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Punjab custom–Principles to be observed in dealing with customary law stated–Essentials of valid custom. = The plaintiff, a Rajput belonging to Tehsil Garhshankar in the District of Hoshiarpur (Punjab), instituted a suit against the defendant for the recovery of the properties which belonged to a deceased Gurkha woman R and which she had acquired by way of gift from a stranger, alleging that he was the lawfully wedded husband of Rand that accord- ing to custom which applied to the parties with regard to succession he was entitled to succeed to the moveable and immoveable properties of R in preference to the defendant who was his daughter by R. Held, that even if it be assumed that R was lawfully married to the plaintiff, the question to be decided would be whether succession to property which R had received as a gilt from a stranger and which she owned in her own right would be governed by the custom governing her husband’s family and not her own. Such marriage as was alleged to have been contracted by the plaintiff being evidently an act of rare occurrence, the rule of succession set up by the plaintiff cannot be said to derive its force from long usage and the plaintiff was not, in any event, entitled to succeed. Their Lordships laid down the general principles which should be kept in view in dealing with questions of custom- ary law as follows: (1) It should be recognised that many of the agricultur- al tribes in the Punjab are governed by a variety of cus- toms, which depart from the ordinary rules of Hindu and Muhammadan law, in regard to inheritance and other matters mentioned in section 5 of the Punjab Laws Act, 1872. (2) In spite of the above fact, there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by custom- ary law must prove that he is so governed and must also prove the existence of the custom set up by him. (See Daya Ram v. Sohel Singh and Others, 110 P R. (1906) 390 at 410; Abdul Hussein Khan v. Bibi Song Dero, L.R. 45 I.A. 10). (3) A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that “a CUstOm, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary” should not be strictly 826 applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. (See Mt. Subhani v. Nawab, A.I.R. 1941 P.C. 21 at 32). (4) A custom may be proved by general evidence as to its existence by members of the tube or family who would natur- ally be cognizant of its existence and its exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Riwaj-i-am or Manual of Customary Law. (See Abroad Khan v. Mt. Channi Bibi, A.I.R. 1925P.C. 267 at 271). (5) No statutory presumption attaches to the contents of a Riwaj-i-am or similar compilation, but being a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein in support of custom are admissible to prove facts recited therein and will generally be regarded as a strong piece of evidence of the custom. The entries in the Riwaj-i-am may however be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances each case. The presumption of correctness attaching to a Riwaj-i-am may be rebutted, if it is shown that it affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities. (See Beg v. Allah Ditta, A.I.R. 1916 P.C. 129 at 131 ;Saleh Mohammad v. Zawar Hussain A.I.R. 1944 P.C. 18; Mt. Subhani v. Nawab, A.I.R. 1941 P.C. 21 at 25). (6)When the question of custom applicable to an agricultur- ist is raised, it is open to a party who denies the applica- tion custom to show that the person who claims to be gov- erned by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service, etc., as his principal occupation and means and source of livelihood, and does not follow other customs applicable to agriculturists. (See Muhammad Hayat Khan v. Sandhe Khan and Others, 55 P.R. (1906) 270 at 274; Muzaffar Muhammad v. Imam Din, I.L.R. (1928) 9 Lab. 120, 125). (7) The opinions expressed by the compiler of a Riwaj-i-am or Settlement Officer as a result of his intimate knowledge and investigation of the subject, are entitled to weight which will vary with the circumstances of each case. The only safe rule to be laid down with regard to the weight to be attached to the compiler’s remarks is that if they repre- sent his personal opinion or bias and detract from the record of long standing custom, they will not be sufficient to displace the custom, but if they are the result of his inquiry and investigation as to the scope of the 827 applicability of the custom and any special sense in which the exponents of the custom expressed themselves in regard to it, such remarks should be given due weight. (See Narain Singh v. Mr. Basant Kaur A.I.R. 1935 Lah. 419 at 421,422; Mr. Chinto v. Thelur, A.I.R. 1935 Lah. 98S; Khedam Hussain v. Mohammad Hussain, A.I.R. 1941 Lah. 73 at 79). =1952 AIR 231, 1952SCR 825, , ,

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PETITIONER:


THAKUR GOKALCHAND

Vs.

