It is laid down in the Punjab Settlement Manual (para 565) that “whenever it appears to a Settlement Officer that any answer embodies rather a vague popular sentiment, or feeling of what ought to be, than what is actually customary, he should not fail to note the fact.” Thus it is a part of the official duty of a Settlement Officer to express his opinion in Manual of Customary Law compiled by him. As observed in Narain Singh v. Mst. Basant Kaur (4) about the code of Tribal Custom of the Amritsar District—“These were the views of the compiler of the Code of Tribal Custom under whose supervision the various Riwaj-i-ams had been drawn up. It has been said that it is not his private opinion that is of importance, but the replies of the various tribes. But it was part of his official duty to express his opinion.......The Riwaj-i-am and wajib-ul-arz are admitted into evidence by virtue of section 35, Evidence Act, the underlying principle of which is said in the words of those great authorities, Amir Alienation and Woodroffe:
“The principle upon which the entries mentioned in this section are received in evidence depends upon the public duty of the person who keeps the books, register or record to make such entries after satisfying himself of their truth.”
This dictum follows the view of Erle, J. in 15 Q. B. 665 (Doe v. Andrews) and other rulings. In my judgment the opinions expressed by the Settlement Officer are entitled to weight and they lessen the burden on those seeking to prove that the statement of custom by the tribe is not correct.”
In the absence of any instances quoted in the Riwaj-i-am the Settlement Officer’s opinion is entitled to due weight and has the effect of lessening the burden cast on the party against whom the entry in the Riwaj-i-am is recorded (1). Similarly, in Dhara Singh v. Mst. Aruru (2) Tek Chand, J. considered that the contrary opinion expressed by the Settlement Officer (of the Amritsar District) must be deemed to qualify the nature of the answer recorded in the Riwaj-i-am itself. In Balanda v. Mst. Suban (3) Jailal, J. concurred in the view that the opinion of the Settlement Officer who has compiled the Customary Law is relevant in estimating the value of the statement of a particular custom. In Mst. Parvin Kumari v. Gokul Chand (4) it was held that where the local custom is sought to be proved by the Riwaj-i-am and the Manual of the customary law, the compiler’s remarks in the Manual, where they are not in derogation of the custom referred to in the answers and where they also give the opinion of the compiler regarding the scope of the question, should not be ignored. The compiler being the person who framed the question and presumably also put it to the tribes, his opinion is entitled to considerable weight.
See also to the same effect remarks in Mst. Chino v. Theban and others (5) relating to the Riwaj-i-am of the Kanga District. In this case in a dispute between the daughter and the collaterals, the answer as stated to have been given by the persons consulted at the preparation of the Riwaj-i-am was in favour of the collaterals. The compiler of the Riwaj-i-am under whose supervision the answers were recorded however considered that these answers did not state the existing custom correctly, but were given for ulterior motives. The custom as recorded in the previous Riwaj-i-am and judicially interpreted was not in favour of the collaterals. There were eight judicial decisions of various courts in favour of the daughters and no instance was proved of exclusion of daughters by collaterals. Held, that the initial onus of providing incorrectness of the entry was discharged.
Where Settlement Officer have expressed an opinion regarding a custom entered in the Riwaj-i-am that the answers have been prepared to suit the convenience of he various tribes or at least the convenience of their influential members the onus upon persons who seek to prove that the custom is not correctly given in the Riwaj-i-am is light (6).
It was observed in Mst. Such Devil v. Fakir Singh (7)—“The entries in the Riwaj-i-am owe their weight to the principle originally laid down in English law which received statutory recognition in S. 35, Evidence Act. The principle is that statements made by a public officer should be receivable in evidence because it is his duty to satisfy himself of the truth of the statements made. If the officer himself is not satisfied of the truth of the statements made is seems clear that such statements have less weight than they otherwise would.”—Per Skemp, J.
In Santa Singh v. Mst. Santa (1), however, it was remarked by Addison J.—“It is true that the Settlement Officer who compiled the Customary Law of 1914 (of the Amritsar District) was of the opinion that in reality daughters had a right to exclude agnates with respect to self-acquired property though that right was seldom asserted, but it is not his private opinion that is of importance but replies of the various tribes.” This view was again endorsed by the same learned Judge in Kartar Singh v. Mst. Banto (2) about the Manual of Customary Law of the Amritsar District.
