A custom to be valid must not be immoral.
1.A custom for an association of women to enjoy a monopoly of the gains of prostitution is immoral (I.L.R. 1 Mad. 168).And for such an association of women to adopt girls with the view of bringing them up to prostitution, is also immoral.
2.Where B, a prostitute, was adopted by D, according to custom prevailing in Kanchans of Delhi, and on B’s death there was a dispute as to her inheritance between her brothers and sisters; held, that the rules and custom of Kanchans aiming at the continuance of prostitution as a family business, have a distinctly immoral tendency and should not be enforced in Courts of Justice: consequently that the adoption of B for the purpose of succession to D’s family brothel effected no severance of B from her family, the whole transaction being null and void and B’s property must be distributed according to Mohammedan Law.
The principle of this decision appears to be, that customs which are immoral according to British notions can only be recognized, if at all, in clear proof that they are not immoral according to the general principles of the religion professed by the body of persons seeking to maintain the custom; and that, whatever might be said to be the attitude of the Hindu religion towards certain forms of prostitution (See 1880, 4 Bom, 545, and contra, 1888, 11 Mad. 393), it is clear that as regards Mohammedans, prostitution is not looked on by their religion or their laws with any more favourable eye than by the Christian religions and laws (Wilson’s Anglo-Mohammedan Law, 3rd ed. p. 87).
3.A custom permitting a woman to leave her husband without his permission and contract a second marriage during his lifetime is not enforceable as being immoral.
But there is nothing immoral in a caste custom by which divorce and re-marriage are permissible on mutual agreement on one party paying to the other the expenses of the latter’s original marriage.
4.A custom among the prostitutes that if one of them contracts a marriage she forfeits all rights in her original family, in other words, that she practically becomes an outcaste, is opposed to public policy and is immoral and consequently unenforceable in the British Indian Courts.Even if such a custom exists and is enforceable, it does not necessarily follow there fore that the converse proposition is established tha the heirs of a prostitute who has contracted marriage and has discarded the profession of the prostitutes are also disqualified from inheriting her estate even if they be prostitutes.
5.A custom entitling a brothel-keeper to succeed to the property of a Nauchi or slave kept for the purpose of prostitution is immoral as it is calculated to encourage brothel-keeping and, therefore, cannot be recognized by courts.
Cf. however, 95 P.R. 1884; No. 166 P.R. 1888; 62 P.R. 1892; 52 P.R. 1893 (P.C.) and No. 196 P.L.R. 1912 as to customs governing succession to estates left by prostitutes.
But custom is not immoral merely because it regulates rights of property among dancing girls.
6.A custom among Hindus which permits a dissolution of the marriage tie either by husband or by wife against the wish of the other, the sole condition attached being the payment of a sum of money fixed by the caste, is void as being immoral and opposed to public policy.
7.So also a custom recognizing a right of heirship in an illegitimate son by an adulterous intercourse is bad.
8.A custom among Pathans ofAttock for payment of rogha (bride-price) to the nearest male relative of a woman married without his consent, is immoral and opposed to public policy.
9.The practice of selling daughters for a consideration is a bad custom.
10.A custom attributing to mere co-habitation all the legal effects of a marriage, thus confounding concubinage with marriage, is invalid.
11.A custom validating the sale of a religious trust or office is invalid.
12.Body of persons engaged to perform temple duties; custom that those present represent the absent and agreement inter se to that effect alleged; custom was immoral and opposed to public policy.
(4) Custom opposed to public policy:
A custom to be valid must not be contrary to justice, equity or good conscience or opposed to public policy.
Opinions differ as to how far “public policy” should guide in legal decisions based on custom. As pointed out in Janson v. Driefortein Consolidated Mines, “public policy” is always an unsafe and treacherous ground for legal decisions, and “unruly horse” in the words of Chief Justice Hobart. In Fender v. St. John Mildmay, the House of Lords held by a majority of three to two that a promise made by a married man, against whom his wife had obtained a decree nisi dissolving the marriage, to marry another woman when the decree was made absolute, was legal and enforceable and not opposed to public policy. The doctrine of public policy should only be invoked in clear cases in which the harm to the public is substantially incontestable, and does not depend upon the idiosyncratic inferences of a few judicial minds.
