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Mercantile usages and customs essentials of validity

Family customs

A family custom is defined to be “the usages of a family transmitted successively (from father to son) according to law.” It generally relates to matters affecting the members of a family in their relationship to each other and to the family as a unit. Amongst the members of a family it has an obligatory force and distinguishes the family by its rules from other families. These rules chiefly concern adoption, marriage, descent and devolution of property. In its nature it is quite different from deshachar or local custom and stands on a different footing. Unlike deshachar, which binds all persons within the local limits in which it prevails, a family custom governs the members of a particular family only and beyond that its controlling influence cannot extend.

A family custom need not be immemorial, but it must be ancient and exact and ought to be clearly established by convic evidence. “The only question of law which can be said fairly to be raised by this appeal is academic, namely whether the Privy Council in the case of 1917, 45 Cal. 450, really said that a custom should be immemorial. I do not think they said that. It was recognized that the rules regulating customs in India are very different from those in England. At any rate there was no Richard I in India, and these family customs in India are somewhat special. But the case in question (45 Cal. 450, P. C.) does decide that they must be ancient and exact,”

Family customs are not common amongst persons who follow Customary Law in the Punjab, though amongst persons following their personal law, in whole or in part, family customs against their personal law are frequently pleaded.

Custom binding inheritance in single family is recognized in India. Special usages modifying law of succession must be ancient, invariable and established by clear and unambiguous evidence. One or more instances of each condition of valid custom are necessary but all conditions need not be proved in each instance. But evidence as to custom of inheritance is found in division of lands and revenue records. S. 26, Bombay Regulations Act and S. 5, Punjab Laws Act, do not create presumption in favour of family custom against general or personal law; but if custom is proved, it is made a rule of decision.

A family custom may be intentionally discontinued by the concurrent will of the family, and if such a custom has been discontinued, and the discontinuance has been acted upon for a long period of time, no member of the family of the succeeding generation can assert that the custom still subsists.

Proof of family custom

The onus probandi lies heavily upon a party setting upon special family custom at variance with the general custom and the personal law of the parties, and he must prove by clear and unambiguous evidence that such custom is ancient, invariable and definite. A custom, to be legally binding, must be ancient, certain and invariable, and the onus lies heavily upon a party setting up a special family custom at variance with the general custom and the personal law of the parties and he must prove it by very cogent and clear evidence.

It has been held in Mst. Asghari v. Mst. Rabia Begam, that in order to support special family custom excluding females from succession to the property of the fathers and grandfathers there must be clear and cogent evidence of a well-established and uniformly followed rule showing that succession has not been according to Mohammedan Law.

A special custom modifying the ordinary law of succession must be ancient and invariable and must be established to be so by clear and unambiguous evidence.

To prove a family custom either it must have been prevalent for along period and must have become a distinct tradition or there must be a long series of instances from which it may be inferred. Where a custom prevails in one branch of family, it would be a strong piece of evidence to rely for holding that it prevails in other branches as well. A wajib-ul-arz entry unsupported by other evidence may be sufficient to establish a family custom.

It is admissible for a living witness to state his opinion as to the existence of a family custom and to state on the ground of that opinion information derived from deceased persons. The weight of such evidence would depend on the position and the character of the witness and of the persons on whose statements he formed his opinion. It must be the expression of independent opinion based on hearsay and not mere repetition of hearsay.

In Mst. Fatima Sultan v. Nisar Alienation Khan, it has, however, been held that the evidence of a few and comparatively recent instances of family custom being followed may be accepted as proof that custom is ancient.

In Parmeshari v. Naratu, it has been held that mutations may not be evidence of title; nevertheless they are evidence of conduct of persons and may be quoted in support of a family custom.

When the interests of a female are in conflict with those of a male and the only evidence is that of instances of succession without any documentary record of the custom alleged, such as a regularly compiled riwaj-i-am, the instances can ordinarily have small evidential value unless they show that a claim by a female has been actually made and denied. Where there is no evidence that any female ever claimed an inheritance which was denied, while there is the admitted fact that when a will was made in favour of a nephew to the prejudice of a daughter and a son, the testator took precautions to obtain the daughter’s assent as well as the son’s, the evidence does not prove that in the family of the parties females do not inherit.