Again, where the author in the preface or introduction to the Manual of Customary Law states the various sub-divisions of a tribe whose representatives were consulted in the course of the preparation of the Riwaj-i-am, and amongst them the sub-division under reference is not included, do the entries in that Manual apply to such a sub-division also ? In Ujagar Singh v. Mst. Diyal Kaur (3) Bhide, J. observed:-“The author of the Customary Law of the Amritsar District, prepared in 1914, has stated in his preface the various sub-divisions of Jat tribe, whose representatives were consulted in the course of the preparation of the Riwaj-i-am and amongst them Kaler Jats are not included. The learned counsel for the appellants conceded that the customs of all the sub-divisions of the Jat tribes are not necessarily the same, and as no representatives of Kaler sub-division were consulted, it cannot be assumed that the answers to questions 60 and 61 would necessarily apply to this sub-division or raise any presumption in plaintiff’s favour. The case might have been different if the preface had not mentioned the sub-division whose representatives were consulted, for in that case it would have been argued that the presumption applied generally to the whole of the Jat tribe and onus would then have been on the person belonging to any particular sub-division of the tribe who alleged that a different custom governed that sub-division. But as the various sub-divisions, whose representatives were consulted, are specifically mentioned in the preface, the fact cannot be ignored.”
It has been held in Khadam Hussain v. Mohammad Hussain (4) that whatever weight may be attached to the compiler’s remarks they are not sufficient to rebut the presumption arising from the entries recorded in the Riwaj-i-am, especially when they are in accord with the earlier Riwaj-i-am. A departure from the old customary law may be discredited if the compiler thinks that the charge was being introduced for a set purpose, but if the replies are in consonance with what had been the custom from time immemorial, the compiler’s personal opinion that the rules were not being rigidly observed in practice will neither discredit the replies given nor lighten the burden on those who are required by the law to rebut the entries made in the Manual of Customary Law. A custom to be valid must be ancient, certain and invariable, and if a few violations are made, the violations themselves will not take the place of custom, if for no other reason because of their newness alone. In Abdul Majid v. Suba Khan (I) it was held that the value attaching to the answers to questions in the Riwaj-i-am cannot be destroyed by the remarks made by the Settlement Officer as they merely embody his private opinion.
From what has been stated above it is thus clear that the question in such a case really is one of the correct interpretation of an entry in a Riwaj-i-am. The Court is bound under the authority of the Privy Council judgment in Beg v. Allah Ditta (2) to raise an initial presumption in favour of the existence of a custom in accordance with an entry in the Riwaj-i-am notwithstanding the opinion of the Settlement Officer that the answers of the tribe do not represent the real custom prevailing amongst them. The opinion of the Settlement Officer does not in itself provide the necessary rebuttal of the statement of custom recorded in the Riwaj-i-am though such opinion would undoubtedly be of great weight in discrediting the statement of custom in the Riwaj-i-am and would easily shift the onus on to the other party to prove the custom, when it is coupled with other evidence, e.g., of instances.
(24) Wajib-ul-arz of “village administration paper:
The Wajib-ul-arz or “village administration-paper” is a statement of customs respecting rights and liabilities in an estate and according to clause (b_) of sub-section (2) of section 31 of the Punjab Land Revenue Act, 1887, it forms part of the Record-of-Rights. Presumption of truth is therefore attached to an entry in the Wajib-ul-arz under section 44 of that Act.
What does a Wajib-ul-rz contain ? According to the official instructions contained in para 295 of the Punjab Settlement Manual ‘it (Wajib-ul-arz) should be a record of existing customs regarding rights and liabilities in the estates. It should not be used for the creation of new rights or liabilities, or for what may be called village legislation.’
The Wajib-ul-arz in the first regular settlements was sometimes a formidable document, but its real value as an evidence of village custom was not always proportionate to its length. Rules 32 to 35 framed under section 15 of the Punjab Land Revenue Act, 1871, contained the instructions for the preparation of this document. These may be found printed on pages 132 to 140 of Tupper’s Punjab Customary Law, Volume II. The rules before that period have been described in Barkley’s Directions for Revenue Officers in the Punjab (pages 65.66). The existing rules on the subject are as follows:-
1. The statement of customs respecting rights and liabilities on the estate shall be narrative form; it should be as brief as the nature of the subject admits, and shall not be argumentative, but shall be confined to a simple statement of the customs, which are ascertained to exist. The statement shall be divided into paragraphs numbered consecutively, each paragraph describing as nearly as may be separate custom.
2. The statement shall not contain entries relating to matters regulated by law; nor shall customs contrary to justice, or good conscience, or which have been declared to be void by any competent authority, be entered in it. Subject to these restrictions, the statement should contain information on as many of the following matters as are pertinent to the estate:-
(a) Common land, its cultivation and management, and the enjoyment of the proceeds thereof;
(b) Rights of grazing on common land.
(c) Rights to the enjoyment of sayer produce.
