As observed by Chatterji, J. in 110 P. R. 1906 (F. B.) at p. 393 ‘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 in other recognized modes of establishing its existence’ (5). Rossignol, J., however, remarked in Dalipa v. Rani Suraj Kaur (1) – “As to this argument it is sufficient for us to say that the only adequate proof of a custom is clear evidence that such had such a custom is followed and not merely opinions however numerous that such and such a custom ought to be followed. Similarly, Rattigan, J. remarked in Mst. Nur Bhari v. Abdul Ghani Khan (2) – “Nor again can I attach any value to the broad general statements made by witnesses who endeavour to assist the party by whom they are called by asserting general rules of succession but are unable to refer to precedents in support of their assertions. Evidence of this nature (if it can be dignified by the name of evidence) is of no value and is easily procurable.” In 1926, 98 I. C, 42 (Calcutta) it has been held that 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 or private records that the custom has been enforced. Though judicial decisions are not indispensable, the acts required for the establishment of Customary Law ought to be plural, uniform and constant. It is admissible evidence for a living witness to state his opinion in the existence of a family custom and to state as the grounds of that opinion information derived from deceased persons, and the weight of the evidence would depend on the position and the character of the witness and of the persons on whose statements he has formed his opinion. But it must be the expression of independent opinion based on hearsay and not mere repetition of hearsay (3).
In view of decisions of the Privy Council in Vaishno Ditti v. Rameshri (4) and Basant Singh v. Brij Raj saran Singh (5), however, the remark quoted about must be received with caution. It was observed by Sir John Wallis in the former case – “In the circumstances their Lordships are of opinion that, even though there be no evidence of instance, still the custom spoken to by the party’s witness is in accordance with the custom applicable to his community according to the Manual of Customary Law of the district, there is sufficient prima jacie evidence of the existence of the custom, subject, of course, to rebuttal, and that it ought not be held insufficient merely for want of instances.” In this case there was the evidence of two witnesses as regards the custom, and their Lordships observed that although the witnesses 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 districts” Custom was held to have been established in this case. In Jagnahar Singh v. Sadhu Ram (6) a custom of karewa marriage between a Jat and his widowed daughter-in-law was held to be invalid on the oral evidence of witnesses though no instances were cited.
Again, it was remarked by Bhide, J. in Joginder Singh v. Kartara (1) – “It will appear from the above that the evidence of the appellant is supported by two instances exactly in point and two instances of a marriage when the widow of a nephew which may be considered to be analogous. The case of the respondents on the other hand rests entirely on oral evidence. It is true that opinions of persons belonging to the same tribe on the question of custom are relevant in a case of this kind, but mere opinions unsupported by instances have to be taken with caution.” See also remarks of Tek Chand, J. in Bawa Singh v. Mst Partap Kaur (2) and Aitbar Khan v. Abdullah Khan (3) in which oral evidence unsupported by instances was not relied upon against other evidence supported by instances.
Currie, J. similarly observed in Mst. Begum Bibi v. Mohammad Din (4) – “To turn now to the evidence of the parties ; this falls into three categories :-
(1)Instances depending on oral evidence ;
(2)Instances supported by documentary evidence, and
No weight can be attached to mere expressions of opinion given by partisan witnesses to the effect that they are governed by ‘Sharah’ or by custom except in so far as the witness can cite instances in support of their assertions.’ ‘ And in another case reported as Ahmad Din v. Mullah Mahmud (5) Tek Chand, J. remarked – “The oral evidence on the record is inconclusive. The witnesses make bold statements, supporting the allegation of the party who called them but are unable to cite any instances in which the custom alleged by them had been followed.”
Similarly, it has been held in S. Motilal v. Th. Sheonath Singh (6) that the most cogent evidence of custom is not that which is afforded by the 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 or private records or receipts that the custom has been enforced.
It has been held that a custom proved to have existed during a period of living memory can only be presumed to have existed from before the period of legal memory only where conditions may be assumed to have been permanent and stable. Where what is proved was the user of a certain tank by caste Hindus owning adjoining houses and non-user by untouchables and this was no doubt due to the mutual acceptance of the doctrine of ‘untouchability’, and where the tank is on the outskirts of an expanding town, it cannot be presumed that conditions have been similar for a period long enough to establish a claim by the caste Hindus based on immemorial custom to use the tank to the exclusion of ‘untouchables’ (7).
