It was held in Jamiat-ul-Nisa v. Hashmat-ul-Nisa (3) that the mere attestation of a Riwaj-I-am by a non-agriculturist, who had acquired agricultural land in a village as a means of investment, is not ipso facto sufficient to prove that in matters of alienation or succession his family residing in a town followed the ordinary customary rules of dominant agricultural tribes.
In 107 P.R. 1901 the question for decision was whether Khatris who held land followed custom or not. Riwaj-I-am was produced which was attested by Khatris and no the strength of this it was contended that in matters of alienation they followed custom, but the contention was overruled.
See also notes ante.
2)107 P.R.1901;see also 13 P.R.1900 and 33P.R.1915.
Entries in the Customary Law must be taken as referring only to ancestral property when no mention of self-acquired property is made (1). “As regards self-acquired property, the same consideration do not apply as in the case of ancestral property. Custom on the whole it concerned with the conservation of ancestral holdings, though of course in some cases there is a customary rule placing self-acquired property in a similar category to ancestral property; but mainly Customary Law looks to ancestral property. That is the reason why it has always been held that entries in Riwaj-I-ams and customary laws of districts refer only to ancestral property unless there is specific mention of self-acquired property, and the reason is obvious.’ ‘-Per Addison, J . (2).
Entries in a Riwaj-I-am or a wajib-ul-arz which do not specifically purport to mention non-ancestral property, must be taken to refer to ancestral property (3). Unless there are clear indications to the contrary an entry in a record of custom refers only to succession to ancestral property (4).
It is thus now well-settled that entries in a Riwaj-I-am or wajib-ul-arz which do not specifically purport to mention non-ancestral property, must be taken to refer to ancestral property only (5).
“It is true that In the Rewaj-I-am no distinction is drawn between ancestral and acquired property, but it is a well-recognized rule that unless there are clear indications to the contrary, such an entry in a record of customs refers only to the succession to ancestral property (6).
It has been held in Mst. Jatan V. Jiwan Singh (7) that in the absence of any indication to the contrary, entries in the Riwaj-I-am should be taken to refer to ancestral property. But the use of expressions that certain persons are excluded from succession “in any case” or “under any circumstances” without reference to ancestral character of property or otherwise shows that the exclusion operates on self-acquired properties also.
Where an entry in a Wajib-ul-arz talks about landed property and succession to it and so forth, without discrimination between ancestral and self-acquired, it should be taken that the rule applies only to ancestral property (1).
The Wajib-ul-arz provided :- “If a proprietor dies sonless leaving an unmarried daughter she shall hold a life-interest in his property and pay the revenue. She shall have no concern with it when she marries. Her father’s collaterals, who celebrate her marriage at their own expense, shall own her father’s estate.” Held, in the earlier records of custom throughout the Punjab, in absence of an express provision to the effect that the custom recorded relates equally to ancestral and non-ancestral property, it must be taken to govern ancestral property only (2).
The Wajib-ul-arz of 1855 settlement provided that if a sonless proprietor gifts any land to his daughter during his life-time she becomes its owner; otherwise the nearest reversioner inherits and the daughter is disinherited. Held-“I think that as the passage makes no distinction between ancestral and acquired land, it should be taken as referring to ancestral land only (3).
