CHAPTER I THE ESSENTIALS AND PROOF OF VALID CUSTOM

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Indian Christians:

By virtue of S. 5 of the Punjab Laws Act (under which, in the Punjab the primary rule of decision in matters of succession, etc., is custom), it is open to an Indian Christian in the Punjab to prove that he is governed in matters of succession, adoption, etc., by a particular custom and not by the provisions of the Indian Succession Act.

Sikhs:

In the absence of any proof of any custom Sikhs are governed by Hindu Law.

The rule regarding migrants:

In the following cases of migrants from other districts the law or custom of the district of origin was observed and followed:-

Essentials of a valid custom.

1. A custom to be valid must—

(a) not be contrary to justice, equity or good conscience;

(b) not have been declared to be void by any competent authority before the passing of the Punjab Laws Act, i.e., the 28th march, 1872;

(c) not contravene any express law;

(d) be ancient, certain and invariable.

(1) Introduction.

I have elsewhere observed that usages and customs, no less than religions, undoubtedly descend by inheritance, and any one familiar with agricultural communities in the Punjab will not be disposed to dispute the truth of this village tribe or family—is the only law which his limited intellectual capacity can comprehend. The Mohammedan and Hindu laws are, as a rule, as unknown to him as the languages in which those laws are composed. But what has once supplied a rule of decision readily serves for another occasion, and thus by gradual repetition the rule gains strength and sanctity, and finally acquires its binding force. The principles, moreover, of what Sir Henry Maine called “local contiguity, seems also to produce a considerable degree of harmony in the leading principles of the law thus generated, which is remarkable considering the heterogeneous elements of which village communities are composed. The British Legislature in this country has always shown a tender regard for native customs and usages. But it was not to be expected that a civilized European Power would give its sanction to every kind of usage, and thus limitations were introduced into the Punjab Laws Act, which are consistent with the principles of enlightened government. The object of the present chapter is, therefore, to state these limitations; and the importance of recognizing at the outset what are the essentials of a valid custom, and how such a custom is ordinarily to be proved in a Court of Justice, cannot be exaggerated.

(2) A custom to be valid must not be contrary to justice, equity or good conscience.

Authority

Section 7, Punjab Laws Act, 1872.

Illustrations

1. A custom that a married woman may, without the permission of her husband, leave him and in his lifetime contract a second valid marriage with another man, is bad as immoral (II Bom. H. C. Reps. 117; I.L.R. II Bom. 140; VII Bom. H. C. 133, a.c.j.; No. 29 P. R. 1883; No. 78 P. R. 1884; No. 84 P. R. 1889; No. 49 P. R. 1890; No. 72 P. R. 1892; No. 33 P. R. 1896).

Custom permitting dissolution of marriage:

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 (parisam) (I.L.R. XVII Mad. 479).

1.A. A custom among Hindus which permits a dissolution of the marriage tie by either husband or 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 (1915, 39 Bom. 538).

2. So also a custom recognizing a right of heirship in a illegitimate son by an adulterous intercourse is bad (I.L.R. II Bom. 140).

3. A custom for a “Khan Malik,” who is not a proprietor of the village, to levy marriage fees from Hindus, is an oppressive custom, and therefore illegal (per Plowden, J., in No. 64 P.R. 1880).

3A. Rogha (bride price): A custom among Pathans of Attock 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, 1920, 1 Lah. 574; it is a barbarous custom; (ibid, at p. 580).

4. A custom which any honest or right-minded man would deem to be unrighteous, is bad as unreasonable (Paxton v. Courtenay, 2 F. & F. 131).

5. A custom of the gold lace weavers of Amritsar, whereby the employer of a workman becomes liable to the previous employer of such workman for any balance due to the former for wages received in advance by the latter, held to be unreasonable as opposed to equity, justice and good conscience (No. 49 P. R. 1897).

6. So also a custom that certain Churas of Kasur were entitled to half the value of skins of all animals dying in the said town, as against other Churas who actually disposed of the carcases, and would ordinarily be entitled to the whole value of the skins, held to be an unreasonable custom (No. 2 P.R. 1896).

7. A custom for an association of women to enjoy a monopoly of the gains of prostitution, is immoral (I.L.R. 1 Mad. 168).

8. And for such an association of women to adopt girls with the view of bringing them up to prostitution, is also immoral (I.L.R. IV Bom. 545). But see I.L.R. XI Mad. 393.

9. The practice of selling daughters for a consideration, is a bad custom (V Indian Jurist, 70), Compare No. 106 P.R. 1879.