It is thus clear that as a general rule oral evidence unsupported by instances and not in accordance with entries in the Manual of the Customary Law of the district is not of must value, though the question in each case is as to the weight of evidence, and the evidence of persons regarding the existence of a custom, specially when it is corroborated by documentary evidence, should not be rejected merely because specific instances have not been proved.
An admission on a pure question of law is not binding upon a party, but the question whether a particular custom does or does not prevail in any particular tribe is a matter on which the tribesmen themselves are in the best position to pronounce an opinion. When questions relating to tribal customs have to be determined, the parties try to secure the evidence of the members of that tribe and even of people living in its neighbourhood, as regards the existence and non-existence of the custom. The people of a particular community are the best and most trustworthy repositories of the traditions which go to constitute a particular custom prevailing in that community and their evidence, therefore, is of very great moment (1).
An admission on a question of tribal custom is not an admission on a pure question of Law, and is a valuable piece of evidence against the person making the admission.
“No doubt an admission cannot be treated as an estoppel and it is always competent to the person who makes an admission against his own interest, to come forward and to explain to the court and circumstances under which he had made the admission and to give his reasons why it is not binding upon him. But if an admission against his own interest is made in unequivocal terms by a party in respect of a matter in which he is directly conferred and he omits to give any explanation, then that admission can certainly be used against him, for as had been laid down by the highest authority a man’s admission, if unexplained, is the best piece of evidence against him (2).”
Thus the fact that a party’s father had once asserted that a certain custom prevailed, does not estop such party from alleging that their personal law governed the parties (3).
An admission to be effective should have been made under no misapprehension of custom or law applicable to the case. Thus it has been laid down that an admission made on a misapprehension of law is not very important (4). An admission by a party that he is governed by his personal law does not bind that court and the court has power to consider a custom (5). It is a common experience to find Hindus and Muhammadans both stating that they are governed by ‘Shastras’ and ‘Sharas’, respectively, although they have no idea what rules are prescribed by those authorities (6).
Custom may also be proved by acquiescence of a party. As held in Natha Singh v. Sujan Singh (1), it was impossible to have better proof of the existence of an custom that the fact that person interested acted as it they believed an alienation valid and never mentioned it until they imagined the Chief Court had found such alienations invalid. In Nura v. Tara (2) the plaintiff’s long silence and unexplained delay in bringing the suit suggested an inference that he was emboldened to put forward his claim by some favourable rulings of the Chief Court.
A plaintiff who contested an alienation was held barred by acquiescence proved by (i) long silence, (ii) purchase by one collateral, (iii) cultivation by plaintiff of disputed lands under alienee, and (iv) exchange of disputed lands with alienees (3). Similarly, in 102 P. R. 1902, plaintiff’s suit for contesting an alienation was held barred because he acquiesced by (i) no intimation of objection for 28 years, (ii) silence at partition for 24 years before suit, (iii) taking disputed land from the alienee as a tenant.
Acquiescence was held barring the suit when (i) the plaintiff dropped his objection at mutation after making a formal protest to the patwari, (ii) by making no demur to a friendly partition, (iii) by not objecting to the defendant’s being recorded as an adopted son, and (iv) by long silence (4).
Realising revenue of the alienated land in the capacity of a lambardar from the alienee or consenting to partition of the land, are facts of acquiescence (5).
Where the vendor’s son stood by, while the land sold was being built upon at considerable expense by the vendee, and on his father’s death sued for possession eleven years after the sale, on the ground that the sale was without nccessity : held, that the son’s suit was barred on the ground of acquiescence coupled with the fact he knew all along of the building operations (6).
Son accompanied his father, while the latter alienated the property though he did not take any active part. He took no action for 11 years, and filed a suit challenging the alienation after that period. Held, that plaintiff’s conduct amounted to acquiescence (7).
The fact of a reversioner of an alienor taking over the alienation on payment of full consideration to the original alienee, amounts to acquiescence (8).