Under sub-section (4) of section 84 of North-Western Provinces and Oudh Land Revenue Act, 1901, presumption of truth is attached to the entries in wajib-ul-arz which is prepared under the provisions of that section. A wajib-ul-arz is a somewhat similar document to the riwaj-I-am in the Punjab except that in the United Provinces and Oudh presumption of truth is attached to the entries in a wajib-ul-arz while no legal presumption of truth is attached to an entry in a riwaj-I-am (see A.I.R. 1935 Lah. 419 p. 422 and 1933, 14 Lah. 651 at P. 653). In the case of Uma Pershad v. Gandhar v. Singhv (1887, 15 Cal. 20) (4) their Lordships observed as follows :-
“All these things are rather emphasized by the wajib-ul-arz, which was made at Fattech Kunwar’s instance in 1869. Before dealing with the effect of it, their Lordships wish to make some observations upon the extraordinary and startling character of that document. A wajib-ul-arz has been considered to be an official record of more or less weight according to circumstances, but still an official record of the local custom of the district in which it is recorded. It has been received before this tribunal and elsewhere as important evidence. In 1879, 5 Cal. 744 (P. C.) it is stated that these documents are entered on record in the office. They must be taken upon the evidence, which is general evidence, to have been regularly entered and kept there as authentic wajib-ul-arz papers. In that case effect was given to the wajib-ul-arz produced. In this case the Judicial Commissioner has treated the wajib-ul-arz in question as a document of weight, which must be taken as showing local custom until some proof to the contrary is produced. But on looking at the evidence their Lordships find that this wajib-ul-arz was the concoction of Fatteh Kunwar herself, received by the Settlement Officer as an expression of her views which she had a right to enter upon the village records, because she was proprietor of the estate. But they are not entered here as views; they are entered as the official record of a custom, this would probably have been produced from the office as an entry made fifty years ago, under circumstances of no suspicion at all, and it would be taken that the Government Officer had recorded it as the local custom. And now we find it deliberately stated by the Oudh Courts that the proprietor has the right to enter his own views upon the village records, and have them recorded as if they were the official records of the local customs. Well, that is an exceedingly startling thing and their Lordships think that the attention of the Local Government should be called to what has appeared in this case to have been done in one instance and may be done in other instances. It does not been render those records useless-they are worse than useless-they are absolutely misleading, because they are evidence concocted by one party in his own interest. It is to be hoped that under the Act of 1876 which empowers the Local Government to make rules under which these records shall be framed, such proceedings will not take place any more.”
Similarly, in 1910 (32 All. 363) the Privy Council decided that when there is internal evidence that the entries recorded in a wajib-ul-arz cannot the views of individuals as to the practice they wish to see prevailing rather than the ascertained fact of a well-established custom, weight should be attached to the fact that no evidence at all it forthcoming of any instance in which the alleged custom has been observed. But their Lordships did not lay down that where there is no internal evidence that the parties verifying the entries in the wajib-ul-arz are merely recording their views as to the practice they wish to see prevailing, and where the internal evidence goes to show that they are stating the existence of a well-established custom, entries in the wajib-ul-arz are not sufficient in absence of rebutyal to prove the existence of a custom set up-see 1914, 24 I. C. 640 (Oudh), distinguishing 1911, 12 I. C. 403 (Oudh).
The observations of the Privy Council in 1914, 37 All. 129 at page 143 are to the following effect :-
“To hold that a wajib-ul-arz is not by itself good prima facie evidence of a custom which is stated in it and that the wajib-ul-arz requires to be corroborated by evidence of instances in which the custom has been enforced would be to increase the costs of litigation ……… Of course the evidence as to a custom afforded by a wajib-ul-arz may be rebutted by other evidence.” Again, in 1927, 101 I. C. 368 it had been held that the statement of a custom recorded in a wajib-ul-arz of a village is good prima facie evidence of a custom without corroborative evidence of instances in which it has been exercised. The evidence as to a custom afforded by wajib-ul-arz may of course be rebutted by other evidence. In 1910, 32 All. 363 it was remarked-“The respondents appealed to the case of 32 All. 363 where an alteration of the law of inheritance was held not proved, but the ratio decidendi is clearly given in the judgment of the Board where, it is said :- Where, as here, from internal evidence, it seems probable that the entries recorded connote the views of the individuals as to the fact that they wish to see prevailing rather than the ascertained fact that a well-established custom exists, the learned Judicial Commissioners properly attached weight to the fact that no evidence at all was forth-coming of any instance in which the alleged custom had been observed.
The statement of a custom recorded in a wajib-ul-arz of a village is good prima facie evidence of the custom without corroborative evidence of instances in which it has been exercised. The evidence as to a custom afforded by a wajib-ul-arz may, of course, be rebutted by other evidence (1).