10. 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 (No. 27 P.R. 1882). Compare I.L.R. VI All. 47.

10A. “Dhadwai”: right to weigh and measure: A custom of ‘Dhadwai,’ a sole right to weigh and measure and procure customers for commodities imported into a market is neither unreasonable nor opposed to public policy; 1926, 98 Ind. Cas. 759 (Nagpore).

11. A custom rewarding services by skins of all animals dying in a village is not unreasonable or invalid (No. 11 P.R. 1900).

12. A custom by which onevillage has the right to cut brush-wood in a neighbouring village for repairs to a watercourse is not an unreasonable one (No. 31 P.R. 1882).

13. A custom whereby adna maliks are not entitled to recover lands which have reappeared after submersion, without payment of haq jari to the ala maliks, is neither unreasonable nor invalid (No. 33 P.R. 1903).

13A. Malik qabza losing all proprietary rights upon submergence of his land: A local custom whereby a malik qabza whose land was submerged in the river lost all his proprietary rights in that land, and on its re-appearance it became the property of the ala maliks may be highly inequitable, but, if proved, will be enforced. The learned judges refused to subscribe to the doctrine that the custom in question was so contrary to all notions of justice, equity and good conscience and so incongruous with modern conceptions of rights of ownership in land in a civilized society that the Courts should pronounce it as absolutely unreasonable and should decline to recognize and act upon it (18 P.R. 1914, per Shah Din and Agnew, JJ.).

14. A custom entitling each shopkeeper in a bazaar to use the land in front of his shop for stacking grain is neither unreasonable nor uncertain nor opposed to public policy (No. 7 P.R. 1899).

15. A custom permitting a watercourse to be taken through lands of a neighbouring village, subject to compensation to the proprietors of such village, is reasonable (No. 37 P.R. 1899).

16. But a custom by which the inhabitants of a particular zamindari claimed the right of fishery in bhils belonging to the zamindar, held to be bad as unreasonable (I.L.R. IX Cal. 698).

17. A custom for the inhabitants of several adjoining or contiguous parishes to exercise the right of recreation over land situate in one of such parishes, is bad [Edwads v. Jenkins, (1896) 1 Ch. 308].

17 A. A custom whereby the residents of a village claim to use a certain piece of land for playing Ramlila, for putting up marriage processions, for keeping khalihan and for tying cattle during the rainy season is neither too general nor unreasonable nor uncertain [1923,72 Ind. Cas. 218 (Pat.)].

18. A custom which allows a broker to deviate from his instructions is unreasonable [VIII Bom. H.C. Reps. 19 (a.c.j.)]

19. A custom attributing to mere cohabitation all the legal effects of a marriage, thus confounding concubinage with marriage, is invalid (No. 29 P. R. 1883; No. 49 p. R. 1890; No. 52 P. R. 1899). But see no. 33 P. R. 1896; No. 73 P. R. 1896; No. 115 P. R. 1900; No. 135 P. R. 1907; and No. 65 P. R. 1911.

20. A custom by which the keeper of a brothel is entitled to succeed to the estate left by her nauchi, is immoral and invalid (No. 89 P. R. 1884; No. 75 P. R. 1918; I. L. R. XXI Cal. 149); cf. however, 95 P. R. 1884; No. 166 P. R. 1888; No. 62 P. R. 1892; No. 52 P. R. 1893 (P.C.) and No. 196 P. L. R. 1912 as to customs governing succession to estates left by prostitutes.

Custom of brothel-keeper succeeding to property left by her nauchi.

20-A. A custom, even if proved, by which a brothel-keeper succeeds to the property of a nauchi or slave kept for the purpose of prostitution, could have no legal effect, for if recognized as binding it would have the effect of encouraging brothel-keeping (75 P. R. 1918).

Custom for a family to be maintained out of wages of prostitution.

20-B. In 52 P. R. 1893 (S. C. 21 Cal. 149) the privy Council upheld the decision of the Punjab Courts (see 166 P. R. 1888), refusing to recognize a custom among a Mohammedan community or tribe called Kanchans for a family to be maintained as a joint family out of the wages of prostitutes earned by the female members and to recruit itself on the female side by adoption. The principle of this decision appears to be, that customs which are immoral 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 as to 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 Mohammedan , prostitution is not looked on by their religion or their laws with any more favorable eye than by the Christian religion and laws (Wilson’s Anglo-Mohammedan Law, 3rd ed., p. 87).

