree. On the facts found, therefore, no question of adverse possession arises.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. In our opinion, the application must fail on the short ground that the compromise is not proved. The appellants applied to the High Court to have the compromise recorded and transmitted to this Court. In their application, they stated that the sons of the first defendant, though agreeable to the terms of the compromise at one stage, changed their mind later on.Even with reference to the parties whose names appeared on the document, as the compromises was not admitted the High Court called for a report from the Civil Judge Jaunpur as to the truth thereof. But none of the parties turned up at the hearing before the Civil Judge though the matter was before him twice, with the result that he sent a report that the compromise had not been verified.This report was accepted by the learned Judges in their order datedOn the materials before us, there is no. proof that there was any compromise between the parties and the petition under O. 23, R. 3 to pass a decree in terms of compromise must accordingly be dismissed.6. On the merits, two contentions have been pressed before us : (1) that the family custom excluding the females from taking as heirs must be held to be established, and (2) that the claim of the plaintiffs is barred by limitation. The burden of proving a custom in derogation of the general law being heavily on the party who sets it up, it was incumbent on the appellants to prove by clear and cogent evidence that there was such a custom as was pleaded by them.It is admitted that there is no. documentary evidence in support of it. The appellants examined six witnesses in proof of it. The trial Judge was not impressed by their evidence, and has given good reasons for rejecting it. No. serious attempt appears to have been made before the High Court to rehabilitate them.The strongest piece of evidence relied on by the appellants, is an entry in the mutation of records made in 1893, in which it is stated that the daughters are excluded by custom for sharing in the inheritance, and that therefore the names of the sons of Ataullah alone are entered as his heirs. It appears from this very record that the source of this information was the first defendant himself, who at that time is stated to have been about 22 years old.It is obvious that a statement as to custom from a person of that age cannot command much weight, as that must largely depend on his means of knowledge. In view of the fact that he was himself a person interacted, his statement must be discarded as too slender for supporting the custom. We do not find any sufficient grounds for disturbing the concurrent findings of the Courts below on this point, and the custom pleaded by the defendants must, therefore, be held not to have beenCourts below have found that as the plaintiffs were in enjoyment of the income from the estate there was no. ouster; and that is clearly right. It was not until 1933 when the defendants executed the waqf deed that there was any denial of the title of the plaintiffs, an down to that date, they had been in enjoyment of thewas argued that what the plaintiffs received was only maintenance, and could not be attributed to their right to a share in the properties.But the evidence shows that the receipts were not merely for maintenance, and that they were of the same character as the receipts by the defendants themselves from the estate during this period. Moreover, there can be no. question of ouster, if there is participation in the profits to any degree. On the facts found, therefore, no question of adverse possession arises.