RESPONDENT:
PARVIN KUMARI.

DATE OF JUDGMENT:
16/05/1952

BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
BOSE, VIVIAN

CITATION:
1952 AIR 231 1952 SCR 825
CITATOR INFO :
R 1971 SC1398 (6)
RF 1991 SC1654 (15,35)

ACT:
Punjab custom–Principles to be observed in dealing with
customary law stated–Essentials of valid custom.

HEADNOTE:
The plaintiff, a Rajput belonging to Tehsil Garhshankar
in the District of Hoshiarpur (Punjab), instituted a suit
against the defendant for the recovery of the properties
which belonged to a deceased Gurkha woman R and which she
had acquired by way of gift from a stranger, alleging
that he was the lawfully wedded husband of Rand that accord-
ing to custom which applied to the parties with regard to
succession he was entitled to succeed to the moveable and
immoveable properties of R in preference to the defendant
who was his daughter by R. Held, that even if it be assumed
that R was lawfully married to the plaintiff, the question
to be decided would be whether succession to property which
R had received as a gilt from a stranger and which she owned
in her own right would be governed by the custom governing
her husband’s family and not her own. Such marriage as was
alleged to have been contracted by the plaintiff being
evidently an act of rare occurrence, the rule of succession
set up by the plaintiff cannot be said to derive its force
from long usage and the plaintiff was not, in any event,
entitled to succeed.
Their Lordships laid down the general principles which
should be kept in view in dealing with questions of custom-
ary law as follows:
(1) It should be recognised that many of the agricultur
al tribes in the Punjab are governed by a variety of cus-
toms, which depart from the ordinary rules of Hindu and
Muhammadan law, in regard to inheritance and other matters
mentioned in section 5 of the Punjab Laws Act, 1872.
(2) In spite of the above fact, there is no presumption
that a particular person or class of persons is governed by
custom, and a party who is alleged to be governed by custom-
ary law must prove that he is so governed and must also
prove the existence of the custom set up by him. (See Daya
Ram v. Sohel Singh and Others, 110 P R. (1906) 390 at 410;
Abdul Hussein Khan v. Bibi Song Dero, L.R. 45 I.A. 10).
(3) A custom, in order to be binding, must derive its
force from the fact that by long usage it has obtained the
force of law, but the English rule that “a CUstOm, in order
that it may be legal and binding, must have been used so
long that the memory of man runneth not to the contrary”
should not be strictly
826
applied to Indian conditions. All that is necessary to prove
is that the usage has been acted upon in practice for such a
long period and with such invariability as to show that it
has, by common consent, been submitted to as the established
governing rule of a particular locality. (See Mt. Subhani v.
Nawab, A.I.R. 1941 P.C. 21 at 32).
(4) A custom may be proved by general evidence as to its
existence by members of the tube or family who would natur-
ally be cognizant of its existence and its exercise without
controversy, and such evidence may be safely acted on when
it is supported by a public record of custom such as the
Riwaj-i-am or Manual of Customary Law. (See Abroad Khan v.
Mt. Channi Bibi, A.I.R. 1925P.C. 267 at 271).
(5) No statutory presumption attaches to the contents of a
Riwaj-i-am or similar compilation, but being a public record
prepared by a public officer in the discharge of his duties
under Government rules, the statements to be found therein
in support of custom are admissible to prove facts recited
therein and will generally be regarded as a strong piece
of evidence of the custom. The entries in the Riwaj-i-am
may however be proved to be incorrect, and the quantum of
evidence required for the purpose of rebutting them will
vary with the circumstances each case. The presumption of
correctness attaching to a Riwaj-i-am may be rebutted, if
it is shown that it affects adversely the rights of females
or any other class of persons who had no opportunity of
appearing before the revenue authorities. (See Beg v.
Allah Ditta, A.I.R. 1916 P.C. 129 at 131 ;Saleh Mohammad
v. Zawar Hussain A.I.R. 1944 P.C. 18; Mt. Subhani v. Nawab,
A.I.R. 1941 P.C. 21 at 25).
