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

The defendants to the action were their brothers. Sheik Kifayatullah and Sheik Mohammad Baqar.The plaintiffs alleged that after the death of their father, Sheik Ataullah, they and the defendants were living together as members of one family, that the first defendant was in management of the properties on behalf of all of them, that onthe defendants executed a deed offor the benefit of their descendants, and that the said deed was a denial of their rights. They accordingly prayed for partition and delivery of 14/48th share in the estate of the deceased Sheik Ataullah, which they claimed as belonging to them, for an account of the management of the same by the first defendant from 1892 and for future mesne profits fromdefendants contested the suit on only three grounds, viz., (1) that there was a family custom excluding the female heirs from sharing in the inheritance (2) that in 1893 there was a family settlement under which the plaintiffs gave up their rights to share in the estate, and (3) that the claim of the plaintiffs was extinguished by adverse possession on the part of the defendants, and that the suit was barred by limitation.2. The Additional Subordinate Judge of Jaunpur who heard the suit, held by his judgment datedthat the alleged custom was not made out, that there was, in fact, no. family settlement, and that even if it were true it would not be binding on the plaintiffs as they were minor at the date of the alleged settlement, and that the suit was not barred by limitation, as they had been at all times in enjoyment of the income from the properties.He, however, held that the plaintiffs were entitled to 34/168th share in the estate of Sheik Ataullah and not 14/48th share as claimed in the plaint, and granted a decree for partition and possession of that share, and for rendition of accounts by the first defendant fromThe claim for future mesne profits was however, negatived.3. Against this judgment, the defendants preferred an appeal to the High Court of Allahabad contending that the suit was liable to be dismissed on all the three grounds put forward in the trial court, and further that the decree for rendition of accounts from 1892 was bad. The plaintiffs preferred aclaiming that they were entitled also to their share of the profits from the estate from the date of the institution of the suit until they were put in separate possession.By their judgment datedthe learned Judges of the High Court agreed with the Subordinate Judge that the defendants had failed to establish the family custom excluding female heirs from inheritance, that further the family settlement which was alleged to have been entered in 1893 was not proved, and that on the facts no. question of limitation arose.They, however, set aside the decree in so far as it directed rendition of accounts by the first defendant from 1892, but awarded the plaintiffs a decree for future mesne profits from the date of the plaint to be ascertained in further proceedings under O. 20, R.They also heldand that was accepted by both partiesthat the correct share to which the plaintiffs were entitled was 153/672 and not 34/168, as decreed by the Subordinate Judge. It is against this judgment that the present appeal by the defendants is directed.

Reasoning: 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.