Where a family custom excluding the females from any inheritance is pleaded and the only evidence was that of instances of succession without any documentary record, instances can ordinarily have small evidentiary value unless they show that a claim by a female has been actually made and denied. It has been held that where a family custom of exclusion of daughters from inheritance is pleaded, proof of actual instances of such a custom taking effect is not necessary. Where a family custom is pleaded, the opinions of responsible members of the family as to the existence of such a custom, and the grounds of their opinion, though generally in the nature of family tradition are clearly admissible. There is no reason why such testimony should be disregarded.

When a custom is pleaded by a party to a suit, the first thing which the Courts must ascertain is as to what kind of custom is pleaded. A custom set up must be definite so that its application in any given instance may be clear and certain and reasonable. Hindu customs are usually grouped under the heads of kulachar (family customs) and Desachar (local customs). Where a family custom is set up the evidence is to be confined to the instances relating to the family of the parties but where a local custom is set up instances may be given not only relating to the members of the family but also instances relating to cases of all people residing within the locality. In the former case, unlike in the latter, instances relating to other cases living in the local area would not be admissible in evidence in proof of the custom.

(12) Mercantile usages and customs—essentials of validity

In the ruling reported as Firm Jhangal Das Chaman Das v. Firm Chetu Mal Phul Chand, it has been held that—

In order that a court may give effect to a custom, it must be shown that it has the following attributes:-

(1)reasonableness,

(2)certainty (enforceability and definiteness),

(3)it should not offend against any provision of law,

(4)its immemorial usage can be proved by evidence or by positive instances, and

(5)it should not be against policy.

If a custom is to have the force of law, and if is to upset the ordinary law, it must be established by instances that it nevertheless prevails. In short, the instance should be to show that one party asserted rights under a custom; the other party resisted the right taking his stand on the provisions of the law; and the former succeeded invariably. To establish a custom it is not sufficient merely to prove that, that is what is done constantly in the bazaar.

Every mercantile custom must be certain and reasonable and so universally acquiesced in that everybody in the particular trade knows it, or might know it if he took pains to inquire. A mercantile usage is not valid unless it is reasonable and it cannot be deemed to be reasonable, unless it is fair and proper and, such as reasonable, honest and fair-minded men would adopt.

But it has been held that to support a mercantile usage there need not either be antiquity, the uniformity, or the notoriety of custom, which in respect of al these becomes local law. The usage may be still in course of growth, it may require evidence for its support in each case, but in the result it is enough if it appears to be so well-known and acquiesced in, that it may be reasonably resumed to have been an ingredient tacitly imported by the parties into their contract.

Unreasonable usage should not be recognized by Courts. A custom allowing agent to turn himself into principal and thereby profit himself at expense of principal, is reasonable, and cannot be implied in contract of agency.

Business custom as opposed to family or land custom can be of recent origin and may not possess antiquity.

Essentials are certainty, reasonability, consistency with law and universality.

To establish mercantile usage, it is enough if usage appears to be so well known and acquiesced in, that it may be reasonably presumed to have been an ingredient tacitly imported by parties into their contract.

Mercantile usage is proved by oral evidence of persons engaged in particular trade. Evidence of usage must be clear, convincing, consistent and universally acquiesced in by and known to all in that trade.

Proof of mercantile usage is by oral evidence of persons who know it because of their occupation. Persons ignorant of existence of usage of those to whom knowledge of it cannot be imputed cannot be bound by it

Proof of custom:

3. A custom may be proved or disproved in any of the following ways:-

(a) By the opinions of persons likely to know of its existence, or having special means of knowledge thereon (sections 48 and 49, Indian Evidence Act, 1872). cf. I.L.R. XXVI Cal. at page 187.