It was observed by Coldstream, J., in Mst. Sardar Bibi v. Haq Nawaz Khan, that “the Courts are not concerned with public policy and it is only where a custom, not altered or abolished by statute or competent authority, is contrary to justice, equity and good conscience, that they are at liberty to reject it as the rule of decision.” But in 1920, 1 Lah. 574, it was observed that in the Punjab a custom to be valid must not be opposed to public policy. In Fateh Alienation Shah v. Mohammedan Baksh, it was argued that there is a custom among the prostitutes that if one of them contracts a marriage, she forfeits all rights in her original family, in other words, that she practically becomes an outcaste. “The learned counsel puts his client’s case in the following manner:-that according to the code of the prostitutes their profession is a respectable one and that any member of that profession who contracts a marriage falls from the level of mortality as understood among them and consequently becomes immoral and therefore incurs a forfeiture of al her rights in the earnings of the members of the profession.” The learned Judges held that the custom to be established was not proved; and they further stated that such a custom, even if proved, was opposed to public policy and was immoral and consequently unenforceable in the British Indian Courts.
Forfeiture by murderer or abettor of inheritance to deceased’s estate:
Where P was convicted of the abetment of murder of his half brother A, and on the completion of 7 year’s sentence, P claimed to succeed as customary heir to his murdered brother’s property, and the defendants pleaded (i) that plaintiff was excluded from inheritance on that principle of Mohammedan Law that precludes “the slayer inheriting from the person whom he was slain” and (ii) that by custom the mother of the deceased was entitled to a life-estate; held, “that plaintiff was disentitled to succeed upon that principle of public policy which demands that no criminal should benefit by the result of his crime. No system of jurisprudence can with reason include amongst the rights which it enforces, directly resulting to the person asserting them from the crime of that person...... Even if it could be shown that custom expressly recognized the right of an abettor of his brother’s murder, to inherit to the property of the deceased, and to profit by his criminal act, it would be a custom contra bonos mores and invalid.” A murderer cannot succeed to the property of the murdered man and his son is also excluded.
But the brother of a murderer is not debarred from succeeding to the murdered person’s property.
It is contrary to public policy to allow a murderer to derive from his crime the benefit of succeeding to the property of his victim.
A custom must be certain as to the persons or class of persons who are to be affected by it. Thus a custom applicable only to “respectable Baluchis and Sirdars” is too vague and an invalid one.
A custom to throw earth and stones in heap upon land near a certain place offends against this rule and is bad for uncertainty. Similarly, a custom to contribute towards a rate according to one’s own pleasure is void for similar reason.
A custom that lands shall descend to the most worthy of the owner’s blood without making any provision as to how the selection is to be made is void for uncertainty.
As pointed out by Chatterji, J., in Daya Ram v. Sohel Singh: “We should be chary of giving the sanction of judicial authority to practices based on violence and lawlessness by raising them to the dignity of custom.” Thus a custom for a “Khan Malik,” who is not a proprietor of the village, to levy marriage fees from Hindus, was held to be an oppressive custom, and therefore illegal.
If a custom is barbarous, it must be rejected as repugnant to natural justice, equity and good conscience. Their Lordships, however, pointed out in the same case that it is the assent of the community that gives a custom its validity, and therefore barbarous or mild, it must be shown to be recognized by the community whose conduct it is supposed to regulate. In 1931, 13 Lah. 410 at p. 423, Addison, J., while referring to the decisions of the Punjab Chief Court in which it was said that ‘chundavand’ is a ‘barbarous rule’, observed that it is no concern of the Courts to condemn or to praise it, but merely to see whether it existed as a custom amongst this tribe.
A custom even if begun by usurpation might harden into a valid custom. “Usurpation successfully carried out for a long time may possibly eventually establish a custom.”
Custom allowing agents to discard their capacity of agent at will and act as principals themselves cannot be recognized as being outrageous and unheard of in Courts of law.
Section 7 of the Punjab Laws Act, 1872, lays down that:
“All local customs and mercantile usages shall be regarded as valid, unless they are contrary to justice, equity or good conscience or have, before the passing of this Act, been declared to be void by any competent authority.”
The Punjab Laws Act, 1872 came into force on the 28th March, 1872. All local customs and mercantile usages, which were declared to be void by any competent authority before that date, must not be valid.
