Updated: Sunday November 23, 2014/AlAhad Safar 01, 1436/Ravivara Agrahayana 02, 1936, at 04:45:43 PM

A    DIGEST    OF

CIVIL   LAW   FOR   THE   PUNJAB

CHIEFLY BASED ON THE

CUSTOMARY   LAW

AS  AT  PRESENT  ASCERTAINED  BY  THE  LATE 

SIR  W.H.  RATTIGAN,  K.C.,  LLD.

THIRTEENTH  EDITION 

REVISED  BY

OM  PARKASH  AGGARWALA

Formerly  of  the  Punjab  Civil  Service

With  a  Foreword  By

DR. BAKSHI  TEK  CHAND,  M.A., LL.B.

Formerly  Judge, Lahore  High  Court

Certainly is so essential to law, that law cannot even be just without it.

That is the best law which leaves least to the discretion of the Judge,

(Dicnonery Augmentis Scientiarum). 

Contents

SN

Subject

1.       

FORWARD TO THE THIRTEENTH EDITION

2.       

PREFACE  TO  THE  THIRTEENTH  EDITION

3.       

FOREWORD  TO  THE  TENTH  EDITION

4.       

PREFACE  TO  THE  SEVENTH  EDITION

5.       

PREFACE  TO  THE  FIFTH  EDITION

6.       

PREFACE  TO  THE  FIRST  EDITION

7.       

ADDENDA

8.       

CHAPTER  I

THE  ESSENTIALS  AND  PROOF  OF  A  VALID  CUSTOM

9.       

CHAPTER  II

SUCCESSION  AND  MAINTENANCE

10.   

CHAPTER   III
APPOINTMENT  OF  AN  HEIR

11.   

CHAPTER   IV
ALIENATION

12.   

CHAPTER   V
MARRIAGE, DIVORCE AND DOWER

13.   

CHAPTER  V-A
GUARDIANSHIP

14.   

CHAPTER  VI
RELIGIOUS  INSTITUTIONS  AND  WAQF  PROPERTY

15.   

CHAPTER  VII
PRE-EMPTION

(A)       THE LAW OF PRE-EMPTION UNDER THE PUNJAB LAWS ACT, 1872, AND CUSTOM

16.   

THE PUNJAB PRE-EMPTION ACT, 1913

PUNJAB ACT NO. 1 OF 1913

17.   

CHAPTER  VIII
LAND  LAW  AND  TENURES

18.   

CHAPTER  IX
TENANT  RIGHT

19.   

CHAPTER  X
THE  VILLAGE  COMMON  LAND

20.   

CHAPTER  XI
ABSENTEES

21.   

CHAPTER  XII
VILLAGE  CESSES

22.   

CHAPTER  XIII
ALLUVION  AND  DILUVION

23.   

CHAPTER  XIV
MERCANTILE  USAGES

24.   

CHAPTER  XV
SPECIAL  PROPERTY  OF  FEMALES

25.   

APPENDIX  I

26.   

APPENDIX  II

FORWARD TO THE THIRTEENTH EDITION

            I have great pleasure in writing a Foreword to the edition of Rattigan’s Digest of Customary Law, which is being brought out by Shri Om Prakash.

 

            Ever since the publication of the first edition of the book in 1880, it has been regarded as the locus classics on the subject and has been of the greatest assistance to Judges and lawyers alike.  The Privy Council in a case decided in 1940 described it as a “book of unquestioned authority in the Punjab.”

 

            In pre-British times, there was no written record of the customs prevailing among the various tribes inhabiting the Punjab, particularly those living in rural areas.  Their customs, which in several material particulars differed from Hindu or Mohammedan law, were enshrined in the ‘unexpressed consciousness’ of the people and were enforced by village or tribal Panchayats in the central and south-eastern districts and by Jirgas in the northern and western parts of the province.

 

            On the annexation of the Punjab by the British in 1849, the Governor-General, while constituting the Board of Administration, gave assurances to the people that the “native institutions and practices shall be upheld as far as they are consistent with the distribution of justice to all classes,” and soon after directions were issued that the lex loci or “local customs which had been obeyed by any tribe or sect” will be enforced.  Though this was the expressed intention of the newly-established Government, little progress was made in ascertaining and recording the customs prevailing among diverse tribes living in the vast area included in the province.  The administration was mostly occupied in settling the conquered territory, and the revenue officers who were making summary settlements in the districts attempted to record some of these customs in the Village Administration Papers but the enquiries made by them were necessarily incomplete and unsatisfactory.  To supplement them the executive officers issued, from time to time, orders and directions setting out the civil law to be administered by the Courts, but they were not carefully drawn up and in most cases were found to be inaccurate and contradictory.  It was in 1859 that the Punjab was constituted into a regular province under a Lieutenant Governor and in 1866 the judiciary was organized on a proper footing under the Chief Court and its important judgments began to be published in the Punjab Record.

 

            About ten years later, Mr Justice Bulnois and Mr (later Sir William) Rattigan, an erudite scholar and a very distinguished member of the Punjab Bar, jointly compiled a Treatise on the Customary Law of the Punjab in which were collected together and classified in a systematic manner the decisions of the Chief Court, reported as well as unreported.  This book brought out in prominent relief the unsatisfactory nature of the law relating to customs as administered in the Courts and disclosed that a large number of conflicting and inconsistent rulings had been given by the highest Court in the province.  Meanwhile, the revenue officers, engaged in Settlement operations in various districts, had been preparing for each village a “Riwaj-I-m” setting out under appropriate heads the customs as ascertained from leading members of the dominant agricultural tribes.  About this time Mr. (afterwards Sir Louis) Tupper brought out his Customary Law in three volumes in which he incorporated the material gathered by Settlement Officers all over the province.  A careful study of these records and the leading judgments, which had since been delivered by the Chief Court, disclosed a great similarity in the customs prevailing in most parts of the province among tribes of different origin and following different religions.  They were carefully analyzed by Mr Rattigan and in 1880 he brought out the first edition of the Digest of Customary Law in which he attempted to arrange in paragraphs the leading principles of Customary Law in simply worded and clearly expressed propositions.  The Digest soon attained a leading position in the legal literature of the province and served as a guide to Courts and the legal profession.

 

            The book passed through several editions of which the first six were brought out by the author himself, the last having been published in 1901 shortly before his death.  During these twenty years, there had been a regular flow of judicial decisions and they showed that the custom relating to a particular matter was not uniform in all tribes and all localities.  Accordingly, the learned author, while retaining each paragraph in the form in which  it had been given in the first edition, added to it Exceptions, Explanations and Remarks.  After Sir William’s death, his son Sir Henry Rattigan, himself a distinguished lawyer who was for a number of years a Judge of the Punjab Chief Court, and ultimately became the first Chief Justice of the Lahore High Court, revised and edited the seventh and eighth editions and in 1920 was engaged in preparing for the press the ninth edition when he suddenly died.  This edition was brought out by Mr T. P. Ellis, a gifted member of the Indian Civil Service and a senior District Judge in the Punjab.  By this time, however, the number of Exceptions, Explanations and Remarks had grown so large that they out-numbered the main paragraphs of the book, and it had become difficult for an ordinary reader to ascertain without much labour what the custom of a particular locality really was.

 

            A further edition of the book was brought out by Mr K. J. Rustomji, of the Lahore Bar and author of a well-known commentary on the Indian Limitation Act.  Mr Rustomji gave extensive quotations from the judgments of the High Court and this added considerably to the size of the book.  During the years, which have elapsed since the publication of the last edition, a large volume of case law has accumulated.  The book had become very much out of date and the necessity of a new edition has been keenly felt.

 

            The present edition is being a brought out by Shri Om Prakash, formerly of the Punjab Provincial Civil Service and a well-known commentator on several Indian Statutes.  In it preparation, the editor has struck an entirely new line.  While preserving the paragraphs of the Digest as drafted by Sir William Rattigan in the sixth edition of his Digest, he has omitted the Exceptions, Explanations and Remarks which appeared under them.  Instead he has given below each paragraph relevant extracts from the Riwaj-I-am of each district and has arranged them under suitable heads and sub-heads.  This is followed by reference to cases judicially decided in the Chief Court and the High Court relating to the particular district, in which the custom as set out in the paragraph of the Digest has been followed, varied or departed from.  This arrangement has materially increased the size of the book, which now covers over 1300 pages.  It has thus become a ‘digest’ of Customary Law in the real sense of the term.  Here will be found in one place a complete and up-to-date statement of the principles as enunciated by Sir William Rattigan as also the relevant extracts from Riwaj-I-am prepared in the Settlements of each district as well as the cases judicially decided by the highest Court relating thereto.  At the beginning of each Chapter, the author has given a synopsis, which gives a general idea of the topics discussed in ti.  The various Chapters are preceded by a carefully prepared Introduction, which brings under review the various theories about the origin of Customary Law and its development in the Punjab during the last century.

 

            Another noticeable feature of the present volume is the omission of certain branches of the law relating to cognate matters, which had been included by Sir William Rattigan in his book, but which have since been the subject of legislation and are now a part of the statute law of the province, e.g. Tenancy Law, Revenue Law and the law of Pre-emption, each of which is a self-contained enactment requiring a separate volume for itself.

 

            Shri Om Prakash has shown great industry in the preparation of the book and has attempted to analyze and classify the available material on each branch of the Customary Law.  The book is a valuable addition to the legal literature of the Punjab and will, I am sure, be highly useful to the Bench and the Bar alike, in both parts of the divided Punjab, which now form part of the Indian Union and Pakistan respectively, but which are governed by the same customs and are, in all probability, likely to continue to be so governed for many years to come.

 

TEK CHAND

 

PREFACE  TO  THE  THIRTEENTH  EDITION

 

The first edition of ‘A Digest of Civil Law for the Punjab chiefly based on the Customary Law’,  was published in 1880.  Explaining the genesis of the book, its illustrious author, Sir W. H. Rattigan, observed in the Preface: “The time has therefore arrived, I think, when it is possible for an attempt to be made to arrange the leading topics of Customary Law in a few simply-worded propositions, embodying what is conceived to be rules that are generally accepted by both Hindus and Mohammedans alike, and noting, a as exceptions, instances where any divergence from these rules has been found to exist.......I have incorporated the provisions of those Acts of the Legislature applicable to this Province which have consolidated certain branches of the Civil Law, such, for instance, as the Punjab  Tenancy Act, the Punjab Land Revenue Act and the Punjab Laws Act, which may be regarded as the first steps towards provincial codification.....My object, in short, has been to collect and classify the materials for a future code.......After what has been said above, it is scarcely necessary perhaps to add the caution that the propositions laid down in the following pages are not intended to exclude but rather to aid judicial enquiry in future cases.”

 

Since then the book has undergone twelve editions and has stood the test of time well.  In Mst. Subhani v. Nawab (A.I.R. 1941 P.C. 21, 23) their Lordships of the Privy Council, while referring to this work, stamped it as “a book of unquestioned authority in the Punjab.”  The paragraphs of this book have, therefore, been kept intact as before, and reproduced in this new edition/  Where, however, in the light of the subsequent judicial decisions it has been found necessary to change the text of the paragraphs, comments have been added.

 

Opportunity has, however, been taken in the present edition to deal with the subject more comprehensively than in the previous editions, and to put it in such a form as to be easy for reference.  Manuals of Customary Law prepared for the various districts of the Punjab form a very valuable source of information regarding customs prevalent amongst the various tribes residing therein.  Most of these manuals have gone out of print and are not available for reference.  Relevant extracts from these manuals have been reproduced in the present work under suitable headings and sub-headings so that this source of information may be readily available to the legal public.  The judicial decisions also have been noted district-wise so that at a mere glance one can know what is the law applicable on a certain matter relating to any tribe in any district or locality.  It has been found by all concerned in actual practice that this is the best way of dealing with such a vast and comprehensive subject as the Customary Law of the Punjab.

 

At the same time, what forms part of separate legislation, for instance, the Punjab Tenancy Act, 1887, and the Punjab Pre-emption Act, 1913, so far as not relevant to the Customary Law, has been omitted, being considered unnecessary in a book dealing with the Customary Law of the Punjab.  It is not possible to deal exhaustively with such subjects of separate legislation without making a treatise on Customary Law unwieldy in bulk, and it will not serve any useful purpose to deal with these subjects succinctly and in a half-hearted manner.

 

The last edition of this book was published in 1938.  Since then there have been a number of important judicial pronouncements on the subject.  All these decisions have been incorporated in the present edition.  Case-law has been brought up to date.

 

I am highly grateful to Dr. Bakshi Tek Chand, formerly Puisne Judge of the Lahore High Court, for kindly sparing time to go through the present edition of the book and contributing a Foreword.

It is hoped that the present edition of the book will prove even more useful than the previous editions and will continue to serve faithfully both the Bench and the Bar.

 

OM PRAKASH

 

FOREWORD  TO  THE  TENTH  EDITION

 

            At the time of his lamented death Sir Henry Rattigan was engaged on a revision of his book on Customary Law and it is fortunate for all concerned that the completion of the task was entrusted to such a capable commentator as Mr Rustomji whose admirable book on the Law of Limitation is known and appreciated in all the Courts of India.

 

            Mr Rustomji has not disturbed the original arrangement of the work, but with his wonted thoroughness has amplified it, brought it up to date and added illuminating comments on many points.

 

            Since the last issue of the work, there have been no startling decisions by the Punjab Courts in the field of custom.  This is a matter for congratulation, for a pronouncement on general custom which surprises the whole community is open to the criticism that the custom is found to exist in the Courts but its existence outside has in some inexplicable manner remained undetected.

 

            Although the High Court is nowadays very chary of laying down general principles of custom and prefers to confine its findings to facts of custom, we must not forget the debt of gratitude due to the pioneers who by a close scrutiny of facts, isolated certain general principles of Punjab Custom and reduced chaos to order.

 

            Custom is changing with the change in the circumstances of the prople, their standard of education and their material progress, and many items of expenditure which in earlier years would have been regarded as “unnecessary”’ now receive the sanction of general approval.

            Where custom has been found to produce an exuberant crop of speculative litigation, the Legislature has stepped in with very salutary effect and has restricted the period of limitation for suits and the number of persons competent to maintain them; it remains an arguable point whether the restrictions have been sufficiently drastic.

            Pre-emption still clogs liberty of contract, but has a very exiguous customary basis, being now in the main regulated by statute.  In towns, at any rate, it is a distressful anachronism, and it is not extravagant to hope that some patriot at no distant date will introduce a Bill for its total abolition in urban areas.

 

W. A. LEROSSIGNOL

High Court, Lahore:

16th March, 1925.

 

PREFACE  TO  THE  SEVENTH  EDITION

 

            Over eight years have elapsed since the publication of the last edition of this “Digest,” and as the whole issue of that edition has been sold out and many requests have been made to me to publish a new edition, I have endeavored, in such leisure moments as my official duties would permit of, to revise the work, and to bring it up to date.  The result of my labours is to be found in this volume, and I hope that the Bench and the Bar of this Province, and all others who may be interested in the very fascinating subject of this work, will approve of the present edition.  Since the publication of the last edition neither the Legislature nor the highest Appellate Court of the Punjab has been inactive, and as a consequence I have found it necessary to make many additions, alterations and amendments.  At the same time, I may be pardoned if, with filial and (as I believe) justifiable appreciation, I draw attention to the fact that, save in those particulars which have been the subject of legislative enactment, none of the leading principles or expository rules of the Punjab Customary Law as enunciated by the author of this Digest have been materially affected by the further and, in many respects, more searching and thorough investigation which the Chief Court now deems necessary, and demands, in every case where a question of custom arises.  On the contrary, further and more elaborate inquiry has, in more than one instance, tended to corroborate views which he ventured to hold, despite decisions of the courts to the contrary, and as a result I feel justified in asserting that there have been very few officials or non-officials who possessed in a like degree his intimate and accurate knowledge of the character and customs of the peoples of the Punjab.  But among these few a late Senior Judge of the Chief Court, Sir Meredyth Plowden, stands pre-eminent, and his illuminating judgments on difficult and intricate questions of Customary Law were highly valued by his life-long friend, the author of this Digest, and will, I have no doubt, always command the respect of the Bench of this Province.

H. A. B. R.

June, 1909

 
PREFACE  TO  THE  FIFTH  EDITION

 

            In preparing the present edition of my Digest for the press I have endeavored to justify the favour, which has hitherto been extended to the work by again carefully revising every proposition in the text.  I have also in some instances re-written the explanatory notes, so as to bring them into more complete harmony with the latest case law.  I trust, therefore, it will be found that the work still faithfully reflects the most recent development of the leading doctrines of Customary Law as judicially determined in the Punjab.  I have from the first set this limit to the scope of my labours, and I have consequently abstained from propounding any proposition for which a distinct judicial authority could not be cited.  For this reason speculative doctrines have been studiously avoided, and I have not concerned myself with materials which had received no judicial sanction.  Nor can it be said that the only source of information I have sought has been meager or insufficient for the compilation of such a work as mine, as will readily be admitted by any one familiar with the volumes of the Punjab Record.

            Customary Law in the Punjab has, in fact, reached a stage when it can no longer be said to be merely stored up in the unexpressed consciousness of the people.  It has long since found expression in external acts, at least upon all the most important topics which concern the practical lawyer, and a remarkable feature of this people’s law is, that notwithstanding the heterogeneous composition of the communities which have given it birth, there is very little divergence in the leading principles which underlie it.  The true explanation of this noteworthy circumstance is, that in village communities in the Punjab, as in Russia and elsewhere, the original notion of kinship, which may have been the foundation-stone of their earliest history, has, in most instances, given place to a more practical notion of common interest only (a             ,) for which the land, in some part of which the inhabitants have built their homesteads, furnishes the real and all-sufficient basis.  At the present day, with the gradual introduction of strangers which has everywhere taken place, it would be difficult to find a single village of more than twenty years’ growth, in which it could be said with truth that the existing inhabitants were, to borrow an expressive phrase from Aristotle,(Polit 1 2,6.1252 B. :           , which may be translated “suckled with the same milk.”  In short, in the Punjab, as in the              of Attica, it is not the tie of actual blood relationship which necessarily gives the rights of membership in any given village community, but the fact of actual association in that which constitutes its home and center of activity, namely, the ownership of the land.  The common interest, therefore, which attaches to this home tends also to produce common customs regulating the devolution and transfer of individual rights in land throughout the community irrespective of the religion or clan to which its various members may belong.  Thus, in my opinion, local common interests have as much, if not more, influence in developing customs affecting such matters than mere brotherhood arising from kinship.  Were this not so, it would be extremely difficult to account for the fact, which is recorded in the Riwaj-i-am of many districts, that all the tribes, Mohammedan as well as Hindu, of a particular locality, concur in the same answer on some topics of Customary Law, as, for instance, in regard to the exclusion of daughters by male agnates, or that no gift of ancestral land can be made without the consent of the heirs.  And inasmuch as the like conditions produce like customs and usages, it is not surprising to find that other principle which the late Sir Henry Maine mentions as succeeding that of blood relationship—namely, local contiguity—establishing itself as the basis of common action, and producing analogous customs in other neighboring villages, where the conditions of life and the land tenures are substantially alike.

 

            I have only to add that I have derived much instruction and valuable aid from a recently published work on the Tribal Law of the Punjab, which is for the most part the outcome of the vast experience and intimate knowledge of landed tenures in the Punjab of the present learned Chief Judge of the Chief Court; and I desire to record here, once for all, my obligations to the learned authors for the valuable data which they have so laboriously collected and so lucidly expounded.

W. H. R.

Lincoln’s Inn:

March, 1896.

 
PREFACE  TO  THE  FIRST  EDITION

 

            When I undertook, at the request of a late respected Judge of the Chief Court, to compile a Treatise on the Customary Law of the Punjab, in the execution of which he subsequently took a material part himself—which I need hardly add gave to the work much of the value it may be deemed to possess—my main object was to collect together and systematize the numerous decisions of that Court, some reported, but the greater number not so, on questions of succession, alienation, marriage, tenures of land, adoption and the like.  It was hoped that by thus grouping and classifying a large body of decisions of this kind together facilities would be afforded for ascertaining what was really the Customary Law with respect to most matters appertaining to the domain of private rights, to which it was well known that the agricultural population was tenaciously attached, or where divergencies occurred, and how far they were peculiar to particular tribes or localities.  It had long been felt by those best acquainted with the habits and customs of the rural population that neither the Shara not the Shastras really exercised any direct influence among them in regard to such matters, and it was also known that the Hindu and Mohammedan, though differing in religion, were often united together in the village community, as it was natural they should be, by the same common rules regulating the devolution and disposal of property which, in theory and frequently in practice, was recognized as involving a community of interest (Thus, in the Muzuffargarh District, the Brahmins have declared their adherence to Jat customs; and it is said that there is scarcely a Brahmin there who has the slightest knowledge of the Hindu law books, or is even acquainted with their names.  See the Settlement Officer’s decision in No. 1072 of 1880).  But unfortunately not only had inquiries into points of Customary Law in many cases been carelessly and insufficiently conducted, but no attempt had been made to test their accuracy by comparison with similar cases in other districts affecting the same class of persons.  The result was, as might have been expected, that a mass of conflicting rulings were passed which, instead of defining and consolidating the Customary Law, tended much more to render it confused and uncertain.  But when the decisions for the past ten years had been grouped and classified under proper heads, this evil was, to a large extent, checked, because comparison was then rendered easily accessible, and the Courts of First Instance had the lines of enquiry as it were placed before them.  But a still further advantage was gained in exhibiting, despite the unsystematic method of inquiring into customs that had hitherto prevailed, a remarkable uniformity of Customary Law in regard to certain matters, which went far to prove that the rules thus evidenced owed their origin less to the peculiarities of race or religion than to the constitution and needs of the village system.  Thus, numerous cases proved that women merely took a life-interest in estates to which they succeeded by inheritance, while the constant recurrence of the practice of childless proprietors appointing an heir from amongst their kinsmen proved also that this was but a survival of the most ancient form of the archaic fiction of affiliation.  A further period of five years, during which the subject of Customary Law has received special attention, has enabled many doubtful points to be more accurately ascertained, while it has confirmed in many respects doctrines previously declared.  The time has therefore arrived, I think, when it is possible for an attempt to be made to arrange the leading topics of Customary Law in a few simply-worded propositions, embodying what is conceived to be rules that are generally accepted by both Hindus and Mohammedans alike, and noting, as exceptions, instances where any divergence from these rules has been found to exist.  The following chapters are an outcome of a first attempt of this kind, and I hope they may not only be useful as focusing within a narrow compass the present state of Customary Law in this Province, but also in facilitating any future attempt to codify that law –an ultimate possibility which I for one see no reason for supposing to be beyond the hope of realization.  In saying this I am quite alive to the danger of reducing Customary Law to a condition of fixity in a semi-developed state of society, the effect of which is always to hinder the gradually operating innate generation of law by a process of natural development, independent of accident and individual will, which best accords with the varying needs and spirit of a people thus circumstanced.  It is in this sense, as Savigny explains, the often-misused passage of Goethe that “laws are a fatal heritage, which like a disease, trail their curse from age to age, “ should be understood, and not as expressing a general condemnation of positive law.  Nor do I wish to be understood as advocating any immediate measure of the kind referred to.  It may, indeed, be impracticable to do anything in third direction for some years to come; but all I wish to maintain is the principle that here, as in every other department of law, our object should be to so mould our materials together as to form, at some future period, one harmonious body of law, as well known and as clearly defined, as Statutory Law itself.  Occasional divergencies would, of course,   have to be provided in dealing with a law affecting diverse tribes and races, as it may be conceded that Voltaire only expresses a commonplace truth when he observes “that the more vast a State is in size and composed of different peoples, the more difficult it becomes to unite all together by one and the same jurisprudence.”  To some extent this remark of the French Historian is applicable to a large Indian Province like the Punjab and I do not deny—in fact, I have fully experienced—the difficulty to which he alludes. But I think it may be largely overcome by exhibiting the points of difference, which, after all, are not so numerous as might be expected, in the way I have adopted as exceptions to general rules—branches as it were of a parent stream flowing out of, and yet running parallel with and distinct from the latter.  The present compilation is, in fact, a supplement to, and as it were a digest of the principles enunciated in the larger treatise, which was the joint production of Mr. Justice Boulnois and myself; and I believe it will be found to embrace the leading principles of Customary Law, so far as they have yet been judicially ascertained.  In order, moreover, to make the work as complete as possible, I have incorporated the provisions of those Acts of the Legislature applicable to this Province which have consolidated certain branches of the Civil Law, such, for instance, as the Punjab Tenancy Act, the Punjab Land Revenue Act, and the Punjab Laws Act, which may be regarded as the first steps towards provincial codification.  For the same reason I have been obliged in some places, where no other guide was available, to refer to the doctrines of the Hindu and Mohammedan Laws, as in the Chapter relating to marriage and prohibited degrees, concerning which custom has introduced but few, if any innovations.

 

            My object, in short, has been to collect and classify the materials for a future code; and while I am fully sensible of the many difficulties involved in such an undertaking, and of the shortcomings of the present crude attempt, I have at least, the consolation to know, in the language of the greatest of modern jurists, “that truth is not advanced merely by the absolute knowledge and expression of it, but also by pointing and clearing the way to it, and by firmly settling the questions and problems on the solution of which all success depends.  By this means we assist others to attain that end which it may not perhaps be given to ourselves ro reach.”  After what has been said above, it is scarcely necessary perhaps to add the caution that the propositions laid down in the following pages are not intended to exclude, but rather to aid judicial inquiry in future cases.  It is important, however, that the design and aim of the work should not be misunderstood.  In conclusion I have to express my acknowledgments to the learned Judges of the Chief Court for much valuable assistance they have kindly afforded me in the compilation of the work; and especially my best thanks are due to Mr Justice Plowden for his courtesy and kindness in placing many important notes of decisions at my disposal.

 

W. H. R.

5th September, 1880.

 

 

ADDENDA

 

Principles to be kept in view in dealing with questions of customary law.

 

            The general principles which should be kept in view in dealing with questions of customary law may be summarized as follows:

 

(1)        It should be recognized that many of the agricultural tribes in the Punjab are governed by a variety of customs , which depart from the ordinary rules of Hindu and Muhammadan Law, in regard to inheritance and other matters mentioned in S. 5 of the Punjab Laws Act (1872).

 

 

(2)        In spite of the above fact, there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by customary law must prove that he is so governed and must also prove the existence of the custom set up by him.

 

(3)        A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that “a custom in order that it may be legal and binding, must have been used long, that the majority of man runneth not to the contrary” should not be strictly applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality.

 

(4)        A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence, and its exercise without controversy and such evidence may be safely acted on when it is supported by a public record of customs such as the Riwaj-I-am or Manual of Customary Law.

 

(5)        No statutory presumption attaches to the contents of a Riwaj-I-am or similar compilation, but being a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein in support of custom are admission to prove facts recited therein and will generally be regarded as a strong piece of evidence of the custom. The entries in the Riwaj-I-am may however be purpose of rebutting them will vary with the circumstances of each case. The presumption of correctness attaching to a Riwaj-I-am may be rebutted, if it is shown that it affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities.

 

(6)        When the question of custom applicable to an agriculturist is raised, it is open to a party who denies the application of custom to show that the person who claims to be governed by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service, etc, as his principal occupation and source of livelihood, and does not follow other customs applicable to agriculturists.

 

(7)        The opinions expressed by the Complier of a Riwaj-I-am or Settlement Officer as a result of his intimate knowledge and investigation of the subject, are entitled to weight which will vary with the circumstances of each case. The only safe rule to be laid down with regard to the weight to be attached to the Complier’s remarks is that if they represent his personal opinion or bias and detract from the record of long standing custom, they will not be sufficient to displace the custom, but if they are the result if his inquiry and special sense in which the exponents of the custom expressed themselves in regard to it, remarks should be given due weight (A. I. R. 1952 S. C. 231).

 

Applicability—law or custom:

 

(1)        The Sodhis are Khatris and are a priestly class. The initial presumption is that they are governed by Hindu Law and not by custom (A. I. R. 1952 Punj. 213).

 

(2)        In spite of the fact the tribe was consulted at the time of the preparation of the Riwaj-I-am, the family which is a trading family doing money-lending business and belongs to the Aggarwal caste is governed by Hindu law (A. I. R. 1952 Punj. 195).

 

Riwaj-i-am:

 

(1)        Though the initial onus in every case is on the plaintiff who comes into Court relying on a particular custom, that onus can very often be discharged by the production of an entry in the Riwaj-I-am in support of the custom, and the onus of rebuttal will be upon the party disputing its correctness.

 

Answers to questions contained in Riwaj-i-am are admissible under S. 48, being the opinion as to the existence of a general custom or right of persons who would be likely to know of its existence if it existed. They are also admissible under S. 35, as entries relating to a relevant fact contained in what may be regarded as a public record made by a public servant in the discharge of his duty.

 

The statements contained in Riwaj-i-am form a strong piece of evidence in support of the custom therein entered subject to rebuttal (A. I.R. 1951 Simla 239).

 

(2)        Though the entries in the Riwaj-i-am are entitled to an initial presumption in favour of their correctness, irrespective of the question whether or not the custom as recorded is in accord with the general custom, the quantum of evidence necessary to rebut this presumption would, however, vary with the facts and circumstances of each case. Where, for instance, the Riwaj-I-am lays down a custom in consonance with the general agricultural custom of the province, very strong proof would be required to displace this presumption, but where, on the other hand, this is not the case and the custom as recorded in the Riwaj-I-am is opposed to the rules generally prevalent, the presumption would be considerably weakened. Likewise, where the Riwaj-I-am affects adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weaker still and only a few instances would suffice to rebut it (A. I. R. 1941 P. C. 21 overruling A. I. R. 1937 Lah. 451 and relying on A. I. R. 1932 Lah. 157; case-law reviewed).

 

Proof of custom:

 

(1)        Where a custom has been repeatedly brought to the notice of the court and has been recognized by it regularly in a series of judicial decisions, extending over a very long period of time, such custom attains the force of law and it is no longer necessary to prove it in each individual case (A. I. R. 1951 Simla 239).

 

(2)        The English rule that “a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary” cannot be applied to Indian conditions. It is undoubted that a custom observed in a particular district derives its force from the fact that it has, from long usage, obtained in that district, the force of law. It must be ancient; but it is not of the essence of this rule that its antiquity must, in every case, be carried back to a period beyond the memory of man—still less that it is ancient in the English technical sense. It will depend upon the circumstances of each case what antiquity must be established before the custom can be accepted. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of particular district (A. I. R. 1941 P. C. 21 overruling A. I. R. 1937 Lah. 451 and relying on A. I. R. 1917 P.C. 181).

 

(3)        A judicial decision, through of comparatively recent date, may contain, on its records, evidence of specific instances, which are of sufficient antiquity to be of value in the Riwaj-I-am as regards custom. In such a case, the value of the decision arises from the fact not that it is relevant under Ss. 13 and 42, Evidence Act, as forming in itself a “transaction by which the custom in question was recognized, etc.”, but that it contains, on its records, a number of specific instances relating to the relevant custom. To ignore such judicial decisions merely on the basis of the Riwaj-I-am would add greatly to the perplexities and difficulties of proving a custom (A. I. R. 1941 P. C. 21; A. I. R. 1937 Lah. 451 (F. B.) explained).

 

(4)        Answers in Wilson’s Manual on Questions of Customary Law in the Punjab are clearly admissible under S. 48, Evidence Act being the opinion, as to the existence of a general custom or right, of persons who would be likely to know of its existence if it existed. They are also admissible under S. 35 of that Act as entries relating to a relevant fact contained in what may be regarded as a public record, made by a public servant in the discharge of his official duty (A. I. R. 1941 P. C. 21).

 

(5)        “Before examining the questions and answers in Wilson’s Manual, it will be useful to ascertain the customary rights of daughters against collaterals with reference to ancestral and non-ancestral land as they are stated in Sir W. H. Rattigan’s Digest (of Civil Law for the Punjab, chiefly based on Customary Law, 1935 Edition), a book of unquestioned authority in the Punjab” (A. I. R. 1941 P. C. 21, p. 23).

 

Succession:

 

(1)      Where a proprietor dies without leaving any heirs, agnates or cognates or a widow, the estate is inherited by such “pattidars” as belong to the same tribe as the deceased proprietor.  “Pattidars” belonging to the same “got” take preference over “pattidars” belonging to a different “got”.  Such a custom is not opposed to general custom (A. I. R.  1952 Punj. 282).

 

(2)        A general rule of succession as to property of non-proprietors is that the remote collaterals have no right of succession.  In no case a right of succession is given to a collateral more distant than the third degree.  A collateral of the fifth degree has therefore no right of pre-emption under S. 15 (b) of the Punjab Pre-emption Act to pre-empt under S. 15 (b) of the Punjab Pre-emption Act to pre-empt the sale of a house of a non-proprietor (A. I. R. 1952 Punj. 295).

 

(3)        The general custom in regard to ancestral property is that usually the fifth degree is found to be the customary limit and the seventh degree is rare, for exclusion of daughters from succession.  In cases where collaterals are more distant than the fifth degree, onus lies upon them.  Such onus can be discharged by the production of the Riwaj-i-am of the district if it is in favour of the collaterals, but the value to be attached to the Riwaj-i-am varies in accordance with many circumstances.

 

            The Riwaj-i-am of the Kangra District has not always been held to be a document of any great authority; and the mere production of the Riwaj-i-am by six degree collaterals does not discharge the onus, which lies upon them.

 

            It was held that a daughter amongst Rajputs of Maler in the Dehra Tehsil of Kangra District is not excluded by collaterals of the sixth degree in regard to ancestral property (A.I.R. 1952 Punj. 242).

 

(4)        Among the Sainis of Hoshiarpur District a widow of a pre-deceased son has the right to inherit the estate which her husband would have inheritedif he had been alive (A.I.R. 1952 Punjab 111).

 

5.         Under the Hindu Law a sister has now a very high place in the matter of inheritance to property.  In the Punjab if there is no custom established in regard to the exclusion of the sisters, the question has to be decided in accordance with Hindu Law (A.I.R. 1952 Punj. 79).

 

            It was held in this case that in the Ambala District in regard to non-ancestral property sister’s sons are preferential heirs as compared to collaterals of the 7th degree.

 

            (6)        In the Grewals of Mouza Jhanda, District Ludhiana, the rule of succession has been Chundavand and not Pagvand (A.I.R. 1951 Simla 280).

 

            (7)        In Sonepat Tehsil, Rohtak District, on the death of a proprietor leaving no heirs, the estate will pass to the whole proprietary body of the village whether it is a homogeneous or heterogeneous village (A.I.R. 1951 Simla 293).

 

            (8)        Among the agricultural tribes of the Punjab such as Jats of Ferozepur District generally, in the absence of all agnates of a child-less proprietor, any cognate, whether male or female, however distantly related to him, is entitled to succeed to his property in preference to a stranger.  A person related to the proprietor through two females is also included in the term cognate (A.I.R. 1951 Punj. 311; A.I.R. 1940 Lah. 416 followed).