(b) By statements of persons who are dead, or whose attendance cannot be procured without unreasonable delay or expense, provided they were made before any controversy as to such custom arose, and were made by persons who would have been likely to be aware of the existence of such custom if it existed (section 32, clause 4, Indian Evidence Act, 1872)

(b)By any transaction by which the custom in question was claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence (section 10, Indian Evidence Act, 1872).

(c)By particular instances by which the custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from (ibid), to be ascertained from—

(1) village oral traditions; (2) written memorials, such as the wajib-ul-arz or the riwaj-i-am* [section 35, Indian Evidence Act, 1872; I.L.R. II All. 876; compare VI, Cal. Reps. 593; I.L.R. V Cal. 744 (P.C.); and I.L.R. XV Cal. 233]; and (3) judicial decisions, I.L.R. X All. 585; XXIV Bom. 591; No. 173 P.R. 1889.

(13) Proof of Custom

SECTION—I

(14) evidential value of Riwaj-i-Am and Wajib-ul-Arz.

Official Records of Tribal Custom—Wajib-ul-arz and Riwaj-i-am Wajib-ul-arz or village administration paper:

The first official attempt to record custom was made when the records for the first regular settlement were drawn up during the period extending from 1845 to 1865. The records-of-rights prepared for each village contained an “administration”, wajib-ul-arz, that is a statement of “matters which it is proper to set forth,” and amongst these matters were the special customs of the village, or as much as was known of them. Mr. Thomson regarded it as “the most important of all the papers, for it is intended to show the whole of the constitution of the village.”

Their defects

This mode of recording custom was open to obvious objections. the clauses in the wajib-ul-urz relating to custom were mixed up with others relating purely to matters of executive administration, the information given was very meager, and it was repeated verbatim for village after village, so that it was impossible to say how far it represented the opinions of the people themselves, or was a mere invention of the official drawing up the record.

Changes introduced by Mr. A. Brandreth in Jhelum.

Accordingly, Mr. A. Brandreth, in preparing the records for the Jhelum District, as explained in his report of 1864, separated matters relating to custom from the rest of the wajib-ul-arz put them, in the form of questions to the various tribes, or classes forming the village communities, and recorded separately, the answers given. Apparently the record was prepared for groups of villages, though a copy of it was made for each village.(Roe’s Tribal law in the Punjab, p. 33).

Tribal records prepared by Mr. E. A. Prinsep in 1865.

By the time the first regular settlement came under revision, it had become apparent that the custom governing the people, as regards rights in land, had a tribal rather than a local origin; they were not peculiar to a particular village or locality, but were common to the whole tract occupied by members of the same tribe, and even for different tribes were very similar in their main features. Accordingly, in 1865 Mr. E. A. Prinsep the Settlement Commissioner, under whom the work of revision was being carried on, obtained the sanction of Government to his proposal that in future customs should be omitted entirely from the Wajib-ul-arz, and be recorded according to tribes, in a separate volume or volumes for each tehsil.This was done in all the districts which came under Mr. Prinsep and his assistants, viz., Sialkot, Gujranwala, Lahore, Amritsar, Gurdaspur and Kangra(I bid,p.34).

In the districts immediately under Mr. Prinsep himself the record consisted of a few simple questions and answers – some twenty in all – with examples and exceptions, arranged under the main heads of –

I—The rights and powers of widows.

II—Succession amongst sons.

III—Rights of daughters and their sons.

IV—Adoption.

V—Power of disposal.

But it was left to each officer in separate charge of a district to expand or curtail the scope of his enquiry as he pleased.

An uniform system introduced by Mr. Tupper in 1873.

The necessity for some approach to uniformity, at any rate as to the scope of the enquiry, was manifest, and in 1873 Mr. Tupper, then Assistant Settlement Officer at Dera Ghazi Khan, submitted a note proposing a series of questions to be used as the basis of all future enquiries. This proposal, with a few modifications, and with the reservation to Settlement Officers of the power to still further adopt the question to local requirements was accepted, and the questions (published in full in Volume III of Tupper’s Punjab Customary Law ) were circulated for general adoption, and they have formed the basis of the record of custom in each of the districts which have come under settlement since they were issued; that is to say practically, the whole of the Punjab. The questions were arranged in the following order:--

Part I—Questions of TRIBAL CUSTOM.