A custom whereby the proprietors are entitled to one-fourth of the proceeds of sales of houses in villages as proprietary dues is not contrary to justice, equity and good conscience.
Perry’s Oriental Cases, 110; 3 T.R. 271; 2 Moo. I.A. 441; 9 Q.B. Dn. 546
1.A custom disabling tenants-at-will from claiming compensation for improvements contrary to the terms of the Punjab Tenancy Act.
2.Or over-riding the provisions of the Limitation Act.
3.There is no custom in Chamba, Himachal Pradesh, where-under hereditary yogis can force their ministrations on their yajmans, but the latter are at liberty to call any yogis they like to preside over Navamala ceremonies at their houses.Even if such a custom were proved, it would be void and unenforceable under Art. 13 Constitution of India, as such a right infringes the fundamental right of freedom of religion conferred on all persons under Art. 25
What the Courts have required of accustom, if the law is to uphold it as a right is that it should be immemorial in origin, certain and reasonable in nature and continuous in use.
In order that accustom may have the force of law, it is necessary that it should be ancient and invariable. In re Sivananania Perumal v. Muttu Ramalinga, the learned Judges made the following observations: “What the law requires before an alleged custom can receive the recognition of the Court and so acquire legal force is satisfactory proof of usage so long and invariably acted upon in practice as to show that it has, by common consent, been submitted to as the established governing rule of the particular family, class, or district of country; and the course of practice, upon which the custom rests must not be left in doubt but be proved with certainty.” This case came on appeal before the Privy Council and their Lordships in affirming the judgment of the Madras High Court made the following remarks:-“Their Lordships are fully sensible of the importance and justice of giving effect to long established usages existing in particular districts and families in India, but 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, that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends.”
Blackstone states 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; so that if anyone can show the beginning of it, it is no good custom.’ In (1608) Dav. Ir. 28 at pp. 31 and 32 it is said:-
“It is jus non scriptum and made by the people in respect of the place where the custom obtains. For where the people find any act to be good and beneficial and apt and agreeable to their nature and disposition, they use and practice it from time to time and it is by frequent iteration and multiplication of this act that the custom is and being used from a time to which memory runneth not to the contrary obtains the force of law.”
A custom to be legal must, therefore, be proved to have been in existence for a time preceding the memory of man. It not always being possible to obtain such proof, the Courts have invariably been willing to presume the existence of a custom for such a period provided that evidence is produced which proves that the custom has been as far as living testimony can establish it.
It is of the essence of special usages and modifying the ordinary law of succession that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Court can be assured of the existence and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends. The essential characteristics of custom are that it must be of immemorial existence, it must be reasonable, it must be certain and it must be continuous. The burden of proving a custom is on the person who sets it up; the custom must be ancient and the proof conclusive. This rule must be strictly adhered to even in cases where the custom alleged is neither unique nor unknown.
A custom to be valid must be both ancient and invariable. The mere fact that a few persons choose to tolerate their neighbour’s palms overhanging their houses would not establish a custom binding on al the others.
Custom should be ancient, uniform, reasonable, certain, consistent and not immoral. It is ancient if it has existed “so long that memory of man runneth not to the contrary.” Valid custom must be immemorial, reasonable, certain and continuous.
It has been held that it is not necessary for establishing a custom that it is immemorial or one existing beyond the memory of a living man. It must be ancient, but it is not of the essence of this rule that its antiquity must in every case be carried back to a period beyond the memory of man, still less that it is ancient in the English technical sense. It will depend upon the circumstances of each case what antiquity must be established before the custom can be accepted. What is necessary to be proved 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 the particular district.
It is of the essence of special usages modifying the ordinary law 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 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. It is a necessary ingredient of a valid custom that it shall have existed from a time “so long that the memory of man runneth to the contrary.”
Wilkinson, J., no doubt at one time held that “a custom to have the force of law, must have existed as long as memory of the members of the tribe extends, i.e. the memory at least of its oldest members.” But in later rulings this view has not been accepted. In 34 P.R. 1907 it has been observed that “there is in this province no rule of law which prescribes any period during which a custom in order to be valid and enforceable must have been observed. It is sufficient to show that the custom actually prevails and is generally observed in the tribe to which the parties belong and there is no necessity to go further and attempt to prove the impossible that it has been preserved in the tribe from a period to which the memory of man runneth not to the contrary, the uniformity of practice.”