 

(9)        Among Rajputs, in the Nurpur Tehsil of the Kangra District, sisters as well as their issue do not exclude collaterals in succession to the estate of the last male-holder (S. A. No. 637 of 1946, decided on 12-7-50).

 

(10)      Sisters have very much better rights even as against certain degree collaterals. A fortiori they have a better right than a mere trespasser or members of the proprietary body (S. A. No. 1146 of 1947, decided on 10-5-1951).

 

(11)      Held, among Tullas of Tehsil and District Shahpur, the married daughters are not excluded by the collaterals in matters of succession to the non-ancestral property; and the onus lies on the collaterals to prove that this general custom in favour of the daughters is varied by a special custom (A.I.R. 1941 P.C. 21 reversing A.I.R. 1937 Lah. 683; para. 23 of Rattigan’s Digest relied upon).

 

Adoption:

 

(1)        The expression “childless” in Rattigan’s Digest, para. 55 does not mean ‘sonless’ only.  It refers to lineal descendants both male aas well as femalt.  Where therefore an adopted son dies leaving a son, two daughters and a widow, and the son dies issueless, the collaterals of the adoptive father have no right to succeed to the property which is inherited by the adopted son from his father (A.I.R. 1952 Punj. 194).

 

(2)        Two questions arise whenever an adoption in the Punjab is made under custom, (1) whether in fact there was an adoption and (2) whether the adoption was in accordance with custom.  The first question is not hit by the nature of the property, but in order to decide the  question whether the adoption is valid or not the question of the ancestral nature of the property is a relevant consideration.  By reason of S. 7, Punjab Custom (Power to Contest) Act, 1920, if the property is not ancestral, the validity of the adoption cannot be challenged. Thus, if in a prior suit the question is whether ‘A’ can be validly adopted under custom, then in order to determine that question it is necessary to decide the question of the ancestral nature of the property.  Therefore, a decision by the court on the issue regarding the nature of the property in that suit operates as “res judicata”. (A.I.R. 1952 Punj. 252).

 

(3)        A son who has been given in adoption is not excluede under custom from inheritance to the estate of his deceased natural father.  Thus, in the presence of a widow of a predeceased brother, a brother waho has gone out by adoption is not excluded from inheritance to his father’s estate (A.I.R. 1952 Punj. 111).

 

(4)        The custom in the district of Amritsar is that an adopted son appointed according to the customary law has a right of collateral succession in the adoptive family (A.I.R. 1951 Punj, 11); 107 P. R. 1913 not followed).     

 

Ancestral property:

 

(1)        Where in a suit for a declaration to the effect that the sale of suit land shall not affect the reversionary rights of the plaintiff, alleging that the land in suit is ancestral, it is found that part of the land in suit is not ancestral and necessity has been proved for consideration which is more than the price of the ancestral land, the sale in question can be sustained  (A.I.R. 1951 Punj. 358).

 

(2)        In the Punjab, the mere mention of the name of a person in the pedigree table as the common ancestor is no proof of the fact that every piece of land held by his descendants (however low) was originally held by and descended from him in succession from generation to generation.  It should also be proved that the descendants of that common ancestor held the land in ancestral shares and that the land occupied, at the time of the dispute, by the proprietors thereof, had devolved upon them by inheritance (A.I.R. 1941 P.C. 21; A.I.R. 1927 Lah. 477 and A.I.R. 1932 Lah. 353 relied on).

 

Gifts:

 

(1)        A gift of a small portion of ancestral land made to his daughters by a Malli Jat of Taran Taran Tehsil held valid according to the custom prevailing in the tehsil (A.I.R. 1952 Punj. 291).

 

Alienation:

 

(1)        Where there is a complete partition among the tenants as also among the landlords, so that each landlord has his own tenants, and where the widow of one of such tenants mortgages her occupancy rights in favour of her landlord, the collaterals of her husband have no right to challenge the alienation ( A.I.R. 1952 Punj. 220).

 

(2)        Where a proprietor brings a suit for possession of house site alienated by a non-proprietor on the ground that the latter had no right to alienate it under the general custom and the defendant sets up special custom, the defendant must establish that the general custom did not apply to the case.  Mere acquiescence in previous sales does not in such a case imply a renunciation of the discretionary rights of the proprietors to object to a subsequent sale though the previous sales may furnish evidence of special custom under Section 13 (b) of the Indian Evidence Act.

 

            In the case of a sale of a house site in a village by a non-proprietor to a co-sharer in a village, and suit by another co-sharer for possession, the plaintiff is only entitled to joint possession and not exclusive possession (A.I.R. 1952 Punj. 226).

 

(3)        In A.I.R. 1952 Punj. 238, one  S, adopted son of D, sold some land to the defendants.  The land was acquired by D’s father and his brother N.  The plaintiffs, the collaterals of D, brought a suit for declaration that the sale was without consideration and necessity.  It was held that half of the land in dispute with the edception of the khasra numbers, which were not traceable, was ancestral and was therefore sbject to the control of the collaterals; that the only persons who were alive in the adoptee’s family were a daughter and daughter’s sons, neither of whom had any right to control the alienation made by S. Even otherwise ‘qua’ them the property would be non-ancestral and they would not have any right to challenge the alienation.  Therefore the suit of the plaintiffs with regard to the half of the land with the exception of the khasra numbers was maintainable (A.I.R. 1952 Punj. 238).

 

(4)        Amongst Arains of Gurdaspur Tehsil of Gurdaspur District, the guardian of the minor plaintiff is not competent to sell immovable property of the plaintiffs (A.I.R. 1952 Punj. 251).

 

(5)        The rights of a widow under Hindu Law and that of a widow under customary law are the same.  The distinction, however, is that in thecase of the latter, alienation for necessity is permitted only if the income derived by her from her husband’s estate is not ‘ample’ and if it is ample she cannot alienate her husband’s property even for the discharge of her husband’s debt.

 

            A purchaser from a Hindu widow of her husband’s property can pass no better title than he himself acquires.  A reversioner consenting to a sale by a Hindu widow of her husband’s property is bound so far as his interest is concerned (A.I.R. 1952 Punj. 128).

 

(6)        Where in the sale-deed of an ancestral land a particular necessity is mentioned but the money that was obtained by means of sale is used for the discharge of other debts which are also just debts, the sale cannot be invalidated by the reversioners (S.A. No. 1245 of 1947, decided on 10-5-51) A.I.R. 1926 Lah. 530 and A.I.R. 1938 Lah. 648 dist.

 

            The sale in this case was held to be an act of good management as by the sale proceeds of the land at a place which he had left the vendor had redeemed the property which was mortgaged since his father’s time, situated at the place where he was living.

 

Village sites:

 

(1)        Where certain site is granted to the ancestors of a person for purpose of storing cow-dung cakes but the person diverts the site for building a kotha thereon, thus contravening also the condition in the Wajib-ul-arz prohibiting the building of pucca structure without the consent of the landlord, he is liable to be ejected from the site (A.I.R. 1951 Punj. 368; 54 P. R. 1886 followed).

 

A  Digest  of  Customary  Law  in  the  Punjab

 

INTRODUCTORY

 

Synopsis

(1)           Meaning of the term “Law”;

(2)           Customary Law;

(3)           Property in land;

(4)           Village communities;

(5)           Village communities in the Punjab;

(6)           The principal agricultural tribes of the Punjab;

(7)           Punjab customs very ancient—essentially non-Brahmanical.

 

(1)        Meaning of the term “Law”

Definition by Austin:

           

A “law”, according to Austin, “in the most general and comprehensive acceptation in which the term, in its literal meaning, is employed, must be said to be a rule laid down for the guidance of an intelligent being by an intelligent having over him.”  In this comprehensive sense, or in the largest meaning which it has, without extension by metaphor or analogy, the term law thus embraces the following objects:- Laws set by God to His human creatures, and laws set by men to men.

 

            Laws set by God are more frequently styled the law of nature, or natural law, but the appellation Law of Nature being ambiguous and misleading, these laws are more appropriately termed as the Divine Law or the Law of God.

 

            Laws set by men to men are of two leading or principal classes.  Some are established by political superiors, sovereign and subject : by persons exercising supreme and subordinate Government, in independent nations, or independent political societies.  As contradistinguished to natural law, or the law of nature, the aggregate of the rules, established by political superiors, is frequently styled positive law or law existing by position.

 

            Others are not established by political superiors or are not established by political superiors, in that capacity or character.  Closely analogous to these are a set of objects frequently but improperly termed laws, being rules set and enforced by mere opinion, that is, by the opinions or sentiments held or felt by an indeterminate body of men in regard to human conduct.  Instances of such a use of law are the expression—‘The law of honor,’ ‘the law set by fashion,’ ‘moral laws’, ‘physical laws,’ and so forth.  These are known by the name of positive morality in juristic language.

 

            The term ‘law’ has thus been applied rather loosely to various matters which are not the proper subject of jurisprudence.  In its more strict sense, it is generally associated in people’s mind with a command or commands of some definite human authority, the disobedience to which will be followed by some penalty.  This sense, broadly speaking, accords with the meaning generally attached to the term by the jurists, principally, of the school of Austin.

 

Positive Law:

           

Law, rather positive law, according to Austin, is a rule “set by political superiors to political inferiors.”  It is “a  creature of the Sovereign or State, having been established immediately by the monarch or supreme body, as exercising legislative or judicial functions; or having been established immediately by a subject individual or body as exercising rights or powers of direct or judicial legislation which the monarch or supreme body had expressly or tacitly conferred.”  “Every positive law, or every law simply and strictly so called, is set by a sovereign person, or a sovereign simply and strictly so called, is set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme.  Or (changing the expression) it is set by a monarch, or sovereign member, to a person or persons in a state of subjections to its author.  Even though it sprung directly from another fountain or source, it is positive law, or a law strictly so called, by the institution of that present sovereign in the character of political superior.  Or (borrowing the language of Hobbes) “the legislator is he, not by whose authority the law was first made, but bu whose authority it continues to be a law.”  “Positive laws, or laws strictly so called, are established directly or immediately by authors of three kinds:- by  monarchs, or sovereign bodies as supreme political superiors: by subjects as private persons, in pursuance of legal rights.  But every positive law, or every law strictly so called, is a direct or circuitous command of a monarch or sovereign member in the character of political superior: that is to say, a direct or circuitous command of a monarch or sovereign member to a person or persons in a state of subjection to its author.  And being a command (and therefore flowing from a determinate source), every positive law is a law proper, or a law properly so called.”

 

Customs:

 

Practically what Austin means is that law is the express enactments by a Sovereign or State and certain judicial decisions.  Now, this definition of law excludes a large body of rules and customs, collectively termed unwritten laws, which existed and regulated the life and conduct of human societies long before any regular political or civil Government came into existence.

 

            Austin holds that until a judicial court recognizes a custom it cannot become a positive law, and he has consequently placed these rules and customs under the term positive morality.  According to him ‘at its origin, a custom is a rule of conduct which the governed observe spontaneously, or not in pursuance of a law set by a political superior.  The custom is transmuted into positive law, when it is adopted as such by the courts of justice, and when the judicial decisions fashioned upon it are enforced by the power of the State.  But before it is adopted by the courts, and clothed with the legal sanction, it is merely a rule of positive morality: a rule generally observed by the citizens or subjects; but deriving the only force, which it can be said to possess, from the general disapprobation falling on those who transgress it...............Considered as rules of positive morality, customary laws arise from the consent of the governed, and not from the position or establishment of political superiors.  But, considered as moral rules turned into positive laws, customary laws are established by the State: established by the State directly, when the customs are promulgated in its statutes; established by the State circuitously, when the customs are adopted by its tribunals.”

 

            Thus, according to Austin, Customary Law is “positive law fashioned by judicial legislation upon pre-existing customs.”  Or, in other words, it embraces only those customs, which have been recognized by the established tribunals.  But the inconsistency of such a definition is quite apparent.  In the first place, this definition obviously excludes a large body of customs which exist with all the force of law, just like those which as a matter of accident having been brought before the court to receive judicial recognition.  In the next place, according to Austin, the moment a custom receives judicial recognition, it becomes part and parcel of the positive law and, therefore, for him to call it again a customary law is simply, if not contradicting, certainly confusing, himself.  Lastly, in India, as we shall see presently, a judicial decision or recognition cannot confer on custom all the rigidity of a positive law.  A custom though judicially sanctioned, may not be followed at the discretion of courts.

 

Holland’s views:

           

Holland, who practically adopts Austin’s definition of law, differs from him in regard to his (Austin’s) opinion that a custom becomes a law only when it receives judicial recognition.  He says: “The state, through its delegates, the judges, undoubtedly grants recognition as law to such customs as come up to a certain standard of general reception and usefulness.  To these the courts give operation, not merely prospectively from the date of such recognition, but also retrospectively; so far implying that the custom was law before it received the stamp of judicial authentication.”  In giving the recognition a court merely decides as a fact that there exists a legal custom about which there might up to that moment, have been some question, as there might about the interpretation of an Act of Parliament.”

 

Comprehensive definition of law: 

 

Holland, though he has proceeded a step further than Austin, in that custom was law before it received judicial recognition, and that, all that the court does is to decide as a fact that such custom exists, has not given such a broad definition of law as to include customs.  Both customs that have attained all the force of law, and laws, i.e. statutes, are principles or rules, which govern and regulate the life and conduct of human societies.  The former have their foundation in the collective will or common consent of the people, just as much as the latter have, on the will or pleasure of a Sovereign or a State.  The objects and the functions of both are alike, though the procedure is different.  To say, therefore, that customs and usages which have all the force of law, nay, sometimes even greater force than statutory laws, are not to be called law, is a mere verbal contest and nothing else.  To give therefore a comprehensive definition of law, so that both customs of the above description and statutes may be included under the term law is not very easy, but yet the following description may be considered as adequate.  Law is a body of rules of human conduct, either prescribed by long established usages and customs or lay down by a paramount political power.

 

(2)        Customary Law:

Origin of Customary Law: opinion of Sir Henry Maine:

 

As has been observed by Mr. Roy in his Customs and Customary Law in British India “it is impossible to ascertain the precise beginning or to discover the rudimentary growth of an ancient and long established custom.  It is of such high antiquity that neither human memory nor historical research can retrace it.  Indeed on its antiquity and immemorial practice depends the goodness of a custom.  But though we are unable to trace that origin of a custom which is enshrouded in the mist of ages, yet we can ascertain the process by which a certain rule of conduct is gradually established into a custom.” 

 

            “A rule of conduct, by uniform series of acts in pursuance of it, turns into a custom, which the people observe and follow without any coercion from anybody.  The rule or rules come into existence without any apparent author.  Their birth and growth is the natural consequences of the progress of human society; since no association of persons can exist permanently without adopting, consciously or unconsciously, some definite rules governing reciprocal rights and obligations.  These rules of conduct may have been based on utility, or may have arisen from social or communal necessity, but they have always the express or tacit sanction of the collective will or common consent of the people among whom they prevail.”

 

            Sir Henry Maine is of opinion that the germ of Customary Law is to be found in the Patria Potestas, or the absolute and arbitrary orders of the head of the family to those immediately under him.  “There are in the history of law certain epochs which appear to us, with such knowledge as we possess, to mark the beginning of distinct trains of legal ideas and distinct course of practice.  One of these is the formation of the Patriarchal Family, a group of men and women, children and slaves, of animate and inanimate property, all connected together by common subjection to the Paternal Power of the Chief of the household...............A great part of the legal ideas of civilized races may be traced to this conception, and the history of their development is the history of its slow unwinding.”

 

            The head of the family, the father, governs his wife, children and slaves and directs their conduct according to his wishes.  The commands or rules in which his wishes are expressed are obeyed by the different members of his family.  Whenever the same circumstances arise, the same conduct, as first directed by the rule, is followed.  The repetitions of conduct in the various matters of domestic life come at last to be regarded in the family as a rule of conduct or custom.  And as years go by, the same rule or custom continues to be observed and with the lapse of years the rule becomes more and more binding, and any attempted departure from it by any member is resented by the rest.  In the course of long years, the origin of the custom is lost, how the rule comes to be made becomes unknown and unknowable; the members observe it because their ancestors followed it.  These rules and principles, few in number, on account of the simple mechanism of an ancient community or tribe, would, though being uniformly followed and acted upon, gradually become inviolable and obligatory.  The original tacit consent of the people on which they were based would gradually crystallize into a collective will of the people.  And by this collective will of the community or tribe those rules and principles would gradually become firmly established as customs.

 

Opinion of Sir Charles Roe about the Punjab Customs:

           

Speaking about the Punjab customs, Sir Charles Roe says:- “I have referred in paragraph 10 of this chapter to Sir Henry Maine’s opinion that the order of development of the forms of social life has been the Family, the House, the Tribe, the Nation. Similarly, he is of opinion that the germ of Customary Law is to be found in the Patria Potestas, or the absolute and arbitrary orders of the head of the family to those immediately under him.

 

            “The first instances of laws enforced from outside the family are the almost equally capricious orders of the divinely inspired chief, or the ‘Themistes.’  It is only when these orders have ceased to be mere personal commands by the Chief, when they are the decisions of his council, a body of experts acting on precedents, that Customary Law comes into existence.  He thinks it may be accepted as certain that the ‘Themistes’ preceded, and were the foundation of, Customary Law.

 

            This last proposition is no doubt true of Customary Law in its later states, when it has become a fully developed system capable of dealing with all kinds of disputes.  In his Settlement Report of the Bannu District Mr Thorburn has given us a very graphic account of how such a development of the law takes place.  He says:--‘Most of our wildest tribes scorn the idea of a woman having any rights in property; they tell you that she is as much a chattel as a cow, and, if she, when widowed, desires to retain any interest in her husband’s property; she must marry his brother, and that a man to be entitled to hold his share of land, must be an able-bodied fighting man.  Our Courts do not uphold such ‘Customs’ and the settled Waziris are now inclining to accept the general rule of the district that  a widow, as long as she remains a widow, and there be no sons, has a life interest in her deceased husband’s property, and that all sons, whether strong or sickly, have equal rights of inheritance.  Disputes as to the devolution of property used generally to be decided at home by a board of ‘ancients’ or graybeards, who in their judgments followed custom, which was analogous to that of the Waziris noted above, but whenever the parties could not agree they went into Court.  As often as not they had previously (under the influence of the mullahs) determined that each should be bound by the Shara Law, though neither of them had any conception of what that law ordained.  If the Shara was not followed the Court decided the case according to its own lights as to what the custom ought to be, and its own lights naturally caused it to decide that all sons should share equally, that a widow should take a life interest in her husband’s property, if he left no sons, and so forth.  Take another instance.  The extent of the Patria Potestas with reference to inherited property was a question which had to be answered.  Could a father alienate his whole inheritance, though male issues were alive?  If not all, how much?  The Banuchis at first unanimously declared that he could give away all to whomsoever he chose, such being the Shara rule.  Asked for examples of the exercise of such power, not one was forthcoming.  Had any one so alienated half his land?  No cases known.  As with the Banuchis, so with the Isakhels and others.  Thus reasoning from a series of negatives the people were over and over again driven to admit that their first replies were erroneous, and we had to record out answers to theeffect that no custom on the point existed, but that all were of opinion that, on disputes arising, if such and such a rule were adopted, an equitable custom would grow up.  Here and there I shaped public opinion on most questions in the direction in which I myself and others of longer experience thought equitable.

 

            “What took place in Bannu, has also taken place in other districts, where Custom was in its infancy, and no doubt, in course of time, Customary Law will rest almost entirely on the judgments of the Civil Courts, especially of the Chief Court.  As observed by Sir Henry Maine, it will then cease to be unwritten law, and will become law in a special form.

 

            “But these facts do not in my opinion in any way prove that the origin of the Customary Law is a series of ‘Themistes,’ or decisions in particular cases, still less do they prove that these decisions were mere arbitrary commands.  Theearly judgments of our own Courts, established after the annexation of the Punjab, are as near an approach to the ‘Themistes’ as could well be conceived.  The Judges were, if not divinely inspired, gifted with mental powers far above those of the people whose disputes they decided, and their power to enforce their decisions was irresistible.  Yet we find them freely acknowledging the existence of custom, and basing their decisions on it, except when they considered that there were special reasons for rejecting it.  Under native rule the power of the Chief, or his representative, the Judge is in theory strictly personal and unlimited, yet there are customs which even the Amir of Kabul could not violate by an arbitrary decision.  But all the evidence shows us that amongst the tribes of the Punjab the agency for deciding disputes was not a personal Chief or Judge, but the brotherhood or the committee of the ‘brotherhood,’ known in the frontier ribs as the jirgah, and in the Punjab generally as the panchayat.  On what did these bodies base their decisions ?  Assuredly not on ‘reported cases.’  Nor could the decisions have been merely capricious.  No doubt, in certain cases, such as the admission of an outsider into a frontier tribe, or sanctioning an adoption in a Hindu tribe, the Court would be influenced by the personal feelings of its members towards the person to be admitted or adopted.  It is, or was, one of the great advantages of a tribunal of this kind that there is an elasticity in its rules, and that all circumstances can be taken into consideration.  But we may be quite sure that on main points, such as whether a marriage was opposed to Tribal Law, or the rights of females, the decision was in accordance with what  was believed to be fundamental custom.  I would modify Sir Henry Maine’s proposition, and say that, whilst Customary Law in its details has grown up from decisions in particular cases, the general principles of the law existed before the decisions.  Disputes requiring decision can only arise after individual proprietary right has come into existence.  Individual property is amongst the tribes of the Punjab, and I should think generally, merely a development of joint property.  For the existence of joint property there must be one united community, and to keep a community united, some broad general principles must be consistently observed.

 

How Custom preserved:

           

“The preservation,” says Sir Henry Maine, “during a number of centuries which it would be vain to calculate, of this great body of unwritten custom, differing  locally in detail, but connected by common general features, is a phenomenon which the jurist must not pass over.  Before I say anything of the conclusions at which it points, let me tell you what is known of the agencies by which it has been preserved....................One great instrumentality is the perpetual discussion of customary law by the people themselves......................I am aware that the popular impression here is that Indian society is divided, so to speak, into a number of horizontal starts, each representating a caste.  This is an entire mistake.  It is extremely doubtful whether the Brahminical theory of caste upon caste was ever true except of the two highest castes; and it is even likely that more importance has been attached to it in modern than eve was in ancient times.................The true view of India is that, as a whole, it is divided into a vast number of independent, self-acting organized social groups—trading, manufacturing, cultivating.  The English agricultural laborers of whom wee speak, are a too large, too indeterminate class, of which the units are too loosely connected, and have too few interests in common, to have any great power of retaining tradition.  But the smaller organic groups of Indian society are very differently situated.  They are constantly dwelling on traditions of a certain sort, they are so constituted that one man’s interests and impressions correct those of another and some of them have in their council of elders a permanent machinery for declaring traditional usage, and solving doubtful points.”

 

            That customs have been handed down to us from the remotest ages and not allowed to pass into oblivion is due to the conservative nature of man and to the reverential regard with which each member of a community or a tribe looks upon them.  To isolate a custom is to him nothing short of a sacrilege.  Thus by right observances and constant practices, the traditional rules have been always kept in evidence and transmitted from generation to generation without any way being warped by extraneous influences.  Further, the frequent discussions regarding the various customs among the people themselves, as occasions arise, have tended, in no small measure, towards their preservation. 

 

Customary Law:

           

Jurists differ as to what is meant by the expression Customary Law.  This difference is due to the different conception of the term ‘law’ by the two different schools, viz., the Historical and the Analytical.  Hale, Blackstone, Maine and other English Jurists and many Roman and German writers representing the Historical School, trace back law to before the period when Sovereigns or States came into existence; whereas Hobbes, Bentham, Austin and others representing the Analytical School, trace law from the period when Sovereigns and States first came into being.  Both the Schools, however, agree that before the king-made law, there existed a large body of rules regulating societies.  The Historical School call them unwritten laws in contradistinction to the written or statutory and judiciary laws.  But the School of Austin as they own the existence of no other law than the king-made one will not apply the term ‘law’ to them and prefer to designate them as unwritten rules or rules of morality.  These unwritten rules or rules of morality, as called by the Analytical School, are collectively called Customary Law. It is the jus non scriptum of the Romans.

 

Thus Customary Law, or as it is called, mores majorum or consuetudinrium is composed of a large body of rules observed by communities, evidenced by long usages and founded on pre-existing rules sanctioned by the will of the community.  It exists independently of a Sovereign authority.  It forms the groundwork of every system of legislation.

 

            Having got the general impression of as to what is meant by the expressions “Customs” and “Customary Law,” let us see what constitutes the property in land and how these communities and societies, which are regulated by these unwritten laws, have been formed.

 

(3)        Property in land:

Development of the idea of property in land—collective ownership:

           

Of all kinds of property that in land has most deeply affected both the economic condition and political career of human societies.  It shall therefore be of interest to note the development of the idea of property in land.

 

            In the words of Sir Henry Maine (Lectures on the Early History of Institutions, page 1 ), “the collective ownership of the soil by groups of men, either in fact united by blood relationship, or believing, or assuming, that they are so united, is now entitled to take rank as an ascertained primitive phenomenon once universally characterizing those communities of mankind between whose civilization and our own there is any distinct connection or analogy.” And it would be accepted by M. Emile de Lavaleye, between whom and Sir Henry Maine there are important differences of opinion.  “It is only”, says M. Emile de Lavaleye “after a series of progressive evolutions and at a comparatively recent period, that individual ownership as applied to land, is constituted.”  Speaking of the progressive evolution of the general idea of property in land he writes:--“So long as the primitive man lived by the chase, by fishing or gathering wild fruits, he never thought of appropriating the soil; and considered nothing as his own but what he had taken or contrived with his own hands.  Under the pastoral system, the notion of property in the soil begins to spring up.  It is, however, always limited to the portion of land, which the herds of each tribe are accustomed to graze on, and frequent quarrels break out with regard to the limits of these pastures.  The idea that a single individual could claim a part of the soil as exclusively his own never yet occurs to any one; the conditions of pastoral life are in direct opposition to it.

 

            “Gradually, a portion of the soil was put temporarily under cultivation and the agricultural system was established; but the territory, which the clan or tribe occupies, remains its undivided property.  The arable, the pasturage and the forest are formed in common.  Subsequently the cultivated land is divided into parcels, which are distributed by lot among the several families, a mere temporary right of occupation being thus allowed to the individual.  The soil still remains the collective property of the clan to whom it returns from time to time, that a new partition may be affected.  This is the system still in force in the Russian commune, and was, in the time of Tacitus, that of the German tribe.

 

            “By a new step, of individualization, the parcels remain in the hands of groups of patriarchal families dwelling in the same house and working together for the benefit of the association, as in Italy or France in the middle ages, and in Servia at the present time.

 

            “Finally individual hereditary property appears.  It is, however, still tied down by the thousand of fetters of seigniorial rights...................It is not till after a last evolution, sometimes very long in taking effect, that it is definitely constituted and becomes the absolute, sovereign, personal right.”

 

Sir Henry Maine’s theory:

 

As noted above the historical researches of both the eminent writers, Sir Henry Maine and M. de Lavaleye coincide in establishing that the separate ownership of land is of modern growth, and that originally the soil belonged in common to communities of kinsmen.  According to Sir Henry Maine’s theory the order of development has been the Family, the House and the Tribe.  To quote from him—

 

            “The naturally organized self-existing village community can no longer be claimed as an institution specially characteristic of the Aryan races.  M. de Lavaleye, following Dutch authorities, has described these communities as they are found in Java; and M. Renan has described them among the obscurer Semitic tribes in Northern Africa.  But, where-ever they have been examined, the extant examples of the group suggest the same theory of its origin: which Mr. Freeman (Comparative Politics, page 103) has advanced concerning the Germanic Village Communities or Mark; ‘This lowest political unit was at first (i.e., in England, as elsewhere, formed of men bound together by a tie of kindred, in its estate natural, in a later stage either of kindred, natural or artifical.’ The evidence, however, is now quite ample enough to furnish us with strong indications not only of the mode in which these communities began, but of the mode in which they transformed themselves. The world, in fact, contains examples of cultivating groups in every stage, from that in which they are actually bodies of kinsmen, to that in which the merest shadow of consanguinity survives, and the assemblage of cultivators is held together solely by the land which they till in common. The great steps in the scale of transition seem to me to be marked by the Joint Family of the Hindus, by the House Community of the Southern Sclavonians, and by the true Village-Community, as it is found first in Russia and next in India. The group, which I have placed at the head- the Hindu Joint Family—is really a body of kinsmen the natural and adoptive descendants of a known ancestor. Although the modern law of India gives such facilities for its dissolution that it is one of the most unstable of social compounds, and rarely lasts beyond a couple of generations, still, so long as it lasts it has a legal corporate existence, and exhibits in the most perfect state that community of proprietary enjoyment which has been so often observed, and (let me add) so often misconstrued, in cultivating societies of archaic type. ‘According to the true notion of a joint undivided Hindu family’, said the Privy Council, ‘no member of the family, while it remains undivided, can predicate of the joint undivided property that he, that particular member, has a certain definite share...........The proceeds of undivided property must be brought according to the theory, into the common chest or purse, and then dealt with according to the modes of enjoyment of the members of an undivided,’ (per Lord Westbury, Appovier v. Ram Subha Aiyar, 11 Moore’s Indian Appeals 75). While, however, these Hindu families, joint in food, worship and estate’ are constantly engaged in the cultivation of land, and dealing with its produce, ‘according to the modes of enjoyment of an undivided family’, they are not village-communities. They are only accidentally connected with the land, however extensive their landed property may be. What holds them together is not land, but consanguinity; and there is no reason why they should occupy themselves as indeed they frequently do, with trade or with the practice of a handicraft. The house community, which comes next in the order of development, has been examined by M. de Lavaleye (P. et s F. P., P. 201),  and by Mr. Patterson (“Fort-nightly Review”, No. xliv), in Croatia, Dalmatia and Illyria, countries which, though nearer to us than India, have still much in common with the parts of the East not brought completely under Mohammadan influences. But there is reason to believe that neither Roman Law nor feudalism entirely crushed it even in Western Europe. It is a remarkable fact that assemblages of kinsmen, almost precisely the counterpart of the House Communities surviving among the Sealvonians, were observed by M. Dupin, in 1840, in the French Department of the Nievre, and were able to satisfy him that even in 1500 they had been accounted ancient. These House-Communities seem to be simply the Joint Family of the Hindus, allowed to expand itself without hindrance, and settled for ages on the land. All the chief characteristics of the Hindu institutions are here—the common home and common table, which are always in theory the centre of Hindu family, the collective enjoyment of property, and its administration by an elected manager. Nevertheless, many instructive changes have begun which show how such a group modifies itself in time. The community is a community of kinsmen, but though the common ancestry is probably to a great extent real, the tradition has become weak enough to admit of considerable artificiality being introduced into the association, as it is found at any given moment, through the absorption of strangers from outside. Meantime, the land tends to become the true basis of the group; it is recognized as of pre-eminent importance to its vitality, and it remains common property, while private ownership is allowed to show itself in movables and cattle. In the true Village-Community, the common dwelling and common table, which belong alike to the Joint Family and to the house-Community, are no longer to be found. The village itself is an assemblage of houses, contained indeed within narrow limits, but composed of separate dwellings, each jealously guarded from the intrusion of a neighbor. The village lands are no longer the collective property of the community; the arable lands have been divided between the various households; the pasturelands have been partially divided; only the waste remains in common. In comparing the two extant types of Village-Community which have been longest examined by good observers, the Russian and the Indian, we may be led to think that the traces left on usage and idea by the ancient collective enjoyment are faint, exactly in proportion to the decay of the theory of actual kinsmen among the co-villagers. The Russian peasants of the same village really believe, we are told, in their common ancestry, and accordingly we find that in Russia the arable lands of the village. Are periodically redistributed, and that the village artificer, even should he carry his tools to a distance, works for the profit of his co-villagers. In India, though the villagers are still a brotherhood, and though membership in the brotherhood separates a man from the world outside, it is very difficult to say in what the tie is conceived as consisting. Many palpable facts in the composition of the community are constantly inconsistent with the actual descent of the villagers from any one ancestor. Accordingly, private property in land has grown up, though its outlines are not always clear; the periodical revision of the domain has become a mere tradition, or is only practiced among the ruder portions of the race, and the results of the theoretical kinsmen are pretty much confined to the duty of submitting to common rules of cultivation and pasturage, of abstaining from sale or alienation without the consent of the co-villagers, and (according to some opinions) of refraining from imposing a rack-rent upon members of the same brotherhood. Thus the Indians village community is a body of men held together by the land, which they occupy. The idea of common blood and descent has all but died out. A few steps more in the same course of development—and these the English Law is actually hastening—will diffuse the familiar ideas of our own country and time throughout India, the village community will disappear, and landed property, in the full English sense, will come into existence.

 

Baden-Powell’s observations:

 

It has been observed (The Indian Village Communities, Baden Powell, page 399) that ‘right to land grows out of two ideas; one being that a special claim arises, to any object or to a plot of land, by virtue of the labour and skill expended on making it useful or profitable: the other, that a claim arises from conquest or superior might. In a very early stage, a body of primitive settlers comes to a ‘boundless’ area of wooded or jungle-clad but fertile plain. As each household group laboriously clears and renders fit for cultivation a certain area, the father, or the united family, as the case may be, regards the plot as now connected with himself or themselves specially, in virtue of the labour expended on it. This claim is recognized by all, because every other member of the clan has the same feeling as regards the field he has cleared. The feeling of right is further developed when each holding is the result not merely of a random choice, but of some regular procedure of allotment of the clan chief.

 

“If there are no other human beings to contest the ownership, although the clan occupies a more or less compact general territory, the sense of any wider or more general clan-right is not as keen as it afterwards becomes when, very likely, unfriendly clans lie all-round, and each has to maintain its own limits against aggression. The idea of clan- right to the territory as a whole- both the cleared holdings and the waste which is grazed over and from which wood is cut must soon, in the natural course of events, become definite. Not only is there sure to be some clan collected together at the-time of first settling, but the families, naturally and by choice grouped together must help each other a great deal in clearing the jungle, building the cottages, digging the tanks or wells, and in many similar works. Hence, even if there were no general sense of kindred which long residence together has fostered, there would still be a certain sense of union. The right to the holding selected and cleared by the family is however naturally superior to the clan territorial claim, being more definite; it is in fact dependent on the sentiment which originates the notions of property in general—that which a man has made or rendered useful and profitable he has a special title to enjoy.

 

‘But very soon another factor comes into question; when tribes multiply, and, moving east or west, come into conflict and one is superior in energy and in power of combination to another, the possession longer remains a matter of first appropriation in the absence of all other claims. Might become right and conquest given a new title. This claim by conquest and superiority the next generation will euphemise as the claim by inheritance.