As regards the evidence of custom furnished by a wajib-ul-arz its weight may be very slight or may be considerable according to circumstances (2). As observed by the Privy Council in 1910, 32 All. 363 at p. 373, “there is no class of evidence that is more likely to vary in value according to circumstances than that of the wajib-ul-arz.” A statement in a wajib-ul-arz is of high evidentiary value of a custom, but it is to be disregarded if it appears to have been made from interested motives (3). “These wajib-ul-arzes, when properly used, afford most valuable evidence of custom, and are much more valuable than oral evidence given after the event. On the other hand, they at times, as is the case here, contain statements which would appear to have been concocted by the persons making them in their own interests and are therefore to be disregarded, being worse than useless.”
The wajib-ul-arz of a village is a document of public character, prepared with all publicity, and must be considered as prima facie evidence of the existence of any custom which it records. Its record of the existence of a custom is sufficiently strong evidence to cast on those denying the custom the burden of proof. Looking to the public character of the document, and the way it is prepared, the inferences to be deduced from it cannot be disregarded except when they are rebutted by evidence of an opposite character (4).
In 1923, 45 All. 413 the Privy Council held the view that when a wajib-ul-arz was unambiguous and recorded a custom in clear terms the burden shifted on the opposite party to prove by oral and documentary evidence either that no such custom existed or that it had fallen into desuetude (5). The evidence afforded by entries in records of custom prepared by responsible officials whose duty it was to ascertain and record the customs entered is valuable evidence of the existence of the customs (6).
Where a wajib-ul-arz or riwaj-I-am contains merely a record of the wishes and opinions of the parties, it cannot be treated as establishing nay binding custom (1). Where, however, the entries in a wajib-ul-arz or riwaj-I-am, which support the existence of a custom, are not concoctions and do not connote merely the view or individuals as to the practice which they wished to see prevailing it should be held that they record the ascertained fact of a well established custom (2).
OTHER PROOFS OF CUSTOM
Judgements in other cases on the point of custom are admissible in evidence, under section 13, only as instance in which the custom in question was judicially recognized, but are not conclusive. It is open to rebut them by adducing fresh evidence to show that the custom was not correctly ascertained in those cases or that it had since been modified (1).
Similarly, it had been held in Mst. Jannat Bibi v. Ghulam Hussain (2) that a decision in a case of custom is not a judgment in rem. It is only relevant under section 13 of the Indian Evidence Act as judicial instance of the custom being recognized. It may be that owing to faulty prosecution one decision may be arrived at between certain parties while there may be another decision in a suit arising between other persons.
In Sher Mohammad v. Mst. Johar Khatun (3), however, it has been held that a judgment on a question of custom is relevant, not merely as an instance under section 13, but also under section 42, Evidence Act, as evidence of the custom. When a custom is repeatedly ascertained and acted upon judicially, the production of such judicial decisions is sufficient to prove the custom. It was observed- “It was urged that the judicial decision counts only as an instance, but a judgment on a point of custom is also relevant under section 42, Evidence Act. Besides, the value of the decision depends upon the nature of the enquiry and the evidence produced. It may happen at time that the Riwaj-I-am is held to be conclusive merely because no evidence had been produced to rebut it as for instance was the case in A. I. R. 1925 Lahore 482. On the other hand there was a very elaborate enquiry made in the case reported as 13 Lahore 276. The two decisions, therefore, cannot obviously be placed on the same footing. Although an initial presumption of correctness attaches to an entry in the Riwaj-I-am, the presumption is a rebuttable one, and I do not see any good reason why that presumption should not be held to be rebutted by a finding arrived at after an exhaustive enquiry, as it was in 13 Lahore 276. It is indeed difficult to say how the presumption attaching to the entry in the Riwaj-I-am can be rebutted in any other way.
It was urged that the instances relied upon are recent ones and cannot prove a custom contrary to what is stated in the riwaj-I-am as custom must be immemorial, as laid down in A. I. R. 1937 Lahore 451. But there is no question here of preventing a new custom coming into existence after the compilation of the riwaj-I-am. The question if whether the entry in the riwaj-I-am itself records the custom correctly . . , I see no good reason why a finding arrived at by the court after a thorough enquiry such as was held in 13 Lahore 276 should be placed on a inferior footing than the entry in the Riwaj-I-am.” –Per Bhide, J.