(d) Usages relating to irrigation of land.
(e) Customs relating to irrigation of land.
(f) Customs relating to mills, tanks, streams, or natural drainage.
(g) Customs of alluvion and diluvion.
3. Where the record-of-rights is being made for the first time, if the persons interested are not agreed as to the existence of any alleged custom, Collector, or an Assistant Collector of the first grade, shall decide the dispute in the manner provided in section 36 of the Land Revenue Act. Where the record-of-rights is being revised, the Collector or Assistant Collector of the first grade shall similarly decide disputed entries; but in doing so he shall have regard to the provisions of section 37 of the Land Revenue Act.
4. When the statement is complete, the Revenue Officer aforesaid shall fix a date for its final approval and shall summon the persons interested to appear on that date at a place in or in the immediate vicinity of the estate to which the statement relates. And on the date and at the place appointed the statement shall be read over in the presence of such of the persons as are in attendance, and after such further correction as may be then found necessary, the Revenue Officer aforesaid shall sign the statement and shall add at its foot an order declaring that it has been duly attested.
--(Settlement Manual, Appendix VIII)
(25) Evidential value of entries in Wajib-ul-arz:
(a) Entries in a wajib-ul-arz amounting to agreements.
Certain entries in a Wajib-ul-arz have the effect of agreements. Section 2 of the old Punjab Tenancy Act (XXVIII) of 1868) provided that nothing contained in this Act shall affect the operation of any decree of court under which a tenant holds or of any agreement between a landlord and a tenant, when such agreement is in writing or recorded by the proper officer in the record of a regular settlement sanctioned by the Local Government.
All entries in such record, in respect of matters comprised in Chapters III, IV, V and VI of this Act shall, when attested by the proper officer, be deemed to be agreement within the meaning of this section.”
The first Punjab Land Revenue Act came into force on 18th November 1871, and section 21 of that Act deprived the entries after that date of the force of agreement, but upheld those made before that date. And section 112 of the Punjab Land Revenue Act, 1887, now enacts that—
“An entry with respect to:
(a) the enhancement or abatement of the rent of a tenant having a right of occupancy, or the commutation of rent in kind into rent in money or of rent in money into rent in kind, or the taking of rent in kind by division or appraisement of the produce or other procedure of a like nature, or
Section 109 of that Act further declares certain entries in records-of-rights to be void.
(b) Presumption of truth attached to entries in a Wajib-ul-arz—The presumption, however, is rebuttable:
As has already been stated above, a Wajib-ul-arz forms part of the record-of-rights under clause (b) of sub-section (2) of section 31 of the Punjab Land Revenue Act, 1887, and consequently under section 44 of that Act the entreis in a Wajib-ul-arz must be presumed to be true unless rebutted. Riwaj-i-am records the custom prevailing amongst the various tribes in a district or a portion of a district to which it relates, while there is a separate Wajib-ul-arz for each estate.
A Wajib-ul-arz is thus a village statement of customs as distinct from the district statements of customs, which is called Riwaj-i-am. Entries in a Wajib-ul-arz relating to questions of custom, except those mentioned above, are not agreements between the members of the proprietary body but are presumptive evidence of existence of the rules of custom embodies therein. The onus is on the party who contends that the custom is not as given in the Wajib-ul-arz, to establish his case (1).
As already observed on page 145, the first record-of-rights prepared for each village contained a Wajib-ul-arz which amongst other matters contained the special customs of the village, or as much as was known of them. Subsequently matters relating to custom were separated from the rest of the Wajib-ul-arz and we rerecorded in Riwaj-i-am, so that in the Wajib-ul-arz only those matters which are mentioned on page 173 are now recorded. A Wajib-ul-arz is a record of admitted village usages to which a presumption of correctness attaches under S. 44 of the Punjab Land Revenue Act, 1887, and throws the onus of proof on the party controverting it (2). When a custom is recorded in a Wajib-ul-arz, it establishes a true custom (3). The Settlement Record-of-rights is as a rule accepted as affording presumptive evidence of village custom, which it records, throwing the burden of proof on the party contradicting it. In other words onus lies on him who asserts that the entry about a custom in a Wajib-ul-arz is wrong (4). At least when it is not opposed to the principles founded on universal law of justice, onus lies on him who asserts that the entry about custom is wrong (5).