Rule 36 of the Rules framed under section 14 of the Punjab Land Revenue Act, 1871, provided as follows:- “It should be remembered that nothing can be called a ‘custom’ which is not acted on, or which is not of the nature of a rule habitually applied by the persons amongst whom the custom is said to prevail whenever the occasion arises.”
One of the requisites of a valid custom is that it must be certain. Not only should be custom as alleged point out clearly the principle or rule of the custom but that principle or rule so pointed out must be one which is definite and certain so that it may be shown with certainty what the rights are which the custom gives in that case.
Punjab custom need not necessarily be ancient, but must certainly be invariable:
As observed by Chatterji, J., in Daya Ram v. Sohel Singh, customary law is in a “fluid state” and changes with the times and therefore the custom set up need not be absolutely invariable, though no doubt the latter is the conception of what custom is, “It may be the case that, in the Punjab, custom can be regarded as something which does slowly and imperceptibly change and that it need not be absolutely invariable, though the latter is the usual conception of what custom is. But such a change would have to be gradual and a new custom cannot be created by the mere assertion of the various tribes at a subsequent settlement with respect to this matter. It has always appeared to us that the earliest riwaj-i-am serves as a very useful check on subsequent rivaj-i-ams and may even be regarded as the most important document in which custom has been recorded.”—Per Addison, J. Similarly, it was remarked by the same Judge in Fazl-i-Husain v. Tafazil Hussain: “It may be the case that it is not necessary to prove that a custom in the Punjab is ancient, as has once been held, though as to this I prefer to offer no opinion; but it is certainly necessary at least to establish that it is being invariable or very generally followed at the time in dispute and has been so followed for some time in the past; for, otherwise, one would have to find some other name that custom for such a variable process.”
A change in custom should be slow and imperceptible and should be completed by the time that the changed custom is relied upon, and entries in a later Riwaj-i-am, which apparently connote the views of individuals as to the practice they wish to see prevailing rather than the ascertained facts of a well-established custom, cannot be of any value where custom is the rule of decision.
Continuous and uniform—abrogation of custom
One of the principal requisites of a valid custom is that it should be continuous, that is to say, it must have continued without interruption since its immemorial origin. A custom may be abrogated and if it is abrogated it ceases to exist. It has been held in 52 P.R. 1868 that when a custom is interrupted for 16 years, it ceases to exist. But the mere non-exercise of a discretionary right existing by custom, in certain cases, does not necessarily prove that the right itself has been abrogated by a different custom. The fact that a custom has not been exercised for a long period may be reason for doubting its existence though the fact cannot be said to have put an end to it.
Again, it is not open to an individual, whose family or tribe had for generations followed custom to suddenly give up that certain custom by merely making a declaration to that effect. The abrogation is to be inferred from continuous course of conduct.
A particular rule of descent prevailing in a family may be destroyed by discontinuance. Where a custom is proved to exist, that custom must be held to continue and the onus of proving discontinuance or that the custom had felled into desuetude lies upon the party asserting it.
In 85 P.R. 1901 the custom that the fittest or the eldest son succeeds to the whole to the exclusion of his younger brothers was held to be abrogated. Similarly, in 28 P.R. 1893 it was found that Mohammedan Arains who by origin were Hindus and observed exogamy in marriage became endogamous after conversion owing to the fact that the girls after marriage remained in the village.
A custom can be abrogated by consensus of opinion among the members of the community, and if for a considerable period that feeling continues in the community and they act according to it and do not follow the old rules, the old custom can certainly be abrogated.
General or special custom:
Customs may either be general or special.
The following two explanations have been added under para 2 of Rattigan’s Digest of Customary Law:
Explanation I.—A general custom is one which is common to any considerable class of persons (section 48, Indian Evidence Act, 1872).
Explanation II.—Where a custom is found to prevail in other similar adjacent villages, it may be presumed to prevail in the particular village to which the parties belong, unless and until the adoption of a different custom in the particular village, or failing such proof the general prevalence of such rules, or such apposing custom in other similar adjacent villages, is proved, (I.L.R. 5 Bom. 432).