 

‘But it is also a further phase of class development, under the necessity for military discipline and organized movement, that the patriarchal rule of chiefs gives way to a system of kings and barons as subordinate chiefs. And no sooner are these dignities acknowledged than there arise various kinds of territorial lordships which may take the form of a kingdom, or local chief ship, or a sort of manorial holding of smaller portions of land. This right of lordship over an estate has nothing to do with the question of labour or expense incurred in clearing and cultivating the soil, but is an over lordship based on easte or family superiority, attained by conquest or otherwise; and it expresses itself by taking a share in the produce raised by tenants, dependants, or a pre-existing body of agricultural settlers. It is made tolerable to the now subordinated original settlers by the degree of protection which the overlord even in his own interest, affords to the villages from which he derives his revenue or income,” (Ibid, page 403).

 

“It is commonly said that property in land passes through three stages. First, it is held by the tribe or class, and is regarded as the common property of the whole body. Holdings indeed are allotted or recognized, because without that agricultural labour could not be performed; but periodically the holdings are exchanged or redistributed,.........The next stages is reached when redistribution is abandoned because each several holding that of the man with his sons, has become improved, and each family desires to retain permanently its own. But still the Pater familias is not the individual owner; he cannot sell or will away the holding.  He must share it equally with his sons if he makes a partition and on his death it will go to all sons equally, as to all other heirs if there are no surviving sons.

 

            “This is said to be the stage when property vests in the family... But gradually the desire to profit by one’s own skill and labour individualizes property. A number of things conduce to this end. Family quarrels are an unfortunate but very common factor. Differences of taste and agricultural capability also have their sphere. Coined money comes into use, and men begin to buy and sell land. Finally, families breakup, and individual ownership is the third or final condition,” (Land Systems in British India, Baden-Powell, Vol. I, page 110).

 

            Baden-Powell holds that in India the earliest idea was appropriation by the individual, i.e., the fathers of the family; that this gradually develops into an idea of equality between all the sons in succession to the father’s property which leads to the idea of a joint ownership by a close kindred of which the father is the head. When a number of such families of common decent, kept together by circumstances, continually fighting side by side and constitute a clan, and there is, further, a kind of collective sense of right to the whole, which is over and above the family right to the several lots that fall to each, and is largely dependent on the sense of unity which class life naturally produces, and on the sense of the right of every member to share in the common acquisition. (Indian Village Communities, page 406).

 

            Thus at different times very different rights and advantages are included under the idea of property. At the very early period of society it included very few; originally. Nothing more perhaps than use during occupancy, the commodity being liable to be taken by another the moment it was relinquished by the hand which held it; but one privilege is added to another as society advances and it is not till a considerable progress has been made in cultivation that the right of property involves all the powers which are ultimately bestowed upon it. Property in land as a transferable marketable commodity absolutely owned and passing from hand like any chattel is not an ancient institution, but a modern development (Essay on Indian Land Tenures, Sir George Campbell).

 

            According to M. de Lavaleye, we have first the tribe, then the clan, settled on the land, which is the same thing as the village community, next the house community, and lastly individual property. But, according to Sir Henry Maine, the village community is derived from the house community; and the latter is an expansion of the joint family. In the one case, the family is regarded as the primary unit, and observation is directed to its growth on the land. In the other the tribe is the unit and the history of property is the history of tribal disintegration.

 

 

Sir Henry Maine’s theory criticized by Mr. Tupper with special reference to the Punjab:

           

In the first chapter of the second volume of his work on Customary Law, Mr. Tupper deals with the subject at great length and in a general manner, criticizing Sir Henry Maine’s theory that the order of development has been the family, the House, the Tribe; he expresses his decided opinion that the order should be reversed, and that at least as regards proprietary right, it has the Tribe, the House, the Family.  Speaking of the Punjab he says—“I have no hesitation in saying at once that the village community in the Punjab is not derived from the house community; and that here it would convey a more correct general impression to speak of the joint family, except where it is an offshoot from an already existing village, or the fragment of a tribe, as the lastterm in the series and not the first. I ama not prepared to say that there are no cases where the joint family is very numerous—probably such could be found.  But, assuredly, the house community is not nowk, in this part of India, a prominent feature in the rural organization as it is among the Southern Slavs; and had it ever been the unit regulating proprietary enjoyment, it would have left traces in the village system.  This, however, I cannot find thqt it has done; and if we admit, for the purpose of argument, that the house community has a definite place in the order of development, it may safely be asserted that there is an ellipsis in the Punjab of the particular phase.  We may, I think, go even further than this and say that in this part of India the true analogy to the Slav house community lies in the patti or taraf of the village.  When the class has broken up into sections within the village, and each of the land formerly enjoyed by all jointly or where the village had had a miscellaneous origin in the combination of offshoots of different stocks, there we have the transition between primitive joint ownership and the ownership of families joint as amongst themselves but severed in interest from the rest of the village.

 

            Moreover, the theory of Sir Henry Maine requires us to suppose that; the land has supplanted kinship as the basis of the community.  But in the Punjab this is very far from being the case.  The idea of common blood and descent has by no means died out.  The Punjab peasants, no less than Russian peasants, believe in their common ancestry; and allowing always that adoption must be recognized as of equal strength with natural parentage, their belief frequently rests upon indisputable grounds.  It is not difficult to say here in what the tie between the brotherhood is conceived as consisting.  Unquestionably, as the name implies, it is conceived, except in the villages just mentioned, of miscellaneous origin, as consisting in the possession of a common ancestry,--an ancestry which may be traced either to a single family or to associate tribesmen, but has in either case transmitted the common blood.............Wherever the obligation and privileges of proprietorship are regulated wholly or in part by ancestral shares there kinship is asserting itself as the fundamental principle on which property is distributed..........................

 

            “Now, if, in addition to this, I can succeed in raising a strong presumption that the village community has generally originated in the tribe, except where it has been founded by the interposition of government, or is merely a colony of a parent village, I think it will be admitted that I am justified in contending that Sir Henry Maine’s theory can only be regarded as applicable to the Punjab in a very limited sense.  I propose, therefore, to bring forward the evidence which appears to me to establish this presumption; and I shall then go on to show that, when once the village community has come into existence, the progressive stages are its separation into defined lots still held jointly by groups claiming common descent amongst themselves and next the division of the land amongst joint families or individuals.  This agrees generally with the theory of M. de Lavaleye except that the partition amongst groups takes the place of the house community, from which the joint family is distinguished merely being of smaller size...............

 

            “The great periods in the history of landed property in the Punjab may be presumed to be not the joint family, the house community, and the village community in that order, but successively the tribe, the village, and the family.”

 

            On the same subject Sir Charles Roe in his Tribal Law in the Punjab (page 6) expresses as follows:--

Sir Charles Roe’s views:

           

“I will not attempt to express an opinion except as regards the Punjab, and here I have no doubt whatever that Mr. Tupper is right.  However, the tribe itself may have been formed (probably Mr. Ibbetson’s account of the formation of the Biluchi tribes may apply to most other tribes), it seems clear that for a considerable time it has held its land jointly, with no idea of individual right, except the right of each member of the tribe, to share in the common property.  This is how the tribes beyond our border hold their land to this day, and the condition of the same tribes after coming under our rule is only  a stage more advanced.  With the latter there has been an actual distribution of tribal lands into villages carved out by a higher authority.  Where no such authority intervenes, the process of development would naturally be slower and less systematic.  It is not to be supposed that the whole tribe ever held a general meeting and made a formal distribution of its land amongst its different sub-divisions and families.  What would naturally take place would be that when once a tribe had given up  its migratory habits and settled down permanently on a particular tract of country, the various groups f families most closely connected by ties of blood would select the nearest spots most favorable for cultivation, built houses on them and cultivate jointly.  Each collection of such groups would soon cease, it it ever commenced, the practice of contributing its produce to a common stock for the whole tribe, and would be soon regarded as exclusively entitled to the permanent possession of its produce to a common stock for the whole tribe, and would be soon regarded as exclusively entitled to the permanent possession of its cultivated lands.  The waste or pasture lands between the different settlements would for some time continue to be regarded as common property, but in course of time these too would be demarcated.  When this has been done, we have the ordinary village community, but it is quite possible for such a community to be formed without any definite fixing of the boundaries of its wasted lands.  They have, in factrk, existed in many districts in the south-west of the Punjab, where the boundaries of the waste were not finally settled until more than 20 years of British rule.  When the numbers of a village community outgrew the productive powers of its lands, individual members, who found their share too small would leave it and found a new village elsewhere, but usually as near to the parent village as possible. For every village in the Punjab there has been prepared, in the course of settlement operations, a record called the village pedigree table, which gives an account of the founding of the village, and traces the descent of every single proprietor from his ancestor who first settled in it. Making every allowance for mere legend and myth, the information contained in these records as to undoubted matters of fact is invaluable.  Taken as a whole, they show clearly that villages in the Punjab were formed as a general rule either by sub-dividing the lands which an original parent village had appropriated to itself on the first setting down of the tribe, or by colonists from such villages. They also show that within the village itself the same order of development has frequently—I may say most frequently—been the rule. Many villages are no doubt to be found in which possession has from the first been the measure of right, where each of the original founders simply broke up as much land as he could and appropriated to himself its produce. But almost invariably when there has been near relatives, we find that the village  was for some time after its foundation held in common, they it was then sub-divided according to descent from the original founder or founders, and that where these shares are not still in force but have been succeeded by measure of right  founded on possession alone the charge has been very gradual.Mr. Tuper is right in saying that speaking of them as a whole, the village communities in the Punjab consist of groups of families bound together by the tic of descent from a common ancestor, and that it is still the feeling of kinship and not the mere common interest in the land, which regulates these customs. No doubt there are villages, especially in the southwest of the Punjab, in which a common interest in the land, or contiguity, as Sir Henry Maine calls it, has from the first been the sole bond of union. Individuals have sunk wells in the waste receiving a grant from Government of from 16 to 53 acres of land, and where several such grants lie near together they have been formed into a village, and the intervening waste thrown in as common land, I myself, as Settlement Officer, have created several such villages in the Montgomery and Multan Bar. More were so created under native rule, and very probably in some cases the families have come together of their own accord.”

 

(4)      Village communities:

           

Having got some conception of the idea of property in land, it remains now to turn to another important feature of Indian life, viz., the village communities.

 

Indian village communities:

           

Among the phenomena, which India presents to the student of social institutions, none are more interesting and important than its village communities.  The constitution and form of these have not been exempt from the general laws of progress and decay, but the characteristic features of Indian village life have been handed down with extraordinary pertinacity from a distant past.  The typical Indian village has its central residential site, with an open space for a pond and a cattle stand.  Stretching round this nucleus lie the village lands, consisting of a cultivated area and (if possible) grounds for grazing and wood-cutting.

 

Two distinct types of villages Raiyatwari and joint or landlord type:

           

But we are to distinguish two distinct types of villages; one is where distinct the landlords are disconnected aggregates of families each claiming nothing but its own holding—the Raiyatwari or Non-Landlord type; the other is where a class in the village, or it may be the entire body, claim to be a superior order descendants of former rulers, or colonizing-founders or conquerors or grantees, or, later of revenue-farmers and auction purchasers who claim jointly the entire estate; and this is the Joint or Landlord Village type.  It is the second form that prevails in the United Provinces of Agra and Oudh and in the Punjab.

 

Origin of villages of landlord type:

 

From what has been described above, it would appear that the villages of the joint landlord type have primarily arisen--

           

(1)           Out of the dismemberment of the old Raja’s or Chief’s estate, and the division or partition of larger estates;

 

(2)           Out of grants made by the Raja to courtiers, favorites, minor members of the Royal family, etc.,

(3)           By the later growth and usurpation of Government Revenue officials;

 

(4)           By the growth of Revenue farmers and purchasers, when the village has been sold under the first laws for the recovery of arrears of revenue;

 

(5)           From the original establishment of special clans and families by conquest or occupation, and by the settlement of associated lands of village families and colonists in comparatively late times.

 

The formation of village groups of families is, however, not necessary connected with any idea of soil-ownership at all.  The aggregation of holdings in a village of limited dimensions, and the establishment of a central place of residence, is, under the circumstances of most Indian Provinces, a purely natural condition under which permanent cultivation can best be established and maintained.  Again, the fact that kindred, especially in a tribal stage of society, naturally keep together, and that as the groups expand they must necessarily separate and form a new series of similar aggregates, these facts, and others like them, also furnish the conditions of village formation.

 

            But there is nothing in the causes of such formation to suggest any new form of ownership as resulting from their operation; and as a matter of fact, and looking to the larger number of instances we can recall, we  shall find that the sort of ownership which is actually found in villages corresponds to one or another of the following three heads:-

 

(1)           The family or individual holdings are all separate within the village.

 

(2)           The village is an accidental aggregate of kindred families; and the joint ownership or collectivity, such as it is, is in the whole clan; where any further (real) joint ownership appears, it is between members of the ‘family’ or close kindred.

 

(3)           The village is really the limits of the acquisition by whatever means, of one founder or originator, and the joint ownership now appearing is due to the main branches representing according to universal custom, the three primary grades of descent, and to such families, descendants of these, as remain joint among themselves being subject to the operation of the joint-family custom and the law of joint inheritance.

 

(5)        Village communities in the Punjab:

           

What attracts attention most throughout the Punjab, is the prevalence of village communities, and the fact that they are most strong, well preserved, and the fact that they are most strong, well preserved, and the greater part of them of the joint or landlord type.

 

            In, Gujar v. Sham Das and another, the question before a Full Bench was, on whom in cases of transfer of ancestral land without necessity by a sonless Jat proprietor does the burden of proof rest ?  It was observed by Roe, J:- “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 usufruct, 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 or villages in their turn spring from a still more primitive state of society, in which the proprietary unit was the tribe.  The only trace of the latter state now 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 amongst individuals.  But even where the sub-division has proceeded furthest, the power of dealing with the land is not absolutely free.”

 

            In this province, however, we have an almost total absence of the class of villages owned by descendants of the manager, revenue-farmer, or auction-purchaser; and we cannot trace any general earlier existence of villages which were aggregates of separate cultivators, or observe the up growth of landlord bodies over them.

 

            Both the North-West Frontier and Central districts exhibit tribal joint (and landlord) villages from the first.  And we have also a special class of colony villages in the Fourth-East.

 

Origin of the Punjab villages:

 

            The origin of the Punjab villages will be found more or less to the following sources:-

 

(1)           The conquest and settlement of great tribes like the Jat and Gujar, at a remote date.

 

(2)           The later return and settlement of adventurers, Rajput and other small bodies of tribesmen, or single colonist whose descendants have now multiplied and spread.

 

(3)           The comparatively late immigration of tribes into the districts of the North-Western Frontier.

 

(4)           The establishment of bodies of associated colonists (South-East Punjab).

 

(5)           The aggregation, under the present Revenue system, of individual families of cultivators and settlers into villages.

 

Land tenures in the Punjab—collective ownership of property:

 

            The Punjab affords a conspicuous instance of the general truth of the theory of the collective ownership of soil by groups of men, either in fact united by blood relationship, or believing or assuming that they are so united, as in ascertained primitive phenomenon.  It has been observed by Tupper (Customary Law of the Punjab, Volume II, page I)—“It may, I think, be safely asserted that, except where title has originated in direct grant by the State or Rajah, as in Kangra, or in the action of Sikh Governors, as in Multan, or after tribes have settled down, by mere squatting or improvements, there is abundant evidence that collective property, either of the tribe or clan or of the village, preceded several ownership. In many places the irruptions of particular tribes, or the turbulent conquests of those Sikh fighting corporations known as Misls, have superimposed rights originating in simple violence on subjugated cultivating communities; but if we penetrate below the confused aspect of the surface, as it was left at the expiry of Sikh dominion, and endeavor to seize the principle on which the mass of the population gravitated into its present shape, then, sunject to the exceptions just made, we find in every district that joint property still often resides in communities  larger than mere families; and that, even where family rights have succeeded to those of the commune clear traces of communal property frequently, perhaps invariably, survive. The revenue terms with which we are most familiar,zamindari, pattidari, bhaichara, themselves epitomize the history of landed in this part of India. The land is first held in common and then on ancestral or customary shares; later, these are undistinguished or forgotten, or deliberately set-aside, and possession becomes the measure of right, or in other words, severalty is fully established.

 

            “Each of them marks a stage in the process of transition. An ‘estate’ in Punjab revenue phraseology is a village or other local area with which a separate settlement of the land revenue is or may be made. A zamindari estate is held either by individuals or families, or by proprietary cultivating communities paying the revenue in common. It is thus either ‘landlord’ or communal and undivided proprietary right in its distinguishing characteristic. In the pattidari tenure, disintegration has begun; but the communal origin of property still regulates its distribution and the chief public duty connected with it. The lands are divided and held separately, but they are divided on shares based either on personal descent or on the proportions of the once common stock which particular families have either held from the outset or appropriated by prescription. The land and revenue are, sunject to succession by the law of inheritance. In a pure bhaiacharai estate shares have become quite extinct; a certain defined extent of land is in the possession of each proprietor; and neither in fact nor in theory is the holding part of a common stock. The degree of separation in interest is thus the basis of the classification, but the classification is not by any means an exhaustive one, because the most numerous classes of villages is that which presents features common both to the pattidari and the bhaiachara estate. Lands are held partly in severalty and partly in common, and the measure of right in common land is either the amount of the share or the extent of land held in severalty. Such tenures are known as mixed or imperfect pattidari or bhaiachara.”

 

Main characteristics of village communities in the Punjab:

 

            In a discussion of village communities the province may be roughly divided into five tracts—

(1)           The pains of the Eastern and Central Punjab.

 

(2)           The Himalayan tract to the north of these plains in so far as it is in British territory.

 

(3)           The Pathan tract lying mainly beyond the Indus and comprising the districts of Peshawar, Khoat, Bannu, and Dera Ismail Khan, (now included in the North-Western Frontiee Province).

 

(4)           The South-Western Punjab.

 

(5)           The North-Western Punjab and Hazara embracing the districts of Jhelum, Attock, Rawalpindi, Gujrat and Hazara.

 

1.       The plains of the Eastern and Central Punjab.

 

The distinguishing mark of this division is the prevalence of well-organized village communities. They are found in their present form in the southeast of the province, and here it will generally be found that the proprietary body in each estate or main sub-divisions of an estate claim to be kinsfolk and that ancestral shares or some other definite measure of right, such as plough, is, or at least in comparatively recent times, was often much less homogenous.

 

2.       The Himalayan Tract (Kangra and Simla Districts).

 

In the hills no village communities in the proper sense exist. The villages recognized in our records are artificial collections of hamlets or holdings corresponding with the tappas or circuits, which the hill Rajas formed for the sake of fiscal convenience. The individuals in possession of these grouped holdings are untied by no real pretended bond of relationship.

 

            Every holder of land derived his title from a patta or deed of grant given to himself or his ancestor by the Raja. He called his right a waris or inheritance. The waris had a permanent title in his holding. As regards the waste the landholders had merely rights of user, which were not measured by the amount of land in their possession and were in fact shared by residents in the same tappa, who had no land at all. Grazing fees were exacted from all alike. Subsequently at the time of the first Regular Settlement defined boundaries were assigned to waste and became the shamilat deh, though the rights of Government in valuable trees were reserved.

 

3.       The Pathan tract:

 

When a tract was occupied by an invading tribe a partition took place. The lot of each main sub-division of a tribe was sometimes called a tappa and described as its daftar, the individual proprietors being known as daftaris. Where circumstances required it, the lot was divided into vands according to the nature of the soil, facilities for irrigation, etc., and the number of bakhras or shares, which was to be the basis of division was calculated, one being often allotted to each man, woman and child. Each share property included an allotment from each vand or at least from each kind of land so that a man’s possession might be good deal scattered. But the whole or the main portion of the property of a sub-section (khel) of a tribe usually consisted of a single block of land, in the middle of which it built a village called after its name. The block was divided in vands so that all might share alike. The maliks or leading men, and even the khan or chief, got no more then any one else in the division, but the latter sometimes received certain lands as seri or free gift from the tribe.

 

4.         The South-Western Punjab:

 

True village communities are rare in South-Western Punjab. In this tract the rainfall is extremely scanty and outside the river valleys the country was once and to a considerable extent still as a grazing ground for sheep and browsing ground for goats and camels. The unit of property is the well or, in the lands adjacent to hill torrents, the large embanked field or band.

           

An estate was often a mere group of scattered well with the addition of a large block of the surrounding waste, which was declared to be the common property of the well owners. A widespread, though far less universal, feature of landholding in the South-Western Punjab is the recognition of two distinct class having proprietary interests in the soil.

 

5.       The North-Western Punjab:

 

            The juxtaposition of dominant families and clans and of a miscellaneous collection of inferior tribes is a feature of the north-west as of the south-west of the Punjab.  The heads of some of the fighting clans, such as the Gakhars, ruled wide tracts under the nominal suzerainty of the Delhi Emperors.  But wherever the arm of the Sikh ruler could reach the great families and clans fared badly.  In Attack they retained in a large measure their old power and influence, and the leading men among them had up to annexation to be conciliated by the grant of liberal chaharams, some of which survive to this day.

 

6.       The principal agricultural tribes of the Punjab:

 

            No account of Customary Law prevailing in the Punjab will be complete without a reference to the principal agricultural tribes inhabiting this province.  An attempt will therefore be made in the following few pages to describe briefly the main characteristics of dominant land-owning or agricultural tribes of this Province.

 

Area and population of the Punjab:

 

            According to the Census figures of 1931, the Punjab, including Feudatory states, had an area of 136,261 square miles with a population of 28,490,856 of whom 23,580, 851 are residents of British districts.  Rather more than half of the population in British territory are classed as members of land-owning or agricultural tribes whose strength per 1,000 of the total population is as follows:-

 

            Jats                  213

            Rajputs           83

            Arains             47

 

            All the castes, as sorted in 1931, whose traditional occupation is agriculture, including Gujjars, who are mainly agriculturists, from 451 per mile of the total population.

 

Origin of the various tribes:

 

            A very complete account of the origin, history and character of the various tribes is given by Mr. Ibbetson in his report on the Census of 1881, and by Mr. Rose in his ‘A Glossary of the Tribes and Castes of the Punjab and North-West Frontier Province,’ and still more detailed information may be found in the Settlement Reports of the different districts in which the tribes are found in force.  It would be quite impossible here to give even the briefest account of each tribe in detail, and what shall be attempted here is to repeat the substance of what Mr. Ibbetson and Mr. Rose say of each of the main groups.

 

Ethnological divisions of the Punjab:

 

            From the point of view of ethnology the Punjab can be conveniently divided into the following tracts:-

 

(1)           The Himalayan Tract and the Eastern Hills.

(2)           The Submontane Tract.

(3)           The Eastern Plains.

(4)           The Western Plains.

 

(5)           The Salt Range Tract.

 

1.         The Himalayan Tract and the Eastern Hills:

 

            Along the eastern portion of our northern border, and within the great network of mountain ranges which fringe the central system of the Himalayas, are situated the States of Chamba, Mandi, and Suket, with Bashahr and the twenty smaller states and Sirmur, while among them lie the hill station of Simla and the Kangra District, the latter including the Kulu Valley which stretches up to the mighty range of the mid-Himalayas and the cantons of Lahul and Spiti which situated beyond the mid-Himalayas, belong geographically to Ladakh and Tibet rather than to India.  The people chiefly consist of hill Rajhputs, including Thakurs, Rathis and Rawats, and of Kanets, Ghirths, Brahmans, and the Kolis, or Dagis who are menials of the hills.  They are, either by origin or by long isolation from the neighbours of the plains, very distinct from the latter in most respects.  They are almost exclusively Hindus, but curiously strict as regards some and lax as regards others of the ordinances of their religion.

 

The Eastern Hills:

 

            In many respects the most interesting part of thePUnjab is that which forms its north-eastern corner.  In this, the eastern hills, are included the Himalayan area, and the Siwalik range which separates it from the plains between the Bias and the Jhelum.  Throughout this tract of low hills the ascendancy of a type of Rajput society is well marked.  The Hill Rajputs with their subordinate grades, the Ranas, Rathis and Thakurs, are probably , those among all the peoples of the Punjab who have retained their independence longest; and probably a still older element in its population is represented by the Kanets and Kolis, the Gaddis, Ghirths and Chahngs or Bahtis who form the mass of its agricultural classes.  The Brahman is found disseminated all through this wide tract and in many parts of the Himalayan area, for instance, the Kangra, Kulu, Chamba and the Shimla Hills reforms a well-defined cultivating caste.  He is not however by any means rigidly endogamous, and the Hindu population of this tract is singularly homogeneous owing to the fact that hyper gamy is the normal rule among and between all the castes which can be regarded as within the pale of Hinduism.  The ethnical character of the tract is due to its inaccessibility and remoteness from the lines which foreign inroads into India have always taken.  In this tract we do not find a distinct Rajput caste which disdains all marriage with the cultivating classes, but a Rajput class itself divided into two or three quite distinct grades the lowest of which accepts brides from the Kanet or Ghirth.

 

2.       The Submontane Tract:

 

            Skirting the base of the hills, and including the low outlying range of the Siwaliks, runs a narrow submontane zone which includes the four northern tehsils of Ambala with the Kalsia State, the whole of the Hoshiarpur District, the three northern tehsils of Gurdaspur, Tehsil Narowal and Sialkot of the Sialkot District, and the northern portion of Gujrat.  All along the foot of Siwaliks from Ambala to Gurdaspur the dominant population is Rajput and Jat, interspersed with numerous foreign elements, such as Pathans, a few Mughals, Sheikhs, Awans, Khokhars and many others. Of these elements all are modern, except the Rajput and possibly some Jat tribes. But in the eastern part of the Ambala submontane the Jat is certainly a recent invader; and he owes his position in this tract to the Sikh inroads. In this tract the Jat to some extent displaced the Rajput, whose most ancient the Chauhan and Taoni were dominant in it down to the Mughal period.

 

            Further north beyond the Sutlej the Hoshiarpur submontane is held by Hindu Rajput tribes partly converted to Islam. Their settlements undoubtedly owe their origin to feudal grants made by their Hill Rajas to military families under their own leaders as a condition service against Mohammedan invaders from the plains. As a counterbalance to their power the Mohammedan emperors planted Pathan Colonies at a distance of 4 or 5 miles from the Siwaliks in a line stretching from the town of Hariana to the border of the Garshankar Tahsil, and the place names of the Urmur Tanda, Jahan Khalan and Ghilzian.

 

            Upon these irregular lines of opposing forces the Sikh movement launched Jat tribes, but not in any great numbers. The Jats, whose villages lie scattered all along the foot of the hills from Ambala to Gurdaspur, are not separated by any definite line of demarcation from the Sikh Jats of the Central Punjab to the south-west or from the Jats of the western submontane to the west. Perhaps the only tangible distinction is that the Jats of the eastern submontane are broadly speaking, Hindus, while those of the western submontane or Mohammedans, and those of the central districts Sikhs, but followers of all these religions are to be found in almost every tribe. In character and position there is almost nothing to distinguish the three groups. The Jat of this tract cannot be regarded as in any sense under the Rajput.  The Jat of this communities are independent of his influence and stand aloof from him.  They have no aspirations to be called Rajput or to form matrimonial alliances with men of that caste.  Some of the Manj Rajputs of Gurdaspur have no doubt become Jats by status or are called Jats by others, but as arule the distinction between the two castes is rigidly fixed.

 

The Western Submontane Tract:

 

            Along the western part of the northern border of Gurdaspur and all along the Jammu border in Sialkot, Gujranwala and Gujarat, the conditions closely resemble those found in the eastern submontane, but the line of demarcation between Jat and Rajput is fainter.  The true Jats such as Chima, Varaich and Tarar, are mainly confined to Sialkot and Gujranwala.  The typical Rajput tribes are found close under the Jammu Hills and include such interesting communities as the Bajju Rajputs and Chibhs with many minor clans towards Gurdaspur.  The Jat looks to the south for his affinities in religion and marriage, but the Rajput regards the Jammu Hills with their ancient principalities of Bhimbar, Rajauri and Jammu as his ancient home.  And from Jammu and Kashmir the lower castes are also reinforced.  Of the Jats of the western submontane Sir Denzil Ibbetson wrote—“The most extraordinary thing about the group of Jat tribes found in Sialkot is the large number of customs still retained by them which are, so far as I know, not shared by any other people.  They will be found described in Mr. Roe’s translation of Amin Chand’s History of Sialkot, and I shall notice one or two of them.  Nothing could be more instructive than an examination of the origin, practice, and limits of this group of customs. They would seem to point to aboriginal descent.

 

(iii)     The Eastern Plains:

 

            The remainder of the Punjab, with the exception of the tract cut off by the Salt Range, consists of one vast plain.  A meridian through the city of Lahore divides this wide expanse into two very dissimilar tracts, which may be distinguished as the Eastern and the Western Plains.

 

            A meridian through the town of Sirhind roughly divides the Punjab proper from Hindustan and the Punjabi from the Hindi language.  So much of the Punjab plains as lie east of that line, namely, the Delhi, Gurgaon, Karnal, Ambala and Rohtak Districts differs little if at all in the character of its population from the western districts of the United Provinces. Except in the Rohtak District, Jats form a smaller and Rajputs a larger proportion of the population than in the tract immediately to the west, while Kambohs, Rors and Gujars are numerous in Ambala and Karnal, Tagas in Karnal and Delhi, Ahirs in Rohtak, Delhi and Gurgaon and Meos and Khanzadas in Gurgaon.

 

            The Hissar District to the south of the tract differs from the districts just mentioned chiefly in that, lying as it does on the confines of Bikaner, the dialect and people are more akin to those of Rajputana than to those of Hindustan, Rajputs being very numerous and there being a considerable Ahir population.  The religin is still Hindu, with a certain admixture of a curious sect called Bishnoi.  The Sirsa tract which forms the western portion of the southern border of the tract was all but inhabited till it came under English rule, and it has drawn its settlers pretty equally from Hindu and Hindi speaking Jat State of Patiala, while its western portion is occupied by Mohammedan immigrants from the lower Sutlej.

 

            In all the remainder of the tract Rajputs, Jats, Gujars and their allied tribes from the staple of the agricultural population, largely supplemented by their attendant menials.  Among the Siwaliks and immediately under hills Jats are few and Rajputs and Ghirths numerous while somewhat further south the population of Jats increases and Gujars, Sainis and Arains and in Kapurthala Kambohs, Mahtons (Mahtams) and Dogras, become important elements in the population.  In the Lahore Divisin the mass of the population is Jat, though in Lahore and Ferozepore Kambohs and Mahtams, and in Ferozepure Dogras hold large areas.

 

            The three most distinctive elements in the population of the eastern plains are the Sikh Jats of the central districts, the Jats, mainly Hindu, of the south-eastern districts, and the Rajputs of the country to the west of the Jumna.  In the extreme south-eastern corner of the Punjab the Jats who have come in from the north and west, from Rajputana and the Punjab, are known as Dhe to distinguish them from original Jat tribes of the neighborhood who are collectively called Hele the two sections abstaining from intermarriage and having in some respects different customs.  Here again, in south-eastern districts the distinction between Jat and Rajput is definite and well-marked, the Jat nearly always practicing and the Rajput almost always abstaining from karewa.

 

(iv)      The Western Plains:    

 

            Between the Sulaimans and the great sandy deserts of Bahawalpur and the Sind-Sagar Doab the dominant race is Baloch.  Descending from the hills the Iranian peopleovercame a miscellaneous collection to tribes which still forming a very large proportion of the population, have been included by their conquerors under the term of Jat—here an occupational as much as an ethnological designation—till they have themselves almost forgotten their original race.  In the remainder of themselves almost forgotten their original race.  In the remainder of the tact the divisions of the people are rather tribal than racial the great majority of them being Jats and Rajputs, or belonging toraces, perhaps in some cases of aboriginal origin, which can now no longer be distinguished from them.  In Gujrat the importance of the Gujrar element is indicated by the name of he district, while Sayyids are numerous to the south-west.  The number of clans into which great plains are divided is enormous.  The Daudpotra, Joiya, Watu, Dogar and Mahtam of the ?Sutlej, theKharral and Kathia of the Ravi, the Sial and Khokhar of the Chenab, and the Khokhar and Tiwana of the Jhelum, are some of the most important.  The curious river tribes of the Sutlej and the Indus, the Jhabel, Kehal and Kutana, also present many interesting features,  Pastoral pursuits occupy a more important position than in the rest of the Punjab, agricultural produce being largely supplemented by clarified butter, wool, hides and barilla.

 

Biluchis:

 

            The tribal organization of the Biluchis is thus described by Mr. Ibbetson in paragraph 380 of his report—“the tribe, at least in its present form, is a political and not an ethnic unit, and consists of a conglomeration of clans bound together by allegiance to a common Chief.  Probably every tribe contains a nucleus of two, three or more clans descended from a single ancestor.  But round these have collected a number of affiliated sections; for the cohesion between the various parts of a tribe or clan is not always of the strongest, and it is not uncommon for a clan, or portion of a clan, to quarrel with its brethren and leaving the tribe to claim the protection of a neighboring Chief.  They then become his hamsayahs, dwellers beneath the same shade and he is bound to protect them, and they to obey him.

 

            “The tribe, or tuman, under its Chief, or tumandar is subdivided into a small number of clans (para) with their mukaddams, or headmen, and each clan into more numerous septs (phalli).  Below the phalli come the families, of which it will sometimes contain as few as a dozen.  The clans are based on common descent, and identity of clan name, even in two different tribes, almost certainly indicates a common ancestor.  The sept is of course only an extended family.

 

            “The tract occupied by each division of a Biloch tribe is sufficiently well defined, but within this area the people are either wholly nomad, or, as is the casewithin our frontier, live in small hamlets each inhabited by only a few families, having property in their cultivated lands and irrigation works, but without any actual demarcation of the surrounding pasture lands.  Thus the large and compact village community of the Eastern Punjab is unknown, and our village or mauzah is in these parts merely a collection of hamlets included within a common boundary for administrative purposes.

(v)        The Salt Range Tract:

 

            Situated in the angle occupied by the Salt Range and separated from the rest of the Province by the upper Jhelum it includes the Districts of Attock, Rawalpindi and Jhelum. It presents in almost every respect the strongest possible contract with the Punjab Proper and can hardly be said to belong to India save by mere geographical position.

 

            In paragraphs 390 to 392 Mr. Ibbetson describes the character, origin and early history of the pathans. In paragraph 393 their present tribal organization is thus explained:

 

The Pathans.