(6)When the question of custom applicable to an agricultur-
ist is raised, it is open to a party who denies the applica-
tion custom to show that the person who claims to be gov-
erned by it has completely and permanently drifted away from
agriculture and agricultural associations and settled for
good in urban life and adopted trade, service, etc., as his
principal occupation and means and source of livelihood, and
does not follow other customs applicable to agriculturists.
(See Muhammad Hayat Khan v. Sandhe Khan and Others, 55 P.R.
(1906) 270 at 274; Muzaffar Muhammad v. Imam Din, I.L.R.
(1928) 9 Lab. 120, 125).
(7) The opinions expressed by the compiler of a Riwaj-i-am
or Settlement Officer as a result of his intimate knowledge
and investigation of the subject, are entitled to weight
which will vary with the circumstances of each case. The
only safe rule to be laid down with regard to the weight to
be attached to the compiler’s remarks is that if they repre-
sent his personal opinion or bias and detract from the
record of long standing custom, they will not be sufficient
to displace the custom, but if they are the result of his
inquiry and investigation as to the scope of the
827
applicability of the custom and any special sense in which
the exponents of the custom expressed themselves in regard
to it, such remarks should be given due weight. (See Narain
Singh v. Mr. Basant Kaur A.I.R. 1935 Lah. 419 at 421,422;
Mr. Chinto v. Thelur, A.I.R. 1935 Lah. 98S; Khedam Hussain
v. Mohammad Hussain, A.I.R. 1941 Lah. 73 at 79).

JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 158 of
1951. Appeal from the judgment and decree dated 24th March,
1948, of the High Court of Punjab at Simla (Teja Singh and
Khosla JJ.) in Regular First Appeal No. 133 of 1945 arising
out of judgment and decree dated 25th November, 1944, of the
Court of the Senior Subordinate Judge, Kangra, at Dharmsala
in Suit No. 86 of 1,943.
Daryadatta Chawla for the appellant.
Gurbachan Singh (Jindra Lat, with him) for the respond-
ent.
1952. May 16. The Judgment of the Court was delivered
by
FAZL ALl J.–This is an appeal against the judgment and
decree of the High Court of Punjab at Simla reversing the
judgment and decree of the Senior Subordinate Judge of
Kangra in a suit instituted by the appellant for a declara-
tion that he was the sole lawful heir of one Musammat Ram
Piari, whom he alleged to be his wife, and as such was
entitled to the properties left by her, and for possession
of those properties. The suit was instituted against 2
persons, namely, Parvin Kumari, who was alleged to be the
daughter of the plaintiff by Ram Piari, and Shrimati Raj
Kumari, who were respectively impleaded as defendants Nos. 1
and 2.
The case of the plaintiff as set out in the plaint was
that he was married to Ram Piari, the daughter of an employ-
ee of Raj Kumari (defendant No. 2) about 22 years before the
institution of the suit, that after marriage she lived with
him at Hoshiarpur and gave birth to a daughter, Parvin
Kumari (defendant No. 1), on the 4th March, 1929, and that
Ram Piari died in
828
April, 1941, leaving both movable and immovable properties
which she had acquired in her own name with the aid of his
money and which had been taken possession of by Raj Kumari.
He further alleged that he was a Rajput by caste belonging
to tehsil Garhshankar in the district of Hoshiarpur, and was
governed by custom in matters of succession, and, according
to that custom, he, as the husband of the deceased Ram
Piari, was entitled to the movable and immovable properties
left by her to the exclusion of Parvin Kumari, her
daughter.The suit was contested by both Parvin Kumari and
Raj Kumari, and both of them denied that the appellant had
been married to Ram Piari. Their case was that the proper-
ties in suit were acquired by Raj Kumari with her own money
for Ram Piari, that the latter had made a will bequeathing
them to her daughter, Parvin Kumari, that the appellant was
not governed by custom, and that in any event the alleged
custom could not apply to the personal and self-. acquired
property of Ram Piari, As regards 2 cars which were also
included in the list of properties claimed in the plaint,
the case of Raj Kumari was that they belonged to her and
that the deceased was only a benamidar.