It has already been observed (see pages 61 to 63) that custom cannot be
extended by logical process or by analogy, It is a matter not of mere theory but of fact, and cannot be established by theoretical generalization, or by a priori method.
As pointed out by Robertson, J. in Daya Ram v. Sohel Singh (1), a view which had been endorsed by their Lordship of the Privy Council in 1917 P. C. 181 (2).
“The legislature did not show itself enamoured of custom rather than law, nor does it show any tendency to extend the principles of custom to any matter to which a rule of custom is not clearly proved to apply. It is not the spirit of Customary Law, nor any theory of custom or deductions from other custom which is to be the rule of decision but only any custom applicable to the parties concerned.”
Custom is not a matter of theory but of fact. It is not always logical and cannot be deduced by inferences (3). In dealing with cases in which the question involved relates to the existence of a particular custom it is not permissible to court to extend custom by logical process. In the absence of any authoritative statement of the custom it can only be established by instances and not by a priori method (4).
As observed in a Oudh case, “It would be wholly against all principles to uphold a custom by means of possible inferences or even probable implications (5).
Custom is a matter of proof and not of conclusions based on a priori reasoning or deductions prevailing among primitive societies (6). “Custom” implies, not that in a given contingency a certain course would probably be followed, but that that contingency has arisen in the past and that a certain course has been followed; and we consider it that it is quite outside the province of the courts to extend custom by the process of deduction from the principles which seem to underlie customs that have been definitely established.” – Per Shadi Lal, C.J. and Rossignol, J. (1).
“Customary Law, like other law, is a branch of sociology and must be in a fluid state and take congnizance of progress of ethical and legal notions in the community in which it is in force.” – Per Chatterjee, J. (2), While it is the duty of our courts to respect all well established customs it is surely not to be held that progress is never to be recognized or that developments inseparable from civilization are to be rigidly disregarded (3). The courts should take cognizance of actual facts instead of being swayed by theories, even though they may be strictly logical, or by considerations affecting the symmetry of the customary system (4).
Cases under Customary Law cannot be decided on analogy (5).
Can a custom be proved by establishing a negative fact ?
In 13 P. R. 1873, the question was whether a widow was entitled only to Maintenance or a life estate in her husband’s estate. Evidence of negative facts was brought to show that as widows had never been given a life estate, that fact established a custom. Held, that the instance established a long established custom precluding female from demanding a life estate.
In 34 P. R. 1881, it was urged that the fact of the widows not having alienated in the past, does not prove that there is a custom preventing from alienation and that to prove such a custom, it is necessary to show cases in which a widow has endeavoured to alienate and the relatives have prevented her. But the contention was overruled, because “there can be no better proof of custom restricting persons from certain acts than the proof that it has been for the interests of thousands of persons to do that act that they have restrained themselves from even attempting to do it.”
In 3 P. R. 1885, the question was whether a gift for dharmarth of the whole estate was valid. The plaintiff contended that it was invalid because no proprietor had made such gifts before this. The other side urged that the evidence of such a negative fact was not sufficient to hold that the gift was invalid. Held, that “the express custom can only be shown by incidents which have happened. But, in reality, the negative evidence as to the invalidity of these gifts is of the very strongest …….If no cases have occurred in which men safely conclude that the cause is that they recognize that the unwritten law of custom is against such acts.”
4. No mercantile usage or custom can vary or contradict the positive
stipulations in a written contract.
Per Story, J. – The Schooner Resides, 2 Sum, (U. S.) 567 section 92, proviso 5, Indian Evidence Act 1872 ; VII Ben. L. Reps. 682 ; VIII ibid 459 ; 15 Suth. W. R. 501.
4. A custom may be abrogated by a custom.
Custom when abrogated.
As the will of the community establishes custom in the first instance, so the same community may, by the expression of its collective will, evidenced by long usage, abrogate it according to the maxim cujus est instiuere ejus est abrogare. See also Brown on Usages, P. 16, Compare XII Bom. H. C. Reps.; 316, 317 and 322 and I. I. R., IV Bom. 454.