                        “The tribe probably far more homogeneous in its constitution among the Pathans than among the Biluchis. Syed, Turk, and other clans have occasionally been affiliated to it; but as a rule people of foreign descent preserve their tribal individuality, becoming merely associated, and not intermingled, with the tribes among whom they have settled. Even then they generally claim Pathan origin on the female side, and the tribe is usually descended, in theory at least, from a common ancestor. The hamsayah custom described in paragraph 380 is in full force among the Pathans as among the Biluchis. But with the former, though it does protect in many cases families of one tribe who have settled with another, it seldom accounts for any considerable portion of the tribe; and its section is chiefly confined to traders, menials and other dependents of foreign extraction, who are protected by, but not received into, the tribe. Thus a blacksmith living in an Utmanzai village will give his clan as Utmanzai, but his caste will, of course, remain Lohar. The nation is divided genealogically into a few great sections, which have no corporate existence, and the tribe is now the practical unit, though the common name and memory of the people. Each section of a tribe, however small, has its leading man, who is known as Malik, a especially Pathan title. In many, but by no means in all, tribes there is a Khan Khel, or chief house, usually the eldest branch of the tribe, whose Malik is known as Khan Khel, or chief house, usually the eldest branch of the tribe, whose Malik is known as Khan and acts as chief of the whole tribe. But he is seldom more than their leader in war and their agent in dealings with others; he possesses influence rather power, and the real authority rests with the jirgah, a democratic council composed of all the Maliks. The tribe is split up into numerous clans, and these again into septs. The tribe, clan and sept are alike distinguished by patronymics formed from the name of the common ancestor by the addition of the word Zai or Khel, Zai being the corruption of the Pashtu Zoe, meaning son, while Khel is an Arabic word meaning an association or company. Both terms are used indifferently for the larger or smaller divisions. The frontier tribe, whether within or without our boundary, has almost without exception a very distinct corporate existence, each tribe, and within each tribe each clan, occupying a clearly defined tract of country, though they are in the Indus valley often the owners merely rather than the occupiers of the country, the land and smaller villages being largely in the hands of a mixed population of Hindu origin who cultivate subject to the superior rights of the Pathans. These people are included by the Pathans under the generic and semi-contemptuous name of Hindkhi, a term very analogous to the Jat of the Biluch frontier, and which includes all Mohammedans who being of Hindu origin, have been converted to Islam in comparatively recent times.”

 

Local Distribution.

 

            It is again impossible to give a detailed account of the localities in which particular tribes predominate; but speaking broadly, they are distributed in the following manner:--

 

            All the Punjab to the east of the Sutlej, including the districts of Delhi, Gurgaon, Rohtak and Hissar,-- which formed were attached to the North-Western Provinces, is held by tribes, mainly Jats and Rajputs, of Hindu origin, some of whom have become Mohammedans, though most of them have remained Hindus. The same is the case in the central districts of the Punjab, to the north of Montgomery, from the Sutlej to the Chenab, where, however, a large number of Hindus have become Sikhs (who are also to be met with in considerable numbers in the eastern districts) without any material change in their Customary Law. The frontier districts along the whole of the Indus valley from Hazara to Dera Ismail Khan are held by original Mohammedan tribes, Pathans in the north and Biluchis in the south. In the intermediate districts, the old Rawalpindi Division to the north and the old Multan Division to the south, there is as, might be expected, a considerable mixture of tribes, the great majority of whom are now Mohammedans, although most of these were originally Hindus. In the eastern and central districts the village communities are ancient and strong, and the tracts occupied by the different tribes generally lie in compact blocks. In the Firojpore District a single tribe is said to occupy an area of over 1,000 square miles without a break. In the frontier districts, village communities are in their infancy, and although all the land has been divided into villages, the main characteristics of the tenures are still tribal in their nature. In what I have termed the intermediate districts, whole village, and even groups of villages, are found which belong to a single tribe and resemble in every way the villages of the Eastern and Central Punjab. But some of the villages, especially in the southern districts, are merely a collection of hamlets formed into a village for administrative purposes, and in many districts, especially in the north, the proprietary body is so mixed that the villages can hardly be said to belong to any particular tribe.(Roe’s Tribal Law in the Punjab, page 5).

 

(3)      Section 5 of the Punjab Laws Act, 1872—meaning and scope.

 

Section 3 of the Punjab Laws Bill, 1971, originally provided as follows:--

 

Law to be administered in the Punjab.

 

(1)           All Acts of Parliament generally applicable to British India:

 

(2)           All Acts of the Governor-General in Council which apply to the whole of British India, or which expressly refer or have been extended to the Punjab:

 

(3)           All regulations sanctioned by the Governor-General in Council under the provisions if 33 Vic., C. 3, S. I:

 

(4)           The Bengal Regulation specified in Schedule A:

 

(5)           The question regarding inheritance, special property of females, marriage, adoption, dower, guardianship, minority, dower, bustard, family relations, wills, legacies, gifts, partition or any religious usage or institution, the Mohammedan Law in cases where the parties are Mohammedans and the Hindu Law in cases where the parties are Hindus, except in so far as such law has been superseded by established custom, or has by legislative enactment been altered or abolished, or is opposed to the subsequent provisions of this Act:

 

(6)           In cases not otherwise specially provided for, the Judges shall decide according to justice, equity and good conscience.

 

Or, in other words, that the Hindu and Mohammedan Law, as modified by the custom of each place, should be administered; but Sir George Campbell, Lieutenant Governor of Bengal, who had served in the Punjab in early part of his career. Moved an amendment to the effect that custom should be made first rule of decision, and the laws subsidiary to it and the clauses of section 4 were arranged in their present order upon his motion.  He said:-

 

      “If the Council would accept the amendment of which he had given notice, it was his impression that a great part of the objections to the Bill would be removed.  The provisions of the Bill which attracted his attention, and with regard to which he had the gravest doubts, were those to which the Hon’ble Member-in-charge of the Bill (Mr. Stephen) had alluded at some length; namely, the provisions of section 5, as to the laws by which certain questions should be decided.  It enacted, in regard to a large number of subjects, that the Mohammedan Law in cases where the parties were Hindus, should form the rule of decision, except where the law had been altered, or abolished by legislative enactment, or was opposed to the provisions of the Act.  He was quite willing to admit that certain simple rules, excepted from the Hindu and Mohammedan Law, had to a certain extent force in the Punjab; but it appeared to him that a section of this kind would import into the Punjab, not the simple law of the Province but the whole complications of the written Hindu and Mohammedan Law, and the whole of the voluminous case-law comprehended in the decisions of the Courts all over the country.  That he regarded with the gravest apprehension.  He should so regard it, not only because it would open a wide door for lawyers, but because it was not the law of the Punjab.  Not one out of ten—perhaps not one out of a hundred persons in the Punjab was governed by the strict provisions of the Hindu and Mohammedan Law.  The only object of his amendment was to provide in simple words, in such a way that the officers of the Punjab in administering the law might not mistake, that custom came first, and that Hindu and Mohammedan Law only came when failed.  That was the principle he had ventured to express in the whole of the amendment, which provided that :-

 

      “the rule of decision shall be—

 

            First—Any custom of any body or class of persons which is not contrary to justice, equity, and good conscience, and has not been declared to be void by any competent authority,”

 

As drawn the Bill did not provide, in a later section, that under certain circumstances regard might be had to customs, but as the arrangements now stood, it was proposed that the Hindu and Mohammedan Law should come first. Moreover, by custom, the Bill, as originally drawn, seemed to refer to local customs; but the customs were customs peculiar to persons rather than to places.  Having then put custom first, in such a shape that those who administered the law would see that custom was marked first, and that it should be considered first, then came the second clause of the amended section.

 

            “Second—The Mohammedan Law in cases where the parties are Mohammedans, and the Hindu Law in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is referred to in the preceding clause of this section.”

 

            Thus for a long period, while the Punjab Civil Code was regarded as having the force of law, and for some years afterwards, the view taken of customary law in the Punjab was that it was the personal law of the party, Hindu (including Sikh) or Mohammedan, as the case might be, modified by local custom.  Thus, in a suit between Hindus, the party asserting a right at variance with Hindu Law lay under the burden of providing positively a custom in favour of the right, which custom was presumed not to exist.  Section 5 of the Punjab Laws Act, 1872, however, makes custom the primary rule of decision in all matters described therein.

 

(4)      No initial presumption in favour of existence of custom to the exclusion of personal law: onus probandi:

 

            “Section 5, Punjab Laws Act, provides that custom in the Punjab is the first rule of decision in all questions specified therein.  But it is nowhere laid down that a presumption arises in favour of the existence of custom to the exclusion of the personal law.  The section merely prescribes that custom shall govern the parties in certain matters in the first instance, but it is for the person relying upon a rule of custom contrary to his personal law to allege and prove it.  In support of his allegation he may rely upon an entry in the riwaj-i-am, applicable to the members of his tribe residing in a local area, and in that case the presumption may arise in favour of the existence of custom and the onus is thrown on the opposite party to rebut it.  But, whether he invokes a presumption in favour of custom or produces evidence to prove it, the fact remains that he has to assert and prove its existence; and that only when it is established, it is to be adopted as the rule of decision in suppression of the personal law.  If any authority were needed on the subject, I would refer to the judgment of the Privy Council in Abdul Hussain v. Mst. Sona Dero, where their Lordships make it clear that it is incumbent upon the plaintiff to allege and prove the custom on which he relies.  They also quote with approval the following passage from the judgment of Robertson, J. in Daya Ram v. Sohel Singh:-

 

            “In all cases it appears to me under the Act, it lies upon the person asserting that he is rules in regard to a particular matter by custom, to prove that he is so governed, and no by personal law, and further to prove what the particular custom is.  there is no presumption created by the clause (clause (a) of section 5) in favour of custom; on the contrary, it is only when the custom is established that it is to be the rule of decision.  The Legislature did not show itself enamored 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 Customay Law, nor any theory of custom or deductions from other customs which is to be a rule of decision, but only ‘any custom applicable to the parties concerned which is not..........” and it therefore appears to me clear that when either party to a suit, sets up ‘custom’ as a rule of decision, it lies upon him to prove the custom which he seeks to apply; if he fails to do so, clause(b) of section 5 of the Laws Act applied; and the rule of decision must be the personal law of the parties subject to the other provisions of this clause.  It is not sufficient to show that in regard to certain other matters the parties are governed by custom.”—Per Shadi Lal, C. J.

           

            The remarks of Robertson, J., in 110 P.R. 1906 (F. B.) quoted above, were approved by the Privy Council in Abdul Hussain Khan v. Mst. Sona Dera and another whenever it was observed—“ The principle that underlies this statement is, in their Lordships opinion, correct and is applicable to the construction of the Regulation that governs the present case. It is therefore incumbent upon the plaintiff to allege and prove the custom on which he relies, and it becomes important to consider the nature and extent of the proof required.”

 

            Robertson, J.’s opinion has generally been followed 3 and approved again by the Privy Council in Vaishno Ditti v. Ramesheri, (1928, 10 Lah. 860 wherein it has been held that section 5 of the Punjab Laws Act raised no presumption that parties are to be governed by customs rather than by their personal law and that the personal law of the parties must be applied unless the custom is proved.

 

            As observed by Robertson, in an earlier ruling, 4 “There is no legal presumption that any case coming before a Punjab Court is to be ruled by custom rather than personal law. The Act (Punjab Laws Act) gives equal protection in pursuance of their own system to those under personal law as to those under custom. In every case where custom is set up it is the duty of the person setting it up to prove its existence, and its applicability to the point in issue, where this is not admitted. In many cases, as in the case of certain agricultural tribes, the presence of numerous concurrent judgments of the Chief Court, and the existence of many precedents may make this a very simple matter and may even in some cases raise a presumption of fact in its favour. But the fact that the parties are governed by custom and further, what that custom is, has to be proved as any other alleged fact on which the granting of relief depends has to be proved; and there is nothing in the law governing the subject to justify any initial preference for the rule of custom over the rule of personal law.”

 

            Similarly, in Mst. Fakhr-ul-Nissa v. Malik Rahim Baksh, Chatterji, J., observed: “The person who alleges a custom contrary to some precept of his personal law is prima facie to prove the custom. But where a rule of custom is known to be generally and widely prevalent, or where it has been found to govern a particular tribe or to obtain in a particular locality in a series of judicial decisions of this Court, or where the onus of proof in regard to a particular custom has been laid down by a full Bench of the court it may be right to start with an initial presumption in favour of its existence. The fairest rule in all other cases is to leave it to be established by evidence.”

 

            Again, Young, C.J., have remarked it in a Full Bench ruling reported as Kartar Singh and others v. Mst. Santi and others: “As we fond that there is a general misapprehension concerning the onus of establishing custom we take the opportunity of starting what is in our opinion the true position. The law to be applied in relation to the alienation of the property is normally personal law does not apply, onus is on that party of showing that custom applies, and further he must plead the custom alleged in precise terms and must by evidence establish custom as pleaded. In many cases the party alleging custom may by mere production of the Rivaj-i-am be able to give prima facie evidence of the custom alleged and so cast the onus of proof on his opponents, but this circumstance dies not obviously affect universality of the proposition that he who alleged the custom must plead and prove it.”

 

            It was also observed by the learned Chief Justice in an earlier ruling reported as Mst. Samon v. Shahu: “The party who relies on custom must prove in the first instance that custom furnishes the rule of decision and secondly what that custom is. Rattigan’s Digest of Customary Law merely shows that according to judicial decisions a large number of tribes are governed by certain customs in certain matters. It cannot however be said that there is any presumption that a particular tribe in a particular locality is governed by the custom which governs a great many other tribes in the same locality or in other localities... The initial onus is in every case on the person who comes into Court relying on a particular custom.”

 

            It has again recently been held that in the Punjab the burden lies upon those who assert that they are governed by custom to prove that fact, and to establish the particular custom, and if such evidence is not available their personal law governs the parties.

 

            Although a custom is now treated by statute as a matter of law in the Punjab for purposes pf appeal, and statute cannot alter the essential nature of things and the existence of a custom still remains mainly a question of fact. It is generally a question of whether a particular practice has been followed in a particular way within a certain tribe or area for a sufficiently long time so as to have become a custom. The question of the length of time which may be needed for the practice to be regarded as custom may be s question of law, but the question whether the practice has been going on over a particular length of time within a tribe or area is rather a question of fact, which must he judged according to the ordinary rules of evidence, which have to be applied to the peculiar facts of each and the nature of the evidence put forward.

 

Principal Explained.

 

            The object of S. 5, of the Punjab Laws Act, 1872, was to settle for this province, where it was notorious that a customary law had made large inroad into the written law of the Sharah and the Shastras, the rule of decision in question regarding succession, etc. Under the system of law, which had previously prevailed in this province, it was frequently a matter of contest whether the personal law of the parties or local custom was to govern in the first instance. The Punjab Laws Act settled this debated question for the future by laying down in clauses (a) and (b) of S.5 what was henceforth to be the rule of decision. The first rule was declared to be any custom applicable to the parties concerned which was not contrary to justice, equity and good conscience and which had not been by the Act itself or by any other enactment altered or abolished, and had not been declared to be void by any competent authority. Then clause (b) went on to provide that the Mohammedan Law in cases where the parties were Hindus should be the other rule of decision. But it is evident not only from the sequence observed in starting these rules that the legislative deliberately intended that the primary rule of decision in all questions relating to the matters specified should be custom where a custom existed and that the Hindu and Mohammedan Laws should only be applied where no such customary rule prevailed, but this is made still  clearer by the express limitation placed on the application of the Hindu and Mohammedan Laws in clause (b) by the words ‘except in so far as such law has been modified by any such custom as is above referred to,’ the reference being clearly to the looking to the custom, if any prevailing, in the tribe ot which the parties belongs as its primary guide and on finding such a custom to exist, in giving effect to it.

 

            It has also been observed by Chatterji,J., in 110 P.R. 1906 (F.B.) on pp. 403, 404: “Section 5 of the Punjab Laws Act is perhaps not so clearly worded as it might have been but the interpretation put on it is that the rule of custom is to be enquired into and applied first and that if none exists, the Courts are to fall back on personal law for a guiding principle. In speaking thus I of course exclude those cases, which are from the outset held to be governed by personal law. The words ‘or has been modified by any such custom as is above referred to,’ in clause (b) of the section appear to indicate that this was the intention of the Legislature.”

 

Conclusions.

 

            Thus the intention of section 5 of the Punjab Laws Act, 1872, is, that the primary rule of decision in all question relating to the matters specified shall be custom where a custom exists, and that the Hindu and Mohammedan Laws shall only be applied where no such customary rule prevails. The section does not presume that custom is to govern the parties to the exclusion of the ordinary law, but it is prescribes that it shall govern them in certain matters in the first instance, and though, except in certain cases where the custom contended for is so general that it may be presumed to exist the person who alleges a custom contrary to some precept of his personal law is, prima facie, bound to prove that custom. If a custom is proved, it must be applied to the execution of the personal law; it is not, the second branch of the rule must then receive effect. Evidence necessary to prove the existence of a custom, as we shall presently see, will depend on the merits of each and every individual case.

 

            In short, where the question is whether the parties follow custom or personal law, the rule is that if any custom is shown to govern them that custom must be held applicable, but if no custom is shown to apply the personal law of the parties governs the case. Custom if proved is the first rule of decision irrespective of considerations of nationality and religion.

 

            As has already been observed, since there is no presumption for or against a custom the onus of proof lies on the party who asserts that a certain custom exists contrary to his personal law.

 

Giving undue prominence to custom deplored:

 

            “it appears to me that in some quarters there has in past years been a tendency to give an undue prominence to ‘custom.’ What the Legislature did in the Punjab Laws Act, and what their intention clearly was as indicated by that Act, was to conserve their ancient rights to the inhabitants of this Province in regard to the regulation of their affairs by custom where custom could be shown to have been the previous rule, just as it preserved the rights of the inhabitants of this Province to be governed by their personal law when it could not be shown that any custom existed which in previous times had prevailed over the personal law. It has sometimes apparently been assumed that because in section 5 of the Punjab Laws Act, clause (a) which deals with custom comes first and clause (b) which treats of personal law, comes second, that some peculiar preference for custom as opposed to personal Law is indicated. This appears to me to be quite fallacious............ The farmers of the Laws Act clearly recognized in clause (b) that there are tracts in Punjab where we are rather to expect to find law modified by custom than custom modified by law, and while it may be truly said of certain portions of the province that there is not an agriculturist, whether Hindu and Mohammedan, who is really governed by pure Hindu or Mohammedan law, I cannot but feel that there has been a tendency in some quarters to overate the strength of custom based entirely upon selfish considerations, and very much to underrate the effect of religion, and its dictates. The people of this province may or may not be a very religious population, the religion which they profess may be more or less false or true according to varying views, but in my humble judgement the effect which their religious beliefs particularly when their religious creeds have also formulated systems of law had in determining both individual and corporate action and custom must, as with all humanity, have been great. While therefore there may be village communities and no doubt there are many such, in which not one individual is governed as regards the matters dealt with in section 5 of the laws Act, wholly by his religion as embodied in his personal law has not very materially affected the customs by which the agriculturist is ruled. It, therefore, appears to me that the Legislature has been wise and far seeing, and has indeed with rare insight grasped the true position of affairs in providing for the filling in of  the gaps lift by definite customs, by an appeal to the personal law of the parties concerned.

 

            “In my opinion the Legislature has provided, in section 5 of the Punjab Laws Act, that in regard to the matters dealt with in the first sentence of that section, when any custom is set up and proved to obtain, that custom shall be the rule of decision, but that when no such custom has been established, the rule of decision shall be the personal law of the parties whether or not they can be governed in certain other matters by custom.”—Per Robertson, J., in Daya Ram v. Sohel Singh.

 

            In an earlier ruling reported as Jawala v. Hari Singh, the same learned Judge observed: “We must start on an enquiry with no presumption in favour of custom, more particularly agricultural custom, as opposed to law, and with no predilection for the ‘agnatic theory’ as governing this case...  We propose therefore to approach the case with an entirely open mind, and in accordance with section 5 of the Punjab Laws Act with no predilection in favour of the rule either of custom or personal law.”

 

            This view has been adopted by the Privy Council also in Vaishno Ditti v. Rameshri, where Sir John Wallis, in delivering their lordships’ judgment observed:-

 

            “It has been laid down by Robertson, J., in Daya Ram v. Sohel Singh, in a passage approved by this Board in Abdul Hussain Khan v. Bibi Sona Devi under the corresponding section 5 of the Punjab Laws Act, 1872, that section raises no presumption that parties are to be governed by custom rather than by their personal law, and that the personal law of the parties must be applied unless the custom is approved.  It may seem at first sight that this view of the section gives no effect to clause (a) which requires the succession to be governed by any custom applicable to the parties concerned, and that the law would be the same if this clause had been omitted.  In a sense, this may be so, but their lordships are of opinion that in putting custom in the forefront, as the rule of succession, whilst leaving the particular custom to be established as it necessarily must be, the Legislature intended to recognize the fact that in this part of India (i.e. in the Punjab and the North West Frontier Province-author) inheritance and other matters mentioned in this section are largely regulated by variety of customs which depart from the ordinary rules of Hindu and Mohammedan Law.  In these circumstances it has been rightly held in the Lahore High Court in the case above mentioned (110 P. R. 1906) that, where a custom is alleged, a duty is imposed on the courts to endeavor to ascertain the existence and nature of that custom, and the local Government has come to their assistance by establishing a riwaj-i-am or record of custom in the different parts of the Punjab including the North-West Frontier Province, which was formerly in it.”

 

            This ruling has been followed, inter alia in Mst. Bashiran v. Mohd. Zahur and in Ishar Dass and others v. Bhagwan Dass.

 

(5)      Departure from personal law in one respect does not abrogate that law altogether:

           

Where the parties are presumably governed by their personal law, the mere fact that the Mohammedan (or the Hindu) law ignored—on certain occasions will not be sufficient to establish that it has been abrogated for all times in favour of any special custom which was adopted in its place.  It is incumbent on the party who relies on custom to prove, in the first instance, that custom furnishes the rule of decision and, secondly, what that custom is.

 

            So also where by custom there has been a departure form personal law in one respect it does not necessary follow that the personal law ceases to have any force or has altogether been abrogated. Thus, in the Punjab, among parties admittedly governed by the Hindu Law, it has frequently been held that the strict Hindu Law has been modified by custom to this extent that the adoption of a daughter’s son is valid. But apart from this modification of the personal law, the legal consequences that ensue from such an adoption must be looked for in the Hindu law.

 

A family following customary rule in one particular, not necessarily governed in all matters by custom.

           

            Again, a family, which observes a customary rule in one particular, is not necessarily governed in all matters by custom. Or in other words, it does not necessary follow that because a family has departed from its personal law in one respect; it has adopted agricultural custom in all respects.

 

            The fact that in the matters of succession the parties follow custom does not necessarily show that they follow the same rule as regards alienations as well.  In other words the mere fact that custom is followed as regards succession will not necessarily justify a presumption that it is followed in matters if alienation as well.

 

            Similarly, it cannot be held that because a certain rule of Punjab agricultural custom is found to exist in a tribe, it follows that a certain other distinct rule of such custom must also be followed.

 

            The mere fact that certain families residing in town, mainly dependent upon service and not on agriculture for their livelihoods, have departed from Mohammedan Law in matters of inheritance is no proof that they follow a general custom whereby a proprietor cannot alienate ancestral land except for necessary.

 

(7)           Gaps in Customary Law. A party ostensibly governed by Customary Law—No definite rule of Customary Law found by the Court—The Court may fall back, as a last resort, on the parties’ personal law.

 

In Daya Ram v. Sohel Singh, the question before a Full Bench of the Chief Court was—‘whether among parties ostensibly governed by Customary Law, it is permissible to fall back on their personal law for the decision of the pint in issue, where no definite rule of the former law applicable to the case before the Court can be found! The decision of the Full Bench (by majority) was ‘that among parties generally following Customary Law it is permissible to fall back as last resort on their personal law for the decision of the point in issue where no definite rule of the former law, applicable to the case before a court can be found.’

 

Per Chatterjee, J. —

 

      “I hold hat we must exhaust all the legitimate methods of inquiry into Costmary Law, and of applying it to the concrete facts before us before we can fall back on personal law. 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. The application of its principles to the cases to be adjudicated should, as far as possible follow the lines on which principles of law are applied to new combinations of facts to which they do not it in terms apply. It is only when these methods fail that we can resort to personal law, but we must resort to it under those circumstances.

 

      “I also think that the statement by the parties that they are governed by Customary Law, though it is helpful in an enquiry into the rule of decision to be applied to the case before the Court, cannot be conclusive on the point, and does not absolve the Court from the duty of adjudication on strict legal principles. It is the duty of the Courts to administer the law and to ascertain it and apply it for the purpose of adjudication. Theses rules govern the administration of Customary Law, though the mode of enquiry into its existence and incidents is on different lines. As observed by Sir Meredyth Plowden in Mst. Fatima Bibi v. Gul “the expression in the plaint of a belief as to the law applicable, which belief the court finds to be erroneous, is no legal justification for refusing to determine the rights of the parties according to the law alleged or proved.”.............The case before the Court must be decided according to sound principles, and the allegation of the parties that they are governed by custom cannot justify the courts, after all legitimate methods of inquiry into custom fail to derive from it a rule of decision, in refusing tolook beyond Customary Law for such rule. The law imposes on the Courts the duty of falling back on personal law where there is no rule of decision available under the Customary Law, and this principal of adjudication must be followed as a last resort. This is my opinion on the last question.’’2

 

      Per Clark, C. J.—“Four propositions may be stated (regarding rule of succession.)

 

(1)     Where there is no custom applicable to the parties the rule of decision must be the personal law.

(2)     There is generally no presumption that custom rather than personal law is applicable to the parties, though there are circumstances which give rise to such a presumption among certain tribes and in certain circumstances.

 

(3)     When it is uncertain whether the parties follow custom or their personal law in matters of succession and other matters mentioned in section 5 of the Punjab Laws Act, the personal law must be the rule of decision.

 

(4)     Where the parties follow custom in such matters, but when on a particular point it cannot be established by the parties what the custom is, yet custom is applicable to the point, custom should be the rule of decision.3

 

            Per Chatterjee, J.—

 

            “Of the four propositions enunciated by my learned brother, I accept the first three without reserve.  It is only with reference to the fourth proposition that any controversy arises as to how far Customary Law or personal law is to be applied to the matter in issue before a Court of justice in this Province.  Section 5 of the Punjab Laws Act is perhaps not clearly worded as it might have been, but interpretation put on it is that the rule of custom is to be inquired into and applied first, and that if none exists, the courts are to fall back on personal law for a guiding principle.  In speaking thus I, of course; exclude those cases which are from the outset held to be governed by personal law.  The words “of has been modified by any such custom as is above referred to” in clause (b) of the section appear to indicate that this was the intention of the Legislature.

 

            “The principle to be borne in mind then is that whenever there is a gap in the Customary Law which cannot be filled otherwise, it must be filled by reference to the personal law of the litigating parties.  This rule underlies all applications of Customary Law to the concrete facts of a case.

 

            “I have already said that I should be ready to adopt all legitimate methods for deducing a rule from Customary Law for decision of the point in dispute, and would not resort to personal law until these methods fail.  But when they do fail, there is no help for it but to resort to personal law.  And I do not know that there is any cogent objection to our doing so.  If Customary Law is wholly silent on a given point, there can be no harm, no wrong done to the people if the principle of adjudication is deduced from Hindu or Mohammedan Law according to the religious persuasion of the parties.  There being no instances, no rule obtainable from general principles or from the consensus of opinion of the tribesmen or member of the community to which they belong, such decision cannot violate any of their cherished traditions or inflict any hardship.  On the contrary even if clause (b), section 5, had not existed, I should think it would have been proper and justifiable to decide a point on which Customary Law is wholly silent by analogies drawn from the personal law, i.e., the law which would have governed the parties had the case arisen outside the Punjab.  It must also be brone in mind that had clause (a) not been inserted, the law prima facie governing the parties would have been their personal law subject to any modifications made in it by local or tribal custom.  This was the state of the law before the Punjab Laws Act was passed, and clause (a) of section 5 has merely given custom a certain prominence by making it the primary rule of decision if found to exist and therefore, the first point for inquiry.  Apart from this, however, the law, as it stands now is practically the same as it was before..........The great point is not to go against the cherished traditions and opinions of the people, but if there are any such, we are sure to find a rule of Customary Law applicable to the point for adjudication by using one of the methods I have indicated.  But if these methods fail, we may be sure that there are no traditions or opinions on the subject, and the rule of personal law may then be applied without fear, and we should feel pleased rather than distressed when we  have to apply it, as it offers a rational mode of solving the question before the court.

 

            “I venture to take exception to the correctness of Sir Meredyth Plowden’s remarks in Lokha v. Hari quoted by the learned Chief Judge.  If a party believes that he is bound by Customary Law or personal law, and sues for a particular relief on that allegation, we cannot treat him as absolutely bound by that statement.  It is for the Court to find out what law applies, and Sir Meredyth Plowden in more than one judgment has laid this down.  Take for instance the point raised in this case.  If the Customary Law does not provide a rule for decision of the case, is that a sufficient ground for dismissing the suit ?  If the principle is correct, every suit must fail in which the existing law does not make provision one way or the other for the subject—matter in dispute.  But this cannot be a sound principle for society and its complex relations are always outstripping the positive law.  The mere silence of the existing law on a point is no excuse for the court to refuse to adjudicate on that point, and to content itself with dismissing the claim.  On the contrary it is the duty of the Courts to try to apply the existing law and its principles to the new set of facts by analogy or otherwise for the solution of the question before it  The doctrine laid down by Lord Winsleydale in Mirehouse v. Rennel is in constant use in the application of existing law to new combination of facts.  Customary Law is not excepted from the operation of this principle, and here the Legislature has supplied a method of supplementing the deficiencies of that law, of which we should avail ourselves when a proper case arises.”

 

            Per Rein, J.—

 

            “In Jwala v. Hari Singh I followed Mst. Lorendi v. Kishen Kaur and Mst. Fakhr-un-Nisa v. Malik Rahim Baksh, which lay down the rule that inquiry should first be directed to ascertain whether there is any custom applicable to the parties in respect of matters dealt with by Section 5 of the Act and that, if one is established, it shall furnish the rule of decision in supersession of their personal law, the person who alleges a custom contrary to his personal law being prima facie bound, except in certain cases where the custom contended for is so general that it may be presumed to exist, as for instance, that the customary appointment of an heir is allowable to prove that custom.  This rule has been followed in Muhammad Hussan v. Sultan Ali, by a Division Bench.

 

            Lokha v. Hari and Badhawa v. Dewa Singh have been cited for the proposition that, where the parties are governed by Customary Law in respect of the matters dealt with by section 5 of the Act, and they cannot establish (and I understand the learned Chief Judge to mean, the Court cannot ascertain) what the precise custom in respect of a particular point is, Customary Law must be applied to that point and form the basis of decision.

 

            With reference to Lohha v. Hari, I concur with my brother Chatterji in the opinion that it is the duty of the Court of ascertain what law applies and that a party who comes into court on the allegation that he is bound by Customary Law, is not precluded from falling back on his personal law. .............

 

            “I concur with my brother Chatterji in the opinion this section supplies a method of supplementing the deficiencies of the Customary Law, and that this method should be adopted after the methods laid down by him for deducing from Customary Law a rule for decision, viz., instances, or rules deducible from general principles from the consensus of opinion of tribesmen or members of the community to which the parties belong have been exhausted.

 

            “As remarked by my brother Chatterji, recourse to Hindu or Mohammedan Law to fill up gaps left by Customary Law cannot violate traditions, the reason for which recourse being the absence of ascertainable traditions. The object of section 5 of of the Act is, in my opinion, to supply a definite answer, to question on which Customary Law is silent.

 

            For these reason I am unable to concur in the fourth proposition enunciated by the learned Chief Judge and, in my opinion, under the circumstances stated in that proposition the rule of decision should be Hindu Law in the case of Hindus and Mohammedan law in the case of Mohammedans. I concur in the first, second and third propositions enunciated by the learned Chief Judge.”

 

            Per Robertson, J. —“In my opinion the Legislature has provided, in section 5 of the Punjab Laws Act, that in regard to matters dealt with in the first sentence of that section, when any custom is set up and proved to obtain, that custom shall be the rule of decision, but that when custom has been established, the rule of decision shall be the personal law of the parties whether or not they can be shown to be governed in certain other matters by custom.”

 

            Per Kensington,J.—“So far as I understand the matter I believe myself to be more in accord with the principle for which the learned Chief Judge has contended, both here and in Jawala v. Hari Singh”.

 

            A contrary view was, however, adopted in 20 P.R. 1919, wherein it was held that “Jats are presumably governed by agricultural custom in the matter of inheritance and therefore, failure of the plaintiffs to prove a custom in favor of their claim does not lead to the conclusion that no custom regarding succession to the estate is applicable to the tribe and that personal law must necessarily be followed.” It was pointed out in that case that the only thing, which can be said under such circumstances, is that the Custom set up the plaintiffs has not been proved and upon that finding the suit should be dismissed.

 

            The view taken in subsequent rulings of the Lahore High Court is not in accord with that expressed in 20 P. R. 1919 and following Daya Ram v. Sohel Singh, it has invariably been held that even in case of parties governed by custom where there is no evidence as to the existence of any Customary rule on a point, it is permissible to fall back upon the personal law of the parties. To the like effect, see the following observations of Rossignol and Wilberforce JJ. In—

 

            “We hold that no special custom was proved in the present case and that there is no rule so widely accepted among the agricultural tribes of the Punjab, that would justify us in coming to any definite conclusions based on custom. We agree also with the counsel for the appellants (plaintiffs) that although the plaintiffs themselves relied in their plaint on customary law, the court should have fallen back upon the personal law of the parties for the decision of this case. This is clearly provided for in section 5 of the Punjab Laws Act.”

 

            It is thus settled law that among parties ostensibly governed by Customary Law, if on a particular matter no definite rule of custom is proved to exist, the parties are entitled to fall back on their personal law. If the personal law does not contain any definite rule applicable to the case, it must be decided according to “equity, justice and good conscience.” S. 6 Punjab Laws Act.

 

            A party basing his claim on custom but failing to established it, is entitled to fall beck upon his personal law and the Court is bound to decide his claim under the personal Law.

 

            It has been held in Rulia v. Sultan, that where among the Mohammedan Jat agriculturists of the Jullundur District, who are governed generally in matters of inheritance by the Customary Law of the Province, the parties fail to prove affirmatively a Custom under which the one on the other is entitled to succeed, the rule of Mohammedan law applies and the maternal uncle exclude the son of the granddaughter of the great grandfather of the deceased.

 

            In the absence of any satisfactory evidence to show what exactly is the rule of customary law on any particular point, the personal law of the parties on that point must be presumed and adopted to be the rule of customary law obtaining amongst the community on that point.

 

            Where no custom, special or general is proved laying down the rule which is to regulate succession to the property of a deceased proprietor as between remote collaterals and his predeceased son’s daughter’s sons, the Courts are bound to fall back upon the personal law of the parties.

 

            If one custom is alleged by one side in their own favor an neither side succeeds in proving the existence of the custom set up under section 5 of the laws Act, we have to fall back upon the personal law of the parties as the rule to govern the case.

 

Adopted of one rule of custom is not sufficient to prove that all rules of custom of tribe are followed.