The trial court decreed the plaintiff’s suit with re-
spect to all the properties excepting the 2 cars which were
held to belong to Raj Kumari. The court held that Ram Piari
was the legally married Wife of the appellant, that he was
governed by customary law applicable to Rajputs of Hoshiar-
pur district in matters of succession, and that according to
that customary law he was the preferential heir to the
estate of Ram Piari. The court further held that the will
of Ram Piari was invalid as she had no power under the
customary law to make a will.
Both the defendants appealed to the High Court against
the judgment of the trial court, and the appeal was ulti-
mately allowed and the plaintiffs suit was dismissed. The
High Court held that though there
829
was evidence of long cohabitation of the plaintiff and Ram
Piari giving rise to a presumption of marriage, yet that
presumption had been completely rebutted and the proper
conclusion to be arrived at on the evidence on record was
that the plaintiff had not been able to prove that Ram
Piari was his lawfully wedded wife. As to custom, the
findings of the High Court were as follows :–
(1) that the appellant belonged to an agricultural tribe
of Hoshiarpur district and was therefore governed by the
custom prevailing among the Rajputs of that district;
(2) that there was no local or general custom allowing
the plaintiff to succeed in preference to the daughter to
the property left by Ram Piari which had been given to her
by a stranger, namely, Raj Kumari, and
(3) that the parties were governed by Hindu law under
which Parvin Kumari being the daughter of Ram Piari was
entitled to succeed to the properties left by the latter in
preference to the plaintiff.
Against the decision of the High Court, the plaintiff
has now preferred this appeal, after obtaining a certificate
from the High Court under sections 109 and 110 of the Code
of Civil Procedure.
The first question which arises in this appeal is wheth-
er the plaintiff has succeeded in proving that Ram Piari was
his legally wedded wife. The plaintiff was admittedly em-
ployed as a copyist in the District Judge’s court at Hoshi-
arpur and was living in that town. His case was that he
gained the acquaintance of Raj Kumari (defendant No. 2), a
wealthy lady of Kangra district who owned a tea estate in
tehsil Palampur and occasionally visited Hoshiarpur, and
through her good offices was married to Ram Piari, who was
the daughter of one Chandar Bit, an employee of Raj Kumari
working in her tea estate. After marriage, Ram Piari lived
with the plaintiff at Hoshiarpur as his lawfully wedded
wife, and a daughter, Parvin Kumari, (also called Usha Rani)
was born to
830
them on the 4th March, 1929. Raj Kumari had great attachment
to wards Ram Piari and often used to pay visits to Hoshiar-
pur to meet her. In the year 1934-35 (no date is mentioned
in the plaint; but this year is mentioned in the plain-
tiff’s evidence), Raj Kumari took Ram Piari from the plain-
tiff’s house with belongings of every description on the
pretext of taking her out for recreation. Ram Piari did not
like going round with Raj Kumari and though she wanted to
come back to the plaintiff she had not the courage to diso-
bey Raj Kumari, and in fact Ram Piari and’ Raj Kumari in-
wardly hated one another during the last years of the for-
mer’s life. In the year 1941, Ram Piari died at Mayo Hospi-
tal at Lahore, leaving the properties in dispute which had
been acquired by her by good management with the plaintiff’s
own money.
As against this version of the. plaintiff, the case of
Raj Kumari was that Ram Piari had been enticed away by a
motor driver sometime in 1921, that she returned to Holta
estate after about 11 years with Parvin Kumari who was then
about 3 years old, and after her return both she and her
daughter remained with her (Raj Kumari) till Ram Piari died
in 1941. Raj Kumari, being a widow, felt very lonely and so
brought up Ram Piari as a companion and all the properties
in dispute had been acquired by her with her own money for
the benefit of Ram Piari Parvin Kumari had been educated
and brought up at her expense, and it was entirely false
that she and Ram Piari inwardly hated each other, the truth
being that they liked and were attached to each other.