Indian Courts are Courts of Law as well as of Equity and they ought not to give effect to a custom when the growing consciousness of the community in which it is said to have prevailed is prepared to treat it as unsuited to modern conditions and has allowed a departure from it in several cases. “The judicial recognition of a custom which a community is prepared to jettison is neither necessary nor just” ; 1927, 51 Mad. 1 at pp. 27, and see the observations in 1934, 15 Lah. 425 (F. B.)
A particular rule of descent once prevailing in a family may be destroyed by discontinuance (I. I. R., I Cal. 186).
The production of a later record of rights containing entries opposed to an earlier one is some proof of a change of custom, but is not conclusive on the question whether the earlier custom has, in fact, been abrogated (No. 8 P. R. 1892). Compare 1924, 6 Leh. 52, where the Riwaj-I-ams of 1879 and 1919 being apparently in conflict, the Court relied on the former remarking: “The 1879 Riwaj-I-am undoubtedly is an important piece of evidence and, supported as it is by instances, it was in our opinion sufficient to shift the onus laid upon the defendant to the other side”; 1924, 6 Lah. 52 ; see also the observations of Addison, J. no this point in 1931, 13 Lah. 410 at pp. 418, 419; see also the authorities cited in the foot-note to paragraph 3, ante.
Where a custom is proved to exist, that custom must be held to continue, and the onus of proving discontinuance or that the custom had fallen into desuetude lies upon the party asserting it ; 1931, 182 Ind. Cas. 804. (Allahabad).
4. Abrogation of custom by personal law.
In 1934, 15 Lah, 425 (F. B.), the parties were Gishkori Biloches of Dera Ghazi khan, who admittedly, prior to the last Settlement concluded in 1920, followed custom in matters of succession. In the course of that Settlement, however, some persons purporting to speak on behalf of the Biloch tribes, stated that had abrogated custom and had adopted Mohammadan Law. Held, that as it had not been established that the Gishkori Biloches of the district, after mature deliberation and with a genuine determination to act upon it in future, made an unanimous or almost unanimous declaration in the course of the Settlement of 1920 to abrogate this long established custom and to follow Mohammadan I.aw in future. Held, also, that it is not open to an individual at his pleasure to change the rule of succession to his property to the detriment of those who would have been entitled to it under the law by which he had hitherto been governed, except of course in so far as that law allows him to do so by making a last will and testament ; 1934, 15 Lah 425 (F. B.), (Tek Chand, Dalip Singh and Abdul Qudir, JJ., agreeing, in effect, with Coldstream, J.; Jai Lal, J., However, took the contrary view)
SUCCESSION AND MAINTENANC
(1) Agnatic theory.
(2) General rule of succession.
(3) Daughters – whether any right to succeed in the presence of sons or direct male lineal descendants.
(4) Murderer and his descendants excluded from inheritance.
(5) Son’s right to enforce partition during father’s life-time.
(6) Rule of primogeniture – “Haq Sardari”.
(7) Pagvand or Chundavand rule of succession
(8) Associated and disassociated heirs – generally succeed equally.
(9) Property acquired by sons in a joint family.
(10) Preference of one son to the others
(11) Right of representation-principle
(12) Right of representation-Pagvand v. Chundavand rule.
(13) Widow’s right of collateral succession-onus of proof
(14) Right of step-sons to succeed.
(15) Widow’s life-estate.
(16) Two or more widows succeed jointly-rule of survivorship.
(17) The fact that the widow is a karewa widow does not affect her right.
(18) Widow’s right of succession ordinarily not affected by the circumstance that the husband was joint in estate with others.
(19) Nature of widow’s life-estate – not absolute owner but with restricted right-analogous to widow’s life-estate under Hindu Law.
(20) Mohammadan widows also take a life-estate in the whole property.
(21) Meaning of life-estate - on termination of widow’s interest the descent is to be traced from her husband.
(22) Widow’s right to partition.
(23) Widow’s right to maintenance or life estate in the presence of sons or other male lineal descendants of the deceased – case where there are two or more widows.
(24) Widow’s right to maintenance – charge on estate-widow’s right to claim a lien on her husband’s property for maintenance and to residence as against creditors and in lieu of dower.
(25) Widow’s right to resign her claim to possession and take maintenance – acceleration of succession by surrender.