A decision on custom is not a final decision. It only becomes a relevant instance under section 13, Evidence Act, that such a right has been asserted and recognized. It is always necessary to assert and prove what the custom is (1).
The most cogent evidence of custom is not that afforded by expression of opinion as to its existence, but the examination of instances in which the alleged custom had been acted upon and by the proof afforded by judicial or revenue records that the custom had been enforced. Though judicial decisions are not indispensable the acts required for the establishment of Customary Law ought to be plural, uniform and constant (2).
Judicial decisions afford very valuable evidence as to the existence of a custom (3). But a judgment is of no value when it proceeds almost entirely on the burden of proof (4).
A judgment based upon a compromise or confession, although of some probative force, cannot be placed on the same footing as one in which after contest a custom was held to be proved or negatived (5).
It was observed by Jai Lal, J. in Balanda v. Mst. Suban (6) – “In my Judicial decisions opinion the courts should place greater value on judicial v. Manuals of decisions than the statement of a custom in the Customary Customary Law. Law unless there is reason to hold that the custom has in the meantime changed. In any case the burden on the daughter under the circumstances is light.” Addison, J., however, remarked in the same case (page 427) – “I am not in agreement, with all respect, with the opinion of Jai Lal, J., that courts should place greater value on judicial decisions than on the statement of a custom in the Customary Law. A judicial decision depends on the evidence produced in the case which may be a badly conducted case. A decision on a question of the custom is not a judgment in rem; it is merely an instance, relevant under section 13, Evidence Act, of a particular custom being ascertained or denied, or possible recognized, though the word ‘recognized’ may man recognized by the parties to a particular transaction rather than by the Courts. In fact Jai Lal, J. has gone further in a later portion of his judgment and stated that a decision given by this court or the Chief Court of the Punjab as to the existence or non-existence of a custom ought ordinarily to be almost conclusive evidence of the existence or non-existence of the custom concerned, and must overrule the statement to the contrary of this custom in the Customary Law and it is only in exceptional circumstances that such decisions should not be accepted as decisive of the question. This, with all respect, appears to me to overrule such decisions as 45 P. R. 1917, and many other such decisions of this court, as well as to go against the provisions of the Evidence Act.
Again, it has been held in Bahadur v. Mst. Nihal Kaur (1) that 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 custom has been in existence as far as living testimony can establish it.
When therefore recent judicial decisions lay down a custom contrary to that as laid down in ancient Riwaj-I-am such custom cannot be held to be established as a commencement of such custom is not so old that “the memory of man runneth not to the contrary” (2).
In Subhani v. Nawab (3) it has been held that judicial decision, though of comparatively recent date, may contain, on its records, evidence of specific instances which are of sufficient antiquity to be of value in rebutting the presumption raised by Riwaj-I-am. In such a case, the value of the decision arises from the fact not that it is relevant under sections 13 and 42 of the Evidence Act as forming in itself a ‘transaction by which the custom in question was recognized, etc.’, but that it contains, on its records, a number of specific instances relating to the relevant custom. To ignore such judicial decisions merely on the basis of Riwaj-I-am would add greatly to the perplexities and difficulties of proving a custom.
It has also been held in Dasrathlal Chhaganlal v. Bai Dhondubai (4) that it is the law that if a custom is known and has been judicially recognized it is not necessary to allege or prove it; it has become part of the local law of which the court takes judicial notice. Similarly, it has been held in Suganchand Bhikamchand v. Mangibai Gulabchand (5) that when a custom has been repeatedly brought to the notice of the courts and has been recognized by them regularly in a series of cases it attains the force of law, and it is no longer necessary to assert and prove it by calling evidence in each case. If the evidence is all one way, or if there is a strong preponderance of evidence in favour of a particular custom, the courts cannot ignore it although the witnesses do not cite specific cases in support of their statements. But general evidence which is conflicting has obviously very little value.
Judicial decisions can be relied on as furnishing evidence of custom without certified copies of the judgments being placed on the record (6).