The evidence adduced by the plaintiff to prove that Ram
Piari was his lawfully wedded wife consists partly of the
evidence of a number of witnesses and partly of circumstan-
tial evidence. The direct evidence of marriage is furnished
by Babu Ram, P. W. 7, Anant Ram, P.W. 11, Babu, P.W. 12, and
Asa Ram, P.W. 13. Babu Ram claims to be the family priest
and alleges to have officiated as priest at the time of the
plaintiff’s marriage, Anant Ram and Asa Ram are
831
jaswal Rajputs residing in village Bham, which is near the
plaintiff’s village, Ajnoha, and Babu is a barber. These
four persons have said that they accompanied the marriage
party and that the marriage of the plaintiff with Ram Piari
was celebrated in their presence. The evidence of the other
witnesses and the circumstantial evidence upon which reli-
ance has been placed by the plaintiff have been summarized
by the learned Subordinate Judge in his judgment in these
words :–
“P. W. 5 Mukhi Ram is a Municipal Commissioner at Hoshi-
arpur. P.W. 4 Doctor Shadi Lal is a leading Medical Practi-
tioner of Hoshiarpur. P.W. 9 Lala Sham Lal and P.W. 10 Lala
Har Narain have been co-employees with the plaintiff in the
same office; though these persons (except P.W. 9) have no
social relations with the plaintiff and his family, yet they
have been seeing Ram Piari living with plaintiff as his
wife. She was proclaimed as such by the plaintiff and both
of them were treated as husband and wife by the people of
the Mohalla and by the brotherhood in the village of plain-
tiff. Exhibits P-18 and P-19 show that defendant No. 2 has
been addressing Ram Piari, care of plaintiff in 1932 and has
been receiving correspondence, care of the plaintiff which
shows that she approved of the plaintiff’s alliance with Ram
Piari …… Paras Ram, a younger brother of Ram Piari,
lived in the house of Gokal Chand and it is in evidence that
he used to address the plaintiff as jija–a common name for
sister’s husband. From 1930 to 1934 Paras Ram read in the
D.A.V. High School at Hoshiarpur and Exhibits P.W. 6/1 to 6
are copies of entries in the registers of the school regard-
ing applications which were given by Gokal Chand, plaintiff,
for admission of his ward Paras Ram, son of Chandar Bit who
was described as his sala (wife’s brother). P.W. 6 Lala
Bishan Das, teacher, has filed these copies. His sister’s
house was adjacent to the house of the plaintiff and he had
occasions to see Ram Piari living and being treated as wife
by the plaintiff during those years.”
108
832
Upon the evidence to which reference has been made, the
trial court came.to the conclusion that Ram Piari was the
legally married wife of the appellant.
The learned judges of the High Court however found
the evidence of the 4 witnesses who claimed to have been
present at the marriage of the plaintiff to be quite uncon-
vincing, and they pointed out that the case of the plaintiff
being that his marriage had been performed with great pomp
and show, it was surprising that the evidence relating to it
should be confined to 4 persons one of whom appeared to be a
hired witness’ and the other 3 were interested persons.