 

            In the case of a tribe that undoubtedly did once follow its personal law, it is for the parties asserting that it now follow custom, to prove the point. In such a case proof that the tribe had adopted this or that rule of custom followed by (for instance) the Jats, is no rules warrant for holding that it must follow all the other rules governing Jats. There may, of course, be rules of custom so intimately and indissolubly connected with each other that the adoption of one necessarily implies adoption of the other but in such a case the raison a’etre of the two rules would be alike.

 

            As observed in Gurdial Singh and others v. Mst. Bhagwan Devi & others, custom is a matter of proof and not of conclusions based on a priori reasoning or deductions drawn from a comparative study of the laws of distribution prevailing among primitive societies. Paragraph 271 of Rattigan’s Digest of Customary Law was not followed being not supported by any authority.

(8)           Custom cannot be extended by logical process or by analogy.

 

It must be clearly understood that it is permissible to Courts to extend custom by logical process. As pointed out by Trevor, C. J. in the well-known case of Arthur v. Bokenham:

 

            “Custom are not be enlarged beyond the usage, because it is the usage and practice that makes the law in such cases and not the reason of the thing, for it cannot be said that a custom is founded on reason, though an unreasonable custom is void; for no reason, even the highest whatsoever, would make a custom or law; and therefore you cannot enlarge such custom by any parity of reasoning, since reason has no part in the making of such custom.”

 

In Amin Chand v. Bujha, Le Rossignol, J. similarly observed :--

 

“Custom cannot be extended by logical process; it must be established inductively not deductively, in the absence of any authoritative statement of the custom, it can be established only by instances, and not by a priori methods.”

 

Custom is not always logical, and to seek to extend custom by logical process, e.g., by analogy, is a dangerous proceeding, which may lead to very untoward and unexpected results. Custom is not a matter of inference, but a matter of proof. Custom is in fact, whatever can be proved to be the custom, nothing more, and nothing less.

 

            Similarly, in Rahim Baksh v. Mst. Budhan, it has been held that the mere fact that certain families residing in a town mainly dependent upon service and not on agriculture for their livelihood, have departed from Mohammedan Law in matters of inheritance is no proof that they follow the general custom whereby a proprietor cannot alienate ancestral land except for necessity. The same view has been taken in Hussain Shah v. Gul Mohammad, Rasul Khan v. Mst.Hawasi, Salig Ram v. Badhava, Muhammad Islam v. Hari Lal, and Moharram Ali v. Barkat Ali.

 

            A person up custom at variance with law must establish it to whole length of abrogating such law. Possible inferences and probable implications cannot uphold custom.

 

It was observed by Shadi Lal, C.J., in Gurbhaj v. Lachman : “Our attention has been invited to the following observations of Sir Meredyth Plowden in Gujar v. Sham Das (107 P. R. 1887) which have no bearing upon the nature of the reversioner’s right in the estate held by a widow :-- ‘In respect of ancestral immoveable property in the hands of any individual there exists some sort of residuary interest in all the descendants may be the probability of some among such descendants ever having the enjoyment of the property. The owner in possession is not regarded as having the whole and sole interest on 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 dies without disposing of it.’ It must be borne in mind that these observations were mere deductions from the agnatic theory which was invoked in order to explain certain features of the Customary Law and which was subsequently utilised for the purpose of formulating other rules which were hardly warranted by the practice and usage of the people upon whom those rules were imposed. It appears that the only issue before the Court was whether in a case where of a sonless Jat proprietor to alienate ancestral and without necessity is in dispute, it is the duty of the alienee to improve a custom authorizing a transfer of the ancestral land in favor of a stranger; and an issue of this character should be determined upon the precedents and other evidence adduced by the parties, and not upon theoretical generalization.”

 

In the same judgement Le Rossignol, J., observed: “I hold the opinion that theory and custom are antitheses, that custom can never be a matter of mere theory but must always be a matter of fact. The conclusion in Gujar v. Sham das (107 P. R. 1887) is banding on us but the theories by which the learned Judges attempted to explain the custom have no such binding force.”

 

Similarly, it was remarked by the same judge in an earlier ruling reported as Gulab Khan v. Mst. Chiragh Bibi, that custom is a fact which must be proved by authoritative pronouncement or by instances in which it has been followed; it cannot established by dialectics.

 

            Custom must be proved by evidence. One custom should not be deducted from another. Function of Court is enforcement of custom, as it exists.

 

            In determining existence of custom, conclusion cannot be based on decided cases unless facts are identical. General principles however may be deduced from prior authorities.

 

(9)      Court bound to make enquiry about custom.

 

The principle of law explained above that a party basing his claim on custom but failing to establish it is entitled to fall back upon his personal law and the court is bound to decide his claim under the personal law, becomes operative only when after exhausting the various methods of ascertaining custom, it is found positively that there is no customary rule. It is only under such contingency that personal law is resorted to.

 

Section 5, Punjab Laws Act, 1872, lays down the rule that an enquiry should first be directed to ascertain whether there is any custom applicable to the parties in respect of respect of the matters dealt with by it and that when one is established it shall furnish the rule of decision to the suppression of the personal law. Or in other words, it is the duty of the Court to determine what rule of law applies.

 

It has been held in Mehtab-ud-din v. Abdullah, that there is no initial presumption in favour of the applicability of personal law under the provisions of the Punjab Laws Act. It is an open question under the Act, and it appears to be the duty of the Court conducting the trial to ascertain at first the rule of decision by inquiry into the alleged custom and on failure of proof of such custom to apply the provisions of the personal law. But he question must be approached with a free mind without any bias in favour of the personal law being applicable.

 

It has been held in a Full Bench ruling reported as Devi Sahai v. Mangal Sein, that the Courts are bound to ascertain whether there is any custom contrary to the general rule of Mohammedan or Hindu Law, even where the question has not been pleaded by the parties; and an issue as to custom should be framed unless the parties declare specifically that they are bound by their personal law and wish their case to be decided in accordance with it.

 

In Mst. Fatima Bibi v. Gul, the plaintiffs claimed to inherit certain property in accordance with Mohammedan Law, which law was alleged to be identical with the custom by which the parties to the suit were governed, and the lower Courts, finding that Mohammedan Law was not applicable, dismissed the suit. Held, that an adjudication upon the legal rights of a suitor cannot properly be refused merely because the suitor erroneously alleges that he is governed by law, while he is really governed by customary law; and that it was for the Court to determine what law was applicable, to apply it to the ascertained facts. Plowden, C, observed it. J.:

 

“There are probably many persons, especially in some Frontier districts, who are quite ignorant whether what they habitually follow is custom or law, while some suppose that the shara and custom are identical. I think it should be clearly known that an adjudication upon the legal rights of a suitor cannot be refused merely because the suitor erroneously alleges that he is governed by Mohammedan law, while he is really governed by customary law..................It is for the Court to determine what law is applicable to the facts,-- whether the Hindu or Mohammedan Law, or the Customary Law—and  having determined what law is applicable, to apply it to the ascertained facts. The expression in the plaint of a belief as to the tained facts. The expression in the plaint of a belief as to the law applicable, which belief the Court finds to be erroneous is no legal justification for refusing to determine the rights of the parties, according to the facts alleged and proved, and is no obstacle to any amendment of the plaint that may be necessary, which does not involve allegations of fact inconsistent with the facts alleged in the plaint.”

 

In cases where custom is alleged a duty is also imposed upon the Court to endeavor to ascertain the existence and nature of that custom.

 

Where a custom is alleged, Court must endeavor to ascertain existence and nature of that custom.

 

(10)      Abrogation of Custom in favour of personal law or another custom—Continuous course of conduct necessary.

 

It has been held by a Full Bench of the Lahore High Court in Mst. Sardar Bibi v. Haq Nawaz Khan and another, that it is not open to an individual, whose family or tribe had for generation followed custom to suddenly give up that certain custom by merely making a declaration to that effect. The abrogation is to be inferred from continuous course of conduct. Hence it is not open to a man at his pleasure to change the rule of succession to his property to the detriment of those who would have been hitherto governed except of course in so far as that law allow him to do so by making last will and testament.

 

In this case Karim Baksh, a Gishkori Biloch of Mohammadpor Diwan in Jampur Tahsil, Dera Ghazi Khan district, died in June 1921, leaving a widow Bakht-waddi, two daughters Hasina and Sardar Bibi, and one son Haq Nawaz Khan. In accordance with customary rule previously followed by this tribe and family his landed estate was recorded by mutation of revenue papers as having passed to his only son. The mutation record remained unchallenged for six years until, on 2nd March 1927, Sardar Bibi sued for possession of her share of the estate according to Mohammedan law. Hasina was dead. The suit was contested on behalf of Haq Nawaz Khan on the ground that the family followed the rule of custom according th which Haq Nawaz Khan was entitled to succeed to the whole estate.

 

Until 1920 the Sindh Gishkoris had in matters of succession regularly followed the custom by which Haq Nawaz Khan would have inherited the whole of his father’s property. The plaintiff’s drawn up to complete the settlement record then under revision the Giskori Biloch of Jampur Tahsil, had, in answer to the question “under what circumstances can daughters inherit?” unanimously declared that:

 

“a daughter can inherit in all circumstances whether her father has any male issue or not:”

 

and this reply was recorded in Riwaj-i-am. So it was contented that the tribe had declared its intention of being bound by the Mohammedan Law of succession in future.

 

Per Coldstream, J. —“My conclusion is that these instances do not satisfactorily prove that the Gishkori Biloches or the Sindh Biloches of the tahsil effectively put into practice their declared abrogation and the customary law of the succession which they had followed previously. On the other hand, they do appear to me to land some support to Mr. Wilson’s introductory comment at p. 5 of his “Customary Law of the Dera Ghazi Khan district regarding the:”

 

“tacit reservation by most individual Biloches to abide by local prescription authorizing modification of the Mohammedan law in favour of agnatic relationship.”

 

Assuming that there was a unanimous declaration by the village proprietors of the Gishkori or other Biloch tribes to the effect that they now followed Mohammedan law the question narrows down simply to whether such a declaration compels or allows the court to give it effect, even if, by doing so they do not apply to the parties a custom proved to have been applicable to them up to the time of the declaration. The question whether  a particular old custom has been replaced by another has more than once been a matter of adjudication in the province, but as has been made sufficiently clear, no such question is before us here, and the decision cited by Mr.....................i support of his contention that custom in his province is in a fluid condition, capable of modification and adoption to varying views of a community, have no application. In such cases the decision must depend solely on the evidence produced to prove the actual prevailing custom as  a matter of fact: Anant Singh V. Durga Singh. In this case the evidence proves that until the time of the declaration the custom was that a son excluded a daughter. The Privy Council decision in Rajkishan Singh v. R. Surma Mozomdar cited by Mr.............in which it was remarked that:--

 

“it would lead to much confusion and abundant litigation if the law attempted to give effect to usages after they had been clearly abandoned and the abandonment had been long acted upon,”

 

has no bearing on this case. In that case the usage in question was found to have been designedly discontinued since 1790. In the case before us the estate had been enjoyed by the son to the exclusion of the daughter without question for six years.”

 

Per Jai Lal, J. – “The next question then is whether these circumstances are sufficient to establish the contention of the appellant that the custom has been legally abrogated in favor of the Mohammedan Law. In my opinion, they are. I am even inclined to hold that a unanimous decision of a community is sufficient to abrogate a custom in favor of the personal law; and I consider that a distinction must be made between abrogation of one custom by another and abrogation of custom by personal law. In the former case it is necessary that new custom has been established by long and continuous usage, but in latter the same test, in my opinion, should not be insisted upon, the normal presumption should be that the Mohammedan Law and any custom which differs from it, should be deemed to be an abnormality and therefore a unanimous decision of the community to revert to normally should be sufficient.

 

In my opinion it is possible for a community to abrogate a custom in favor of a personal law by a unanimous to abrogate a custom in favor of a personal law by a unanimous or an almost unanimous resolution and if we were to insist on a long and continuous course of conduct before accepting the resolution as enforceable in our courts then there is bound to be an interval in which the question will remain in a state of uncertainly which is not desirable or even contemplated. Custom after all is a manifestation of the will of a community and the members of the community are bound to obey such will, but as a rule of prudence the courts will not enforce it unless its manifestation is accompanied by long usage. Similarly, the collective will of the community can abrogate the custom; and when the custom is abrogated then necessarily the personal law becomes enforceable. It would further be difficult, as I have already observed, if a community decides it to establish a fresh custom in place of the abrogated in which case before the new custom can be enforced by the courts the decision of the community must be accompanied by long and continued usage. In Rajkishan Singh v. Mozoemdar their Lordships of the Privy Council observed as follows: --

 

“Their Lordships cannot find any principle or authority for holding that in point of law a manner of descant of an ordinary estate, depending solely on family usage, may not be discontinued, so as to let in the ordinary laws of succession. Such family usages are in their nature different from a territorial custom, which is the lex loci binding all persona within the local limits in which it prevents. It is of the essence of family usages that they should be certain, invariable, and continuous and well established; discontinuance must be held to destroy them. This would be so when the discontinuance has arisen from accidental cause; and the effect cannot be less, when it has been intentionally brought about by the concurrent will of the family. It would lead to much confusion, and abundant litigation, if the law had been clearly abandoned, and the abandonment had been, as in this case, long acted upon. Their Lordships can have no doubt that in this case the special custom of descent, if never existed, was designedly discontinued after Raj Singh’s death by Bishonath and his brothers-and that in fact the estate was enjoyed by the brothers—and their widows according to the ordinary law of succession, and on the footing that the custom was at an end—and not only that there was this enjoyment  in fact, but that the parties were registered in the public register, and suits were brought against third persons by the brothers and the widows, on the assumption that they were co-heirs and co-shares of a joint family estate.”

 

            In Mathura Naikan v. Em Naikan, at page 557 the learned Judge observed:-

 

            “To say that usage is the rule does not necessarily limit as to that sole sense of the word ‘usage’ which shuts out all amelioration.  Such usage is not a law, for over it presides the higher usage of the community at large from whose approval it must have derived any conceivable original validity, and in opposition to which it cannot subsist......And as the community comes to recognize certain principles as essential to the common welfare, it will no longer lend its sanction to sectional practices at variance with theprinciples thus recognized.  It is only according to the standards of the Hindu Law that a usage has coercive force amongst Hindus and what the Hindu Law is, must, for the purposes of secular justice, depend on the general sense of the Hindu community.”

 

            Again at p. 559 the same learned Judge observed:-

 

            “The custom can be entitled to recognition as a law, only in virtue of some power outside the court which has given it validity, and this must be the autonomy of the people in matters not withdrawn from their plastic power by positive legislation, and the principles implied in its enactments.”

 

            It is, therefore, obvious that it is the will of the community that establishes a custom and similarly it is the will of the community that abrogates a custom and for the abrogation of the custom long and continuous usage is not legally essential, because as observed by Robertson, J., in Daya Ram v. Sohel Singh (110 P. R. 1906):

 

            “We must also recognize that customary law like other law, is a branch of sociology and must be in a fluid state and take cognizance of progress of ethical and legal notions in the community in which it is in force.”

 

            It is, therefore, the duty of the courts to enforce the will of the community provided it is not opposed to express legislative enactment or to the principles of equity, justice and good conscience.”

 

            Held by a Full Bench (Tek Chand, Dalip Singh and Abdul Qadit, JJ., agreeing, in effect, with Coldstream, J.):

 

(a)        That it was not established that the Gishkori Biloches of the Sind tract of Jampur Tehsil of Dera Ghazi Khan District after mature deliberation and with genuine determination to act upon it in future, made a unanimous or almost unanimous, declaration in the course of the Settlement of 1920 to abrogate their long established custom whereby sons excluded daughters in succession to their father and not to follow Mohammedan Law in future.

 

(b)        It is not open to an individual, whose family or tribe had for generation followed custom to suddenly give up that certain custom by merely making a declaration to that effect.  The abrogation is to be inferred from continuous course of conduct.  Hence it is not open to a man at his pleasure to change the rule of succession to his property to the detriment of those who would have been hither to governed, except of course in so far as that law allows him to do so by making last will and testament.

           

            Similarly, it has been held in D. C. of Barabanki v. Receiver of the Estate of Chaudhry Shafiq-uz-Zaman and others, that breach of a custom in a particular instance as to succession need not destroy it for all time and where a departure in the custom is made with the consent of the person excluded, the cession of the immediate heir in favour of the next heir cannot be deemed to make a breach in the custom.

 

            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.

 

            “Ever since their, Lordships of the Privy council have decided 1917 P. C. 181, the law has been very clear that when a person asserts that he is governed by custom it is incumbent upon him to prove that he is governed and further to prove what that custom is.  There is no uniform custom applicable to the whole of the Punjab nor has it so far been codified. It is well known that custom differs from place to place and from tribe to tribe and it is also recognized by authority that it may differ from family to family.”  The mere fact that Mohammedan law was ignored in some cases will not be sufficient to establish that it had been abrogated for all times in favour of any special custom which was adopted in its place.

 

            Although by a custom a particular requirement of personal law is dispensed with or varied, the personal law does not as a consequence cease to have any application to the case.  If a party avers that the variation by custom of the personal law in one respect has the consequence of abrogating that law altogether then the party must also prove the existence of a custom justifying such a result.

 

            Where the personal law of a party is varied by custom there is no justification for importing analogies from a system of law which does not prevail the province and for holding that the position of a daughter’s son adopted by the maternal grandfather is that of a kritrima son or even analogous to such a son.  In such cases there is no half way house between the legality or illegality of the adoption.  If the adoption is valid it is attended by all the consequences of an adoption in the dattaka form; otherwise it is no adoption at all.  It is not correct to say that it partakes the character of a kritrima adoption.

 

            Again, in Mohd. Yusuf v. Mohd Abdullah, it was held that no doubt it is open to a family to abandon custom and to adopt its personal law but in order to determine that this has effectively been done unequivocal circumstances must exist which point to that conclusion.  The mere fact that a person belonging to a tribe, which is predominantly agricultural tribe was consulted at the time of the preparation of the riwaj-i-am, migrates to a town or temporarily ceases to cultivate land, would not be enough to justify the conclusion that he has abrogated customary law altogether.  Custom, unlike cloak, cannot be cast off at one’s volition.  Mere occupation of the parties concerned is not be taken as conclusive factor in determining whether the parties were governed by their personal law or customary law.

 

PRESUMPTIONS  FOR  APPLICABILITY  OF  CUSTOM  OR 

PERSONAL  LAW – TESTS  APPLIED

 

(11)    Members of agricultural tribes following agriculture—presumption in favour of the applicability of custom

 

            Ordinarily there is no presumption for or against any custom in any tribe or family in the Punjab and the burden lies on him who sets up a certain custom, to prove the existence of that custom.  Nevertheless among certain tribes, definite customs regarding (1) succession, (2) alienation, and (3) adoption, etc., have been ascertained by judicial enquiry and declared to exist by judgments of the Chief Court or the High Court.  It has been held in Mst. Fakhar-un-Nissa v. Malik Rahim Baksh, that ‘where it has been found to govern a particular tribe or to obtain in a particular locality in a series of judicial decisions of this Court, or where the onus of proof in regard to a particular custom has been laid down by a Full Bench, it may be right to start with an initial presumption in favour of its existence.  The general effect of all such decisions, enunciating certain general customs or laying down a definite rule on the subject of onus, will be to relieve the plaintiff of the burden of proof which in the first instance lay on him and which will then be shifted to the defendants, and nothing more:  Or in other words, in these cases the initial presumption at the outset will be that such a custom exists contrary to the personal law of the parties and the burden of proving that among the family to the general custom, will be on the person who asserts it.

 

            Among agricultural tribes in matters regarding which the application of customary rules is a matter of everyday experience such a presumption may legitimately be made.  Where there is a general and well understood and recognized custom which modifies Hindu or Mohammedan Law or even ignores it altogether, the court must take cognizance of such custom without requiring evidence in support of it to be taken.

 

            One of the most important tests to be applied in determining whether a particular caste is or is not governed by agricultural custom, is to ascertain whether or not they form a compact village community, or, at least, a compact section of the village community.  If they do so, the presumption is strongly in favour of the applicability of custom and once this presumption has been established, the onus is shifted on the party which relies on personal law.

 

Alienation:

 

            In Gujar v. Sham Das, the question before the Full Bench was—On whom, in cases of transfer of ancestral land without necessity by a sonless Jat proprietor of a central district, does the burden of proof rest ?  Does it lie on the person making or benefited by the transfer to show that it is valid by custom ?  Or is it for the person objecting to the transfer to prove that by custom he has a right to object ?  In other words, where A, under a transfer made by B, sets up a title to B’s land against C, B’s natural heir, does C’s plea that B was Jat agriculturist raise a presumption on the ground of general custom, against the validity of  the transfer, such for instance as would be raised by the plea that B was a Hindu widow, or a Kamin ?

 

            It was observed by Roe, J. (Powell, J. concurring):

 

            “The reasons for holding that such a presumption against the validity of the transfer is raised may be briefly summarized thus—

 

1.         B’s own title to the land has grown 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, recognize in the individual member only a right of usufruct, 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 or villages 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 now 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 amongst individuals.  But even where the sub-division has preceded furthest, the power of dealing with the land is not absolutely free.  It is always restricted by 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 lineal heirs cannot, except for necessity, alienate without their consent.  It is not unreasonable to presume that the absence of lineal male 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 collaterals if within a reasonable degree of relationship, so near we may say as to be looked on as 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, or at any rate of the members of the family most interested, would naturally be necessary to any transaction affecting it permanently.”  Thus this ruling lays down that among the agriculturists living in compact villages of the central Punjab an agriculturist has no power to alienate his ancestral land save for necessity; the plaintiff who sues to contest an alienation of such land is not bound to prove that there is a special custom by virtue of which such alienations are invalid.  There is a presumption in favour of the existence of such a custom and it is the alienee on which the onus lies to rebut this presumption by proving a special custom of the family to the contrary.

 

            Similarly,  it has been held that where the land which the owner for the time being seeks to alienate is found to have come to him from his ancestors, as his share of the land held by them as members of a village community, the principles laid down in 107 P. R. 1887 (F. B.) apply equally as regards initial presumption whether the land is situate in a central or any other district of the Punjab.

 

Succession:

 

            Similarly, in Sita Ram v. Rajja Ram, it has been held that the whole principle underlying the enjoyment of and succession to land in villages, held by a body of proprietors belonging to one tribe, or descended from a common ancestor is that the land does not belong absolutely to the individual holder for the time being—it belongs to the family or community.  Where this is the case, it is only natural to presume that, as the power of the holder, for the time, being, to alienate the land during his life is restricted, so also will be his power of altering the rule of succession.  It is indeed this power of altering the succession, which is restricted; for the power of a proprietor to alienate his undoubted right in the right to enjoy the profits of the land for his life, would hardly be disputed. We find that in some tribes custom, at any rate as declared in the Riwaj-i-am, allow no alteration of the strict rule of succession at all; it will not allow even the adoption of or gifts to a yakjadi. Other tribes allow such adoption or gifts, but no others. Other tribes go further and allow gifts to, as adoption of certain males, closely connected with them in the female line such as daughter’s sons, or husbands, or even sister’s sons........ Where this is done it is from a tender feeling to benefit the direct descendant of the old and not in order to benefit the family into which a daughter of the tribe happens to have married. When the tribe or village community thus breaks its rule of rigid exclusion, it certainly never contemplates the admission into its body of a stream of unknown strangers.

 

Adoption:

 

            We have in Ralia v. Budha¹, a rule that according to the general custom of the Punjab, among the agriculturists a daughter’s or sister’s son cannot be validly appointed.  In such a case the onus of proof will be on the party who asserts that among their family certain custom exists which permits the adoption of a daughter’s or sister’s son.  Generally—creed, tribe and locality apart—when a conless man in any landholding group which recognizes a power to adopt, asserts that he is competent to adopt a daughter’s son or other non-agnate in presence of near agnates, irrespective of their assent, the presumption at the outset is against the power.

 

Widow’s life-estate

 

            Again, among the agriculturists, the usual custom is, that where a proprietor dies leaving no male issue, the widow takes a life estate in the property of her husband.  If a party contends that among the tribe to which he belongs this custom does not exist, but a widow is entitled to maintenance only, the onus lies on him to prove this special custom.

 

            In Ghulam Ghaus v. Mst. Sajjada Begum, the testatrix who by a will left her house to her husband’s another wife’s daughter’s son, belonged to a family of Ghakhars who are one of the predominant agricultural tribes of the Jhelum District and particularly in the Jhelum Tehsil.  The family comprising persons of ordinary status, none of whom followed any urban vocation, lived not inside the town of Jhelum but in a village on the fringe of the town.  It was held that in the circumstances the only presumption that could be drawn was that the testatrix followed custom; and there being no proof that the house was ancestral property and it not being contented that she had only a life interest in it, she was fully competent to make the will in respect of the house in favour of any one she chose.

(12)    Members of agricultural tribes drifting away from agriculture, settling for good to urban life and adopting trade, service etc., as their principal occupation and source of livelihood—presumption in favour of applicability of personal law rather than custom—merely belonging to a dominant agricultural tribe does not necessarily raise a presumption in favour of custom—regard to residence, occupation, connection with village life and family tradition to be paid.

           

            But it must be remembered that the mere fact that a person belongs to a dominant agricultural bribe of the district, regardless of his residence, occupation, connection, with village life and family traditions, is not sufficient to raise a presumption that in matters of alienation for instance, he is governed by Customary Law of the Punjab.  The leading case on the point whether or not an initial presumption should be raised in favour of the existence of custom when the parties to the dispute are members of an agricultural tribe is Mohammed Hayat Khan v. Sandhe Khan, in which Lal Chand, J. (Johnstone, J. concurring) held:

 

            “I am, however, not prepared to agree with the District Judge that the family being Rajput is necessarily governed by Customary Law of agriculturists in matters relating to alienation of ancestral landed property.  It appears to me that, in order to apply the initial presumption against the power of alienation laid down by the Full Bench judgment in Gujar v. Sham Das, it is necessary to prove not merely that the family belongs to an agricultural tribe, but also that its main occupation is agriculture.  As further explained in Ramji Lal v. Tej Ram, the presumption in favour of a restricted power of alienation applies to members of agricultural tribes, who are members of village communities.  But where a family, though members of an agricultural tribe, has altogether drifted away from agriculture as its main occupation, and has settled for good in urban life and adopts trade, industry or service as its principal occupation and means and source of livelihood, I am not inclined to hold that any initial presumption would exist or apply that the power to alienate ancestral immoveable property to the members of such family is necessarily restricted.  There is a considerable amount of heredity attached to the caste system, but at the best it is not very rigid and admits of modifications, specially under changed circumstances of life...............

 

            “To my mind it makes no difference whether K acquired the property he left by working at some trade or as an employee in Government service as long as it is proved that he settled in and accepted urban life as the source of his living.  Even in the case of tribes which are more pre-eminently agriculturists than the Rajputs, it does not follow that they are bound by agricultural customs in case of family has severed all connection with agriculture as its hereditary occupation.  A notable instance of this nature is afforded in Mst. Fakhur-un-Nissa v. Malik Rahim Bakhsh, where a family of Arains who had settled in the town of Delhi and still carried on a quasi-agricultural occupation of vegetable sellers, was yet held to be governed in matters of succession by Mohammedan Law and not by agricultural customs...........  The same considerations apply equally, in my opinion, in a reverse case, where a non-agricultural family takes to agriculture as its hereditary occupation for some generations.  If, for instance, a Khatri family acquires landed property in a village, or an entire village, and has for generations settled in rural life and lived upon agriculture as its principal means of livelihood, the family would, in my opinion, be bound by customs of agriculturists in matters relating to alienations of ancestral property.  An instance of the class is presented by Uttam Singh v. Jhanda Singh, a case of Bedi Khatris of Hoshiarpur District.............There is evidently a constant and perpetual influx or efflux running between rural and urban life and an interchange of occupation passing between what are termed agricultural and non-agricultural castes.  The only safe and proper criterion under the circumstances seems to me to took not only to the caste but also the hereditary occupation of the particular family and to apply or not accordingly the presumptions under Gujar v. Sham Das.  I do not affirm for a moment that if a member of an agricultural family casually takes to Government service or some other profession as an additional source of living or emolument, that the family thereby ceases to be agriculturist or to be bound by agricultural customs, or, in the reverse case, if a member of the mercantile class buys land as an investment, he thereby becomes an agriculturist and bound by customs of agriculturists.  But it seems to me equally clear that if a member of an agricultural family settles in a town, takes to Government service or some lucrative profession, trade or industry, and thus settles to urban life permanently, thereby severing all connection with agriculture and its association, that such family or the descendants of such family in the third or fourth generation are not governed by agricultural customs simply because some of their ancestors at one time where agriculturists, or that the family belongs to one of the agricultural tribes.  The test, as I have remarked already, is not merely caste but permanent and hereditary occupation as well.  The code of agricultural customs, specially the rule relating to power of alienation, is the result not of any peculiar caste proclivities in the Province but of the special exigencies of agriculture as a calling and of the spirit of self-preservation which prevailed throughout the village communities in order to protect their very existence.  It would seem to me, to say the least, altogether unnatural if not irrational to attempt to apply the same code and the same presumption to altered circumstances where the reason for the rule has entirely ceased to exist.

 

            “As I understand it the Full Bench judgment in Gujar v. Sham Das intended to lay down the rule of restricted power of alienation only as regards agriculturists by occupation and members of village communities.  This I take at least to be the spirit and essence of the Full Bench judgment.........There prevails doubtless in this Province a sort of sentiment or feeling even in towns and among townsmen; and it would therefore, in such a case, be on the person challenging the power of alienation to prove a special custom restricting such power.  It may possibly be relevant to show in proof of special custom that the family was at one time agricultural, but the weight to be attached to this incidence would vary on the facts of each case and it is insufficient in my opinion, by itself to turn the scale and shift the onus against the alienee and the alienor.”  It was a case of non-agricultural Mohammedan Rajputs who were held not governed by custom.

 

            The dicta of Lal Chand J., have been cited with approval and followed in a number of rulings.

 

            In Jamiat-ul-Nissa v. Hashmat-ul-Nissa, Shah Din, J. (Robertson, J. concurring) refused to raise any presumption that a fmily of Awans settled in Ludhiana city was governed by custom.  There it was found that for generations past no member of the family actually cultivated land; but that the ancestors of the parties followed service or other independent means of livelihood and had acquired agricultural land in a village merely as means of investment.  At p. 564 of the Report the learned Judge remarked:

 

            “Unless, therefore, it can be predicated in this case, upon the materials before us, that there is a definite rule of customary law which governs the parties to this appeal in matters of succession one must fall back for the decision of the point in issue upon the personal law, though ostensibly the tribe to which the parties belong may be said to be governed generally by custom and not by Mohammedan Law.  Starting then with these premises, we have to ascertain whether it has been shown, having regard to the nature of the property in dispute, to the parties’ caste and station in life, to their occupations and social environments and to the rule of succession which may have been observed in the family in the past that the application of the personal law must be excluded in favour of a well-defined rule of custom by which the parties are governed in matters of inheritance.”

 

            In Ata Mohammed v. Mohd. Shafi, since seven or eight years the alienor an Arain of Mozang had been carrying on a fuel shop, and his father was living on the rental income.  There was nothing on the record to show as to what was the occupation of other members of this family and since how long they had given up their original occupation of tilling soil.  On the other hand there was evidence of the revenue records, which showed that upto the year 1939 tilling the soil was the main occupation of the members of this family.  It was held that from this meager material it was difficult to reach the conclusion that this family of Arains had altogether drifted away from agriculture and had taken to trade or industry and that their association with the large body of the village Arains had been entirely cut off.  The custom of restricted power of alienation still prevailed amongst them.  It was further held that this custom prevailed not only regarding agricultural land but also regarding other kind of property (house and shop) if it was ancestral unless the contrary was established.

 

            A presumption in favour of a restricted power of alienation of ancestral immovable property applies only to members of agricultural tribes who are members of village communities and whose main occupation is agriculture but not to those who have altogether drifted away from agriculture as their main occupation and have settled for good to urban life and have adopted trade, industry or service as their principal occupation, and means and source of livelihood.

 

13.     Agricultural tribes forsaking agriculture as their main occupation—no presumption in favour of the existence of custom.

 

            “Where a family, though members of an agricultural tribe, has altogether drifted away from agriculture as its main occupation and has settled for good in urban life and adopts trade, industry, or service as its principal occupation and means and service of livelihood I am not inclined to hold that any initial presumption would exist or apply and that the power to alienate ancestral immoveable property by the members of such family is necessarily restricted.”  Per Lal Chand, J., in 55 P. R. 1908; approved in 1919, 2 Lah. L. J. 27 (Arains of Jalandhar City not following agricultural pursuit: custom not applied).

 

            The following remarks of Tek Chand, J., in Muzaffar Mohammad v. Imam Din and another, may be perused with advantage:-

 

            “It is well known that the foundation of the rule of Punjab Customary Law, which restricts the powers of a male proprietor to alienate ancestral land is that in most Punjab villages the land was held by members of certain tribes on principles of agnatic relationship.  As explained by Roe, J. (who it may be remarked was one of the leading exponents of the agnatic theory) in the leading case of Gujar v. Sham Das, the basis of the rule is that in most of the Punjab villages land is held by a male proprietor:

 

            as a member of a village community which at no distant period held the whole of their lands jointly recognizing in the industrial member only a right of usufruct, 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.

 

            Again in Sita Ram v. Raja Ram, the came learned Judge observed that:

 

            The whole principle underlying the enjoyments of and succession to land in villages held by a body of proprietors belonging to one tribe, or descended from a common ancestor is that the land does not belong absolutely to the individual holder for the time being; it belongs to the family or community.

 

            Now it will be conceded that by no stretch of reasoning can such a state of things be predicated with regard to a family, that is not known to have ever lived in a village, or held land on communal basis, the mere fact that they belong to a tribe whose members usually form compact village communities being wholly immaterial.  Indeed, if persons belonging to such tribes leave village life, migrate to towns, drift away from agriculture, depend on trade, industry or service and adopt modes of life followed by non-agricultural communities, the presumption would be that they follow the personal law which govern their urban neighbors and associates.”

 

            Where a party alleges that the members of its family are governed by custom and not by Mohammedan Law, but both the parties reside in Lahore, their source of income being service at a shrine and they do not follow agricultural pursuits, the burden is on such party to prove that they are governed by agricultural custom and not by Mohammedan Law, even though the parties belong to a dominant agricultural tribe.

 

(14)    Main source of livelihood agriculture—some members supplementing income by Government service or other sources—family still agriculturist and bound by Customary Law

 

            It was observed by Lal Chand, J., in Muhammad Hayat Khan v. Sandhe Khan: “I do not affirm for a moment that if a member of an agricultural tribe casually takes to Government service or some other profession as an additional source of living or emolument, that the family thereby ceases to be agriculturist or to be bound by agricultural custom.”