In Shamlal Shrikisan v. Mst. Jayabai (7) it was held that judicial decisions are no doubt admissible, and are at times the best available evidence of custom. But in order that a case should be regarded as affording the best available evidence the circumstances of the decided case in which custom was pleaded and held proved must be of a similar nature. It is s well-settled principle of law that the custom set up should be strictly proved and should not be extended by analogy. In Suganchand Bhikachand v. Mangibai Gulabchand (1) it was observed that judicial decisions recognizing existence of a disputed custom amongst the jains of one place are very relevant as evidence of the existence of the same custom amongst the Jains of another place, unless it is shown that the customs are different. But there is no presumption that such custom applies to all Jains wherever they are in India.
Instances in support of an alleged custom are not always to be treated as of little or no value because supported only by oral testimony; if the deponents have means of knowledge and the opposite party makes no attempt to rebut, facts stated may often be accepted as proved (2).
The fact that a party has repeatedly by act or word shown that he does not really follow a particular law, though it does not amount to an estoppel against him, still shows the view held by the party (3).
Customs usually grow out of instances and acquire force and sanctity as instances multiply. In a case relating to the alienation of abadi land in a village by non-proprietors, it had been held that it is wrong to say that in every case it is for non-proprietors to prove the circumstances under which the alienations of sites by non-proprietors in a village have taken place. The question upon whom the onus lies to explain the circumstances depends upon the number of alienations. A large number of instances of sale and mortgages of instances of sale and mortgages by the non-proprietors without any protest by the proprietors is sufficient to establish a custom in favour of the right of the right of the non-proprietors to sell the sites of their house in the absence of the evidence to the contrary (4).
No hard and fast line can be laid down as to how many instances are sufficient to make out a valid custom. Where a custom is a general one obtaining in a caste or clan composed of hundreds of families, the court would naturally expect a large number of instances in proof of the custom, but when the custom set up is that of a single family or a small group of families, it is unreasonable to expect a large number of instances in the support of the custom (5). There should, however, be such a multiplication or aggregation of instances as is sufficient to establish a tangible recognition of the custom as obligatory (6). Customs from out of instances acquiesced in by the persons interested so invariable and for such a long time as to become a rule of law, are recognized to be generally binding on those whom it affects (1).
A single instance cannot prove a custom, nor are a few instances of a modern date sufficient to prove a custom in derogation of ordinary law (2). But the fact that there have been in the village a large number of instances relating to a point of custom increases their value. The antiquity of instances, that is to say, the fact that this custom exists from a long time, is of sufficient importance in proof of custom (3).
Where witnesses cite instances of customs, it is for the other side to show by cross-examination or evidence in rebuttal that those instances do not support the custom (4). Instances cited by witnesses must not be rejected merely because these witnesses have not deposed to details as to which they could have been and were not cross-examined (5).
Again, the mere fact that instances have not been contested in the court does not make them worthless. Uncontested cases are very good proof of any alleged custom, for, the greater the strength of the custom the less probability is there of any body attempting to controvert it (6). Thus the fact that no alienations in the village have at all been contested, in some cases, is a proof that the power of alienation exists. The fact that no contest on the part of the agnates ever took place except in recent times raises some presumption in favour of custom of free alienation, for, if in the absence of definite information, we are to assume that the agents were too poor to sue or thought the land too small, and not worth the trouble of litigation, or that they were absent from the village or that they assented to the transfer, it is only fair to take into account this contingency also, unless the matter is to be absolutely prejudged (7). The very best possible evidence of a custom is that which shows that it has been followed consistently in a number of instances without dispute (8). The fact that no consent has taken place in the past may well raise a presumption that the custom was so well recognized that no one thought of contesting it (9). Uncontested cases are a very good proof of any alleged custom, for the greater the strength of the custom the less probability is there of anybody attempting to controvert it (10). It is surely a strong point in favour of the existence of the custom and its recognition in the tribe, that no appeal has been made to the court (11). As observed in Mst. Dyan v. Jai Ram (12)- ‘I strongly object to the view that a custom is only proved by instances in which it has been contested. In reality the better established a custom, the less it will be contested.” To the same effect see the remarks in 50 P. R. 1874 (p. 187) – “We cannot agree with the Deputy Commissioner that because the cases were uncontested, they were worthless as precedents. On the contrary, the fact that these adoptions are uncontested by natural heirs, constitutes their value as evidence of admitted usages.”
