whole house on the ground that under Muhammadan Law the defendants are excluded from inheritance, their father Imam Din having predeceased his father, Pir Muhammad. The family traces its traditional home to Kashmir valley, but the period of settlement in Banga is not known as the oldest member of the family aged eighty years is unable to give the name of Pir Muhammad s grandfather.

The sole question for decision under the circumstance is whether the defendants are entitled to succeed to Pir Muhammad by custom or are excluded from succession by Muhammadan Law, their father having predeceased his father whose property is now in dispute. The lower Courts have held that daughters are excluded from succession in the family which indicates that Muhammadan Law is not followed in matters of succession, and that the defendants are therefore not excluded from inheritance. The lower Courts have accordingly dismissed plaintiff's suit. In appeal it is contended that daughters are not excluded from inheritance in this family, that even if they are excluded it does not follow follow that the provisions of Muhammadan Law against succession by representation as claimed by the defendants are inapplicable, and that it is proved by two judicial decisions and certain oral evidence of witnesses from Ludhiana where the parties' family has marriage connections that Muhammadan Law is followed by Kashmiris in matters of inheritance. The pleader for appellant relied on Maula Bakhsh v. Muhammad Bakhsh (1) and the judgments referred to therein to suppor his contention.

As regards the two judicial decisions by Ludhiana Courts the judgment of the District Judge related to proceedings taken for appointment of a guardian of a minor and the second case decided by a Munsif involved a dispute relating to inheritance. In neither of these cases was there any enquiry or finding on the particular point at issue in this suit. In the first case the question of guardianship was decided in accordance with Muhammadan Law with an obiter as to its applicability to matters of inheritance. In the second case the provisions of Muhammadan Law were applied by admission of parties to a dispute between a widow and a co-widow and her sons. These precedents are apparently of no value for deciding the issue involved in the present case. The oral evidence of two witnesses produced from Ludhiana does not carry the

(1) 54 P. R., 1906.

plaintiff's case any further. They have stated generally that Kashmiris are governed by Muhammadan Law, but cite no instance to support their assertion. They further admit that they do not belong to the plaintiff's gôt, and acknowledge their complete ignorance of all matters relating to the family of the parties.

On the other hand, plaintiffs' own agent, a descendant of Pir Muhammad's father, and Muhammad Jamal's daughter, whose family originally belonged to Ludhiana but has migrated to Banga since many years, distinctly admitted when examined that daughters of Jamal's family have never received a share in inheritance. He named several daughters among descendants of Mubammad Jamal, but was unable to state that any ever succeeded to a share under Muhammadan Law. Moreover, Karim Bakhsh, a direct descendant of Karm, brother of Muhammad Jamal, was examined as a witness for defendants, and deposed that provisions of Muhammadan Law were not followed by the family in matters of inheritance.

He is aged eighty years, and has referred to an instance in his own branch of the family where the son of a pre-deceased son inherited equally with his uncle, witness's own father, and be further gave another instance to the same effect in Mauza Saryal among Muhammadan Kashmiris. He confirmed the statement made by plaintiffs' agent that daughters have never inherited in Muhammad Jamal's family, and supported his allegation by quoting several instances giving particulars in each case.

It is thus cleer and beyond all doubt that daughters are excluded from receiving a share, and that at last in two instances the sons of pre-deceased sous have succeeded by right of representation contrary to the provisions of the Muhammadan Law. The plaintiffs tried to discredit Karim's evidence by producing one Dullan who started by alleging that he was the elder brother of Karim-a statement at once falsified by comparing their ages, but he was obliged to admit in cross-examination that he was a pichhlag son of Karim's father by a Rajput wife. As regards succession of daughters the witnesses stated that they receive their right whatever it be at marriage and by presents subsequent to marriage. The attempt to discredit Karim's evidence has thus failed completely. It is unnecessary to discuss at any length the authorities relied upon by the pleader for appellants. Maula Bakhsh v.

Muhammad Bakhsh (1), is so far relevant that Muhammadan Kashmiris of Lahore city were held to follow Muhammadan Law in matters relating to succession of daughters.

On the other hand, in Lal Din v. Mussummat Jainan (3), which is referred to in Maula Bakhsh v. Muhammað Bakhsh (1), it was established after local enquiry that Muhammadan Kashmiris of Sialkot city followed custom and not Muhammadan Law in matters relating to succession of widows. Each case must depend for its decision primarily on its own proof, and the necessity for looking elsewhere for help and guidance would arise if there be dearth or absence of reliable materials on the record. In the present caso I see no reason to discredit the evidence of Karim, an aged member of the family who alone, truly speaking, is in a position to give direct evidence on the question at issue. His evidence clearly proves that the provisions of Muhammadan Law are not followed in matters of inheritance, and he quotes two instances exactly in point on a matter which so far as I know is not very unusual or exceptional. It is true that the instances quoted in this case are few in number, but the question of succession by representation on account of the death of a pre-deceased son is but of

rare occurrence.