Section I—Family and Tribal Connection.

  1. Betrothal.
  2. Marriage and divorce.
  3. Guardianship and minority.
  4. Succession.
  5. Adoption.
  6. Bastardy.
  7. Wills and legacies.
  8. Special property of females
  9. Gifts.
  10. Partition.

Part II.—Questions of LOCAL CUSTOM.

Section I.—Proprietary Rights and Village Organization.

  1. Tenures of the Punjab.
  2. The Chakdari Tenure
  3. Periodical redistribution of land.
  4. Inferior proprietors.
  5. Village servants.
  6. Rights of absent proprietors.
  7. Management of common village land.
  8. Partition of the same.

Section II.—Alluvion and Diluvion.

Section III.—Production.

  1. Canals and hill storms.
  2. Wells.
  3. Manure.
  4. Agricultural machinery.
  5. Water collected on waste lands.

Section IV.—Transfer of Property.

  1. Landlord and tenant.
  2. Pre-emption.
  3. Mortgages.

(Ibid, Pages 34-35).

Mode of enquiry.

The mode of enquiry and the form of the record prepared is explained in full for each district by the various Settlement Officers. With the exception of a few districts, in which there was no fresh enquiry at the revised settlement but merely a summarizing and review of the old record prepared under Mr.Prinsep, the procedure generally followed was this: Mr.Tupper’s questions were first reviewed by the Settlement Officer and his assistants, including the Superintendent in charge of each tehsil, and adopted to local circumstances. The headman of each village and other leading men of the chief tribes were then collected at convenient centers; the questions were carefully explained to them, and discussed by them; their answers recorded as given, with any instances, in support of them, or showing exceptions, that could be quoted; the village pedigree tables were carefully examined both to verify the instances quoted and to find others. There was then a final attestation often by the Settlement Officer himself, and on doubtful points a note was added giving the opinion of the presiding officer as to what the custom really was. In addition to this, in some districts, the Settlement Officer made either a full translation, or an English summary, of the whole record, reviewing the answers at length, and stating his own opinion (Ibid, Pages 35-36).

Latest instructions regarding the preparation of the riwaj-i-am

In any district in which no riwaj-i-am or recorded of tribal custom has been prepared it is the duty of the Settlement Officers to have one drawn up. It is only necessary to make such records for the principal tribes in each tehsil. The Settlement Officer should choose the tribes and draw up the list of questions. He will probably find that he can simplify a few of those in Sir Lewis Trupper’s list, and omit a good many of them altogether. But his questions should be arranged in the same order as in Sir Lewis Tupper’s volume. The actual enquiry made by the Settlement Tehsildars or the Extra Assistant Settlement Officer, who should assemble the leading men, including all the village headmen of each tribe, at a convenient centre, explain the questions to them, and record their answers. He should be particularly careful to ask for precedents, as regards customs which are likely to be disputed in the law courts, as, for example, where a tribe or a par of a tribe assert a usage whereby the primary division of the land in the case of an owner leaving male children by two wives is into equal shares, one for the offspring of each (chundavand), as opposed to the usual custom of division among all sons per capita (pagvand). The Settlement Officer should scrutinize the answers, making any which seem to him to be founded on a misunderstanding of the questions, or vague, or probably incorrect. He should himself call together the leading tribesmen in each tehsil and examine them again as to such doubtful points. The faired vernacular riwaj-i-am may conveniently contain separate columns for the questions, the answers, precedents quoted and the Settlement Officer’s notes. Wherever it appears to a Settlement Officer that any answer embodies rather a vague popular sentiment, or a feeling of what ought to be than what is actually, customary, he should not fail to note the fact. The faired vernacular riwaj-i-am should be kept in the district office. Copies should be supplied to the offices of the Senior Sub-Judge, the District Judge and the High Court.