As to the evidence of the 4 persons who claim to have
been present at the plaintiff’s marriage, we find ourselves
in agreement with the view taken by the High Court. The
evidence of the other witnesses undoubtedly establishes the
fact that for some years the plaintiff and Ram Piari lived
together as husband and wife and were treated as such, that
Paras Ram, brother of Ram Piari, addressed the plaintiff as
jija (a common name for sister’s husband), and that the
plaintiff acted as Paras Ram’s guardian when the latter was
admitted to D.A.V. School and was described as his brother-
in-law in some of the entries in the school register. The
learned Judges of the High Court considered that the evi-
dence of certain witnesses who deposed to some of the facts
on which the lower court relied, did not strictly comply
with the requirements of section 50 of the Indian Evidence
Act,firstly because the witnesses had no special means of
knowledge on the subject of relationship between the plain-
tiff and Ram Piari, and secondly because what section 50
made relevant was not mere opinion but opinion “expressed by
conduct” of persons who as members of the family or other-
wise, had special means of knowledge. It seems to us that
the question as to how far the evidence of those particular
witnesses is relevant under section 50 is academic, because
it is well-settled that continuous cohabitation for a number
of years may raise the presumption of marriage. In the
present case, it seems clear that the plaintiff and Ram
Piari
833
lived and were treated as husband and wife for a number of
years, and, in the absence of any material pointing to the
contrary conclusion a presumption might have been drawn that
they were lawfully married. But the presumption which may
be drawn from long cohabitation is rebuttable, and if there
are circumstances which weaken or destroy that presumption,
the court cannot ignore them. We agree with the learned
Judges of the High Court that in the present case, such
circumstances are not wanting, and their cumulative effect
warrants the conclusion that the plaintiff has failed to
prove the factum of his marriage with Ram Piari. In the
first place, the plaintiff has not examined any of his near
relations such as his brother, or collaterals living in
Ajnoha, or any co-villagers, whose presence at the marriage
would have been far more probable than the presence of the
witnesses examined by him. He has also not examined any of
the witnesses residing in or round about Holta estate in
spite of the fact that his own case is that the marriage was
celebrated with great pomp and show. It. was suggested in
the courts below that since defendant No. 2 is an influen-
tial person, no local witnesses would be available to sup-
port the plaintiff’s case, but the High Court has very fully
dealt with this aspect and pointed out firstly that Raj
Kumari had litigation with a number of persons belonging to
Palampur and such persons would not be under her influence,
and secondly that no gold reason has been shown why Raj
Kumari, who is alleged to have brought about the marriage
between the plaintiff and Ram Hari, should take a
completely hostile attitude towards him. Then again,
neither the parents nor any of the relations of Ram Piari
have been examined to support the plaintiff. On the other
hand, Ram Hari’s own mother, Ganga, has deposed that the
former was never married to the plaintiff, and the statement
made by Ram Piari in her will, which is a very valuable
piece of evidence, is to the same effect. It is also in-
credible that in spite of the love which Ram Piari is said
to have had for the plaintiff, she left him
834
and went away to live with Raj Kumari, and that during the
long period when Ram Piari was away, the plaintiff should
never have visited her or made enquiries about her and his
alleged daughter, Parvin Kumari. This is all the more
strange, since it is stated by the plaintiff that Ram Piari
continued to love him and that she and Raj Kumari inwardly
hated each other. Parvin Kumari says in her deposition that
she had never seen her father and that when she reached the
age of discretion she found herself living at Palampur. The
conduct of the plaintiff in showing such complete indiffer-
ence to his wife and daughter as is disclosed in his evi-
dence is most unnatural, and no less unnatural is his con-
duct in instituting a suit to deprive her of properties
which had come into her hands not by reason of anything done
by him but as a result of the generosity shown towards her
by a stranger. The plaintiff’s case that the properties in
dispute were acquired by Ram Piari with the aid of his money
is wholly untrue, and it has been rightly found by both the
courts that they were acquired for her by Raj Kumari. The
plaintiff’s witnesses have tried to exaggerate his means to
support his case, but the truth appears to be that he had
hardly any means of his own beyond the somewhat meagre
salary which he used to draw as a court typist.
Several of the witnesses including an Advocate and Ram
Piari’s own mother have deposed that Ram Piari had eloped
with a driver and had remained away from Holta estate for a
number of years. Even the Subordinate Judge has not reject-
ed the story of elopement, and though there is no reliable
evidence as to when and how she met the plaintiff, the
possibility of her having lived with him for some years even
though they were not legally married, cannot be ruled out.
The plaintiff claims to be a Rajput of high caste, and it
appears to us rather unusual that he should not marry in his
own tribe but should take in marriage a Gurkha girl who was
born of very poor parents and belonged to a place far away
from where he himself lived.
835
The fact that Paras Ram lived with the plaintiff for
some time and addressed the latter as jija, and that the
plaintiff described himself as guardian and brother-in-law
of Paras Ram, is as consistent with the defence version as
with the plaintiff’s. If Paras Ram’s parents had been in
affluent circumstances so as to be able to maintain and
educate him, the case would have been different, but there
is evidence to show that Chandar Bir was very poor and both
his wife and daughter had to work as servants of Raj Kumari
to earn their living.