There is, however, no such thing as a general custom of the Punjab. As observed by Sir Charles Roe: “Under such circumstances, seeing that the origin of all the tribes is not the same, and that even with tribes of the same origin local and social conditions have greatly differed, it would be impossible that there could be a single body of Customary or Tribal Law, common to the whole of the Punjab. On this point I will only quote the remarks of Sir H. M. Plowden, in Punjab Record No. 50 of 1893, made with reference to a ‘headnote’ which stated that a certain rule was the general custom of the Punjab. He says:-
“It seems expedient to point out that there is, strictly speaking, no such thing as a custom, or general custom, of the Punjab in the same sense that there is a Common Law of England: a general custom applicable to all persons throughout the Province, subject (like the English Common Law) to modification in its application, by a special custom of a class, or by a local custom.
“There are, in the rural portions of the Province, numerous groups of persons connected with the land who follow in most matters customary rules, which are not identical with the rules of the Hindu or the Mohammedan Law. A considerable mass of information as to the customary rules observed by numerous groups in different parts of the Province has been and is being accumulated by the labours of Settlement Officers, and in the records of the Civil Courts. there are in existence numerous bodies, so to speak, of Customary Law of different landowning societies, or communities, in the Punjab, which can be compared, and which exhibit a remarkable degree of similarity in many particulars, and it is possible, after such comparison, to propound, on some points, a rule that can be stated in an abstract form, irrespective of any particular group or locality and to affirm that it is generally recognized by custom in the Punjab, so far as it has been ascertained. An example is that in the Punjab, by custom the widow of a sonless man is ordinarily only entitled to possession and enjoyment of her husband’s land for life, or till re-marriage. The phrase under notice really imports no more than this that, among the various groups who are governed by custom in the Punjab, a particular usage is generally found to prevail, or not to prevail, as the case may be.
* * *
“Let me add that it is not to be understood that in saying that there are ‘bodies of Customary Law in existence’, I refer to the written records of custom. The Customary Law, I allude to, is an unwritten law, and these records are only evidence, the value of which varies considerably, as to what the unwritten law is.”
There is no such thing as a general custom in the Punjab, and it is necessary, in every case, to prove that the parties are governed by custom and what the custom is. “Rattigan’s Digest of Customary Law merely shows, that according to certain matters. It cannot, however, be said that there is any presumption that a particular tribe in a particular locality is governed by the custom which governs a great many other tribes in the same locality or in other localities”—Per Young, C.J. and Rangi Lal, J.
Similarly, it has been held by Addision, J., in Balanda v. Mst. Suban, that there is no such thing as a general custom in the Punjab, and it is necessary in every case to prove that the parties are governed by custom and what that custom is. To hold otherwise would amount to manifest injustice as custom in the Punjab is more local than tribal, though it may be both, and if there is a custom prevalent in a small area or in a small tribe, that custom will always be held not proved because in most areas or amongst other tribes the custom is otherwise. The term ‘general custom of the Province’ is amisnomer.
There is no such thing as the Punjab Customary Law in the same sense that there is a Hindu Law or Mohammedan Law. The expression is nothing more than a convenient phrase for describing certain customs which long experience has shown frequently govern tribes occupied in agriculture and forming compact village communities throughout the Punjab.
Certain general customs on some points have, however, been found to exist in the Punjab on judicial inquiry and these will be noted at their proper places.
The origin of Customary Law in general and in the Punjab in particular has already been explained in Chapter I and may be referred to. There is no uniform custom applicable to the whole of the Punjab. Custom varies from tribe to tribe and from place to place, and it is well known that customs relating to the same tribe often vary from district to district and even in different localities of the same district, and it is incumbent, in each case, on the party relying on a particular custom to allege and prove that custom.
A Local Custom means a custom which exists in a particular locality, be it district, tehsil or a village, and which governs all persons alike, irrespective of the religion they follow. But there is no such Local Custom. Different tribes living in the same village may observe different customs, (29 P.R. 1905). Custom varies from tribe to tribe and from one locality to another, (75 P.R. 1917; 17 P.R. 1919). Customs do vary among members of the same tribe dwelling in different localities, (48 P.R. 1916; 112 P.R. 1912). But one would be inclined to think that all the members of a tribe residing in the same district would ordinarily be governed by the same rule of custom on a particular point (5 Lah. 473, p. 474).