It has been observed that instances whether sufficient to establish custom, is question of law (1).
Uncontested cases are very good proof of any alleged custom, for the greater the strength of the custom, the less probability is there of anybody attempting to controvert it. The fact that the operation of a custom has not been resisted cannot at all be used as an argument that such a custom did not exits (2).
A mutation register does not form part of the record-of-rights but is a separate document, and therefore section 44 of the Punjab Land Revenue Act, 1887, does not apply to it and it carries no presumption of truth. An entry in it is, however, relevant under section 35 of the Evidence Act as an entry in a public record made by a public servant in the discharge of his duties (3). Unless a mutation entry has been incorporated in a Jamabandi it has no presumption of truth attached to it. It is, however, not necessary to prove that all the formalities were duly complied with in respect of the mutation. There is presumption that all official acts are done in regular manner and it is for the other side challenging it to rebut this presumption. It is not necessary to produce the Revenue Officer who sanctioned the mutation or the girdawar as a formal witness (4).
Where the parties were present at the time when certain mutation entries were made with their consent, and the revenue officers made every effort to ascertain what the parties wished to be done, the entries them-selves being quite clear, the onus of proving that a mistake was made lies heavily upon the party who asserts that his intention was not correctly expressed by the entries, and this onus is not discharged by showing merely that there is a certain amount of confusion in the report of the Patwari and that the area given by that party is considerably in excess of the area received by him (5). In Diwan Chand v. Mehr Khan (6) it was held that the report of the Patwari, that the land sought to be attached had been mutated in favour of the son of the judgement-debtor, about four months prior to the application for attachment, was not conclusive to show that the land was not held by the judgment-debtor.
As evidence of custom mutation entries must be judged on their own merits. It was observed by Robertson, J. In Mst. Saddan v. Mst.Khemi (1) – “There are four instances in which widows have been shown by entries in mutation orders to have succeeded without dispute to the property of their husband’s collaterals. The learned District Judge treats these as not very material and counsel for the respondent urges on the authority of remarks in certain judgments of this Court that these instances are of no value as they were not disputed. Now we quite concur in the view that single isolated instances in which there has been mutual consent are not of great value, but we are of opinion that the very best possible evidence of a custom is that which shows that it has been followed consistently in a number of instances without dispute. Even a judicial decision in a contested case shows that at least the custom was not universally admitted. We therefore attach a high value to the 4 instances produced……….in which widows were allowed as a matter of course to succeed to the property of their husbands’ collaterals without dispute.”
In 40 P.R. 1906 mutations were rejected in the lower courts because there was no protest or litigation about them. It was held that it was an erroneous view. One or two isolated instances of the kind may mean nothing and may be explained on various grounds, but the case is very different when we find several instances of rights being claimed and being allowed without challenge. Surely then, in such cases, acquiescence is the best proof of customs, for if upon several occasions the people interested accept some given state of things without demur, it must be assumed that they do so because their custom recognizes that state of things.
The mere fact that the instances of mutations are of a very recent date and have not yet stood the test of being contested in court may be a good contention so far as a single isolated instance is concerned but when such instances are considerable this rule does not apply. Mutations are inconclusive, when they are of recent dates and have not stood the test of contest in a court of law (2). An old mutation, however, or a mutation attested by the Revenue Officer in the village of the parties, in the presence of all the villagers, when a party is not shown to be absent, may raise a presumption that a party knows about it. But mere knowledge that a mutation has taken place in other persons’ favour does not amount to acquiescence (3). “Now it may well be that the plaintiffs did not understand that the mutation was being made in the name of the defendant alone. If they did, they may have acquiesced under the impression that he alone was entitled that would be but little evidence on the issue as to custom.”
Mutations are a very good corroborative evidence of the oral testimony of witnesses who are likely to know the existence of the custom (4).
No presumption of correctness, however, attaches to a note of the Tahsildar that proprietors do not object to mutation because it is not conclusive to prove that they were present (5).