Where a riwaj-i-am has been drawn up at a former settlement, a report must be furnished through the commissioner to the Financial Commissioner of the nature of its contents, and its completeness and trustworthiness as a record of tribal custom, and instructions must be solicited.

In recent settlements English abstracts of the riwaj-i-am have been prepared by the Settlement Officers. These are published as volumes supplementary to Mr. Tupper’s work on “Punjab Customary Law.”

For a note of what the records (Settlement Manual, para 565) themselves actually are in each district, see Appendix I.

(15) Evidential value of entries in Riwaj-i-am

Though a riwaj-i-am is not a part of the record-of-rights and no presumption of truth is attached to it under section 44 of the Punjab Land Revenue Act, 1887, yet it is a public record prepared by a public officer in discharge of his public duties and is under section 35 of the Indian Evidence Act clearly admissible in evidence to prove the facts therein entered subject to rebuttal. It has been held in Beg. v. Alla Ditta, that statements in a riwaj-i-am which is a public record prepared by a public officer in discharge of his duties and under Government rules, are a strong piece of evidence that their contents are true and that strong evidence must be believed unless rebutted by the party against whom it tells. These statements are clearly admissible in evidence to prove the facts entered therein subject to rebuttal and they may be accepted even if unsupported by instances.

As observed in Roe’s Tribal Law in the Punjab (page 36). “As they (Riwaj-i-am) stand they are legally admissible in evidence as containing the opinions on custom of persons likely to have it, and they in practice are so admitted. Being admitted, their value, like that of all other evidence, depends on themselves. The enquiries of which they embody the results are in their nature precisely the same as would be made by a Court of Justice, through a Local Commissioner, in any case in which evidence as to custom had to be taken. They have the great additional advantage that they are made ante litem motam, and on a more extended scale than would be possible in any particular judicial case, and that they are conducted by Local Commissioners who may almost claim to be treated as experts. It may be that some of the questions relate to matters on which there is really no custom, or which are even quite beyond the comprehension of the witnesses; in some cases, too, the answers may be influenced by self-interest, or opposed to the evidence afforded by recorded examples; the Settlement Officers have themselves pointed out instance where this is so. But where the answers relate to matters well within the comprehension of the people as cases which have occurred constantly, or might occur any day, and when they are not opposed to the fundamental principles of Tribal Law, they are most valuable evidence. In any case, it may be said that they are the best evidence of the kind procurable, and that the tribal representatives whose answers have been recorded, however ignorant or prejudiced they may be, are at any rate far superior to partisan witnesses who would be called in each case if the records did not exist.”

Again, it has been observed by Sir Charles Roe, in Gujar v. Sham Das as regards the value of evidence recorded in the riwaj-i-am, as follows:-

“The next exponents of customs were the Settlement Officers, who made the first Records of Rights, which include the wajib-ul-arz, which is intended to be exponent of village custom. These records were prepared after such careful enquiry that, by the Punjab Land Revenue Act (Section 44) that entries in them have a legal presumption of truth...... Some 20 years have passed since these first records of custom were prepared, and at the revised Settlements, the Customary Law has been embodied, not in a wajib-ul-arz having a technical value under the Punjab Land Revenue Act, but in a general record of custom, called the riwaj-i-am. These records contain the answers of the leading men, of all the lambardars and of any others who choose to attend, of the various tribes residing within a convenient distance of the place of assembly. The recorded opinions of these men are available, under Section 32 (4) of the Indian Evidence Act, as the opinion of men, who would be likely to know of the existence of any custom if it did exist, and who are the very men who are from time to time summoned to give evidence when enquiries as to custom are made by the Tehsildar in particular cases under the orders of the Civil Courts. The Settlement enquiries have this advantage that they are made ante litem motam; that the attendance at them is far greater than could be secured at any enquiry in a special case, and they are held under the directions of officers who may almost be considered experts at enquiring into and reporting on custom.”