21. A custom validating the sale of a religious trust or office is invalid (L.R. IV Ind. App. 76; I. L. R. VI Mad. 76; No. 106 P. R. 1892; I. L. R. XV Mad. 183); but see I. L. R. XVI Mad. 146 and I. L. R. VI Bom. 298; compare 9 P. R. 1917 (bungas or hostels situate in the quadrangle of the Golden Temple, Amritsar).

22. A custom recognizing the right of a person who had abetted the murder of a relation to inherit that relation’s property, would be against public policy and void (No. 74 P. R. 1900; see also XIV Mad. L. J. Reps. 297 and 41 P. R. 1906); but the brother of a murderer is not debarred from succeeding to the murdered person’s property (No. 69 P. R. 1919). 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 [1923, 3 Lab. 117; 1921, 3 Lah. 103; 1922, 3 Lah. 242; 1924, 48 Bom. 569 P. C. (affirming 1920, 45 Bom. 768); and see also Mulla’s Hindu Law, 5th ed., p. 107].

(3) Custom reasonable and not immoral.

Another essential requisite of a valid custom is that it must be reasonable and not immoral. In considering whether a custom is reasonable or unreasonable, the Courts, however, should not be influenced or guided by modern ideas, for that which appears to be unreasonable to us now may have been considered as eminently reasonable and necessary for the growth or well-being of a caste or a clan in by-gone ages.

When a custom is said to be void for being unreasonable, what is meant is that the unreasonable character of the alleged custom conclusively proves that the usage even though it may have existed from time immemorial must have resulted from accident or indulgence and not from any right conferred in ancient times. Th test applied is whether the custom could have a lawful commencement.

The word “unreasonable” as applied to custom must be understood not with reference to every learned man’s reason but to the legal reason warranted by authority of law. A custom which any honest and right-minded man would deem to be unrighteous is unreasonable. Thus a custom which is prejudicial to a class and is beneficial only to a particular individual is repugnant to the law of reason. A custom in derogation of general rules of law must be constructed strictly. Usage not accepted as lawful or invariable by a party cannot be recognized as reasonable custom having force of law. Nothing can be more unreasonable than an invasion of the rights of property without any benefit to the common weal.

Instances of unreasonable custom:-

1. A custom by which sweepers of Kasur, Lahore District, claimed as right to a half share in the carcases (or rather skins) of all animals dying within the town, without rendering any service in return, was held invalid on the ground that it was unreasonable.

2. A custom is not unreasonable because it is prejudicial to the interests of a private man, if it be for the interest of the commonwealth. On the other hand, a custom which is injurious to the public, which is prejudicial to a class, and beneficial only to a particular individual is repugnant to the law of reason.

Thus a custom of the gold lace manufacturers of Amritsar by which the employer of a workman is liable to his previous employer for any balance due to the latter of wages received in advance by the workman is unreasonable, and opposed to public policy, and to equity, justice and good conscience.

3. Where plaintiffs, Brahmans of Multan city, sued the defendants Marhotra Khatris of the same place, for a declaration in respect of a house in the latter’s possession to the effect that they were, by custom, entitled to take their Jajmans of certain castes, to a certain portion of it for purposes of worshipping the goddess Bhawani at times of certain festive ceremonies and they prayed also for an injunction prohibiting defendants from rebuilding it in such a way as to prevent plaintiffs from performing such worship, and ordering them to restore the portion already knocked down to its former condition; held, the alleged custom was not shown to be certain and reasonable.

4. A custom which allows a broker to deviate from his instructions.

5. A custom by which the inhabitants of a particular Zamindari claimed the right of fishery in bhils belonging to the Zamindar.

6. Custom that only ground on lower level should be cultivated and that each of such grounds should have catchment area unreasonable and hence not valid.

7. Where the use of public property amounts to nuisance, the right to such user cannot be acquired for unreasonableness.

8. Custom suspending entire rent due from holding on inundation irrespective of extent or injurious character is unreasonable. Reason in this context is not every unlearned man’s reason but artificial and legal reason warranted by authority of law.

9. Right of Zamindar to eject occupants of houses intown area at any time on payment of cost of materials is unreasonable

10. The question of reasonableness has to be judged with referenceto conditions at the time of the possible inception of the custom. It cannot be laid down as an absolute proposition of law that wherever a customary right to take forest produce from another man’s land with a view to profit by sale of it is cl

11. The Mohammedan inhabitants of certain villages sued for a declaration of the right of their community to go in procession, during certain Mohammedan festivals, by a certain route. Part of this route traversed the agricultural land of the Hindu tenants, bearing valuable crops. Before the land was cultivated by its existing tenants, it was parti land. It was established as a fact that the Mohammedan processions were carried over this land at a time when it was in the occupation of Mohammedans and was lying fallow. It was held that any claim that the plaiantiffs had by custom established a right to go in procession through land bearing valuable crops must fail on the ground of want of reasonableness. It was held also that the mere fact that the people were allowed to go in procession over it was insufficient to establish a customary right to do so. It merely indicated that the processions were carried over the land with the permission of the occupants and not as of right.

