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Now on whom does the burden rest and what is the scope of the evidence that is admissible ? The earliest decision 'on the question regarding proof of custom in variance of the general law is found in Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya (14 Moo. Ind. App. 570 @ 585) to the effect:

"It is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends."

In Ahmad Khan v. Channi Bibi (52 Ind. App. 379) it was held that "the custom could properly be proved by general evidence given by members of the family or tribe without proof of special instances." in that case there was a large body of oral evidence establishing the custom, wholly unrebutted by the defendants, who relied exclusively on the district riwaj-i-am on which neither the High Court nor the Privy Council were prepared to place any reliance. Suffice it to any say that the present is not a case where no evidence of specific instances was given but on the other hand evidence was given of a large number of instances most of which were held proved by the learned trial Judge and held not proved by the learned Judges of the High Court. We are not concerned in this case with the custom prevailing in a particular family or tribe without instances.

In Ajai Verma v. Vijai Kumari (AIR 1939 PC 22) it was said that the proof of actual instances of a family custom excluding daughters from the inheritance was not necessary. For this statement reliance was placed upon the decision in Ahmad Khan v. Channi Bibi (supra) to which we have already referred. It was also stated that the opinions of responsible members of the family as to the existence of such a custom, and the grounds of their opinion, though generally in are of a family tradition, were clearly admissible. In that case the custom was also recorded in wajib-ul-arzes of every village owned by a member of the family and they were very numerous. The Privy Council referred to the probative value of these village records which had been recognised over and over again by the Board. Here again it is suffice to say that it is not possible to predict what would have been the decision but for the wajib- ul-arzes.