When a Wajib-ul-arz states a certain custom, it raises a presumption of correctness even if the entry is not supported by instances (6). As observed in Baksha v. Mir Baz etc. etc., (7)—“As regards the Wajib-ul-arz we see no ground for the opinion of the Divisional Judge that when the entry was made, it was intended not as a declaration of an existing custom, but a mere expression of the wishes of the people as to what was to be the rule in future. It appears to us that whether the entry was correct or not, it was certainly intended to be a declaration of an existing custom and the question of its correctness must depend on the instances given in support of it or against it, not in the Wajib-ul-arz itself, for it was not usual to cite instances in that document, but in evidence in court when the question of custom is tied.”
But an entry in a record-of-rights is not necessarily conclusive. It is an entry to which the presumption of correctness attaches under the provisions of S. 44, Punjab Land Revenue Act, unless and until the contrary is found by legal evidence. If the entries themselves are inconclusive or appear on the fact of them to be erroneous, a court would be justified in not accepting them (1). An entry in the Wajib-ul-arz is only a presumptive proof and is not a gospel. It should not, therefore, be blindly followed, for it may represent the wishes of those who made it or it may simply be a stereotyped entry (2). In other words, it is not conclusive where it is opposed to universal law and justice (3); or, when it is couched in general terms, for example, where it says that daughters are excluded without mentioning any degrees of collaterals in whose presence the daughters cannot succeed (4). In 93 P. R. 1892, a Wajib-ul-arz was rejected because “it was impossible to believe that the entry therein contained a true exposition of the views of the proprietors on the subject. Similarly, it was held that an entry in a Wajib-ul-arz saying that the collaterals of a person living in a different village do not succeed to the property left by the deceased was very unusual and not very reasonable and could not be applied to another village, which had been founded from the former (5). In 120 P. R. 1881 the Wajib-ul-arz was considered to embody not what the zamindars knew to be the custom actually existing, but what they considered would be good and convenient rule to prescribe for the future. In 64 P.R. 1903 it was held that at least when it is proved that an entry in a Wajib-ul-arz has never been acted upon or the right exercised in accordance therewith, it cannot be considered sufficient to establish a custom.
It is, however, submitted that in view of section 44 of the Punjab Land Revenue Act, 1887, and the Privy Council rulings reported as Beg v. Alla Ditta (6) and Mst. Vaishno Ditti v. Mst. Rameshri (7), entries in the Wajib-ul-arz must be presumed to be true and are prima-facie proof of the custom embodied therein even though unsupported by instances and against the general custom followed in the Province, and the onus of proving to the contrary will rest on the persons challenging their correctness.
Unless there are strong reasons to the contrary, if the same word is used in several places in a Wajib-ul-arz, it should be construed in the same sense. If the whole document is carelessly and loosely worded it has to be interpreted by taking it as a whole and seeing what on a natural construction it means to lay down (8). A document like a Wajib-ul-arz is not usually prepared by a skilled draughtsman and its language must not be literally construed (9). A clause in a Wajib-ul-arz, therefore, cannot be interpreted like a section of the Statute Law and a slight error or inadvertence of the scribe may cause a mistake (10). A court cannot give a strained meaning to an entry in clear words in a Wajib-ul-arz (11).
The law relating to Wajib-ul-arz applies only to a Wajib-ul-arz, which forms part of a Settlement Record and not a document, which may be called by this name, but is no part of the said record. For example, no presumption of correctness attaches to a chakwar Wajib-ul-arz which does not form part of the Settlement Record (1).
It was remarked in Hashim v. Nathu (2) by Robertson, J.—“The force of entry in the Riwaj-i-am is quite different from that of condition in Wajib-ul-arz which in some cases may be a binding agreement and in all cases, as part of the Settlement Rectd, must be presumed to be correct under section 44 of the Land Revenue Act. An entry in a greatest part of its weight from the free expression of opinion as to custom at a time when the members of a 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 their replies.”
A Wajib-ul-arz being a part of record-of-rights is of greater authority than a Riwaj-i-am which is of general application, and is drawn up in respect of individual villages (3).
(26) Are entries in a Wajib-ul-arz operative only for the term of the settlement ?
As a separate Wajib-ul-arz is prepared at every settlement, the question arises whether the entries embodied in a Wajib-ul-arz operate for the term of the settlement only or are binding forever. In Rahiman v. Bala (4) it has been held that the parts of a Wajib-ul-arz referring to custom are certainly not provisions intended to be in force for a limited period. They are statements that a certain custom exists. The statement may or may not be correct but if it is correct, there would be a natural presumption that the custom continued to exist, and it would be for those alleging that a change had subsequently taken place to prove the allegation.
In general, agreements embodied in a Wajib-ul-arz at the time of settlement ought to be considered prima facie as intended to subsist only for the term of settlement (5). There is, however, no fixed rule on the point whether a particular agreement was intended to ensure only for the term of the settlement in the course of which it was recorded. In each case, it is a question of fact whether a particular agreement was intended to enure for the term of the settlement or for all time (6).