Where a custom clearly at variance with Hindu Law is sought to be proved, no doubt documentary evidence is ordinarily of great importance, but where the parties are not agriculturists or an important land-holding class, the absence of copies of mutation records-the kind of documentary evidence commonly produced to prove custom-is not of prime significance (A. I. R. 1937 Lah. 690).
Shajra nasabs or pedigree-tables form part of the record-of-rights as prescribed by the Financial Commissioner under section 31 (2), clause (d). The presumption of truth attaching to entries in a Record of Rights under this section extends therefore to these pedigree-tables also, and the burden of proving that an entry in it is wrong rests heavily on the person who makes such assertion (1).
But although a presumption of correctness attaches to the pedigree-table contained in the Record of Rights under this section, that presumption does not extend to an entry made in the pedigree-table with respect to an extraneous matter entirely unconnected with the question of relationship, as for instance devolution of lands in a village. If such entries appear on the face of them to be erroneous, a court should refuse to accept them (2).
If it can be shown that the law requires that entries dealing with ownership of land should be included in pedigree-tables then such pedigree-tables are properly part of the revenue records and constitute an entry in a public document, which is prima facie evidence of the truth of its contents. As references with respect to the ownership of land are by law included in a pedigree-table, presumption of correctness attaching to a pedigree-table, also attaches to entries (3). Similarly, entries made in the pedigree-table prepared at the time of the settlement giving the history of the land are admissible in evidence (4).
Somethings there is a conflict between the entries in pedigree-tables prepared at two different settlements. Regarding this point it was observed in Data Ram v. Khazana Ram (5) – “For the appellant it is pointed out that the evidence bearing on the point consists of the pedigree-tables prepared in the various settlements to all of which a presumption of correctness attaches under section 44, Land Revenue Act, but that in case of a conflict between them the pedigree-table prepared at the more recent settlement should be preferred. On the other hand counsel for the respondent urges that whatever may be the position with regard to entries as to ownership, tenancy rights, etc., in the matter of relationship the earlier pedigree-table should be preferred as the exact degree of relationship was likely to be known more accurately to persons who were nearer in descent to the common ancestor and whose memory was fresher than that of their grandsons, who were born a generation or two later. In my opinion it is not possible to lay down any hard and fast rule on this point and each case must be decided on its own peculiar facts. The pedigree-table prepared in the course of each settlement is a part of the record-of-rights and as such there is a statutory presumption of correctness attaching to it (74 P. R. 1888). It is, however, impossible to say on a priori ground that the presumption is stronger in favour of the one rather than the other. In a particular district the earlier settlement might have been more carefully done and the record more accurately prepared than in the later settlement. In another district investigation made in the subsequent settlement might have been more complete and exact, and led to discovery of errors in the preparation of pedigree-table which had crept in the records of the former settlement. If the parties conduct their cases properly it will not be difficult for them to produce additional evidence from the entries in the Khewat and other authentic documents from which it would be easy to determine which of the two pedigrees is correct.” See also 111 P. L. R. 1913, wherein it is laid down that a pedigree-table is superseded by another which appears to have been more carefully made at the time of subsequent settlement.
Instances, however, valuable they may be in proving custom, are not absolutely essential to its establishment. The sanction of a rule of Customary Law depends upon the consensus of opinion of the body of persons to whom such law applies to be bound by the rule. The expression of opinion in such a case, if it is general, is sufficient proof of such law (1). As observed by the Privy Council in Ahmad Khan v. Mst. Channi Bibi (2) – “As regards the custom in respect of which the two courts in India have differed, their Lordships think the Subordinate Judge was in error in putting aside the large body of evidence on the plaintiffs’ side merely on the ground that specific instances had not been proved. They are of opinion that the learned Judges of High Court are right in holding that a custom of the kind alleged in this case may be proved by general evidence as to its existence by members of the tribe or family, who would naturally be cognizant of its existence and its exercise without controversy.
“There is a large body of oral evidence establishing the custom, wholly unrebutted by the defendants who have relied exclusively on the Riwaj-I-am. The Judges of the High Court have commented on these documents, and their Lordships see no reason to differ from them.”
This judgment was referred to by Campbell, J. In Labh Singh v. Mst. Mango (3).