(26) Maintenance to be fixed after considering the position of the family – land allotted in lieu of maintenance.
(27) Mother’s life-estate – effect of re-marriage or unchastity
(28) Mother is usually excluded by the widow.
(29) Co-widows – succeed jointly.
(30) Step-mother – right of the mother to succeed in the presence of a son of her deceased husband from another wife.
(32) Daughter’s right of succession – agnatic theory not strictly followed in the Punjab.
(33) The position of the daughter is stronger in endogamous tribes than in exogamous tribes.
(34)Ancestral property – daughters usually excluded from succession by near male collaterals – more distant collaterals generally excluded by daughters.
(35) Non-ancestral property – daughters generally preferred to collaterals as regards succession to self-acquired property.
(36) Method of computing degrees of relationship.
(37) Entries in a Riwaj-I-am or a Wajib-ul-arz generally refer to ancestral property.
(38) Succession of daughter in the presence of sons or other direct male lineal descendants.
(39) The rights of a daughter to a share in the presence of a widow.
(40) The rights of a daughter to a share in the presence of a mother.
(41) Daughters v. collaterals residing in other villages.
(42) Nature of daughter’s estate-daughter not absolute owner-reversion of estate on failure of issue.
(43) Daughter’s son, whether heir under custom.
(44) Daughter’s daughter v. collaterals.
(45) Grand-daughters and her sons v. remote agnates.
(46) Daughters and rule of survivorship.
(47) Unmarried daughter’s right to a life-estate or maintenance.
(48) Married v. Unmarried daughter.
(49) Right of sisters to succeed against collaterals.
(50) Sister v. proprietary body.
(51) Sister can not be regarded as the daughter of the penultimate proprietor.
(52) Nature of sister’s estate.
(53) “Agnates” and “Cognates” – difference explained.
(54) Right of collaterals to succeed.
(55) Right of representation.
(56) Principle of representation does not apply where parties are governed by personal law and not by custom.
(57) Principle of representation applies to females also.
(58) Right of representation – whole blood v. half blood – Pagvand and Chundavand rule.
(59) The position of collaterals residing in another village – (a) against cognates, (b) against proprietary body.
(60) Collaterals residing elsewhere versus daughters.
(61) Right of resident son-in-law [khana-da-mad] to succeed.
(62) Some special features regarding the institution of khana-damad.
(63) Khana-damad’s right of succession.
(64) Succession of proprietary body and escheat to the Crown.
(65) Escheat to the Crown,
(66) Rules for division when escheat to the village proprietary body exists.
(67) Daughters versus the village proprietary body.
(68) Sisters versus the village proprietary body.
(69) Other cognates versus the village proprietary body.
(70) The right of the proprietary body to evict strangers in possession of a deceased proprietor’s land.
(71) Right of village proprietary body to contest alienation by one of the proprietors.
(72) Effect of change of religion on succession.
(73) Effect of abandoning worldly affairs and entering a religious order.
(74) Effect of unchastity on widow’s rights.
(75) Forfeiture of widow’s life-estate on remarriage.
(76) Right of illegitimate children to succeed.
(77) Surrender by a widow of her life-estate to the next reversioner-acceleration of succession.
(78) Adverse possession.
(79) The right of a widow to accept redemption.
(80) Succession to wife’s estate.
(81) Succession among prostitutes.
1. Agnatic Theory.
As has already been observed, the great periods in the history of landed property in the Punjab may be presumed to be not the joint family, house community, and the village community in that order, but successively the tribe, the village and the family. Speaking as a whole, the village communities in the Punjab consist of groups of families bound together by the tie of descent from a common ancestor and it is still the feeling of kinship and not the mere common interest in the land, which regulates these customs.