The portions of the Wajib-ul-arz which refer to customs are not provisions intended to enure for the duration of the Settlement only but are statements that a certain custom exists (7). The rule that the entries in the Wajib-ul-arz are not meant to be in force for the period of settlement means that if the provisions of the former Wajib-ul-arz are not repeated in a later Wajib-ul-arz, this does not prove that the custom has discontinued (8). It is, however, no doubt true that an entry in a later Wajib-ul-arz opposed to the earlier one is some proof of change of custom, but it is not conclusive that the later one has abrogated the custom, but it is not conclusive that the later one has abrogated the earlier.
(27) Earlier Wajib-ul-arz v. later Wajib-ul-arz—conflicting entries—which to be relied upon ?
If it is expressly laid down that the terms of the Wajib-ul-arz refer only to the period of settlement, the matter ends and the latest Wajib-ul-arz is to be looked into. For inference of agreements i the latter Wajib-ul-arz repudiates or cancels the entry of the former Wajib-ul-arz, the entries in the latter one alone should be considered. It is a natural presumption from the omission of an entry that it has been done deliberately and with due cause. When a new Wajib-ul-arz is prepared it supersedes the old Wajib-ul-arz and it is the new one which must not be altered under section 37 of the Land Revenue Act without due cause (1).
We have already noticed that entries in a Wajib-ul-arz are generally a record of custom, though these entries have sometimes force of an agreement. This is a very important distinction; a record of custom is a record of something binding on the parties concerned, and the ruling that it enures only for the period of settlement does not apply ot it. But an agreement is something entered into by the parties of their free will and extends in the absence of express proviso only for the period of settlement (2).
Each case must depend on the terms of the agreement in dispute. Where a condition in a Wajib-ul-arz is not only restricted to the terms of the settlement but expressly states that it is to be operative for all time, it will hold good for ever unless it is to be operative for all time, it will hold good for ever unless it is varied by a subsequent agreement arrived at between the parties (3). On the other hand, where the terms of an entry in a Wajib-ul-arz expressly limit it to a particular settlement, it has been held that the Wajib-ul-arz cannot be treated as an agreement between landlord and tenant within the meaning of section 111 of the Punjab Land Revenue Act, 1887. This position is not made in successive settlement records without any investigation as to rights of occupancy tenants (4).
Similarly, in Chandra Bhan v. Mohammad (5) it has been held that where a new Wajib-ul-arz is framed, the old one ceases to be operative.
Where there are conflicting entries in the Wajib-ul-arz neither of which is based on known instances, the presumption is in favour of the entry which least conflicts with the general custom (6).
(28) Tribes to which Riwaj-i-am or Wajib-ul-arz applies:
Question sometimes arises whether a Riwaj-i-am or a Wajib-ul-arz applies to all tribes or only to those especially named in the document. The general rule to be followed is that so far as agriculturists are concerned Riwaj-i -am applies to all tribes, though not specifically named in it, and it does not apply to those tribes or sections of tribe which are specifically exempted. In the case of non-agriculturists the documents must show specifically that they are governed by their provisions. If non-agriculturists are not expressly named by tribes therein, the Riwaj-I-am will not apply to them.
A Riwaj-I-am applied to Jats but did not specifically named Bhat Jats. Held, that it applied to the latter (I).
In 57 P.R. 1885 it has been held that a Riwaj-I-am is drawn up as a record of custom of agriculturists and cannot apply to Kakazai Pathans of Batala. In 92 P.R. 1901 the question for decision was whether Sayads of a town who held land in village followed agricultural custom or not. The Riwaj-I-am which applied to all landowners made no specific mention of Sayads. Held, that there is no allusion to Sayads in the Riwaj-I-am of the district and, though it is urged that they are included in the miscellaneous tribes, this is not elearly established.
Khatris, who were residents of a town held land in a village. It was contended that the record-of-rights which provided that a proprietor cannot alienate without necessity applied to them. Held, that this document cannot operate to make a proprietor non-agriculturist subject to custom which governs agriculturists. A non-agriculturist may be bound by so much of the record-of-rights as deals with pre-emption and similar matters, but in alienation and succession he cannot be bound by agricultural custom (2).
But see 102 P.R. 1902 in which it was argued that because the wajib-ul-arz did not specifically say that it applied to Sayads, it did not apply to them. It was held-“The wajib-ul-arz of a village is to be presumed to apply to all landowners as a body and it should clearly be held applicable to all such owners unless they are specifically exempted. It is not a specific mention we look for in a wajib-ul-arz but a specific exemption.”