In our opinion, the conclusion arrived at by the High
Court has not been shown by the plaintiff to be incorrect,
and whatever the true facts may be, we are compelled to hold
that in the present state of evidence the plaintiff has not
succeeded in establishing that Ram Piari was his legally
wedded wife.
In the view we have taken, it is not necessary to deal
with the question whether succession to the properties in
dispute will be governed by customary law or by Hindu law,
but since it was argued before us at very great length, we
think that we might state the contentions of the parties
and the difficulties which in our opinion arise in dealing
with those contentions on the material before us. Before
doing so, however, we wish to set out briefly certain gener-
al principles which we think should be kept in view in
dealing with questions of customary law. They may be summa-
rized as follows :–
(1) It should be recognized that many of the agricul-
tural tribes in the Punjab are governed by a variety of
customs, which depart from the ordinary rules of Hindu and
Muhammadan law, in regard to inheritance and other matters
mentioned in section 5 of’ the Punjab Laws Act, 1872.
(2) In spite of the above fact, there is no presumption
that a particular person or class of persons is governed by
custom, and a party who is alleged to be governed by custom-
ary law must prove that he is so governed and must also
prove the existence of the
836
custom set up by him. See Daya Ram v. Sohel Singh and Others
(1), Abdul Hussein Khan v. Bibi Song Dero C).
(3) A custom, in order to be binding, must derive its
force from the fact that by long usage it has obtained the
force of law, but the English rule that “a custom, in order
that it may be legal and binding, must have been used so
long that the memory of man runneth not to the contrary”
should not be strictly applied to Indian conditions. All
that is necessary to prove is that the usage has been acted
upon in practice for such a long period and with such invar-
iability as to show that it has, by common consent, been
submitted to as the established governing rule of a particu-
lar locality. See Mr. Subhani v. Nawab(3).
(4) A custom may be proved by general evidence as to its
existence by members of the tribe or family who would natu-
rally be cognizant of its existence and its exercise without
controversy, and such evidence may be safely acted on when
it is supported by a public record of custom such as the
Riwaj-i-am or Manual of Customary Law. See Abroad Khan v.
Mt. Channi Bibi(4).
(5) No statutory presumption attaches to the contents of
a Riwaj-i-am or similar compilation, but being a public
record prepared by a public officer in the discharge of his
duties under Government rules, the statements to be found
therein in support of custom are admissible to prove facts
recited therein and will generally be regarded as a strong
piece of evidence of the custom. The entries in the
Riwaj-i-am may however be proved to be incorrect, and the
quantum of evidence required for the purpose of rebutting
them will vary with the circumstances of each case. The
presumption of correctness attaching to a Riwaj-i-am may be
rebutted, if it is shown that it affects adversely the
rights of females or any other class of persons who had no
opportunity of appearing before the revenue authorities.
See Beg v. Allah Ditta (5), Saleh
(1) 110 P.R. (1906) 390 at 410 (4) A.I.R. 1925 P.C. 267
at 271.
(2) LR. 45 I.A. 10. (5) A.I.R. 1916 P.C. 129 at 131.
(3) A.I.R. 1941 P.C. 21 at 32.
837
Mohammad v. Zawar Hussain(1);Mt. Subhani v. Nawab(2).
(6) When the question of custom applicable to an agri-
culturist is raised, it is open *to a party who denies the
application of custom to show that the person who claims to
be governed by it has completely and permanently drifted
away from agriculture and agricultural associations and
settled for good in urban life and adopted trade, service,
etc., as his principal occupation and means and source of
livelihood, and does not follow other customs applicable to
agriculturists. See Muhammad Hayat Khan v. Sandhe Khan and
Others(3), Muzaffar Muhammad v. Imam Din(4).
(7) The opinions expressed by the compiler of a
Riwaj-i-am or Settlement Officer as a result of his intimate
knowledge and investigation of the subject, are entitled to
weight which will vary with the circumstances of each case.