12. Reasonableness is one of the most essential elements of a valid custom. A custom recognizing the use of the proof of the defendant’s shop on all ceremonial occasions by a fluctuating body of persons is indefinite and unreasonable.
Instances of reasonable custom

1. Reasonableness of custom should be seen with regard to inception. Owners of village establishing market dedicating their own lands and rendering other services to promote interests of community; in consideration, Dhadwai was charged on commodity. Held, custom of Dhadwai was neither unreasonable nor opposed to public policy.

2. A custom whereby regarding loss of proprietary rights by malik qabza in his land which has been submerged, is prima facie inequitable, but will nevertheless be absolutely unreasonable custom.

3. A custom whereby adna maliks are not entitled to recover lands which have re-appeared after submersion without payment of haz-i-jari to the ala malik.

4. Held, that a claim for the value of buffalo skins, in return for rendering customary services (beggar) to the defendant, under a condition of the wajib-ul-arz, which services were in fact rendered, was not bad, the aleged custom being unreasonable or otherwise invalid.

5. A custom entitling a person to take watercourse through the land of another on payment of compensation.

6. Where plaintiff, a grain dealer, filed a suit for perpetual injunction against the defendants from disturbing him in the use of a specified site in front of his shop, which was situate in a nearly rectangular collection of shops or bazaar to which access was obtained by openings, practically at its four corners, the use being stocking or spreading grain, and the lower appellate court decreed the claim, on the ground that a custom was proved to exist in the bazaar entitling each shop-keeper in the bazaar to use the land in front of his shop for stacking grain, etc., and the defendants appealed on the ground:

(i) that the suit was based on easement and was decreed on custom, an inconsistent right not set up or disclosed by the plaintiff,

(ii) that the site was public property, and that a prescriptive or customary right could not be asserted in respect of such property,

(iii) that the plaintiff had only exercised the alleged right on sufferance, and that the alleged custom could not be maintained,

being uncertain, variable and unreasonable; held, that the custom alleged by the plaintiff was neither unreasonable not uncertain, the fact that the precise amount of grain to be stacked was not settled, not introducting an element of uncertainty.

7. A custom entitling villagers to cut wood from a neighbouring village for repairs of watercourse.

8. A custom whereby the residents of a village claim to use a certain piece of land for Ramlila, for putting up marriage processions, for keeping khalihans and for tying cattle during the rainy season.

9. Cus right to bathe in a tank can be acquired but user must be of right and for long time. In considering evidence regard must be had to habits and customs of people. Using tank when river gets muddy is not sufficient evidence for proof of customary right to use tank.

10. Customary right of boat passage may exist in favour of a class or body of persons. It is different from ceasement which is a private right.

11. Digging and taking earth, if not destructive of subject matter is reasonable custom.

12. A custom for the inhabitants of several adjoining or contiguous parishes to exercise the right of recreation over land situate in one of such parishes.

13. A custom of burying or ceremating the dead bodies of the people of the locality on the abandoned banks of an abandoned tank, is not unreasonable.

14. In Oudh, the custom of exclusion of daughters is well established and it has never been held to be unreasonable.

15. A custom in a Hindu family to grant maintenance cannot be regarded as being unreasonable; but custom can only be relied upon where it is ancient, certain, and where the evidence falls very short of proving this, the custom cannot be held to be proved. The fact that among some families provision has been made for the maintenance of illegitimate children of members of their families cannot be regarded as sufficient to prove a similar custom among other families belonging to a different sub-caste.

16. There is nothing unreasonable in a custom recorded in the wajib-ul-arz allowing a tenant planting a grove upon the land granted to him subject to the condition of forfeiture in the event of his ejectment by the landlord from the tenancy land.

17. A custom by which an owner claims to have right to reject a ryot from house site on payment of compensation for the materials of the house is not unreasonable.

18. The reasonableness of a custom is primarily a question of fact and when a custom has been recognized by Courts of law on various occasions and has been followed in practice, it should not be rejected on the mere ground that it is unreasonable, because if questions had been put to witnesses who knew about the custom they might have been in a position to explain its reasonableness.