Statements in public documents are receivable to prove the facts stated on the general grounds that they were made by the authorized agents of the public in the course of official duty and respecting facts which were of public interest or required to be recorded for the benefit of the community. In many cases, indeed, in nearly all cases, after a lapse of years it would be impossible to give evidence that the statements contained in such documents were in fact true, and it is for this reason that such an exception is made to the rule of hearsay evidence.

The force of an entry in the Riwaj-i-am is quite different from that of a condition in a village administration-paper or wajib-ul-arz which in some cases may be a binding agreement and in all cases, as part of the Settlement Record, must be presumed to be correct under section 44 of the Punjab Land Revenue Act. An entry in a Riwaj-i-am is, however, evidence as to custom, varying in value according to circumstances and after deriving the greatest part of its weight from the free expression of opinion as to customs at a time when the members of the tribe were assembled together, able and ready to correct and criticize the statements of each other, and when personal and conflicting interests were not aflame to cause partiality in the replies.

Riwaj-i-am is of great value when recording a spontaneous statement by the tribes themselves that a custom exists and is recognized, even when such statement is opposed to the preconceived views of the Settlement Officer or is not quite in harmony with general theories of tribal custom.

Referring to a Riwaj-i-am where the people themselves were unanimous in stating that a certain custom existed and was recognized, Robertson, J. (Maude, J. concurring) made the following observations:-

“This answer (of the tribes) has all the more force because it was entirely opposed to the preconceived views of the Settlement Officer who recorded it an who was clearly very reluctant to accept it. In our opinion, however, if there is any value at all in these answers recorded instatements of custom, apart from support by legal decisions, it lies in the spontaneous statement by the tribes themselves at a time when there is no dispute to bias them of what they consider to be their own customs even when those statements are not quite in accordance with any general theory of tribal law which may have been evolved elsewhere. In our opinion the true spirit of tribal custom is neither more nor less than the custom which is proved to exist, and we shall not, in coming to a conclusion on this point be swayed too much by general theories on the subject.”

In Gurbaksh Ram v. Manak Chand, Abdul Rashid, J., observed that once it is established that the parties to a litigation are governed by custom, the provisions of the riwaj-i-am become applicable in their case in all matters which are dealt with in the riwaj-i-am. In the case of a lacuna in the riwaj-i-am with respect to certain matters it would be legitimate to fall back on the provisions of the personal law.

(16) Riwaj-i-am must record the actual custom and not what individuals think should be the custom.

As held by their Lordships of the Privy Council in Anant Singh v. Durga Singh, where it seemed probable that the entries recorded in the Riwaj-i-am connoted the views of individuals as the practice they would wish to see prevailing, rather than a the ascertained facts of a well-established custom weight must be attached to the circumstances that there was no evidence of an instance of the alleged custom. Again, it was held by the Oudh Judicial Commissioner in Mohd. Alienation Khan v. Ghazanfar Alienation Khan, that where a wajib-ul-arz contained merely a record of the wishes and opinions of the parties, it could not be regarded as establishing any binding custom at variance with the personal law of the parties.

An entry in the Riwaj-i-am gives rise to a rebuttable presumption, and the onus of rebutting such presumption of correctness is on the party who challenges its correctness.

The burden is always on the person who alleges that custom is different to that stated in Riwaj-i-am.

The Riwaj-i-am is a public record prepared by a public officer in the discharge of his duties and is clearly admissible in evidence to prove the fact therein entered and the statements contained in the Riwaj-i-am form a strong piece of evidence in support of the custom.