The only safe rule to be laid down with regard to the weight
to be attached to the compiler’s remarks is that if they
represent his personal opinion or bias and detract from the
record of long-standing custom, they will not be sufficient
to displace the custom, but if they are the result of his
inquiry and investigation as to the scope of the applicabil-
ity of the custom and any special sense in which the expo-
nents of the custom expressed themselves in regard to it,
such remarks should be given due weight. See Narain Singh v.
Mt. Basant Kaur(5), Mt. Chinto v. Thelur (6); Khedam Hussain
v. Mohammad Hussain(7).
Bearing these principles in mind, the difficulty which
appears to us to beset the case of the plaintiff may be
briefly stated as follows :-
The basis of the plaintiff’s case is that the custom by
which he claims to be governed is a “zamindara custom” and
he is governed by it by reason of his belonging to a family
of agriculturists. From the evidence, however, it appears
that he Had sold most, if not
(1)A.I.R.1944 P.C.18. (5) A.I.R. 1935 Lab. 419 at 421, 422.
(2) A.I.R. 1941 P.C. 21 at 25. (6) A.I.R. 1985 Lah. 985.
(5)55 P.R. (1906) 270 at 274. (7) A.I.R. 1941 Lah. 73 at 79
(4) I.L.R. (1928) 9 Lah. 120, 125.
838
all, of his property in the village to which he belonged,
that his ancestors were bankers or sahukars, that his father
was a clerk of a lawyer practising in Hoshiarpur district
and that he himself was a clerk in the District Judge’s
court at Hoshiarpur and lived there, and there is hardly any
evidence to show that any of his relations was dependent on
agriculture or that he maintained connection with them. In
our opinion. the witnesses of the plaintiff have tried to
grossly exaggerate his pecuniary means and have not given a
correct picture on which the answer to the question as to
whether he would still be governed by the old custom would
depend. Again, though according to the answer to question
11 in the Riwaj-i-am of Hoshiarpur district, the general
custom governing the Rajputs of that district would seem to
be that a marriage within the tribe only is lawful, the
plaintiff did not marry a Rajput of his district but is said
to have married a Gurkha woman, about whose caste and char-
acter the evidence is conflicting, and whose family was
admittedly not governed by the “Riwaj-iam” upon which the
plaintiff relies. If both the husband and the wife are
shown to belong to the same tribe and to be governed by the
same custom, then the difficulty in deciding what would be
the rule of succession on the death of the wife in regard to
the wife’s self-acquired property may not be very great. But
even if it be assumed that Ram Piari was lawfully married to
the plaintiff, the serious question to be decided would be
whether succession to the property which Ram Piari received
as gift from a stranger and which she owned in her own
right, would be governed by the custom governing her hus-
band’s family and not her own. Such marriage as is said to
have been contracted by the plaintiff being evidently an
event of rare occurrence, the rule of succession set up by
him cannot be said to derive its force from long usage. As
we have pointed out, a custom in order to be binding must
derive its force from the fact that by long usage it has
obtained the force of law; and if an Occasion never arose to
apply the rule of succession
839
invoked by the plaintiff, to the property held by a wife in
her own right, the foundation on which custom grows would be
wanting. When the matter is further probed, it appears that
the plaintiff relies not only on custom but partly on custom
‘and partly on the rule of Hindu law, namely, that the law
which governs the husband will govern the wife also.
Whether the latter rule can be extended to a case like the
present is a question of some difficulty, on which, as at
present advised, we would reserve our opinion. In the cir-
cumstances. we prefer to leave the issue of custom undecid-
ed. and base our decision on the sole ground, which by
itself is sufficient to conclude the appeal, that the plain-
tiff’s marriage with Ram Piari has not been clearly estab-
lished.
The appeal therefore fails and it is dismissed. but in
the circumstances of the case and particularly since the
appellant has appealed in forma pauperis, we direct that the
parties will bear their own costs in all the courts.
Appeal dismissed.
Agent for the appellant: S.D. Sekhri.
Agent for the respondent: Naunit Lal.

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