Mere want of instances is not enough to show that the rules of customary law do not apply to a particular case, and that the analogies and general principles of such law are to be resorted to when instances are absent, and applied whenever it is possible to do so.
A rule of custom may be established and held to be of binding force, even where no instance is forthcoming, if there is an overwhelming preponderance of oral testimony of those governed by it and likely to know of its existence in its favour (1). The proof of custom should not be confined merely to judicial precedents and definite instances, but might consist in the deliberate and well-considered opinion of the people living under, and governed by the custom and other recognized modes of establishing its existence (2).” The question whether a particular custom does or does not prevail in any particular tribe is a matter on which tribesmen themselves are in the best position to pronounce an opinion. When questions relating to tribal custom have to be determined, the parties try to secure the evidence of the numbers of that tribe and even people living in the neighbourhood as regards the existence and non-existence of the custom. The people of a particular community are the best and the most trustworthy repositories of the traditions which go to constitute a particular custom prevailing in the community and their evidence, therefore, is of a very great value (3).
Where the evidence adduced is sufficient to make out the service of a customary right for the period of living memory of the witnesses it is binding (4).
It was also observed in Mohammad Alam v. Mst. Hafizan (5) – “It was held by their Lordships of the Privy Council in Ahmad Khan v. Mst. Channi Bibi (6 Lah. 502 P.C.) that custom could properly be proved by general evidence given by the members of the family or tribe without proof of specific instances. In the present case, there is overwhelming oral testimony that in this locality amongst Jats unmarried sisters succeed for life or till their marriage to the land of their deceased brother which is not ancestral qua reversioners. It is a most important consideration that no less than fourteen lambardars have deposed to this custom.”
In Vaishno Ditti v. Rameshri (6) the question was of succession among Arora Sikhs of Peshawar. The plaintiff’s witnesses gave evidence as to the custom in their community, and the defendants called no rebutting evidence at the. The District Judge held that the custom was not established, as the witnesses were unable to quota any instances in support of their deposition. Their Lordships of the Privy Council overruled the trial court on this point and holding that the custom relied on for the plaintiff was sufficiently established in the absence of any evidence to the contrary, said :
“Having regard to the conditions existing in this part of India (North-West Frontier Province), both the lower courts erred, in their Lordships’ opinion, in disregarding the unrebutted evidence of custom which was given by the plaintiff as to her right to succeed to her mother’s share because it was unsupported by instances………
As regards the custom, there was the evidence of the two witnesses for the plaintiff that in the community of the Arora Sikhs to which the parties belong, a daughter succeeds to the inheritance in the absence of daughter’s son, and there was no evidence the other way. Though the witness were unable to speak to any instances in which the custom had been observed, their evidence is entirely in accordance with what is laid down in the Customary Law of the Peshawar District.”
In Pannalal v. Chaman Parkash (1) it was held that a custom can properly be proved by general evidence given by members of the community without proof of specific instances. The question in each case, however, depends as to the weight to be given to the evidence of opinion led in that case.
It has been held that where a custom is proved to have been followed uniformly during a period of sixty years such proof is sufficient to held that it is binding. The technical rules of English law are inapplicable in this country (2).
In Panchanan Roy v. Fazlur Rahman (3) it was held that an essential attribute of a valid custom is no doubt its remote antiquity. But it is not necessary that its antiquity must in every case be carried back to a period beyond the memory of man. If proof be given of facts from which it can be inferred that user corresponding to the alleged custom in fact existed at some time past, the existence of the custom from the remoter era will be inferred. In order to establish a customary right of way, there is no reason why 50 or 60 years’ user might not, in the circumstances of a case, be regarded as sufficient to indicate the existence of the right from a much remoter period.
In Nath Mal v. Illahibux (4) it was held that the most cogent evidence of custom is not that which is afforded by the expression of opinion as to the existence but by the enumeration of instances in which the alleged custom has been acted upon, and by the proof afforded by judicial or revenue records or private accounts and receipts that the custom has been enforced. No value can therefore be attached to the broad general statements made by the witnesses who assert the alleged custom but do not enumerate instances in support of their assertion.