Mr. Tupper’s views on agnatic theory- As observed by Mr. Tupper, (1) “taken with the theory of proprietary development and its consequences, it is the Roman system of agnatic kinship that supplies a clue to the Punjab Customary Law.” “Suppose normal development to have been uninterrupted, either by recent colonization under official guidance, or by the desire of the landholders to lighten the fiscal burden by bringing in strangers to till the soil, or, again, by the decisions of the Courts of Justice, or lastly, by and specially strong infusion of Muhammadan ideas, what would originally have been the systematized customary law of a typical Punjab village ? It must be postulated that all the proprietors of the village should be of the same clan; but they might hold either in shares, all produces being brought into the common stock and divided, or sections of the brotherhood might jointly possess separate plots in the village area ………Such a community, with a strong sense of their family origin and an hereditary preference for members of the wider tribe, which includes their own clan, would naturally be endogamous from one point of view, and exogamous from another. They would marry their daughters outside the closely drawn limits of the clan, but within the looser, but still remembered, circle of the tribe or race of origin. As ancestral shares would be remembered, the sense that the clan had expanded from the family of a common ancestor would be keenly felt ……..The villagers, having long outgrown the primitive conditions when male parentage is quite uncertain, trained in the past by warfare and toil to depend on the male kindred, would assign property, now much more in lands than in cattle, to the hands best able to hold it safely and to use it to advantage, that is, to those of the heirs determined by the system of agnatic kinship, or of relationship exclusively through males. This would be the more necessary, as, the daughters marrying outside the clan, their children would belong to another stock. Women would be under a perpetual tutelage, under the guardianship either of their husbands, or failing these, of the nearest agnates by blood or marriage ……….By marriage, sisters and daughters would be provided for in another clan; there would be no need to give them part of the village patrimony ; and, indeed to do so would be to bring into community an outsider of a different village and different section, who might be an unwelcome intruder, or possibly, in former days, an open enemy, merely reconciled for the time by the connection………
“On the death of a proprietor his holding would devolve on all his sons, usually in equal shares ; on the predecease of one or more of them, the grandsons would take per stirpes, each set receiving the share which would have gone to the son had he outlived his father. In the absence of sons the widow would take a life-interest, without power to alienate, save on great necessity, if the kinsmen did not come to her aid, and terminable either by her notorious unchastity, as for example, by her elopement or by her re-marriage. In either case the land might pass practically into the possession of some one outside the village or clan…….
“Throughout the whole scheme the right of representation would be consistently applied, even in the succession of others than the direct descendants of the deceased ; the sons of a deceased agnate taking the share he would have had if alive. This would be the necessary consequence of the theory that the estate was always either actually held or potentially distributable according to ancestral shares. And the right would even in a manner be extended to include the widow of a deceased agnate without sons who might have the usual life-interest in the share that would have fallen to her husband. No distinction would be made between associated or disassociated sons or brethren, for the prevailing assumption would be that near kinsmen were joint in estate. Nor would there be any practical need to import this refinement, the growth of an historically later epoch in law.
“But, sometimes, the distribution amongst sons would be not equal. If there would be in the village a family which had once been that of a tribal chief the eldest son would probably find his hereditary preeminence in some way recognized on succession. Rarely he would, for other reasons, get an extra share. More often, as is well known, the inheritance would be distributed according to the number of mother, the sons, however many, of one mother taking a share equal to the aggregate given to the sons, however few, of another. Again, -as an offshoot from this now inequitable system, -among brothers, the brother of the whole blood might, perhaps, exclude his brother by the same father but by a different mother. I think, however, for reasons I shall add uce further on, that the two last rules are only organically connected with the scheme of agnatic village succession by way of survival. They seem to me to belong to an older order of things, prior to the establishment of agnatic kinship.
“Although the position of women which the scheme indicates is not a high one, the life-interest they frequently enjoy under guardianship of the agnates is a very distinct testimony to a considerable advance in civilization. Some tribes, especially in the wilder parts of the country, would deny the widow more than maintenance ; but there is nothing in her restricted tenure which conflicts in any way with the system of the village or clan. She belongs to the brotherhood; and the recognition of her right is humane, and so far as it goes unselfish. But it would be a necessary rule that whenever a woman took land in any capacity, she must have no more than the limited interest I have described, otherwise, whether by her marriage, or misbehaviour, or favour for stranger, the land might pass out of the clan or village. Ordinarily, as already explained, it would only be a widow who could have such an interest, not necessarily the widow of the person deceased, but either such a widow or the wife of a relative predeceasing him, -as for example, his brother or cousin. Theoretically there is only this place in the scheme for the succession of unmarried daughters; in the absence of near male kindred, they might take an interest in the property till marriage. They would, however, be married whilst still of tender years; so, whilst they still belonged to the clan, their maintenance and the provision of their marriage expenses would really be all they would require.