Moreover, it was admitted in argument that there are only four families of Kashmiris in Banga, and it is not easy to imagine that the defendants could be able to discover many instances in a matter of such rare occurrence. This is at once corroborated and rendered apparent by the plaintiffs' own omission to produce even a single instance to the contrary. In Faiz Talab v. Kaim Khan (3), a case of Pathan zamindars of Attock Tahsil, the custom set up by defendants in this case was held to be a very general custom among Muhammadan agriculturists in this Province.

The family concerned in this case is not agriculturist, but their ancestors though original inhabitants of Kashmir valley have settled among agriculturists from time immemorial as Karim Bakhsh, the oldest and eldest member of the family has deposed that members of his brotherhood live in village Saryal where intermarriages take place with them. It is

therefore neither strange nor abnormal that the family has adopted a custom found to be very general among Muhammadan agriculturists of the province even assuming which is problematical that their Kashmerian ancestors followed Muhammadan Law in excluding from inheritance the sons of a pre-deceased son. I therefore hold that the alleged custom is proved to apply and that the defendants are not excluded by Muhammadan Law from retaining the share in dispute by right of representation as their father's share who pre-deceased his father. The appeal is accordingly dismissed with

costs.

Appeal dismissed.

APPELLATE SIDE.

3rd August 1906.

No. 9.

Before Mr. Justice Rattigan.

NIHAL CHAND,-(PLAINTIFF),-APPELLANT,

Versus

ALI BAKHSH AND OTHERS,-(DEFENDANTS),

RESPONDENTS.

Civil Appeal No. 168 of 1905.

Assignment-Conditional assignment by way of security-Right of as◄ signee to sue in his own name.

Where the payee of a promissory note, not negotiable, assigned it to the plaintiff as a security for a debt owing from him to the latter until its repayment in full, held that it being merely a conditional assignment the plaintiff was not entitled to maintain an action in his own name alone against the maker of the promissory note for the recovery of amount due thereunder.

Durham Brothers v. Robertson (1) followed.

Further appeal from the decree of A. E. Hurry, Esquire, Divisional Judge, Amritsar Division, dated 14th November 1904.

Ishwar Das and Sohan Lal, for appellant.

Beechey, for respondents.

The judgment of the learned Judge was as follows:

RATTIGAN, J.--The facts of the case are fully stated in the judgment of the first Court and need not be repeated. The case, briefly stated, is that plaintiff, Nihal Chand, sues on the basis of a pro-note executed by Ali Bakhsh, defendant No. 1, in favour of Nathe Khan, and mortgaged by the latter to plaintiff by three deeds of mortgage.

(1) L. R. 1., Q. B. (1898), 765.

The translation of the pro-note as given by the first Court and admitted to be correct, is as follows:

"I am indebted to Nathe Khan, son of Kamman Khan, in "Rs. 1,700, half of which is Rs. 850. To be paid on demand. "Hence this promissory note, 13th October 1900.”

"(Signed) Ali Bakhsh, Lambardar."

Nathe Khan, according to plaintiff, mortgaged this pro-note with him for Rs. 750, at Rs. 2 per cent. per mensem interest, by three deeds of mortgage, (1) one of 10th September 1901 for Rs. 500; (2) a second of 30th September 1901 for Rs. 100; and (3) a third of 19th April 1902 for Rs. 150. According to the terms of these mortgage deeds, the pro-note was to remain in the possession of plaintiff who was to have the right of realising the amount from the drawer by suit or otherwise, it being further stipulated that Nathe Khan should have no right to transfer the pro-note to any one else or to bring any suit upon it, or to enter into any agreement with respect to it with the drawer.

The first Court granted a decree in full to plaintiff, but upon the drawer's appeal, the Divisional Judge, without discussing the merits of the case, dismissed plaintiff's suit on the ground that the pro-note, as worded, was payable to Nathe Khan only and was, therefore, not a negotiable instrument as defined in Section 13 of Act XXVI of 1881, and that the rights of Nathe Khan thereunder could not be transferred to plaintiff, who had thus no locus standi. Plaintiff has preferred a further appeal to this Court, and on his behalf Mr. Ishwar Das conteuds that, though the pro-note is not a negotiable instrument as defined in the Act relating to such instruments, the subject matter of the mortgages was an actionable claim, that as such it could be assigned, and in point of fact was actually assigned to plaintiff in such a manner as to enable him to sue in respect of it as effectually as the assigner himself could have sued.

For the respondent, Mr. Beechey did not seriously attempt to support the ground upon which the suit had been dismissed by the lower Appellate Court; his main, if not indeed his sole, coutention was that there had been no complete and absolute assignment of the actionable claim, but merely a charge (or charges) created in respect of it. He further urged that if in such cases every mortgagee of the debt was competent to sue in respect of the claim upon which he had been given a charge, the original debtor might be subjected to innumerab