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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, , ,

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: … Continue reading

Mahammadan Law–Gift–Validity of gift by husband to his minor wife accepted on her behalf by her mother. =One Mammotty was married to Seinaba and he-made a gift 550 of his properties including immovable property to Seinaba by a registered deed. Mammotty died without an issue more than two years after the execution of the gift deed. Later on, Seinaba also died without leaving an issue. At the time of gift, Seinaba was fifteen years and nine months old. Mammotty was iII for a long time and was in hospital. He was discharged uncured a month before the execution of the gift deed and he remained in his mother-in-law’s house afterwards. After the death of Seinaba, the present suit was brought by Kunharnu, an eider brother of Mammotty, for partition and possession of 6/16 share of the property which he claimed as an heir under Muhamrnadan law, challenging the gift as invalid. Kunhamu’s contention was that when succession opened out on the death of Mammotty, his widow was entitled to one-fourth share and the remaining three-fourth share was divisible between him and his two sisters. These shares were unaffected by the in-. valid gift in favour of Seinaba and accepted on her behalf by her mother. The contention of Kunhamu was accepted by all the three courts below which held that a gift by the husband to his minor wife to be valid must be accepted on her behalf by a legal guardian of her property under Muhammadan law i.e. by the father or his executor or by grand-father or his executor. As the mother of Seinaba was not the legal guardian of the property of Scinaba, the gift was void. The appellant came to this Court by special leave. Held, that under Muhammadan law a gift by a husband to his minor wife of immovable property accepted on her behalf by her mother is valid if none of the guardians of the property of the minor is available provided there is a clear and manifest intention to make the gift and the husband divests himself of the ownership and possession of the property. Held further, on facts the above conditions were satisfied in this case. Mohammad Sadiq Ali Khan v. Fakir Khan (1932) L.R.59 I.A. 1, Nabi Sab v. Papiah and Ors. A.I.R. 1915 Mad. 972, Nawab fan v. Safiur Rahman, A.I.R. 1918 Cal. 786, Munni Bai v. Abdul Gani, A.I.R. 1959 M.P. 225, Mt. Fatma v. Mt. Autun, A.I.R. 1944 Sind. 195, Mst. Azizi v. Sona Mir, A.I.R. 1962 J. & K. 4, Mareroad & Ors. v. Kunhali & Ors., 1962 K.L.J. 351, Md. Abdul Ghani v. Mt. Fakir Khan (1962) 49 I.A. 195, Suna Mia v. S.A.S. Pillai, (1932) 11 Rang. 109 and Musa Miya v. Kadar Bux, I.L.R. 62 Bom. 316, referred to.

PETITIONER: VALIA PEEDIKAKKANDI KUTHEESSA UMMAAND OTHERS Vs. RESPONDENT: PATHAKKALAN NARAVANATH KUMHAMUAND OTHERS DATE OF JUDGMENT: 23/08/1963 BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SARKAR, A.K. SHAH, J.C. CITATION: 1964 AIR 275 1964 SCR (4) 549 ACT: Mahammadan Law–Gift–Validity of gift by husband to his minor wife accepted on her behalf by her mother. HEADNOTE: One Mammotty … Continue reading

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