“The exclusion of females would of course carry with it the exclusion of their descendants. No sister’s son or daughter’s son could inherit : they would not be fellow clansmen. But the sense of relationship by marriage with families of other clans would by no means be wholly wanting. It would exist for social purposes; there would be special names for the nearer relatives through the wife or mother; and the tie might even generate prohibited degrees. It is for the purpose of succession to landed property that this sort of relationship would be consistently ignored.
“Wills, the product of a much later stage in juridical history, would be entirely unknown. Generally speaking, there would be no need to regulate the succession, the simple rule that the estate devolves on the sons or the nearest agnates being sufficient. But two expedients to which resort would be had in special cases would be adoption and gift. Whatever was done the near kin, who would be excluded by the adopted son, or the recipient of the gift, should give their consent. Only a man who had no son would be allowed to adopt one; and this he might do without any ceremony, though the occasion would be public. The person adopted might be of any age and married or unmarried. But he should, of course, belong to the clan, and the nearer his relationship to his adoptive father the less, looking to the practice of holding family property in common, would be the danger of the adoption injuring the expectations of the other kinsmen. The much-debated question, whether a man may adopt a daughter’s or sister’s son, would therefore, in a village such as I have supposed, be answered in the negative. But if the clan were not exogamous, if marriages of near affinity within the clan were permitted as is often the case amongst Muhammadans, then the conditions, not only of adoption but also of succession, would be changed. Sisters, daughters, and their descendants would not be outsiders. A sister’s or daughter’s son might be a rightful heir as himself the nearest male related through a male; and a sister’s or daughter’s son might be adopted.
“I have assumed that in the typical village there would be no such outsiders. I merely wish here to point to the fact that the members of the village community, as a corporation, may adopt a body of outsiders as very nearly on an equality with themselves; that is to say, the almost absolute rule against the admission of an outsider may, for sufficient reasons, be relaxed. Analogous to the above process is a kind of adoption permissible to an individual landholder. If he have no son, natural or adopted, he may be allowed to bring his son-in-law into a village. His daughter and her husband will come and live in his house and attend on him. He will treat the son-in-law in all respects as a son; and the latter will cultivate his fields for him, and when old age supervenes, take charge of his property. Under these circumstances, the son-in-law may be accepted as the heir; and it would be only when a son-in-law had thus been adopted into clan and village that he could inherit any of the village lands. He would be the heir because he had ceased to be an outsider. But, again, where the clan was endogamous, there would be a greater facility for this practice, as it is called, of ghar jawai. The son-in-law would be already of the same clan, and if he were of the same village his reception in his father-in-law’s house would be tantamount to the adoption of an agnate.
“As regards gifts and all absolute transfers of immoveable property the rule would be the simple one, that the consent should be first obtained of those agnates who would, but for the transfer, inherit. The propriety of gifts of land to daughters or sisters or relatives through females would mainly depend on whether or no the land would thereby pass to a man of another clan and village. In exogamous clans there would be a strong feeling against such gifts; but where endogamy prevailed within the clan they might be unobjectionable. In a village such as I have described, the law of pre-emption would be strictly adhered to in sales; and a man would not be allowed to make a gift of land unless he had neither an adopted nor a natural son. Even then he might not make a gift to any relative through a female, still less to a total stranger. A small grant in charity to the village temple or religious rest-house or religious mendicant would be a different affair; anybody might go so far, for he would not by this interfere with the village economy………….
“As regards the whole set of rules which I have a bridged it may be said that the general connection between them is this. They secure the common interests of a body of clansmen agnatically related to each other, in village lands, which provide the substance of the group, and must not leave its possession. Where usage conflicts, as it exceedingly often does, on matters of detail, the reason lies, either in the decadence of this type, because family feeling has been relaxed, or severalty has broken up the village, or Muhammadan Law had dominated custom, or on the other hand, the type being maintained, in the divergent rule follwed as to marriage within or marriage outside the clan. This view explains at once the similitude and the diversity of Punjab custom ; and if accepted independently as an empirical observation, it would go to confirm the theory, from which it has here been deductively arrived at, that the tie of blood has not superseded but co-operates with the tie of the land.”