In 40 P.R. 1909, the question was whether Udasi Sadhus of a particular village followed a certain custom or not, and it was contended that as the custom was a local village custom, instances from outside that village could not be taken to prove the custom. It was held that the custom set up was tribal and not a village custom and therefore the circusmtance that the instances in question were not of the village in which the parties resided, was no obstacle to their being accepted as sufficient. See also 52 P.R. 1885 and 85 P.R. 1881.
Similarly, it is not correct to say that the custom in the Punjab is tribal. By tribal custom is meant a custom which prevails among the whole tribe of the country to which the parties belong. And this is certainly not the case in the Punjab. (See 75 P.R. 1917; 17 P.R. 1919; 112 P.R. 1912; 94 P.R. 1913; 48 P.R. 1916).
It has been observed by Jai Lal, J., in Balanda v. Mst. Suban, and by Dalip Singh, J., in Waras v. Mst. Fatima, that custom is primarily tribal and not local; though the custom of a particular tribe may, and often does, differ in particular localities. In Balanda v. Mst. Suban, Addision, J., however, observed that “custom in the Punjab is more local than tribal though it may be both.”
Custom may be considered tribal in the sense that members of the same tribal though living in different localities are generally governed by the same customs. Custom is also tribal in the sense that if a person has properties in different localities, the custom cannot vary in respect of the same person, with the locality of the property. It may be taken local in the sense that it may differ from place and from locality to locality and members of the same tribe living in different localities may yet have different customs.
The question whether customs of this province are local or not or are tribal becomes important, when we consider the question of proof of custom. Can we say that because a certain custom is found to exist in a certain tribe in village, it will govern all other tribes also living in that village ? Similarly, can it be held that because a certain tribe in a certain locality is governed by certain custom, that custom will apply to the same tribe living in a different locality also ?
From what has bee stated above it would be clear that it is for the party who alleges a custom to prove that it is so governed, and further to prove what that custom is. If however, reference is made to the origin of the various tribes in the Punjab it may be expected that many of the customs governing a tribe, although living in different localities, may be identical. It is true that customs vary not only from tribe to tribe but also from district to district so that members of the same tribe residing in different districts may be found observing different customs, but still there are certain points on which the custom found to exist in a tribe in this province is the same thought. In 37 P.R. 1873, the question was whether a gift to a daughter’s son was valid among Arains of Hoshiarpur District. Lindsley, J., upholding the gift remarked: “It has been noted that among the Arains of the Jalandhar District, the district adjoining the Hoshiarpur District, on custom whereby a childless man can be restrained from making a gift of his entire property exists. The custom that obtains among Arains of Jalandhar may be held to obtain among their brotherhood in the Hoshiarpur District.”
In 28 P. R. 1893 the learned Judge observed:--“When a tribe increases in number it has a tendency to disperse in space in separate sections and groups varying in size but not in origin by the testimony of common name in different localities more or less remote or adjacent. Although the process of change in the rules of custom induced by the relation in the altered conditions which result from it, is going on among all the altered groups which form the society bearing the common name, such as Jat Rajput, and so forth; nevertheless the different sections of the tribe naturally cling to their original custom owing to a remarkable taste which the Eastern races exhibit by not forgetting the ancient usages of their forefathers. This is amply proved by the similarity of usages which have been frequently found to exist among the members of the same tribe in different parts of the province.” See also 82 P. R. 1885, 52 P. R. 1884 and 110 P. R. 1884.
It was held in 53 P. R. 1899 and P. L. R. 1900, p. 406—“Awans who are largely found in Talaganj and Khushab tehsil have one custom and Awans of Mianwali Tehsil have the same custom.”
In 48 P. R. 1916, the learned Judges made the following observations:-- “The argument, of course, has no novelty and we do not imagine that a district boundary is necessarily the line of demarcation between the followers of one custom and the followers of another, but experience has taught the lesson that custom do vary among members of the same tribe dwelling in different localities and the district usually taken as a limit for the enquiry, because there is no general tribal custom universally prevalent throughout this province and some limit has necessarily to be fixed.”