 

            Where agricultural income is the main source of livelihood of the members of the family, if a few members of the family supplement their income by salaries derived from Government service it does not show that the family has given up agricultural pursuits and that such a family cannot be held to be bound by Customary law.

 

            Where a family has been in the main agricultural, the mere fact that of late some members of it have been educated and have taken service under Government, does not free them from being governed by the Customary Law obtaining among agriculturist.

 

            In Abdul Rahman v. Ghulam Ali, the parties were Mohammedan Bhatti Rajputs, residents of the town of Rawalpindi carrying on contract work.  It was contended that as such they must be held to be governed by Mohammedan law and not by custom.  While holding that they were still governed by custom and not by personal law the learned Judges observed: “Itr is admitted that he originally belonged to a village called Bijnial, which is owned almost exclusively by Bhatti Rajputs.  The tow lambardars of the village belong to the same tribe, and some of the plaintiffs had been actually tilling land.  There is evidence on the record that Bhatti Rajputs of this village form a compact village community and have been notified as an agricultural tribe under the Punjab Alienation of Land Act.  The mere fact that a certain member of this tribe had given up agriculture as a profession and carried on contract work in the town of Rawalpindi is by itself insufficient to rebut the presumption that he was governed by Customary Law.”

 

            Before a person belonging to a predominantly agricultural tribe can be held to have given up custom which governed his tribe, it must be slow that he had severed his connection with agriculture or his village community.  The mere fact that a person originally belonging to a rural community and to a predominantly agricultural tribe settles in a town and joins service does not necessarily lead to the conclusion that he has abandoned the old custom governing his ancestors and his adopted the law which prevails in the locality in which he takes his abode.  Custom must be the ordinary rle of decision in such a case unless it is indisputably established that the party concerned had abandoned his rural proclivities and had severed all his connections with the rural community.

 

(15)    Non-agricultural tribes not following agricultural pursuits—presumption is that they are governed by personal law and not by custom

 

            The initial presumption in the case of non-agriculturists, that is to say, those persons who are not agriculturists by origin and live in towns or even if they live in villages and hold land yet are not actively dependent upon it and follow other avocations, is that they do not follow agricultural custom but their personal law.  In their case the rule is that a non-agricultural who asserts that among his tribe or family the agricultural customs are followed, is prima facie bound to prove his allegations.

 

            It has been repeatedly held that high caste Hindus living in towns and working as traders are presumably governed by Hindu Law.   It may be taken as settled law that in the case of high caste Hindus, the first presumption is that they follow Hindu Law and not the Customary Law.  1936 Lah. 627 (Brahmans, Jhang Saidan, Rawalpindi); 1935 Lah. 967 (Lakhanpal Brahmans, Tehsil Phillour Jalandhar); 4 Lah. 254 (Brahmans, Gokalgarh, Ambala); 1920, 1 Lah. 554 (Brahmans, Tehsil Kharar, Ambala); 1923, 4 Lah. 236 (Joshi Brahmans, Hoshiarpur);

 

            1920, 2 Lah. L. J. 377 (Kapur Khatris, Jhelum);

            1922, 73 I. C. 239 (Khatris, Hoshiarpur);

            1923, 72 I. C. 445 (Bere Khatris, Jagron);

            1921, 64 I. C. 264 (Saibal Khatris, of Dinga);

            1927, 8 Lah. 541 (Chopra Khatris of Jalandhar District);

            16 P. R. 1914 (Khatris);

            1926, 7 Lah. 522 (Sodhi Khatri of Anandpur);

            1922, 66 I. C. 45 (Khatris, Tahsil Moga);

            1923, 78 I. C. 717 (Banias, Tahsil Kharar, Ambala);

            1920, Lah. L. J. 178 (Aroras, Taunsa Town, Dera Ghazi Khan);

            33 P. R. 1915 (Aroras, Multan City); 1925, 6 Lah. 124 (Aroras,

            Amritsar Town); 89 P. R. 1916 (Kalals, Jullundur District);

            1934 Lah. 185 (Tarkhans, Tahsil Muktsar, Ferozepore District).

           

            It was observed in Mst. Pal Devi v. Fakir Chand (60 P. R. 1895) –“In questions relating to inheritance, partition, alienation and the like, when the parties are high caste Hindus of good position, residents of a town and through holding land, non-agriculturists depending for their livelihood on avocations other than cultivation of land, while the Court should see, in the first instance, whether there is any custom bearing on the question in issue no presumption in favour of the existence of such a custom should be made and its existence should be left to be decided by the evidence of the parties.”

 

            Similarly, it was held in Basho Ram v. Mst. Sarupi¹, that in the case of parties who are Hindus of the highest caste residing in a town, the evidence of proving that they are governed by custom and not by Hindu law lies heavily on those who assert it. The fact they have been notified, as an agricultural tribe would not necessary show that they (and especially those who are residents of a town) follow custom.

 

            So also amongst Mohammedans where the parties do not belong to an agricultural tribe, nor is their main occupation agriculture, there is no initial presumption that they are governed by custom.  In Lachhmi Narain v. Muhammad Ji, the plaintiffs were Mohammedan Tarkhans of Hasan Abdal, District Attock.  It was observed: “The parties are not members of an agricultural tribe nor is their main occupation agricultural and there is, therefore, no initial presumption against free power of alienation.  The evidence shows that M is a shop-keeper dealing in shoes, lungis and caps, while his father used to work at a water-mill as carpenter.  As there is no presumption in favour of a restricted power of alienation it is necessary for plaintiffs to prove a special custom in this respect.”  Sayads, similarly, should ordinarily be expected to follow their personal law and very strong evidence is needed to rebut the presumption in their case that they are governed by Mohammedan Law.  The same remarks apply to Qureshis.

 

            Thus the principle to be followed is that where the parties belong to a tribe or community which is not well known to be one of the dominant agricultural tribes of the Province, strong proof is needed before the Courts can conclude that they are regulated in matters relating to succession, alienation and the like questions by the rules observed commonly by members of such dominant tribes.

 

(16)    Non-agricultural tribes following agricultural pursuits and forming compact village communities—presumption in favour of applicability of custom

 

            It was observed by Lal Chand, J., in Mehtab-ud-din v. Abdullah, --“Section 5 of the Punjab Laws Act makes no distinction between agriculturists and non-agriculturists.  It lays down a rule of decision for all classes without distinction of caste, creed, or calling, and the rule laid down is that in questions regarding succession, etc., the rule of decision shall be—

 

            (a)        any custom applicable to the parties concerned;

(b)        the Mohammedan Law in cases where the parties are Mohammedans.

 

            It is thus clear that there is no initial presumption that the parties who are townsmen are necessary governed by the provisions of their personal law in matters relating to succession.......... There is no initial presumption in favour of the Punjab Laws Act.  It is an open question under the Act, and it appears to be the duty of the court conducting the trial as was held in Devi Sahai v. Mangal Sein (81 P. R. 1874) to ascertain at first the rule of decision by enquiry into the alleged custom, and on failure of proof of the personal law.  But the question must be approached with a free mind without any bias in favour of the personal law being applicable, because the parties happen to be residents of a town and non-agriculturists by occupation.  It is a notorious fact that in several matters what are termed the customs of agricultural tribes really form the common law of the Province with certain exceptions and modifications, such as are to be met with even among the agriculturists.........  To say the least then there is no presumption either under the provisions of the Punjab Laws Act or on the strength of the authorities which  have interpreted those provisions that the parties to the present case being Mohammedans (Shamsi Khojas of Lahore City), residents of a town and not members of any agricultural tribe, are governed by Mohammedan Law in matters relating to inheritance.”

 

            The principles enunciated above have not been followed in subsequent judgments of the Chief Court and the High Court.  Doubt of their correctness was raised in Ilahi Bux v. Rahib Bux.  That was a case as to succession among the Mohammedan Sheikhs of Delhi City, and the question was whether the Mohammedan Law was modified by any peculiar custom of the brotherhood.  In fact, Rattigan, J., who also was a member of the Bench, which decided 140 P. R. 1908, noted on the margin at p. 641 of the report—“I am rather doubtful as to this, but it is not necessary for me to give any definite opinion.”

 

            The same views were expressed in Lorandi v. Nihal Devi and in Ganda Ram v. Nand Lal and in the latter judgment it was remarked: “It is now settled by the ruling of the Privy Council in 1917 P. C. 81, that it lies upon the person asserting that he is ruled in regard to particular matter by custom to prove that he is so governed and not by personal law and further to prove what the particular custom is.”

 

            But this does not mean that non-agricultural tribes must always be presumed to be governed by personal law in matters of succession, etc., under all circumstances.  In their case also it may be proved that they follow agricultural custom either on the score of actual practice ofthat custom, or by showing special circumstances which raise a strong presumption that the parties follow such custom.  As remarked in 55 P. R. 1908:”Even in the case of tribes which are more pre-eminently agriculturists than the Rajputs, it does not follow that they are bound by agricultural customs in case the family has severed all connection with agriculture as its hereditary occupation....... The same considerations apply equally, in my opinion, in a reverse case, where a non-agricultural family takes to agriculture as its hereditary occupation for some generations.  If, for instance, a Khatri family acquires landed property in a village or an entire village and has for generations settled in rural life and lived upon agriculture as its principal means of livelihood, the family would, in my opinion, be bound by custom of agriculturists in matters relating to alienation of agricultural property.  An instance of this class is presented by 21 P. R. 1896, a case of Bedi Khatris of Hoshiarpur District, and there are several other instances of the same nature where mercantile castes, such as Khatris and Aroras, have been held to follow and be governed by agricultural customs.”—Per Lal Chand, J.

 

(17)    Non-agricultural tribes—de facto agriculturists—casually doing other work does not exclude custom.

 

            When it is proved that a non-agriculturist family or tribe has become purely agriculturist in this, that it entirely depends on land, the mere fact that some of its members casually follows other professions, does not prove that they are not governed by agricultural custom.  The key-note of the principle involved in this case is that custom may be presumed to apply where a non-agricultural tribe has become agriculturists by occupation and living and it must solely depend on it.  See 21 P. R. 1896; 94 P. R. 1907; 56 P. R. 1906; 5 P. R. 1915; 11 I. C. 406 and other rulings cited infra.

 

(18)    Special circumstances which may raise a presumption in favour of the applicability of custom in the case of non-agricultural tribes

 

            The following principles have been laid down by the various judicial decisions as to the special circumstances which in the absence of proof of instances of actual practice in the family, can raise a presumption that a non-agricultural tribe follows the agricultural custom—

 

(a)        If it is found that the parties though belonging to a non-agricultural tribe are agriculturists in practice, the presumption is that the members of such a family follow the agricultural customs.

 

            To hold such a presumption it is, however, necessary that the parties must be agriculturists de facto.  The mere fact that members of a non-agricultural tribe own land is not sufficient to hold that they follow agricultural custom.  In Mst. Fakhr-un-Nissa v. Malik Rahim Baksh, the parties, though originally of Punjab Arain descent, had for many generations lived amongst, and given themselves out as Mohammedan Sheikhs of Sabzimandi, a suburb of Delhi, and they owning land, did so rather as market gardeners and capitalists; held that the onus of proving that in matters of succession they were governed by a family custom whereby sons excluded daughters and not by their personal law, was upon defendants who asserted it.

 

(b)        With a view to rebut the initial presumption in favour of application of personal law to parties belonging to a non-agricultural tribe, it must either be shown that they entirely depend upon agriculture or form a compact village community or at least a compact section of the village community.  The most important criteria for determining whether a particular community has adopted and follows agricultural custom are

 

(i)                               whether the particular community forms a compact agricultural community by itself,

 

(ii)                             whether their source of livelihood is solely or almost solely agriculture,

 

(iii)                            whether the members of the community had given up their old customs under the personal law and adopted the customs of their agricultural neighbors.

 

Owning land but not cultivating himself

 

(c)        When a non-agriculturist owns land but does not cultivate it he, it shows that he has not become an agriculturist.  In such a case the initial presumption regarding application of personal law is not rebutted.

 

            Similarly, where members of a non-agricultural tribe live in a town and do not follow agricultural pursuits, the mere fact of their having invested money in buying land in a village does not show that they have altered their mode of living and have become agriculturists, and presumption in favour of application of personal law is not rebutted.

 

Holding land in a village in the midst of agriculturists

 

(d)       When an agricultural tribe is a predominant body in a village, it may sometimes be contended that the non-agriculturists, who hold land in their midst must be presumed to follow the custom of such a body. But this contention cannot hold good in all the cases. The contention is valid, if the parties be Kamins, persons of a class socially lower than the agriculturists and who have been living for a long time in the village in a sort of subordinate to the predominant body. In such cases generally Kamins by abandoning the proper calling of their caste adopt agriculture as their occupation and drift inside the fold of agricultural tribes, and they may be presumed to follow the custom of those among whom they have settled.

 

            The same, however, is not true about parties who are not kamins but occupy a higher social status, e. g., Koreshis, Khatris, Brahmans etc. But it is quite possible that when non-agriculturist landholders dwell for ages among other landholders of the agricultural tribes, their customs may resemble those of the tribe among whom they are found. Where a priestly class settled among agricultural tribes and ministering to their religious needs adopted the rule of custom by contact with tribes amongst whom it had settled, held, that the presumption is that it follows the same custom as the latter.

 

            In Sham Ram v. Hemi Bai, the question was whether among Dhal Khatris of Muzaffargarh district, collaterals succeeded in preference to daughters. The deceased, whose property was in dispute, was found to have left land in a village. It was contended that as he had land in the midst of agriculturists, there was a presumption that the customs of agriculturists, there was a presumption that the customs of agriculturists applied, by which daughters are excluded by near collaterals in succession to landed property. Held, that the parties are members of a trading and money-lending class; they have become landholders amongst agricultural classes, but it is clear that they have done so as capitalists, and with them, agriculture is subordinate to money lending.

 

Forming a compact village community or section of a compact village community.

 

(e)        As already observed, in determining whether a particular caste or tribe is or is not governed by agricultural custom, one test is to ascertain whether or not they form a compact village community. If they do so, the presumption is strongly in favour of the applicability of custom. The same presumption would apply where the tribe though not constituting a compact village community forms at least a compact section of the village.

           

It was held in Samund Singh v. Rakha Ram, that in the case of high caste Hindus- and the Brahmans occupy the top most places in the Hindu social hierarchy-where nothing else is known, the presumption is that they are governed by their own personal law and not by custom. This presumption is, however, rebut table and may be rebutted by proof to the contrary. Where the Brahmins of a certain village were its original founders and they still form a compact section of the village community, depend for their livelihood almost exclusively on agriculture and do not carry on any trade, business or priestly functions or take to service, and further they follow the same customs as are followed by the agricultural tribes of the province, these facts are sufficient to dislodge the initial presumption in favour of the application of personal law to them and to shift the onus of proving that they are not governed by custom on the party which relies on personal law. Where the Brahmins are governed by the general agricultural custom of the province, the burden of proving that in matters of alienation they are not governed by the general custom rests on the party who asserts it. The Brahmins of village Batura in the Tehsil of Phillaur in Jullundhur district do not follow their personal law in matters of alienation but the general agricultural custom of the province according to which ancestral property cannot be alienated except for necessity or with the consent of the descendants of the alienor.

 

            But the rule that when a family owns the entire village for generations gives rise to a presumption that they follow custom, does not apply where the whole village is owned for a single generation only. In 33 P. R. 1907, a case relating to Bedi Khatris Hoshirapur District it appeared that the plaintiff and the vendor had bought the entire village from Gujjars. It was observed: “ It can hardly be said that in the matter if alienation any custom as yet has been established or followed by their family. The test is whether a body of Bedis have adopted agriculture, for some generations past, as their mode of earning a livelihood. If they have, the presumption is that they follw agricultural custom; if not, they follow Hindu Law. The burden of proof of a special custom is on him who asserts this fact.”

 

            Some distinction must also be made between the agriculturists who own the whole village and those who simply hold certain fields in a mixed village owned by other tribes. In the former case, the very fact of their forming a compact village community is enough to show that they might have adopted the rules of agriculturists in certain, matters, for instance excluding of strangers; while in the latter case there is no reason why they should have done so. There is a substantial distinction between the case of a compact village community and mere casual landowners in a mixed village and the time spirit of self-presumption in village communities must exist before any initial presumption can be made against alienation. As observed by Johnstone, J. “When a family holds a complete village and lives by agriculture we can easily understand the members early coming to appreciate the value of the Jat rules in alienation and the adoption by them of those rules, which are so powerful in holding a family together and in preventing the incursion of strangers. But such sentiments need not arise where the family merely own certain fields in a mixed village community.”

 

            Where, therefore, it was found in the case of Sodhi Khatris of a village in Gurdaspur District that they resided in a village, lived by agriculture since 1852 and followed no other occupation, they were still held to be governed by Hindu Law because they did not form compact village community. In Khazan Singh v. Maddi, the parties that were non-agriculturists landowning Bedis of Garhshankar Tehsil, in the Hoshiarpur District, it was held that they were governed by Hindu Law because they were found to be small landowners in a mixed village owned by strangers. In this case the parties’ ancestor had originally settled in the village only as a Jagirdar, and the family itself did not present a compact group. The village was heterogeneous, including both Hindus and Mohammedans of different tribes, and it was bhaiachara. The Bedis of Hoshiarpur District on the other hand were held to follow custom in matters of alienation by a sonless proprietor, as it was found that the whole village belonged th them and they formed a compact village community.

 

Settling with the founder of the village.

 

(f)        Where it is found that a family belonging to a non-agricultural tribe settled with the founder of the village, that fact strengthens the likelihood of custom being followed. Where Kamins settled in a village with the founders who held a large area of land, abandoned the proper calling of their caste, and adopted agriculture as their occupation, it may be presumed that they are governed by custom. In 94 P. R. 1907, the Brahmans of Mauza Dailpur, Kasur, were held to follow custom in adoption as they had settled 200 years ago in the village with the founder and were given 100 bighas of land as a gift by Jats, and were full proprietors with a share in the shamilat, even though they kept shops and received virt also.

 

            But the mere fact that the parties ancestor settled in the village along with the founder thereof and that ever since then they had been holding land therein is insufficient in itself to show that the family is a family of agriculturists and therefore bound by agricultural custom. In 103 P.R. 1902, to which the parties were Brahmans who held the land but were not full proprietors, i. e., had no share in the shamilat and dependent largely on contribution, it was held that Hindu law and not custom governed the parties.

 

Attesting a Riwaji-am or wajib-arz.

 

            (g)        It has been held in Jamiat-ul-Nissa v. Hashmat-ul-Nissa, that the mere attestation of a Riwaj—i-am by a non-agriculturist, who had acquired agricultural land in a village as a means of investment, is not ipso facto sufficient to prove that in matters of alienation or succession his family residing in a town followed the ordinary customary rules of dominant agricultural tribes.

 

            But there can be no doubt that it is a material circumstance which may be taken into consideration along with other circumstances in judging, whether or not, a party is governed by custom, as was done in Mst. Rukman v. Sain Das.

 

            In 115 p. R. 1904, the point was, whether Arora landholders in a village followed custom. A Riwaj-i-am of the district showed Aroras had agreed to be bound by customs in the Riwaj-i-am. Held—“We do not consider these grounds sufficient to justify the lower Courts’ decisions. Some Aroras in other parts of the district may have been consulted by the Settlement Officer when the Riwaj-i-am was being prepared, and they may have acquiesced in the answers given by their agricultural neighbors. But there is nothing in the Riwaj-i-am to show these Aroras were, or to which village they belonged.”

 

By being shown in the revenue records as khudkasht.

 

(h)       The mere fact that some land owned by a party’s family is shown in the revenue papers as khudkasht does not prove that the owners thereof are agriculturists in the sense that they are dependent on agriculture as cultivators.

 

Tribe consulted at time of preparation of riwaj-i-am—presumption that family is governed by custom arises.

 

            Where it is shown that the plaintiff belonged to a predominant agricultural tribe (Hindu Rajputs of Hoshiarpur District), which was consulted at the time of the preparation of riwaj-i-am, the presumption that the plaintiffs is governed by custom and not by his personal law arises, and onus to show that he had ceased to be governed by custom, lies on those alleging the same. Where members of a tribe, in this case (Sayads of Gurdaspur district) were consulted at the time of the preparation of the riwaj-i-am, that raises an initial presumption that the tribe was governed by custom and the onus lies upon any person alleging the contrary to dispose this initial onus. The fact that a tribe was consulted during the preparation of the riwaj-i-am of the district has always been considered an important piece of evidence in coming to the conclusion that the tribe follows custom.

 

(19)      Considerations to be taken into account in deciding whether a tribe not primarily agricultural follows custom or personal law.

 

Ellis in his Notes on Punjab Custom (2nd Edition, pages 28 to 32) has summarized the questions to be considered in determining whether a tribe follows agricultural customs, as given below:--

 

(i)             The fact as to whether the tribe exclusively, or primarily follows agriculture or, in addition, follows service or a hereditary occupation or business.

 

If the tribe is primarily agricultural the presumption is that it follows custom.

 

If in addition it follows other occupation then if the additional occupations are

Their main ones, they will probably not follow custom; if they are merely subsidiary, they may.

 

            But the mere acceptance of service by an agriculturist will not absolve him from Customary Law.

 

(ii)           The fact whether the tribe forms a compact village community, or patti in the village, or lives in a heterogeneous village. If the former, the probability is that the tribe follows custom; if the latter, and the tribe is not one of the primary agricultural ones, it probably does not.

 

(iii)          The fact whether the parties, not being members of a primarily agricultural tribe, were settled with the founders.

 

If they were, that fact strengthens the likelihood of custom being followed.

 

(iv)          The fact as to how long parties, not being members of a primarily agricultural tribe, have followed agriculture.

If they have done so for a very considerable period, it strengthens the likelihood of custom being followed.

 

(v)           The fact whether the parties, not being members of a primarily agricultural tribe, cultivate the land themselves, or are owners cultivating through others.

 

If the latter, there is no presumption in favour of custom; if the former, the possibility off custom being followed is strengthened.

 

(vi)          The fact as to whether the parties, not being members of a primarily agricultural tribe, hold a large or small portion of the village area.

 

If they only hold a small portion the probability is, in the absence of other considerations, that they do not follow custom; if a large portion, this would strengthen other considerations tending to establish custom.

 

(vii)        The fact as to whether the parties, not being primarily agricultural, hold a share in the shamilat or not can be considered; if  they do, it may tend to establish that custom is followed.

 

(viii)       The fact as to whether alienations have been frequent and allowed to pass unchallenged or not; if they have, that fact becomes relevant to prove that the right if free alienation, as opposed to ordinary customary restrictions, exists though the fact cannot be pressed too far in mixed communities.

 

(ix)          The circumstances under which parties acquired land may throw light on the question as to whether custom or law is followed.

 

(x)            The fact as to whether the parties furnish lambardars. If they do, it is a fact in favour of custom being followed.

 

(xi)          The fact as to whether the district or locality ia one where Customary law generally prevails.

 

(xii)         The fact whether, where the tribe or caste is one which ordinarily exercises religious functions, the parties have abandoned such function entirely or mainly.

 

(xiii)       The history of the village.

 

(xiv)       The fact whether the caste or tribe observes custom in social matters and not strict law may sometimes is of assistance in deciding whether it has adopted custom in the matter in dispute. But though parties may observe custom in one particular it does not follow they observe custom in all particulars to the exclusion of personal law.

 

(xv)         Where a tribe, primarily agricultural, has drifted away from agriculture and has settled down to urban life and trade there is no presumption that it is governed by custom.

 

See Partab Singh v. Mothu, Mst. Bhagwani v. Sita Ram and Genda Singh v. Dasaundha Singh wherein this has been followed and the same principles as laid down above accepted as correct law.

(20)    “Agriculturist”—meaning of—A tribe notified or not notified as an agricultural tribe under the Punjab Alienation of Land Act—its effect

 

            For the tests mentioned above, an “agriculturist” is a person who actually follows the occupation of an agriculturist and there is no necessary connection between being an agriculturist and being a member of a notified agricultural tribe.  There are many members of notified agricultural tribes who do not till their land with their own hands and there are quite a number of agriculturists who do not belong to any recognized agricultural tribe.

 

            The inclusion of a tribe in the Punjab Alienation of Land Act cannot be regarded as a conclusive proof that the members of the tribe have adopted the general rules of Customary Law observed by the agricultural tribes.

 

            It has been held in Bhagwani v. Sita Ram, that the mere fact that Gaur Brahmans have been declared to be members of an agricultural tribe in a class by themselves in the Delhi Province does not prove that they are everywhere agriculturists or that they follow agricultural custom.  The burden still remains upon any one asserting to the contrary that they are not governed by their personal law.

 

            It was observed by Rattigan, J., in Faqir Mohammad v. Fazal Mohammad: “It is, no doubt, true that in the Districts of Hoshiarpur and Kangra the Sayyads are not notified as members of an agricultural tribe for he purposes of the Punjab Alienation of Land Act, but this fact, though entitled to every consideration, is not conclusive.  There may be many reasons for the omission but however sound these reasons may be from a executive point of view, it by no means necessarily follows that the members of a tribe are not for the purposes of ordinary Customary Law, members of an agricultural tribe, or not governed by the principles ordinarily observed by members of such a tribe, simply and solely because they are not included in the notification under Act XIII of 1900.”

 

            The mere fact that a tribe is included in the list of agricultural tribes under the Punjab Alienation of Land Act is not conclusive proof that the tribe has adopted the general rules of Customary Law.

 

            A notification by Government under the Act that a tribe is an agricultural tribe does not raise the presumption that it is governed by agricultural custom.

 

            On the other hand, the fact that the parties’ tribe is not included in the list of agricultural tribes in the district, compiled for the purposes of the Punjab Alienation of Land Act, does not preclude them from having, by practicing agriculture for several generations as their only means of livelihood, adopted the ordinary agricultural law of the Central Punjab.

 

            The circumstances of a tribe having been notified as an agricultural tribe for the purposes of the Punjab Alienation of Land Act, though not conclusive proof of the tribe being subject to the ordinary rules of  Customary  Law, cannot, nevertheless, be left entirely out of consideration and is relevant as evidence.

 

(21)      Migration from one district to another—law or custom applicable

 

            The ordinary presumption of law is that when a person leaves one district and goes into another where a different custom prevails, he carries his personal law with him and unless there is something to show that he had abandoned his personal law and had adopted the law of his district he will continue to be governed by the personal law of his old district.  The presumption is of course rebuttable on proof of special circumstances.

 

            Where the parties were Qureshis of Bhera town and the deceased lived originally in Bhera but subsequently migrated to Lahore and worked as an Imam of a mosque and also carried on Piri Muridi; held, that under section 5,  Punjab Laws Act, the onus of proving that in matter of succession the parties are not governed by their personal law but by custom was on the person who so asserted.

 

            In Fateh Din v. Mst. Mohammad Bibi, it has been held that Arains migrating from Sialkot District to Lyallpur are prima facie governed by the rule of succession prevailing among the Arains of the Sialkot District.

 

            If a tribe migrates from their ancestral home to a new canal colony, the members of that tribe must be presumed to be governed by the Customary  Law prevailing in the district of their origin, A. I. R. 1935 Lah. 370.

 

            In Dhara Singh v. Mst. Aruri, the parties to the suit were Jats, who originally came from the Amritsar District and were then settled in the Chenab Canal Colony.  It was held that the Customary  Law of the Amritsar District did apply in their case.

 

            The same view has been adopted by the Privy Council in Basant Singh v. Brij Raj Saran Singh.

 

            In this case one K and his family were Hindu Jats.  The appellants maintained that they were governed by the Mitakshara law in matter of adoption of an orphan.  The respondents maintained that at the time of his migration in 1858, K was governed by the Customary  Law of the Delhi District, that he carried it with him to the Meerut District and retained it till his death.  Held, that the Customary  law of the Delhi District appoied in this case and there was no reason for excluding the adoption of an orphan under the latter.

 

            In Ramkishore v. Jai Narayan (49 Cal. 120 P. C.), the family were Hindus of the Dhusar caste who about 1836 had migrated into the Central Provinces from the Gurgaon district of the Punjab.  The defendants pleaded that the family was governed by the Customary  law of the Gurgaon district and not by Hindu Law, and that the adoption was valid according to the Customary  law.  The plaintiffs by their reply pleaded that the Dhusars were not agriculturists and were not governed by any tribal custom.  Held, that the parties were not governed by the Customary  law of the Dhusars of the District of Gurgaon.

 

            Where the adopter formerly lived in Jalandhar and some sixty years before, when Government required his land for cantonments and he was given an agricultural area in Hoshiarpur, still holding in Jalandhar District a large occupancy holding, where he principally resided, held, the Jalandhar custom should be followed, though perhaps contra if he had settled entirely in Hoshiarpur.

 

            In Wansa Ram v. Mst. Uttam Bai, a case relating to Bhatias of Bannu District, it was observed by  Robertson, J.: “The parties are Bhatias, who came originally from the Gujarat tract of the Bmbay Presidency, and it is fact of importance in this case that under the personal law binding the Bhatias of Gujarat, the rights of sisters to succeed to the whole estate of their brothers is fully recognized.  The law applicable where personal law applies, is personal and not local, so that Bhatias if found to be under personal law and not custom, would prima facie be held to be under the personal law  which they brought with them, and not the local law of other persons in the locality in which they have come to reside.”

 

            Similarly, in Mst. Jamna Devi v. Chuni Lal, it was held: “The Tewari Brahmin of Amritsar are said to have migrated from Oudh.  They are clearly a non-agricultural class.  It is to be presumed that after migration they retained the law or custom of their sect in the country of their adoption.  It is not alleged that in the country of their origin they followed any such custom as is here set up.  In a case like the present the evidence that these Tewari Brahmins, who undoubtedly at one time followed Hindu Law and who reside in a large city have, by contact with other tribes for some other reason, assimilated the agricultural custom of the Punjab where under the male agnate usually excludes the daughter and her issue, should be strong and convincing, and whereas in this case there is an entire absence of judicial decision one way or the other the instances in which the alleged custom is asserted to have been followed should be fairly numerous and well ascertained.”

 

            In the case of Jats (agriculturists) belonging to the Sunni Mohammedan community who have migrated from the Punjab and settled in Sind under a colonization scheme to cultivate land watered by the Jamrao Canal, and who have migrated as members of the agriculturist classes, bringing with them their cattle, their implements and their womenfolk to live in Sind the same life as they lived in the Punjab, it must be held that they are governed, even in Sind, by the Customary law of the Punjab in matters of succession and inheritance.  It is unreasonable to suggest that they did not bring with them when they came to Sind, their customary laws including the customary law of succession, and that the customary law excludes females with rare exceptions in the presence of males.  The Sunni Mohammedans Law does not apply to them, though they are Sunni Mohammedans.

 

            It is generally true that customs of inheritance are tribal rather than local.  If it is clearly shown that a tribe at certain locality has a particular custom, the presumption is that members of the tribe migrating elsewhere from that locality would carry their customs with them.

 

            Though it is not doubt correct to say that persons carry their own customs along with them it does not follow that they retain those customs unchanged after long residence amongst other tribes holding different customs.

 

(22)      Principal agricultural  tribes  of  the  punjab—Law or custom applicable

 

            (a)        Arains.

 

Arains, being one of the dominant agricultural tribes in the Province, are presumably governed by Customary  Law.

 

            As already stated, Arains form one of the principal agricultural tribes of the Punjab and presumption in their case would therefore be that they are governed by  Customary  law in matters of succession, alienation etc.  Their customs are more favorable to females than those of other tribes.

 

            But where the occupation of the members of a certain Arain family (of Ambala Cantonment) had been service for many past generations and never agriculture and where they were not shown to have anything in common with the agricultural communities, it was held that the mere fact that they belonged to the Arain tribe was not sufficient to establish that they followed custom and not their personal law because the personal law of the parties had to be applied unless they prove custom.

 

Custom applies

 

Arains of Jalandhar City

 

            It was observed in Taj Mohammad v. Sayed Muhammad: “Now, the Courts below have, after a careful survey of the entire evidence on the record, reached the conclusion that the testator was an Arain, and that the original home of the family was Vairowal in the Amritsar District, from which they migrated to Jalandhar.  This is a finding of fact, and cannot be impeached on second appeal.  The Arains being an agricultural tribe in the Province, we start with the initial presumption that the members of this family, like other agricultural tribes, are governed in matters of testamentary and interstate succession by the ordinary Customary law; and this presumption is not rebutted, though its force is weakened, by the fact that Hidyat Ullah, the ancestor of the family, and his descendants instead of adopting agriculture as their profession became employees of sorts in the Kapurthala State and other places.  The learned Judge of the lower Appellate Court is right in thinking that the members of the family at some remote time probably cultivated land, and that custom, rather than the personal law, was applicable to them at that time at any rate.

 

            “We are fully aware of the abstract proposition of law laid down in 110 P. R. 1906 that a part from the particular facts of a case, the onus lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and that it is not sufficient to show that in regard to certain other matters he is governed by custom.  But the onus shifts at once, when we deal with a tribe, which is one of the dominant agricultural tribes in the Province, and to which the ordinary agricultural custom is generally applicable; more especially  when we find that all the instances are in accordance with custom, and that in the matter of alienation inter vivo, which is so closely connected with the power of testation, the principles of customary law have been followed.  In the conclusion reached by us we are fortified by the fact that there is not a single instance in the family showing that Mohammedan Law has ever been observed in any matter, whether succession or alienation.”

 

            The above observations show that in this particular case the learned Judges came to the conclusion, on the evidence, that the parties were governed by custom, and laid stress on the fact that there was not a single instance in the family showing that Mohammedan Law  had ever been observed in any matter.  In a case in which the parties were Arains of Jalandhar City whose family never followed agricultural pursuits, held, that it could not be presumed that the parties were governed by Customary  law, merely because they were Arains.  Bevan-Petman, J., in distinguishing 122 P. R. 1916, remarked: “The decision in 122 P. R. 1916, which also related to Arains in Jalandhar City, is distinguishable in that; in that case it was proved that the ancestors of the family were agriculturists who had migrated to Jalandhar.  Apparently the head-note in that case states the findings too generally.”

 

Arains of Lahore City

 

            In Mahomed Din v. Ahmad Din the parties were Arains by caste, and resided in Lahore city but they owned land in the neighbourhood of the city, and cultivated their own land, and admittedly depended entirely upon agriculture for their living.  Held—“The principal appellant, Mohammad Din frankly admitted before us that his family are agriculturists in the strict sense and that they cultivate their own lands and make their living by agriculture.  In the circumstance, seeing that the parties are members of a large agricultural tribe, we can find no justification for differing from the concurrent finding of the courts below upon the point, especially as plaintiffs have been able to cite at least three instances where among Arains of this class and residents of Lahore City, the customary rule of representation was recognized in matters of succession, grandsons succeeding along with sons.......... Obviously this case (23 P. R. 1897) is no authority for holding the present parties who are true agriculturists and actually cultivated their own lands to be bound by Mohammedan Law simply, because as a matter of convenience to themselves they live in Lahore City.” 