Relating to marriage; the village community still possesses, under the rule of Pre-emption, the power of excluding total strangers, and it is very doubtful if any person who was not a member of the community himself would have a right of succession to the estate of one of its members on the mere ground of blood relationship; but, it is with the agnatic kinsmen alone that the right of succeeding to an estate, or of controlling the acts of its strength of the agnatic principle even in Europe, is shown by Sir Henry Maine in his “Ancient Law” (page 151); and it is curious to observe how the feeling of the Roman lawyers in favour of the recognition of relationship through females has been shared by English officers in the Punjab. In Europe this feeling almost destroyed the old law; that it only threatened it in the Punjab is merely due to the fact that the true principles of custom have become known in time.
The strict agnatic theory is expounded at length in Gujar v. Sham Das (1) wherein Roe, J, observed –
“B’s own title to the land has grown up out of a state of things which renders it improbable that he possessed a power of transfer. The land came to him as a member of a village community which at no distant period held the whole of their lands jointly, recognizing in the individual member only a right of usufrust, that is, a right to enjoy the profits of the portion of the common land actually cultivated by him and his family, and to share in those of the portion still under joint management. In such a community the proprietary title and the power of permanently alienating parts of the common property is vested in the whole body. These communities have in their turn sprung from a still more primitive state of society, in which the proprietary unit was the tribe. The only trace of the latter state not to be found, is the fact that the villages, formed out of the tribe, generally lie in groups, and follow the same custom, and in some of them adoption is restricted to members of the tribe. But amongst the villages some to this day preserve their original form of a joint proprietary body, in others – and these are the majority – the common land, or a large portion of it, has been permanently divided amongst families, and in some cases among individuals. But even where the sub-division has proceeded furthest, the power of dealing with the land is not absolutely free. It is always restricted by the rules of pre-emption which enable all members of the community to exclude strangers, and it is universally admitted that a proprietor, who has male heirs, cannot, except for necessity, alienate without their consent. It is not unreasonable to presume that the absence of male lineal heirs does not confer on a proprietor privileges greatly in excess of those enjoyed by his fellows. It would only be natural that in such a case the next male collateral, if within a reasonable degree of relationships, so near we may say as to be looked on as a member of the same family, should take the place of the lineal heirs and that his consent to the alienation of land, which by the customary rules of inheritance, would have descended to him, should also be necessary. The land, even when not nominally joint, is considered as belonging to the family, and the consent of the family most interested would naturally be necessary to any transaction affecting it permanently.
“In respect of ancestral immoveable property in the hands of any individual, there exists some sort of residuary interest in the descendants of the first owner or body of owners, however remote and contingent may be the probability of some among such descendants even having the enjoyment of the property. The owner in possession is not regarded as having the whole or sole interest in the property, and power to dispose of it, so as to defeat the expectations of those who are deemed to have a residuary interest and who would take the property, if the owner died without disposing of it.”
Similarly, it has been held in 137 P. R. 1814 that it is unquestionable that archaic ideas of real property ownership prevail, and that the agnatic family, as being itself the family, is still looked on as the owner of the ancestral land. It is certain that customs of this nature do not arise capriciously and causelessly, and is scarcely possible that in Sikh times, a free right to alienate, whether agnates objected or not, should exist, and yet when English notions of law come into the country the right should become restricted and limited.
The law of restriction had its origin in settlements of tribes or conglomeration of them over large tracts of land, and in villages which were held by their descendants for generations, but it is of wider application, and applies equally in holdings occupied or acquired by individual proprietors (1). The rule of restriction, though taking its origin primarily from tribal tenure of land, and dating back to a time when land was held in common, nevertheless applies to individual holdings as well as acquisitions by a common ancestor, subsequent to the tribal settlement (2).
Thus the theory of land tenure in the Punjab is that land ultimately belongs to the tribe or village community, and that the holder for the time being is not empowered to alienate it, except for necessary purposes. This theory is however considerable modified in actual practice, and the following pages will show exceptions to this theory and limitations on it.