(17) Entries in Riwaj-i-am—presumption—initial presumption is in favour of entry whether custom is in accord with general custom or not and whether supported by instances or not—quantum of evidence necessary to rebut presumption varies with facts and circumstances of each case:

It was at one time held that Riwaj-i-am which was not supported by instances, or which was opposed to general custom, should be considered unreliable, but since the Privy Council judgment, reported as Beg v. Allah Dittal this can not longer be held to be good law. The Privy Council ruling lays down that an entry in a Riwaj-i-am as to a custom (though unsupported by instances) is a strong piece of evidence in support of that custom, and it lies on the person denying that custom to rebut that evidence. As observed therein—“The Riwaj-i-am is a public record prepared by a public officer in discharge of his duties and under Government rules; that it is clearly admissible in evidence to prove the facts entered thereon subject to rebuttal; and that the statements therein may be accepted even if unsupported by instances.”

It was held in Wazira v. Maryam, Mangat Singh v. Budha, Budha v. Fatima Bibi, Manohar v. Mst. Nanhi, Gurdit Singh v. Malan, and Pohlov. Naurdhan, that statements in the Riwaj-i-am in support of a special or peculiar custom when opposed to the general custom can carry very little weight unless supported by instances. But these decisions have now been dissented from, and it has been held that statement in a Riwaj-i-am even of special custom, whether supported by instances or not, is a piece of evidence which, if unrebutted, is sufficient to decide the case.

It has been held in Labh Singh v. Mst. Mango, that in view of the Judicial Committee’s clear exposition of the law in 45 P.R. 1917 it could no longer be held to be the established rule that a statement in the riwaj-i-am opposed to general custom and unsupported by instances was of no judicial value. Such an entry was prima facie proof of the custom and placed the onus of rebuttal upon the party disputing the correctness of the entry. The fact that the statement of custom in a riwaj-i-am is not supported by instances does not in itself provide the necessary rebuttal and if in an issue regarding the existence of an eception to a general rule of custom the sole evidence offered is a riwaj-i-am entry without instances, the issue must be decided in accordance with that entry. The same view has been taken in Kahan Singh v. Gopal Singh, Labho Ram v. Raman, Bhajna v. Mst. Bholi and Sajjan Singh v. Mst. Dhanti.

Similarly, it has been held in Khan Beg and others v. Mst. Fateh Khatun “that the courts in this province are bound to make an initial presumption in favour of the entries in the riwaj-i-am irrespective of the fact whether the custom, as recorded, is in accord with the general custom or not. The quantum of evidence necessary to rebut this presumption will, however, vary with the facts and circumstances of each case. Where the riwaj-i-am lays down a custom, which is in consonance with the general agricultural custom of the province, very strong proof will have to be produced to displace this presumption, but where this is not the case, and the custom recorded in the riwaj-i-am is opposed to the rules generally prevailing, if he presumption will be considerably weak. Again, where the Riwaj-i-am affects adversely the rights of females who have had no opportunity whatever of appearing before the revenue authorities, the presumption will be weaker still and only a few instances might suffice to rebut it.”

Courts are bound to make an initial presumption that the custom is as recorded in the Riwaj-i-am, even though the entry be unsupported by instances, and the onus lies on those who allege that the real custom is to the contrary. The Riwaj-i-am after all is prima facie the repository of the record of customs and, in the absence of clear and cogent evidence to the contrary, its authority cannot be whittled down.

A Riwaj-i-am whether supported or unsupported by instances is a piece of evidence which if unrebutted is sufficient to decide the case.

The entry in the Riwaj-i-am even though unsupported by instances is a strong piece of evidence, and is sufficient to establish the existence of a custom, unless the correctness thereof is rebutted by the evidence produced by the other party.

The statement of customs recorded in Riwaj-i-am of Tehsil or District regarding the Customary Law followed by the various tribes holding land in Tehsil in matters of succession are by themselves strong evidence of the customs followed by the members of those tribes even if instances are not cited.

A statement of custom recorded in the Customary Law carries with it a presumption of correctness even if it is not supported by instances.

Hon'ble Revenue Minister

Hon'ble Minister-In-Charge
Shri. Gurpreet Singh Kangar

 


 

Special Chief Secretary, Department of Revenue, Rehabilitation and Disaster Mangement
Shri. Karan Bir Singh Sidhu, IAS

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