 

            Where the land in dispute was situated in a suburb of the city of Lahore and was included within the municipal limits and had not been used for agricultural purposes since 1902, and had been built upon and all the lands contiguous to it were also occupied by buildings, and there was no proof that it was ever actually cultivated either by the plaintiff’s father or his grand-father, and it was found that the plaintiff’s father was earning his living by serving as a gardener and his ancestors had lived inside the city, it was held that it was for the persons contesting alienation to show that they are governed by customary law and not by personal law.

 

Arains of Muzang

 

            In Imam Din v. Dulo which was a case relating to Arains of Muzang (a suburb of Lahore) it was conceded that custom and not the shara governed the parties.

 

            Among Arains of village Muzang daughters have the same power of alienation of their father’s property as a male proprietor and hence they cannot alienate it except for necessity.

 

Gul-farosh Arains of Lahore and Amritsar City

 

            In Miran Baksh v. Mst. Allajawai, it was held that among gulfarosh Bhatti Arains of Lahore and Amritsar no special custom contrary to Mohammedan Law had been proved under which brother’s sons exclude sisters from inheritance.  The case was not one of gift or will but of succession pure and simple and the ruling does not lay it down that these Arains do as a matter of fact follow Mohammedan Law generally but merely that, being city people and non-agriculturists, a special custom anent this particular matter of succession must be made out,

 

            Mst. Talia Bibi v. Mehr Baksh, is another case of Lahore gulfarosh Arains.  There a lady had gifted to her daughter property which had many years before been gifted to herself by her late husband and it was held that the onus of proving a special custom contrary to personal law was on the person asserting it and had not been discharged.  Commenting on this case Johnstone and Shah Din, JJ., observed in Rohim Baksh v. Umar Din: “The decision of the Bench proceeded really on two grounds, viz., that the plaintiffs, collaterals of that husband, had not proved a special custom allowing control by them of the widow’s gift, and that the gift to the widow was so old, and was so clearly an out-and-out-gift, that she had certainly by it and by lapse of time become absolute owner and so was emancipated from all trammels of custom, if any existed....... It is impossible to deduce from this any authority to the effect that among these same people a man can control the act of his brother who wills property to his wife, daughter and son-in-law.  At most the ruling can only be used in connection with the laying of onus, and even so we do not think the onus a heavy one.  The evidence as to custom was not discussed, but only alluded to in very general terms.”

 

            In Rahib Baksh v. Umar Din, it was held that among the gul-frosh Arains of Lahore City there is a custom of will-making contrary to Mohammedan Law.  The burden of proving such a custom lies on the person who asserts it. but in view of the fact that the tribe is a mere fragment of a very large body of  Arains, who are agriculturists and follow, except as regards certain things ordinary Punjab custom, the burden is not a heavy one.  It was observed: “We find that in this comparatively small section of Arains of Lahore City in the last 20 years or so several wills have undoubtedly been executed and that in more than one connection Mohammedan Law is departed from.”

 

            Gul-farosh Arains of Amritsar City, the family not having entirely abandoned agriculture, are governed by Customary Law.

 

Arains of Batala (Gurdaspur District)

 

            As Arains are stated in the Riwaj-i-am to be governed by the Customary Law in matters of succession it must be held that the initial presumption is that with regard to succession to dower debts also the provisions of the Customary  Law will be applicable.  It these circumstances the onus of proving that the provisions of the Mohammedan Law should be applied to succession with respect to dower debts rests heavily on the plaintiffs.  The onus was not discharged in this case and Customary   Law was held applicable.  In matters of succession including succession to a debt due on account of dower, the Arains of Batala are governed by Customary Law.

 

Arains of Sialkot District

 

            By custom prevailing among Arains of Sialkot district, daughters succeed to the self-acquired property in preference to collaterals.

 

            Amongst them a daughter has a locus standi to challenge alienation by mother.

 

Arains of Muzaffargarh

 

            Arains of Muzaffargarh follow custom in matters of guardianship.  100 P. R. 1891—Sirsa, widow’s estate not forfeited on remarriage.

 

Personal Law applies

 

Arains of Subzimandi, Delhi

 

            In Fakhr-un-Nisa v. Malik Karim Baksh, the parties, though of Punjab Arain descent, had for many generations lived amongst, and given themselves out as Mohammedan Sheikhs of Subzimandi, a suburb of Delhi, and though owning land, did so rather as market-gardeners and capitalists than as true agriculturists.  Held, that the onus of proving that in matters of succession daughters and not by their personal law—in the present case Mohammedan Law—was upon defendants who asserted it; and found, upon the evidence and the facts of the case, that defendants had failed to establish the existence of any such family custom, or to prove that the parties were not governed by Mohammedan Law.

 

25 P. R. 1882—Bhattis of Lahore and Amritsar, in succession Non-agricultural flower-sellers.

 

73 P. W. R. 1908—Flower sellers of Lahore City, in alienation.

 

C. A. 1158 of 1919—Jalandhar City, living in city and occupied in trade.

 

            (b)        Awans:

 

            Awans are practically pure agriculturists who follow custom.  Their customs permit often of wider powers of alienation than other tribes.

 

            Custom applies:

 

            Awans of Peshawar were found to follow custom in matters of alienation.  Similarly Awans residents of the town of Rawalpindi were found to be governed by Mohammedan Law, in matters of succession.

 

            Personal Law applies:

 

            In matters of succession the Awans of Ludhiana City, who were for generations past dependent either upon service or other independent means of livelihood, were held governed by Mohammedan Law and not by custom.

 

            Awans of Bannu were also found governed by personal law in matters of alienation.

 

            (c)        Bhatti Rajputs:

 

34 P. R. 1881—           Sirsa, follow custom in alienation, Hindu converts to Islam 600 years, and always agriculturists.

 

4 P. R. 1916—             In matters of succession, Bhatti Rajputs of Mauza Kum, tehsil Pind Dadan Khan, follow custom and not Mohammedan Law.

 

A. I. R. 1928—            Mohammedan Bhatti Rajputs of Rawalpindi

Lah. 954 (2);                           Town, carrying on business as contractors;

111 I. C. 354               Held, that custom and not Mohammedan Law applied.

 

            “There is evidence on the record that Bhatti Rajputs of this village form a compact village community and have been notified as an agricultural tribe under the Punjab Alienation of Land Act.  The mere fact that a certain member of this tribe had given up agriculture as a profession and carried on contract within the town of Rawalpindi is by itself insufficient to rebut the presumption that he was governed by customary law.”

 

 

            (d)       Biloches:

Custom applies:

 

119 P. R. 1907—         Gurmanis of Dera Ghazi Khan, in succession.

 

1934, 15 Leh. 425—    Gishkori Biloches of Dera Ghazi Khan, are           

(F. B.)                          governed by customary law and not Mohammedan Law.

 

 

Personal Law applies:

 

C. A. 994 of 1889—   Natkanis of Dera Ghazi Khan, in succession.

92 P. R. 1908

 

C. A. 199 of 1895—   Natkanis of Dera Ghazi Khan, in alienation succession.

 

            The conclusion is not that Biloches strictly follow Mohammedan Law, but that their custom of agnatic succession is greatly influenced by the spirit of Mohammedan Law.”

 

66 P. R. 1902—           Jatois of Mauza Mangrotha, Mozaffargarh, in succession.

136 P. R. 1908—         Lagharis of Dera Ghazi Khan, in succession.

 

            “Owing to their proximity to the frontier and their slight connection with the Punjab, though agriculturists; proof should be obtained that they follow custom, and not Mohammedan Law.”

 

            (e)        Dhamrayas:

 

67 P. R. 1910—           Shahpur, follow custom in alienation.  A small endogamous agricultural tribe; one of the miscellaneous Shahpur tribes.

 

            (f)        Dogras:

 

35 P. R. 1909—           Amritsar, follow custom in succession.

 

            (g)        Gujars:--An essentially agricultural tribe, following custom.

 

95 P. R. 1882—           Gujars, follow custom in matters of succession.

 

            (h)       Jats:

 

            Jats form an essentially agricultural tribe and are almost universally governed by custom.

 

            Custom applies:

 

26 P. R. 1885—           (Mohammedans) Ranjhas of Mauza Wan, Tehsil Bhera,  Shahpur, in alienation and succession.

 

73 P. R. 1893—           (Mohammedans) Utheras of Dera Ismail Khan, in succession.

 

48 P. R. 1909—           (Mohammedan) Dabs of Jhang, in alienation and succession,

 

            “Mohammedan Jats, resident in the central districts of the Punjab are ordinarily governed by customary law, and the Jhang District is not so far west as to induce us to hold that a special custom following Mohammedan Law, exists.”

 

58 P. R. 1905—           (Sikh) Sidhus of Mauza Atar, Amritsar, migrants in A. D.            1580, from Jasalmir.

 

38 P. R. 1909—           (Sikh) Gils of Mauza Bhama Kalan, Lahore, in alienation.  Jat    village, Chimas having Jat Got; Kamins holding land for 200   years; large holding of 1600 Kanals, purely agriculturists for   generations.

 

154 P. W. R. 1912—   (Hindus) of Tehsil Kaithal, Karnal, in alienation and succession.

167 I. C. 693—           Majitha family of Amritsar District who were presumed to follow the custom binding upon their tribe—Gil Jats.

 

            “Prima facie, the ordinary agricultural customs of the Punjab apply to Jats, even though members of a once ruling family.  See also 1935, 57 All. 494 (P. C.), where the custom prevailing among the jats of the Delhi District, was applied in the case of the last male holder, an adopted son of the Raja of Ballabgarh, a dependent of the old Delhi Emperor.  It was pointed out by the Privy Council that he was a “Chief who held the position rather of Jagirdar than of native Prince.”

 

            Personal law applies:

 

(Mohammedans)

43 P. R. 1884—           Mauza Chakneola, Gujrat, in alienation.

116 P. R. 1892—         Kalrus of Multan, in succession.

117 P. R. 1901—         Channars of Tehsil Lodhran, Multan, in succession.

193 P. W. R. 1913—   Jullundur, in succession where custom affords no guide, otherwise ordinarily custom.

(Hindus)

 

13 P. R. 1919—           Kalrus of Mauza Nawabpur, Tehsil Multan, in succession.

 

            (i)       Kambhos.

 

A. I. R. 1927               Kambhos of Lahore Town, follow Muhammadan

 Lah. 642:                    Law in matters relating to alienation.

103 I. C. 665: 

9 Lah. 120.

           

            “The presumption in favour of restricted power of alienation applies to members of agricultural tribes who are members of village communities. but where a family, through member of an agricultural tribe, has altogether drifted away from agriculture as its main occupation, and has settled for good in urban life and adopts trade, industry or service as its principal occupation and means and source of livelihood, no initial presumption exists.”

 

            (j) Khokhars.

             Custom applies.

           

94 P. R. 1891—           Agriculturists of Jhelum, in alienation.

35 P. R. 1896—           Agriculturists of Tehsil Gujarat, in adoption and alienation.

31 P. L. R. 588—        of Khanpur village in Lahore Tehsil; by a custom prevailing among them a sister excludes collaterals of 7th degree in succession to self acquired immovable property.

 

            Personal law applies.

 

90 P. R. 1910—           In matters of alienation, khokhars of the town of Gujarat (who are not dependent upon agriculture as a means of livelihood) do not follow custom but Mohammedan Law.

 

            (k) Mughals.

            Custom applies.

           

71 P. R. 1892—           Mauza Kharkhaunda, Rohtak, in succession.

51 P. R. 1896—           Mughal Khels of Bannu, in succession.

C.A. 213 of 1906—    Tehsil Pind Dadan Khan, in succession.

125 P. R. 1916—         Makhad, Allock, own custom in succession;

                                       traders.

 

Personal Law applies:

 

104 P. R. 1881—         Rawalpindi in alienation and succession, though not in all respects.

71 P. R. 1908—           Kilchis of Mudki Town, Ferozepore, in adoption.  Agriculturists for a century, only one family in the neighbourhood.

 

(l)         Mughal Barlas:

           

The family of Mughal Barlas of Qadian, Tehsil Batala, District Gurdaspur, is governed by Mohammedan Law and not by custom in matters of alienation of ancestral land.

 

            (m)      Pathans:

            Custom applies:

Muttazai Pathans; Basti Mithu Sahib, a suburb of Jalandhar City:

           

Muttazai Pathans of Basti Mithu Sahib, (a suburb of Jalandhar City) being agriculturists, are presumably governed by agricultural custom in matters of succession and alienation.  “In spite of their foreign origin and first settlement in the Bastis as horse dealers there is nothing at present to distinguish these Pathan agriculturists from the surrounding agricultural tribes.  They have lived by agriculture in groups from generations.......  these Pathans, though they may have come to Jalandhar as horse dealers, yet inasmuch as they have settled  down as a compact village community and have apparently for six or seven generations lived by agriculture can fairly be styled agriculturists...  In view of what has become their hereditary occupation, viz., agriculture, and also in view of the fact that the village is situated in the midst of the population following the rules in regard to succession to ancestral estate and alienation thereof, which are known as Punjab agricultural custom, it can reasonably be presumed that the powers of alienation of ancestral landed estate possessed by a sonless proprietor in the village are restricted.....  It does not necessarily follow, merely because these Muttazai Pathans originally case from Peshawar, that they are governed by strict Mohammedan Law.”

 

Lodi Pathans of Ambala District:

 

            In matters of inheritance Lodi Pathans of Mauza Mustafabad of Ambala District follow agricultural custom and not their personal law, and the presumption is that among them first cousins succeed to ancestral estate in preference to daughters. When the daughters seek to rebut this presumption the onus lies on them to establish their prior right.

 

Mian Khel Pathans, Jaqlandhar:

 

            Mian Khel Pathans of Mauza Riayatpur; Tehsil Nakodar, arein matters of alienation governed by custom and not by Mohammedan Law.

 

            “In the case of a tribe that undoubtedly did once follow its personal law, it is for the party asserting that it now follows custom, to prove the point.  In such a case proof that the tribe has adopted this or that rule of custom followed by Jats is no warrant for holding that it must follow all the other rules governing Jats.  There may, of course, be rules of custom so intimately and indissolubly connected with each other that the adoption of one necessarily implies adoption of the other, but in such a case the raison d’entre of the two rules would be alike.  In an exogamous tribe a rule preventing alienation to a daughter or a sister or a niece has the same motive behind it as a rule prohibiting transfers direct to an outsider, while, in a tribe like Pathans, the adoption of the former rule would imply a different motive from that which compelled the adoption of the latter rule.

 

8 P. R. 1874—             Mauza Sewhi,  Gurgaon, in alienation and succession.

99 P. R. 1880—           Daudzais of Mauza Nagal, Tehsil Kaithal, own custom in adoption and alienation.

80 P. R. 1887—           Mauza Shinke, Attock in succession.

98 P. R. 1883—           Ghoris of Mauza Gurian, Sialkot, in adoption.

89 P. R. 1886—           Kasurias of Bannu, in succession.

170 P. R. 1888—         Tehsil Dipalpur, Montgomery, in alienation.

68 P. R. 1889—           Agriculturists of Peshawar, in succession.

3 P. R. 1890— Agricultural Abbas Khels of Bannu, in succession.

21 P. R. 1892—           Lodhis of Tehsil Nakodar, Jalandhar, in adoption; agriculturists.

27 P. R. 1896—           Agricultural Lodhis of Hoshiarpur, in alienation and succession.

68 P. R. 1896—           Mitha Khels of Peshawar, in succession.

80 P. R. 1901—           Agriculturists of Peshawar, own custom in alienation, differing from ordinary customary law.

85 P. R. 1916—           Mauza Shahabad, Tehsil Thanesar, Karnal, agriculturists, in matters of succession.

1928, 114 I. C. 714— Attock District.

 

Personal Law applies:

           

85 P. R. 1887—           Panipat Town, in succession; owners of land outside.

36 P. R. 1889—           Agriculturists of Keshopur, Sirsa, in succession.

5 P. R. 1895—             Manuzais of Tehsil Ajnala, Amritsar, in alienation on point where custom is silent.  Afghan settlers.

51 P. L. R.—               Lodhi elephant drivers of Lahore city, in succession

1904

14 P. R. 1912—           Ferozepore, in matters of will.

270 P. L. R.—             Kunjpura, Karnal, in alienation.

1913

 

            “The initial presumption in favour of restricted power of alienation of ancestral property applies to members of agricultural tribes, who are members of village communities.  But where a family, though belonging to an agricultural tribe, has altogether drifted away from agriculture as its main occupation, has altogether drifted away from agriculture as its main occupation, that presumption no longer attaches in the case of such a family,”

 

C. A. 3155 of—          Non-agriculturists of Ludhiana city, in succession.

1915

1920, 2 Lah.—            Pathans (Ludhiana city), non-agriculturists, and residents of the L. J. 450           cities, are governed in matters of succession and inheritance by Mohammedan Law and not by custom.

 

1924, 6 Lah.—            Village Kutel, District Karnal, agriculturists;

L. J. 340                       Mohammedan  Law applied. 

 

1913, 20 I. C.—          Pathans of Karnal, Mohammedan Law applied.

207

1934, 16 Lah.12—      Non-agricultural Pathans in the Punjab are governed by Mohammedan Law; Baraich Pathans of Ludhiana city, not   connected with agriculture and political prisoners; held  Mohammedan Law and not custom applied.

 

            (n)       Rajputs—An essentially agricultural tribe following custom.

Custom applies:

           

79 P. R. 1889—           Mauza Gharaunda, Karnal, in alienation.

12 P. R. 1901—           Bandas of Ludhiana city, in alienation. Agriculturists residing   in city; land situated in a village founded by them.

4 P. R. 1916—             Bhattis of Mauza Kum, Tehsil Pind Dadan Khan, Jhelum, in alienation and succession.

 

1926, 7 Lah. 117—     Chauhan Rajputs of Mauza Bahors Kalan, in the Gurgaon district, being agricultural Rajputs for many generations past, ordinarily governed by custom and not by Hindu Law.

 

Personal Law applies:

           

54 P. R. 1890—           Chauhans of Hoshiarpur in succession.

43 P. R. 1908—           Ludhiana, so far as succession to dower is concerned,  otherwise custom.

55 P. R. 1908—           Ferozepore, in alienation; Government servants who had  acquired urban immoveable property out of income.

 

            “In matters of alienation, descendants of a Rajput, who had acquired urban immoveable property as a means of investment out of his earnings in Government service should not be presumed, merely because they were Rajputs, to be governed by the general rules of Customary Law.

 

            “The presumption in favour of a restricted power of alienation of ancestral immoveable property applies only to members of agricultural tribes who are members of village communities and whose main occupation is agriculture but not to those who have altogether drifted away from agriculture as their main occupation and have settled for good to urban life, and have adopted trade, industry or service as their principal occupation.”

 

            1930, 12 Lah. 86—In matters of alienation of ancestral property, Majawars of the shrine of Data Gunj Bukhsh at Lahore, who described themselves as Rajput Sheikhs, but whose principal source of livelihood was earnings from service at the shrine, and who had nothing to do with plough or with village communities, are governed by the Mohammedan Law and not by custom.  In this case the parties were no doubt Rajputs which is one of dominant agricultural tribes in the villages of Lahore district, but it was not established that the Majawars had anything in common with Mohammedan Rajputs living in rural areas and following agricultural pursuits.

 

            1935, 159 I. C. 702—Maliks of Jalandhar City, who have drifted away from agricultural follow Mohammedan Law.

 

            (o)        Sials:

            Custom applies:

           

50 P. R. 1885—           Mauza Guniana, Jhang, in succession.

53 P. R. 1910—           Miralis of Tehsil Kabirwala, Multan, in alienation and succession.  Agriculturists.

 

            Personal Law applies:

           

48 P. R. 1909—           Jhang Sials werefor many years the ruling race, and there are obvious reasons for Sheikhs, Biloches and Sials modifying the general custom by Mohammedan Law in inheritance.  They would naturally follow Mohammedan Law in the first instance, and any custom adopted by them would be considerably influenced by that law.

 

30.       NON-AGRICULTURAL  TRIBES

 

            (a)        Aggarwals (Mahajans and Banias).

            Personal Law applies:

 

62 P. R. 1880—         Aggarwals, Delhi City, in adoption.

9 P. R. 1884—             Peshawar, in succession.

110 P. R. 1884—         Aggarwals of Jagadhri, in succession.

67 P. R. 1888—           Probably all non-agriculturists, in succession.

103 P. R. 1891—         Basals of Jalandhar, in succession.

97 P. R. 1898—           Jagraon Town, in adoption.

78 I. C. 717—             Mauza Devi Nagar tehsil Kharar, district Ambala in matters of succession.

A. I. R. 1927—            Among the Aggarwal Banias of Hissar district there

Lah. 47: 98                  is no custom excluding a daughter from succession to the self-   

I. C. 881 (2)                 acquired property of her father in the presence of his   collaterals.

 

A. I. R. 1938—            Nauhria Aggarwals of Dharam Kot do not follow

Lah.609:178                custom  but  Hindu Law.

I.C. 316:40 P.L.R. 1912

 

Custom applies:

 

31 P. R. 1874—

(F. B.)

 

Jagadhri, own custom, succession.  A special custom entitling sons of a separated brother to share with surviving brother self-acquired estate of cousin with whom he had re-associated.

71 P. R. 1882

Karnal, own custom in succession.

39 P. R. 1884--

Aggarwals of Gurgaon, non-agriculturists holding land in village for 100 years.  No presumption of high-caste Hindu, not residing in the city, following law in succession.

55 P. R. 1895

Aggarwals of Bhiwani, do not follow strict Hindu Law in alienation.  A widow cannot make a gift of her husband’s property, and daughters are not entitled to succeed in the presence of collaterals.

 

68 P. R. 1909

Ludhiana City; near collaterals exclude daughters in succession to ancestral property.

102 P. R. 1913 P.C.

Aggarwals of Zira, own custom in adoption, but case not to be considered as a precedent.

45 P. R. 1916

Tehsil Muktsar, Ferozepore, adoption; holders of land.

A.I.R. 1937 Lah. 609

Among Aggarwal Banias of Ambala District, the collaterals succeed in preference to daughters.

A. I. R. 1937 Lah. 635

In the Ambala District among the Banias the daughters are excluded from inheritance by the collaterals in respect of ancestral and self-acquired property.

A. I. R. 1937 Lah. 710: 39 P. L. R. 912:175 I. C. 542

Though the Mitakshra law does not recognize theright of representation in succession amongst collateral heirs, yet amongst the Aggarwal Mahajans of Rohtak District, the rule of law has been modified by custom, and such right is recognized by custom, and the nephew is allowed to succeed along with the uncle to the property of a deceased sonless uncle.

 

(b)

Aroras.

Personal Law applies:

 

C. A. 1422 of 1887

Multan City, in alienation and succession.

67 P. R. 1888

Probably all non-agriculturists in succession.

21 P. L. R. 1901

Ferozepore City, moneylenders who had bought agricultural land.

C. A. 769 of 1903

Traders.

93 P. R. 1905

Mauza Kuri, Rawalpindi, traders, in alienation.

99 P. R. 1907

Amritsar city, in succession.

     

        “In a case relating to high caste Hindus residing in town the burden of proving that the parties follow any custom in derogation of their personal law lies heavily on the person alleging the custom.”

115 P. R. 1907

Mauza Bhin, Tehsil Chakwal, Jhelum, in alienation, Malik Kabza owning no share in shamilat, non-cultivators, owned land for two generations, living in a Mohammedan village where Mohammedan Law observed to a large extent.

33 P. R. 1915

Khattars ofMultan City, non-agriculturists owning land.

     

        “It is true that.....as far back as 1824 the ancestor acquired certain land and that the family has held land ever since, but on the other hand it is not shown that any member of the family has ever cultivated with his own hands...... The family is not mainly dependent on agriculture, but on shop keeping or service.....  We start then with the fact that we are dealing with a family of Aroras, living in a large town, and not agriculturists, though owning land.  The initial onus of proving that such a family is governed by agricultural custom and not by personal law lies on the defendant (brother of deceased), who undoubtedly would succeed to the property in suit according to the general agricultural custom of the Punjab—the property being ancestral—but who has no right to exclude the daughter (the plaintiff) if the family be governed by personal law..... We do not forget that the property in question in the present case is landed and ancestral property, but still we hold that the parties being non-agricultural Aroras and residing in a town, the burden of proving that the daughter is excluded rests on the defendants, for the daughter would succeed to her father’s whole estate under personal law.  The parties being Aroras living in a town, the presumption is that Hindu Law applies, and sowe hold that the onus of proving any custom opposed to Hindu Law has rightly been placed on the defendant.”

 

86 P. R.  1915—

Mauza Vidar, Dera Ghazi Khan, generally.

92 P. R. 1915-

Multan, in matters of alienation.

168 P. W. 1915-

Multan, in alienation.

C. A. 1724 of 1916

Mauza Taunsa, Dera Ghazi Khan.

A. I. R. 1937 Lah. 50 :39 P. L. R. 729: 175 I. C. 320

Amarapuri Aroras of Multan are governed by the Hindu law and not by custom.

 

Follow custom:

 

 

25 P. R. 1873

Multan, own custom, in succession.

144 P. R. 1882

Multan city; parties agreed they were bound by custom in alienation and succession.

85 P. R. 1884

Multani Aroras residing in Amritsar; parties agreed that they were bound by Multan custom in succession.

148 P. R. 1890

Dera Ismail Khan and Bhakkar; own custom in succession.

62 P. R. 1902

Non-agricultural shopkeepers of Kasur; own custom in succession.

5 P. R. 1913

Mauza Pasianwala Sialkot, in succession to agricultural land.

108 P. L. R. 1915

Dakhnas of Multan, own custom in succession.

86 P. R. 1915

Mauza Vidar, Dera Ghazi Khan, follow custom in regard to profits from ancestral property being considered self-acquired, residents in agricultural village.

 

            “The parties are Aroras, and in the ordinary way would be presumed to be governed in all matters connected with alienation of and succession to property by the principles of Hindu Law.  On the other hand they have for sometime past been living in a village surrounded by members of an agricultural tribe and it may well be that in some respects they have assimilated their Hindu ideas to the custom of their neighbors  We have now to see how far it is established that they have adopted such customs..... In these circumstances we are fairly entitled to assume that the parties’ family has so far departed from the tenets of Hindu Law as to adopt the customary rule that a father, in his life time, is the owner of the property, with such limits to his rights of ownership as custom may prescribe.  To this extent we accept defendants’ contention.  But they ask us to go still further and to hold that the family has not only adopted that rule of customary law—a rule which is of almost universal prevalence among agricultural tribes—but have also adopted the very unusual rule which sometimes, though rarely, obtains among agricultural tribes and gives father the right either to disinherit son from succession to ancestral property or, at all events to distribute such property unequally among his sons.  As to this we are unable to agree with counsel that the defendants have proved their case.”

 

A. I. R. 1926 Lah. 210: 7 Lah. 124: 95 I. C. 337--

 

Aroras of Muzaffargarh district, held, that by custom amongst the Aroras daughters of a sonless propertier were excluded by collaterals succeeding to ancestral property. It was said that this custom was dictated by local circumstances, the district being a rough, wild tract in which it was difficult for females to retain and manage immoveable property, and one in which the compact village community associated with the central parts of the Punjab, was practically non-existent.

 

9 Lah. 110: 102 I. C. 170.—   Aroras of Jhang District are governed by custom in the matter of succession of daughters to their father’s property.

 

1929, 122 I. C. 228—             Wadhawa aroras of Kot Abu Tehsil, District Muzaffargarh, follow custom in matters of succession.

 

1935, 155 I. C. 860—             Aroras of Khanewal, District Multan, follow custom.

 

1928, 10 Lah. 86 (P. C.)—     In matters of inheritance, the family of the parties (an Arora Sikh, who carried on a Money-lending business in the Town of Peshawar) was held governed by the ordinary customary law of the province and not by Hindu Law.

 

A. I. R. 1935 Lah. 518: 17 Lah. 61— Amongst Aroras, in Dera Ghazi Khan Tahsil and Town, daughters and their sons are excluded from succession by the collaterals of their father.

 

            “It is true that the burden is always upon the person who states that he follows custom to prove what the custom is. In the present case there are three Riwaj-i-ams attested by numerous Hindus including a large number of aroras to the effect that since 1874 the Hindus in this District have been following custom and excluding daughters from succeeding in the presence of collaterals. There are numerous instances of this custom having been followed and reason for its establishment is obvious.......... There can be no question therefore that Aroras in Dera Ghazi Khan Tahsil and Town it has been established that in the present case that daughters and their sons are excluded from succession by the collaterals of their father.”

 

A. I. R. 1937 Lah. 500. —      According to the Customary Law of the Multan District in the Punjab, the custom amongst the aroras who are the residents of villages and have adopted the professions and habits of agriturists, is that in the case of the sonless male propertier, the collaterals within the fourth degree exclude the married daughters. But it is expressly stated there that the Aroras of the towns follow their personal law. Therefore sona of the married of a deceased Amarpuri Aroras of Multan Town and governed by Hindu law take the estate of the deceased in preference to the son of the brother of the deceased in the absence if evidence that the deceased had gone to reside in a village and had adopted the profession and habits of a agriculturist.

 

(c) Bairagis

112 P.R. 1891—                      Sadhs of Amritsar, follow custom in alienation.

(d) Bakals

153 P. R. 1879—                     Raipur, Ambala, follow Personal Law in alienation.

(e) Bawarias

36 P. R. 1906—                       Tahsil Muketsar, follow Personal law in anlienation. Nomadic tribe formerly held 500 bighas but little now, village heterogeneous.

(f) Bhabras—Jains

Follow Law

20 P. R. 1897—           Saraogis of Karnal District, in adoption.

15 P. R. 1902—           Jains of Rawalpindi City, in alienation. A small compact trading community in a modern town.

 

74 P. R. 1911—           Bhabras of Kaithal, in adoption.

74 p. R. 1916—           Saraogis of Mauza Buria, tahsil Jagadhri, in succession.

 

Follow Custom

 

95 P. R. 1909—           Delhi, own custom in adoption.

 

(g) Bhatias

Follow Personal Law

 

79 P. R. 1903—           Bannu, in succession, slightly modified by custom.

79 P. R. 1913—           Khangarh, Muzaffargarh, in succession. Owners of land, shopkeepers and strict Hindus.

 

(h) Bhojkis

 

1926, 7 Lah. 555—     Bhojkis (hereditary priests) in the Palampur Tahsil of the Kangra district are, in matters of alienation, governed by  Hindu Law and not by agricultural custom.

 

            “The Pujaris of the big shrines in the Kangra District are called Bhojkis. The Bhojkis are the hereditary priests of these and other temples... The priestly character of the Bhojkis tribe or community is emphasized in a decision by the Chief Court in 27 p. R. 1880.... There is no evidence that Bhojkis have abandoned their hereditary priestly occupations and have merged themselves in an agricultural community.... There must necessarily be a strong presumption that a Hindu priestly class (like the Bhojkis of the Kangra district) follows Hindus Law.”

 

(i)       Brahmins, high caste Hindus, initial presumption is that Hindus Law governs them.

 

Personal Law applies. 

 

Of Kale Got of village Jhang Saidan in Rawalpindi district:

 

            In the case of Brahmins the initial presumption is that they are governed by Hindu Law and the burden of proof lies on the person who alleges that they are governed by custom. Brahmins of Kale Got of village Jhang Saidan in Rawalpindi District held governed by Hindu Law and not by custom. it was observed by Bhide, J.: “ In view of the pronouncement of their Lordships in 1917 p. C. 181 (45 Cal. 450) it seems to me doubtful if it is justifiable to presume that a person who would ordinarily be governed by personal law is governed by custom merely because he has taken to agriculture. it may, of course, happen that such a person or his family by long residence amongst agriculturists adopts their customs. But this is a question of fact. If he has done so it should be possible to prove this by positive instances. On the other hand, if no such instances are forthcoming, the presumption would merely be a matter of inference or conjecture and it has been repeatedly held that custom is not a matter of deduction or conjecture but should be established by positive evidence.

 

 

Of village Lakhanpal, Tahsil Phillour, District Jullundur.

 

            The first rule is that non-agricultural tribes, especially Brahmins, follow their personal law and that those asserting agricultural custom have to prove it. Brahmins of village Lakhanpal, Tahsil Phillour, District Jalandhar, are governed by their personal law and not by custom. In this case, the Brahmins of the village formed a compact village community for nearly three centuries, but on the evidence it was found that many  of them did not till the land with their own hands; but these Brahmins still include priests, their connections were largely with non-agricultural families, and many of them followed non- agricultural vocations.

 

Brahmins of Lahore.

           

            Brahmins of Lahore are governed by Hindu Law. Where the parties are Brahmins, residents of a town, and occupied in trade, the presumption is that they follow Hindu Law, and it is for them to prove definitely that they do not do so but follow a particular custom.

 

Of Pandori Mehtwan, Hoshiarour Tahsil.

 

            The Brahmins of Pandori Mehtwan, a village in the Hoshiarpur Tehsil of the Hoshiarpur District are governed by Hindu Law and not by agricultural custom in matters of alienation of ancestral property. It has been further held in this case that initial presumption in the case of Brahmins is that they are governed by Hindu Law and neither the fact that they are declared to be an ‘agricultural tribe’ in the adjoining Tehsil nor that family or tribe has departed from the personal law in one respect or the absence of instances in which Hindu Law was followed rebuts the presumption. Best evidence in such cases to determine that they are governed by Customary Law and not by Hindu Law consists of actual instances in which alleged custom has been recognized.

 

Of Gokalgarh in Ambala District.

 

            A Brahmin proprietor of Mauza Gokalgarh in the district of Ambala having sold a plot of land to the defendant, the reversionary heirs of the vendor brought a suit contesting the sale. Held, that the initial presumption in the case of Brahmins is that they are governed by their personal law, and the plaintiffs have failed to discharge the onus. Shadi Lal, C. J., observed it in this case—

 

            “In support of the custom set up by them the plaintiffs rely upon the fact that almost the whole of the agricultural land in the village belongs to Brahmins who depend mainly on agriculture for their livelihood. They also invite our attention to the oral evidence, which shows that a daughter is excluded from succession to the estate of her father, but the circumstance that a family or a tribe has departed from its personal law in one respect, namely, the in competency of a daughter to inherit her father’s property , does not necessarily lead to the conclusion that it has adopted agricultural custom in all other respects. It is conceded that there is not a single case, judicial or otherwise, in which the authority of a Brahman proprietor to alienate his ancestral land was ever challenged. On the other hand we have evidence to the effect that during the last 30 years there have been not less than 130 alienation in this village, and the witnesses for the plaintiffs themselves admit that not a single alienation has been contested........... Ambala is ethnically and by language more connected with the United Provinces than the Punjab and the Brahmas of that district follow their personal law and do not observe any custom like that of the agriculturists of the Punjab.

 

Of village Man, Tehsil Phillour, district Jullundur.