Does a custom apply to al sections of the tribe of the district or has each section of its own peculiar custom ? The answer to this question given in 81 P.R. 1907 is that when a tribe in one district follows one custom the burden of proof is on those who assert that a particular got of that tribe follows different custom. It is, however, submitted that this proposition is not necessarily true. In 113 I.C. 17 it was held that there was no reason to suppose that the peculiar custom followed by Chima Jats was also followed by the Gil Jats of the village.
Where, however, there is a connecting link by the fact (i) that both tribes have one common origin, or (ii) freely intermarry, there may be some presumption that both the tribes are governed by the same custom. See 50 P.R. 1902 and 98 P.R. 1883.
In Bui v. Bela Singh, it was held that custom is usually tribal and though it may vary from locality to locality, generally speaking the same tribe living in the neighboring district follows the tribal custom. Therefore, instances among the same tribe in a neighboring district are not without value.
No hard and fast rules can be laid down for deducing necessary inferences from one established fact or the other regarding one tribe. As has already been observed, the fact of custom is to be proved definitely in each and every individual case and custom cannot be extended by analogy or deduced by inferences. Each case must be decided on its own merits.
In Abdul Majid v. Suba Khan, it was held by Abdul Rashid, J., that a tribal custom restraining testamentary disposition can be discontinued. Indian Courts ought not to give effect to a custom which the growing consciousness of the community in which it is said to have prevailed is preferred to treat as unsuited to modern conditions and from which it has allowed a departure in several cases. Regarding a local custom, it has been held by the Judicial Committee of the Privy Council in Subhani v. Nawab, that it is undoubted that a custom observed in a particular district derives its force from the fact that it has, from long usage, obtained in that district the force of law. It must be ancient; but it is not of the essence of this rule that its antiquity must in every case be carried back to a period beyond the memory of man—still less that it is ancient in the English technical sense. It will depend upon the circumstances of each case what antiquity must be established before the custom can be accepted. What is necessary to be proved 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 the particular district. To require that in every case the antiquity of custom must be carried back to a period which is beyond the memory of man, would only create great perplexity in the already uncertain character of customary law. Again it has been held in Nathmal v. Illahibux, that where it is sought to establish a local custom by which the residents or any section of them of a particular district, city, village or place are entitled ot commit on land not belonging to or occupied by them, acts which, if there was no such custom, would be acts of trespass, the Court should not decide that such custom exists, unless the Court is satisfied of its reasonableness and its certainty as to extent and application and is further satisfied by the evidence that the enjoyment of the right was not by leave granted or by stealth or by force, and that it had been openly enjoyed for such a length of time as suggests that originally, by agreement or otherwise, the usage had become a customary law of the place in respect of the persons and things which it concerned.
(11) Customs—special or general—family customs in the Punjab
The English jurists divide customs into two classes: General and Particular or Special. The former are the universal rule of the whole kingdom and form what is usually known as the Common Law of England. The latter are exceptions to the Common Law and usually designated as customs, e.g. customs of Gavelkind, or customs of a Mannor. Under this head are also included the customs of merchants, or rules relative to Bills of Exchange, Partnerships, etc. The Indian Evidence Act deals with three classes of customs, viz., Public, General, and Family or Private (vide sections 32, 48, and 49, of the Act). The distinction between Public and General customs, as drawn under the English Law, seems to be that the former concern every member of the State or Kingdom, whereas the latter are limited to a lesser though still a considerable portion of the community.
It has already been noticed above that there is no general custom in the Punjab. A special custom is one which is applicable to the inhabitants of a particular place, or to a particular tribe, sect or family. For instance, in the Punjab, law of primogeniture exists in some of the families and in certain families widows are excluded from succession. It is not really in fact a special custom as opposed to a general custom, but simply means a custom peculiar to the family governed by it, as opposed to the majority of other families. Similar considerations apply to different localities also.
Where a person governed by the Customary law seeks to derogate from the Customary law in favour of a special custom, this like a general custom must be proved to be invariable, ancient and well established. If it is to be proved that an old custom has fallen in desuetude and been replaced by a new custom, the new custom must be proved by evidence of conduct over a long period of years.
Where the custom pleaded is not general but is found to exist in most of the villages, its existence has to be proved independently for each village.