 

            Brahmans of village Man, Tehsil Phillour, district Jalandhar, are in matters of alienation presumably governed by Hindu Law and not by custom. “The village Man is a Jat village inhabited by both Hindu Jats and Mohammedan Jats who almost equally divide the village lands between them. There are only three Brahmans families in the village, including that of the plaintiffs. it is alleged that the plaintiffs had, through their ancestors, held land in this village for about four generations but it is admitted that the land had been gifted to their remote ancestors by the Jats, which must have been one of nature of a charitable gift, and these Brahmans have ever since lived in the village under the protection of the Jat proprietors.......... The probability is that the plaintiffs carry on priestly functions at least in some minor degree......... It is manifest that the Brahmans in this village whose number is very small form but a small part of the village population; and it is not at all clear that they are members of the compact village community of the Hindu Jats who are doubtless of mauza by custom.”

 

Of village Rumi Jagraon Tahsil, Ludhina District.

 

            In matters of alienation, Brahmans of mauza Rumi in the Jagraon Tehsil of the Ludhiana district are not governed by agricultural custom. The rule laid down in this case also was that the Brahmans were essentially Hindu and non-agriculturists and that the burden of proving that they had in any particular departed from their personal law and had adopted rules prevailing among their agricultural neighbors rested upon those who asserted it. It was observed: “The plaintiffs’ family have done no agricultural work themselves. No member of the family has ever owned a bullock if his own, and it is established that the family has at no time cultivated land itself. Their land has always been cultivated by third parties on batai leases. Again, plaintiffs have not discarded the sacred thread (Janeo) and it is not denied that they perform priestly functions to this day and have Jajmans who pay them the usual fee.”

 

Of village Kungiana Tehsil and district Ludhiana.

 

            The Brahmans of village Kungiana, tehsil and district Ludhiana, are governed in matters of succession and alienation by Hindu Law.  In this case the learned Judge while holding this said: “The question is primarily a question of fact and in each case has to be decided with reference to the particular circumstances alleged and proved......One principle appeared to be clearly enunciated in almost all the reported cases, namely, in a case of disputed succession or alienation on the ground of custom the universal rule is that a Brahman is presumed to be governed by his personal law and if he alleges a custom contrary to the rules of that law, he is bound to prove by cogent and clear evidence that he is governed by that custom.......... The most important criteria for determining whether a particular community had adopted and follows agricultural custom are—

(a)        whether the particular community forms a compact agricultural community by itself;

(b)        whether their source of livelihood is solely or almost solely agriculture;

(c)        whether the members of the community had given up their agricultural neighbors in matters of alienation and succession........

 

The Brahmans community (in the case under reference) is very small and the area cultivated by it is insignificant. They have continued to supplement their income from Brahmanic dues, known as brit received from jajmans.  They still wear the sacred thread.”

 

Of village Mankiala, tehsil Gujar Khan, District Rawalpindi:

 

            Brahmans ofvillage Mankiala, tehsil Gujar Khan, district Rawalpindi, are governed by Hindu Law, and not by custom in matters of succession.

 

Of village Chiragh, tehsil and district Rawalpindi:

 

            Brahmans of village Chiragh, tehsil and district Rawalpindi, were held not to be governed by agricultural customs in the matters of alienation, although many of them did not exercise any priestly functions and actually cultivated the land with their own hands, but it was not established that agriculture was their sole or even main occupation, and they did not form a compact village community.

 

Gaur Brahmans of Karnal Town:

 

            Gaur Brahmans who are residents of Karnal Town aregoverned by Hindu Law and not by custom.

 

Sarrut Brahmans of mauza Jandola:

 

            In the case of Sarrut Brahmans of mauza Jandola Tehsil Thanesar, District Karnal, the initial presumption is that they are governed by Hindu law.  The mere fact that they owned one half of the village raises no presumption that they have given up Hindu law and adopted the custom of agricultural tribes in all matters.

 

Brahmans of Dharamkot, Ferozepur District:

 

            Brahmins of Dharamkot are governed by personal law and not by custom in matters of succession.  The initial presumption in the case of Brahmans is that they are governed by their personal law and the burden of proving that they are regulated by custom lies heavily upon them.  The two facts that the family depends almost exclusively on agriculture and that the village in which the land in question is situated has a Brahmin lambardar, are wholly insufficient to rebut the presumption.

 

Joshi Brahmans

Of Hoshiarpur:

 

            There is no special custom obtaining among the Joshi Brahmans of Hoshiarpur, which overrides Hindu Law and entitles the widow and daughter of a predeceased son to succeed in preference to daughters.  “High caste Hindus living in towns and working as traders are presumably governed by Hindu law and in the absence of sufficient evidence it cannot be said that law is superseded on any particular point by custom.”

 

Of villageSaila Kalan, Garhshankar tehsil, district Hoshiarpur:

 

            Joshi Brahmans of mauza Saila Kalan, Garhshankar tehsil, district Hoshiarpur, are in matters of succession governed by Hindu Law and not by agricultural custom.

 

Dat Brahmans:

 

Of village Damun Chak, tehsil Kharian, district Gujarat:

 

            Held, that the fact that some of the members of a community of Dat Brahmans most of whom carried on trade and the business of money-lending, and of whom a large number had taken to service, cultivated their lands in a village principally inhabited by Dat Brahmans does not, in the absence of evidence that they had given up their priestly profession or of instances showing the application of customary law, rebut the presumption that in the matter of succession they are governed by their personal law......  The initial presumption in the case of Brahmans is that they are governed by their personal law, and the mere fact that a family or tribe has departed from its personal law in one respect does not necessarily lead to the conclusion that it has adopted agricultural custom in other respects,”

 

Pachchrat Brahmans of Multan City:

 

            Pachchrat Brahmans of Multan City, are governed in matters of succession of daughters, by their personal law and not by custom.  “The parties are in no way agriculturists but, on the contrary, townsfolk and members of a caste which would above all others have regard to the rules of Hindu Law.”

 

38 P. R. 1870

Jalandhar, in succession.

73 P. R. 1879

Barakars of Nur Mahal, in succession.

C. A. 1381 of 1884

Acharajs of Batala, in succession.

113 P. R. 1886

Mauza Pasrur, Sailkot, in succession.

108 P. R. 1888

Atbans of Amritsar city, in succession.

21 P. P. 1890

Agriculturists of Amritsar, in adoption.

47 P. R. 1890

Gujarat, in succession.

17 P. R. 1891

Pehwa, Ambala,in succession to birt.

141 P. R. 1894

Acharajs of Batala, in succession.

81 P. R. 1894

Parohits ofMoga, in alienation.

70 P. L. R. 1901

Non-agriculturists of Rawalpindi, in alienation.

79 P. R. 1901

Achariyas of Goler, Kangra, not bound by agricultural custom follow law except that they have own custom in adoption.

103 P. R. 1902

Mauza Manhala, Lahore, in alienation.  “Owners of 200 bighas, no share in shamilat, live largely on Jijmans, not settled with founders, initial presumption against custom.”

30 P. R. 1903

Tewaris of Amritsar City, in succession.

C. A. 915 of 1904

Mauza Gopalpur, Amritsar, in succession.

59 P. R. 1908

Do; in alienation.

C. A. 1101 of 1904

Pujaris of shrine at Tarn Taran, in adoption.

125 P. R. 1908

Mauza Adiala, Pindi, in alienation and succession.

149 P. R. 1908

Mauza Sambaka, Ambala, in alienation and succession.

95 P. L. R. 1908

Sarsuts of Mauza Gopalpur, Amritsar, in succession.

118 P. L.R. 1908

Jhelum Town, in adoption.

123 P. W. R. 1911

Jalandhar city, in alienation.

240 P. L. R. 1911

Gurdaspur, in succession.

191 P. L. R. 1913

Mauza Bahtwal, Hoshiarpur, in succession.

47 P. R. 1914

Nur Mahal, Jalandhar.

77 P. R. 1914

Mauza Jadla, Tehsil Nawashahr, Jalandhar, in alienation.

65 P. R. 1916

Mauza Mirpur, Tehsil Garshankar, Hoshiarpur.

C. A. 1176 of 1916

Ambala city.

1 Lah. 554

Tehsil Kharar, Ambala, in matters of succession.

1929, 120 I. C. 536

Brahmans of village Jodhu Dehio, District Lahore, in matters of alienation.

1931, 134 I. C. 302

Gour Brahmans of village Badli (Delhi Province).

 

Custom applies.

 

Of Ajnala, district Amritsar.

 

            Held, that the parties to the suit, Brahmans of Ajnala, district Amritsar, whose family for most part lives, and has lived in past generations by agriculture and has given up priestly functions, follow agricultural custom and not Hindu Law in matters of alienation. Johnstone, J., observed it: “Ordinarily one most important test is whether the Brahmans in question are a compact village community or at least a compact section of the village community. In such there is a strong presumption in favour of custom.”

 

Of a village in Tehsil Gujar Khan, Rawalpindi District.

 

            In Tehl Das v. Malik Singh, the Brahmans of a village in Tehsil Gujar Khan, Rawalpindi Distrcit, were essentially agricultural and owned most of the land situated in that village though some of them eked out a living by service in the army; held that they were governed by the agricultural custom.

 

Of village Dhariala, Tehsil Gujar Khan, Rawalpindi district.

 

          To determine whether Brahmans living in a village are governed by custom or Hindu Law, ordinarily one most important test is whether the Brahmans in question are a compact village community or at least a compact section of the village community. In such cases there is a strong presumption in favour of custom.

 

          A village was founded a very long time ago by the ancestors of Brahmans, got Saigan, that from the date of its foundation the majority of the proprietors had been Brahmans of this got, that the Brahmans had from the very beginning constituted a compact village some 600 or 700 were Brahmans, that there was no birt in the village, that many of them had taken to service, that such of the Brahmans who were not in service depended for their livelihood entirely upon agriculture, that the income of those who were in service was supplemented by their income as landowners, and that so far as regards succession they were not governed  by Hindu Law, as among them daughters were excluded:

 

          Held, that in view of the facts the initial presumption that the Brahmans in this village were governed in matters of alienation of ancestral landed property by Hindu law and not by custom, was sufficiently rebutted and the onus was shifted on to the party who asserted that in matters of alienations they were governed by their personal law and that their powers of alienations were restricted as those of agricultural tribes.

Of village Dhramshala in Tehsil Una, Hoshiarpur District.

 

          Held, that the parties to the suit, Brahmans of mauza Dharamshala in Tehsil Una, District Hoshiarpur, were governed in matters of alienation by agricultural custom and not by Hindu Law. “The facts found by both the lower Courts are:--(i) that the village in which the land is situated was founded by the ancestor of the parties about 9 generations ago; (ii) The Brahmans proprietors who reside in the village constitute a compact community; (iii) that they till the land in their possession with their own hands; and (iv) that the wajid-ul-arz very materially restricts the power of alienation, except for necessity. In view of these facts, I think the first court was right in holding that the initial presumption was that the parties followed custom and not their personal law.......... Further, it is proved that i this village collaterals have succeeded in some instances to the exclusion of daughters, which shows that strict Hindu Law is not applicable to the parties in matters of succession.”

 

Of village Dangoh Khurd in Una Tehsil district Hoshiarpur.

 

          In matters of alienation of ancestral land a childless Brahmans proprietor of mauza Dangoh Khurd  in the Una Tehsil of the Hoshiarpur District is governed by agricultural custom and not by Hindu Law. The Brahmans in Dangoh Khurd constitute a compact village community. It is not denied that, except some well-to-do persons, all the Brahmans of this village till the soil with their own hands; that they do not so far as the evidence on the record goes, carry on any priestly function and that among them daughters do not succeed to their father’s property in the absence of sons, as they would succeed if this class of Brahmans were governed by Hindu law.

 

Of village Alla Char in Nawashahar Tehsil Jullundher District.

 

          Dube Brahmans of village Alla Chaur in Nawansharhar tehsil Jullundher district are governed by agricultural custom in matters of alienation and succession. The fact that they wear the sacred thread, worship the Devi and follow the Vedic rites in marriage ceremonies only proves that in certain matters they follow the rites prescribed by Hindu Law. It does not, however, show that in matters of succession or alienation they are governed by their personal law.

 

Of village Tara in Batala Tehsil, Gurdaspur District.

 

          Brahmans of village Thimka, District, Gujrat, depending wholly, or almost wholly, upon agriculture for their livelihood, follow custom.

 

Mohyal Brahmans.

 

Of village Karimpur in Pind Dadan Khan tehsil, district Jhelum.

 

          Mohyal Brahmans of village Kraimpur, in Pind Dadan Khan Tehsil (District Jhelum) are governed in matters of alienation by agricultural custom. The evidence is that Mohyal Brahmans are primarily agriculturists and cultivate land with their own hands. They have been gazetted under the Punjab Alienation of Land Act as an agricultural tribe in the Jhelum district. They settled in the village along with Mussalman agriculturists of the Jalab tribe and their only occupation was the cultivation of land and not to perform priestly functions.

 

Gour Brahmans

 

Of village Chiragh, Delhi Province.

 

          The Gour Brahmans of village Chirag in the Delhi Province in the matters of succession of property are governed by a custom, which admits the right of representation so far as collateral succession is concerned. They from a village community and are governed by agricultural custom.

 

Gour Brahmans of Mauza Kharkunda, Rohtak District.

 

          In matters of succession the Gour Brahmans of mauza Kharkhunda, a’qasba’ or village situate in the old Sample tehsil of the Rohtak district, do not follow the principles of Hindu Law, but are regulated by the ordinary rules observed by the agricultural community of the Province. “The Brahnmans own a very large area of agricultural land in mauza Kharkhunda.—The Thallas in the Brahmans Mohayals have been in existence for hundreds of years and practically every Brahmans family in the mauza does agricultural work............ A reference to the Gazatteer of the Rohtak District will show that the Brahmans form a very considerable portion of the agricultural community of that district. In the present case the evidence of the record satisfies me that the parties have been settled for many generations in mauza Kharkhunda. As Brahmans they have naturally been  regarded with respect by their neighbors and have derived  income from priestly work, but I see no reason to doubt that in the main they have for some time past been as agriculturists as their neighbours.”

 

Sarsut Brahmans of Gurdaspur.

 

          Held, that in matters of succession Sarsut Brahmans of Gurdaspur are governed by the general rules of agricultural custom and not by Hindu Law, and consequently daughters and their sons are excluded by near agnates of the last male proprietor.

 

6 P. R. 1872

Mauza Mudo, Tehsil Moga, Ferozepur, in succession.

51 P. R. 1873

Daska, Sialkot, own custom in succession.

C.A. 1227 of 1874

Pehowa, Ambala, in adoption.

44 P. R. 1879

Dakots of Rupar, Ambala in succession.

149 P. R. 1883

Amritsar City, in adoption.

23 P. R. 1884

Agriculturists of tehsil Basaon, Gujranwala, in succession.

42 P. R. 1886

Agriculturists of Mauza Punabhera, Hoshiarpur, in adoption.

C. A. 289 of 1891

Agriculturists of Hoshiarpur, in alienation.

12 P. R. 1892 [F.B.]

Agricultural Kalias of Jalandhar, in adoption.

24 P. R. 1892

Mauza Bhupka, Jagadhri, in alienation.  Agriculturists and founders of the village.

90 P. R. 1892

Agriculturists of Hoshiarpur, in alienation.

116 P. R. 1893

Non-agriculturists of Mauza Kadirabad, Tehsil Phalian, Gujarat, in succession.

32 P. R. 1895 [F.B.]

Agricultural Mehtas of Mauza Thanawal, Gurdspur, in alienation and succession.

43 P. R. 1899

Agricultural Trikhas of Jhang, in succession.

74 P. R. 1889

Sarsut agriculturists of Taran Taran, in succession.

C. A. 92 of 1901

 

Mauza Thalian, Rawalpindi in alienation.

C. A. 1098 of 1906

12 P. R. 1904

Mauza Naurangabad, Tehsil Kharian, Gujarat in alienation.

86 P. R. 1904

Chiragh, Delhi, priests of Kalkaji, omn custom in adoption.

C. A. 391 of 1904

Tehsil Sampla, in succession.

26 P. R. 1905

Dats of Gurdaspur, in alienation.

83 P. R. 1905

Non-agriculturists of Karnal City, own custom in succession.

58 P. R. 1906

Sikhs of Mauza Chaowala, Jagadhri, in alienation.

94 P. R. 1907

Agriculturists of Mauza Dialpur, Kasur, in adoption.

24 P. W. R. 1907

Agriculturists of Tehsil Sampla, Rohtak, in alienation and succession.

56 P. R. 1909

Rawal, Rawalpindi, in succession.

87 P. R. 1909

Agriculturists of Mauza Charori, Tehsil Nurpur, Kangra, in alienation and succession.

36 P. W. R. 1911

Agriculturists of mauza Musapur, Jalandhar in alienation

73 P. L. R. 1912

Agriculturists of Kangra, in adoption.

7 P. R. 1916

Agricultural Gaurs of Tehsil Palwal, Gurgaon, in succession.

1935, 160 I. C. 672

Brahmans of Bannu

 

 

(j) Butchers (Kasais)

 

119 P. R. 1891

Butchers of Ambala town, widow takes entire estate, absolutely to the exclusion of sister and has full power of alienation.

 

 

 

(k)  Bara Mohmands

 

241 P. L. R. 1912

Bara Mohmands of village Chamkani, Peshawar District, follow custom and not Mohammedan Law in matters of succession.

 

 

(l)Carpenters(Tarkhans)

 

Follow Personal Law

 

 

78 P. R. 1879

(Hindus) Machhiwara, Ludhiana, in alienation.

30 P. R. 1910

(Hindus) Non-agriculturists of Amritsar City, in succession.

A.I.R. 1934 Lah. 185

147 I. C. 361

(Sikh) Tarkhans of village Chattiana Tehsil, Muktsar, District Ferozepore, are not governed by Customary  Law but they follow their Personal Law.”

 

            “A presumption  that parties follow the Customary Law in matters of alienation only arises in the case of agricultural classes and tarkhans whose main occupation is carpentry are not an agricultural class.  The burden of proving that they follow the Customary Law is on the persons challenging an alienation as being prohibited by Customary  Law.”

 

87 P. R. 1879

(Mohammadens) Lahore, in  succession.

47 P. R. 1900

(Mohammedans)  Multan City, in succession.

84 P. R. 1916

Bhutta (Mohammedans) Tarkhans of Multan City, in succession.

1925, 6 Lah. 294

In matters of alienation of ancestral property, Tarkhans of Hasan Abdal, Attock district, are governed by their personal law (Muhammaden Law) amd not by custom.

 

 

Follow Custom

 

22 P. R. 1192

(Agriculturists of ) Jhelum, in alienation.

23 P. R. 1911

(Mohammedans) Agriculturists of Kotli Tarkhanas, Sialkot, in alienation.

56 P. R. 1917

(Mohammedan) Mauza Bhargi, Attock, in alienation of Muqarraridari rights.

A.I.R. 1934 Lah. 481:15 Lah. 828

(Mohammedans) Uppal Tarkhans of Shorian in the Kharian Tehsil of Gujarat District.

 

          “There is ample evidence on the record that Uppals are the only landlords of the villages and that they follow other customs of agriculturists which are not in accordance with Mohammedan Law. They live by agriculture, though some of them practice as tarkhans to supplement their earnings. The only lambardar  of the village is of their tribe. No example of Uppals following Mohammedan Law has been given.”

 

1931, 133 I. C. 113

Ramgahia Tarkhans of Phillour; custom applied; primarily dependent on agriculture, and carpentry not their main occupation.

 

(m)     Chimbas

 

1926,96 I. C. 998—Chimbas of village Bhalur, Tehsil Moga, district Ferozepore, are governed in matters of alienation by Hindu Law and not by custom.

 

“Chimbas according to Ibbetson’s ‘Punjab Caste’ are properly calico printers, hardly to be distinguished from dhobis, purely artisans, not village menials except as washermen, but often combining washing with dyeing and stamping, and very commonly working as tailors. The presumption is against such s tribe following the customs of agricultural tribes..... In default of proved instances of observance of the custom alleged the most important test as emphasized in 38 p. R. 1909, is whether the artisan tribe under consideration has so far abandoned its hereditary calling and adopted the profession of agriculture as to assume the status of a member of the purely agricultural community, occupying unmistakable a grade therein although perhaps a lowly grade. This I hold that the plaintiffs on whom the onus lay, have failed to prove in the present case.”—Per Campbell, J., Forde, J., concurring.

 

 

 

(n)       Dhusars

 

56 I. C. 822

Residents in Central Provinces, migrated from Gurgaon, in matters of adoption.

 

 

(o)       Girths

 

10 P. W. R. 1914

Kangra, Hindu Law applied in alienation and succession, where custom silent.

 

 

(p)       Gosains

 

135 P. R. 1884

Gharbaris of Tilok Nath, Kangra, follow personal law in succession.

 

 

(q)       Hajams(Nais)

Barbers:

67 P. W. R. 1910:6 I.C. 986

In matters of alienation and succession, Nais (barbers) of Shahabad, in the Karnal district, who sometimes own land but are not mainly dependent on agriculture for their support, are not governed by Mohammedan Law, but by ordinary agricultural custom.

 

          “The parties are Nais, converts from Hinduism, living in part of the country largely inhabited by Hindu cultivators.  It is not a case of their ado0ting the customs of agriculturists of another religion so much as of their falling into line with the customs of persons following the religion which the parties themselves originally professed.”

A. I. R. 1933 Lah. 184

Barbaers residing in Gurdaspur town are not governed by custom but by Mohammedan Law.

A. I. R. 1939 Lah. 525 :41 P. L. R. 572

Hajjams of a town are governed by Mohammedan Law in matters of succession

 

 

(r)       Hijras

 

67 P. R. 1913

Delhi, own custom in successio.  Mohammedan relatives of a deceased Hijra of Delhi, not themselves members of that community, have no right of claim to a share under Mohammedan Law in his property in presence of his disciple, where such property has been acquired in exercise of the special profession. 

 

 

(s)       Janjuas

 

122 P. R. 1884

Mauza Bijwala Dittan, Salt Range, Jhelum, follow custom in alienation.

 

 

(t)       Jhiwars

 

96 P. R. 1905

Agriculturists of Hoshiarpur, follow custom in alienation, cultivators for generations.

158 P. L. R. 1908

Mauza Jagatpur, Amritsar, follow personal law in alienation.  Holders of but not cultivators of land.  Case of a Kahar, whose original home was unknown, who bought an estate and settled sons on it, who however did not cultivate.

A. I. R.1934 Lah.

800 Sikh Jhiwars (District Ludhiana), though following agriculture and living among agricultural tribes for a long time; held to be governed by Hindu Law, as the family was not solely dependent on agriculture, and these  Jhiwars did not form a village community.

 

 

(u)       Julahas (weavers)

 

Follow Personal Law

 

11 P. L. R. 1900

Ambala Town, in succession.

69 P. R. 1908

Mauza Pajawa, Tehsil Fazilka, in alienation.  Actual founders with other tribes 74 years ago, numerous uncontested alienations; history of tribe, village, actual practice and general circumstances must be considered.

1925, 90 I. C. 161

Julahas of Ichhra, near Lahore, are governed by Mohammedan Law and not by agricultural custom in matters of succession.

 

          “The plaintiffs is said to be in Government service and not to cultivate land himself but to leave it to tenants and........... his sons are tailors. The learned District Judge observes that the fact that the plaintiffs supplement their income from sources other than agriculture does not show that they have abandoned Customary Law............No instances have been proved of any actual observance of any of the customary rules regarding inheritance, alienation, etc., either by the plaintiff’s family or by other Julahas of Ichhra, etc..............I am unable to agree with the learned District Judge the mere ownership of land with a share in the shamilat since a generation before the 1856 settlement and the living partly by agriculture and partly by other means established a presumption in favour of the Julahas that they followed agricultural custom.”

 

Follow Custom

 

69 P. R. 1878

Jalandhar City, in succession

 

 

(v)       Kakazais

 

Personal Law applies

 

10 P. R. 1885

Of Lahore, in succession.

57 P. R. 1885

Of Batala Town, in succession.

A. I. R. 1937 Lah. 777

The Kakazais of village Tapala (Gurdaspur District) are governed by personal law in matters of alienation and the mere circumstances that the village was owned by the Kakazais or that this tribe supplied the lambardars did not prove custom.  It was observed: “The evidence shows that the Kakazais do not cultivate the land with their own hands and some of them are in service.  There is not a single instance, supported by oral or documentary evidence, as to any alienations of ancestral land having been contested by sons or collaterals of kakazais of this or the neighbouring village, not has it been proved that in matters of succession  Mohammedan Law has been departed from and inheritance has gone according to custom.  The onus lay heavily upon the plaintiffs to prove that they did not follow their personal law, and this onus cannot be held to have been discharged by the mere circumstance that the village is owned by kakazais or that the tribe has supplied lambardars.”

 

 

Custom applies

 

67 P. R. 1879

Mauza Jandiala, Amritsar in adoption.

 

 

(w)       Kalas

 

Personal Law applies

 

50 P. R. 1879

Mauza Jandiala, Amritsar in adoption

87 P. R. 1907

Mauza Butari, Ludhiana, in adoption.

 

            Ahluwalias who follow own custom approximating to Hindu Law, and not agricultural custom.  Only 4 families, owning about one-fourth of one patti out of 7.  Not gazetted in village for 4 generations, non-cultivators, intermarry with town Kalas, do not recognize Karewa.

 

89 P. R. 1916

Mauza Alawalpur, Jalandhar, in matters of alienation.  Common ancestor settled in village with founders, no cultivator in family since, owning small area, and dependent entirely on service.

 

          The burden of proof always lies on the party alleging a custom and the burden is all the more heavy if the tribe to which that party belongs does not usually depend on agriculture but follows a variety of occupations.  Kalals of village Dewatwal in Ludhiana District are not primarily an agricultural tribe and are not governed by custom in the matters of alienation of ancestral property, and they have not by their association with agricultural tribes in the village since 1841 adopted their customs.  The mere fact that the Kalals own a patti in the village Dewatal would not be sufficient to raise any presumption in favour of custom.  Besides, customs are apt to vary with the local history of a tribe and the mere fact that Kalals in some other places have adopted agricultural custom would be no evidence to show that Kalals of Dewatwal follow custom.

 

Custom applies:

 

75 P. R. 1887

Mauza Fatehpur, Tehsil Kaithal, Karnal, in alienation.  Compact Kalal village.

C.A. 371 of 1902

 

Mauza Kalapatti, in alienation.  A compact village, founded generations ago, living on agriculture.

C. A. 997 of 1906

81 P. R. 1912

67 P. R. 1904

Residents of Ambala city, in alienation.  Owners of three-fourth of whole village; Patti Kalalan; lambardar, emigrants from village, others engaged in other pursuits.

127 P. L. R. 1906

Muza Alawalpur, Jalandhar, in alienation, dissented from in 89 P. R. 1916.

1923, 72 I. C. 775

Kot Kalalan, in the Sialkot District in matters of succession.

 

 

(x)       Kanjars

 

Follow Personal Law

 

95 P. R. 1884

Delhi, in succession.

166 P. R. 1888

Delhi, in succession.

62 P. R. 1892

Lahore, in succession.

52 P. R. 1893 [P. C.]

Delhi, in succession.

27 P. R. 1904

Lahore, in succession.

148 P. R. 1889

 

Kanjars follow Mohammedan Law.

89 P. R. 1884

95 P. R. 1884

98 P. R. 1885

 

 

Follow Custom

 

196 P. L. R. 1912

Jagadhri, own custom, in succession.

 

 

(y)       Kashmiris

 

Personal law applies

 

130 P. R. 1884

Sheikhs of Sialkot Town in adoption and succession.  “Kashmiris living in a town are presumed to be governed by Mohammedan Law.”

54 P. R. 1906

Traders of Lahore City, in succession.

17 P. R. 1909

Panjorian, District Gujarat, in alienation.  A separate community living with Jats.  Largely agriculturists, but also cloth dealers; came in with the founders of the village; 38 uncontested alienations.

 

 

Custom applies

 

114 P. R. 1893

Julahas of Sialkot Town in succession.

8 P. R. 1907

of Bangra Town, District Jalandhar, own custom similar to agricultural custom, in succession. Nonagriculturists settled for generations among agriculturists.

17 P. R. 1913

Of Jhelum City; comb-makers; own custom in alienation and succession.

 

In this case one Jan Mohammad, a Kashmiri, who resided and carried on the business of a comb-maker in the city of Jehlum, died, leaving certain self-acquired property, the whole of which he had bequeathed to his daughter and her issue. Jan Mohammad’s widow then brought a suit claiming to be entitled to the entire property  on the usual widow’s life estate by custom, and his brother  brought another suit for his share under Mohammedan Law. Held, that in matters of inheritance the parties were not governed by Mohammedan Law, and that by custom Jan Muhammad’s will, being in respect of self-acquired property, was valid, the provision of Mohammedan Law as regards the invalidity of a will in favour of an heir to the exclusion of other heirs not being applicable to the case; Held consequently, that both the widow’s land and the brother’s suit must fail.

 

A. I. R. 1927 Lah.273 :100 I. C. 949

Kashmiris residing in the city of Jhelum are governed by custom.

 

 

(z)       Kashmiri Pandits

 

34 P. R. 1907

Delhi, own custom in adoption.

 

 

(aa)       Kayasths

 

7 P. L. R. 1901

Rohtak, follow personal law in adoption.

 

(bb)    Khatris, (high caste Hindus)—initial presumption is that they are governed by Hindu Law.

 

The initial presumption in the case of Khatris is that they are governed by personal law and not by custom, and therefore in their case the onus of proving that a party is governed by custom and not by personal law is on the person alleging it. Khatris do not ordinarily form an agricultural but a trading community and consequently the usages of agriculturists cannot be presumed to apply to them. Where the parties are high caste Hindus (Kapur Khatris) and do not depend upon agriculture for their livelihood the ordinary presumption is that they are governed by the provisions of the Hindu Law, and the onus rests heavily upon the party alleging the existence of accustom at variance with law.

 

            Where the members of Hindu family (Khatris) have always lived in a town and have followed no agricultural pursuit, the mere fact of their having invested money in land does not make it probable that they have altered their mode of life by adopting agricultural customs. A very clear and convincing evidence is necessary  to establish a rule of succession opposed to their personal law.

 

Personal Law applies

 

Beri Khatris of Jagraon district Ludhiana.

 

            The Beri Khatris of Jagraon are governed by Hindu Law and not by custom in matters of succession.

            Sehgal Khatris residing in the town of Eminabad (tehsil and district Gujranwala) who own no agriculture as a means of livelihood are governed by Hindu Law. The matter in issue in this case was succession to a haveli in the town. it was observed: “The riwaj-i-am of the Gujranwala district governs agricultural khatris and not the parties who have no connection whatever with agriculture and lives in a town, and for the same reason the wajid-ul-arz of Mauza Eminabad cannot be held to govern the succession to the property in question. No instance of any value in support of the applicability of custom to the Sehgal Khatris regarding rights of succession to non-agricultural  property such as the haveli  in suit have been cited.”

 

Saibal Khatris of Dinga, district Gujrat.

 

            Saibal Khatris of mauza Dinga, district Gujrat, do into follow agricultural custom in matters of succession. “They form a small community there and the members of this community almost to a man engage in service or shop-keeping... They can scarcely be regarded as agriculturists or landowners.”

 

Sodhi Khatris of Lyallpur District:

 

            Sodhi Khatris of Lyallpur District are not governed in matters of alienation by the principles of Punjab Custodian Law but are governed by their personal law, i.e., Hindu Law.

 

Sodhi Khatris of village Thathi Khara, Taran Taran tehsil, Amritsar, District:

 

            Sodhi Khatris of Mauza Thathi Khara, Taran Taran tehsil, of the Amritsar District are governed in matters of alienation by Hindu Law and no by custom.  It was remarked: “It is not denied that the plaintiff’s family owes only 152 kanals out of the total  village area, 4,158 kanals; that they are entered in the settlement record as malikan-i-maqbuza having no share in the shamilat and that they are not entirely dependent upon agriculture but that they derive part of their income from the offerings made at a gurdwara in the village.  The father of the plaintiffs was admittedly a deed-writer and did not cultivate land with his own hands.  All these facts raise a strong presumption thatthese Sodhi Khatris do not follow agricultural custom.  It is urged by the appellant’s pleader that the lands belonging to the Sodhi Khatris in this village are constituted into a separate patti known as Patti Sodhi and that this shows that they form a compact community of their own and must be presumed to have adopted the customs of the Sikh Jats, among whom they had settled.  The so-called Patti Sodhi consists, however, of the small area of 152 kanals above referred to, and the mere fact of this patti being recorded separately in the settlement papers, is insufficient to prove that these Sodhi Khatris had adopted agricultural custom with all its incidents to the exclusion of Hindu Law.”

 

Sodhi Khatris of village Bhamipura, tehsil Jagraon, district Ludhiana:

 

            Sodhi Khatris of village Bhamipura, tehsil Jagraon, district Ludhiana are governed by Hindu Law and not by custom in matters of alienation of, or succession to, ancestral, immoveable property.  The following observations by Jonstone, J., in this case are instructive: “The way I look at this case is this.  The initial presumption in the case of Khatris, and especially of Sodhis, is that they follow Hindu Law.  They are not essentially agriculturist, and they have as a rule and as a tribe, a priestly status.  In cases in which it has bee presumed that persons, not essentially agriculturists by race, follow agricultural custom, much stress has been laid upon the question whether they form a compact village community, or at least a compact and considerably body of landowners in a more or less homogeneous village.  If they do, and if they have been agriculturists for generations, the presumption aforesaid is generally made, but here (in the present case), though these Sodhis have held land in the village for nearly 90 years, they did not comed in with the founders; they are only qabza maliks; they number only 5 families, holding 100 acres of the land out of a village area of 3,000 acres.  Then there is no evidence whether they live solely by agriculture....... In 33 P. R. 1907, (Johnstone and Rattigan, JJ.), one test in questions like the present was stated to be the adoption  of agriculture as a means of livelihood for several generations, i.e. to say, the absence of this incident was held to be fatal to the plea that custom was followed.   But it must not be supposed that in all cases the existence ofthis incident is sufficient in itself to prove the opposite.”

 

Sodhi Khatris of village Samalsar, tehsil Moga, district Ferozepore:

 

            Sodhi Khatris of village Samalsar, tehsil Moga, district Ferozepur, follow Hindu Law and not agricultural custom in matters of succession.  “The history of the village shows that these Sodhis did not settle with the founders of the village, and that Bhup Singh, the grandfather of the propositus, was the first person to acquire six ploughs of land, nearly one-tenth of the village, by purchase from the original proprietors.  It appears that the parties live by agriculture mainly, and celebrate karewa marriages, and there is some evidence to the effect that they have departed from the strict rules of Hindu Law relating to adoption.  But these facts are wholly insufficient to prove that they have discarded their personal law in the matters of succession.

 

Bunjahi Khatris, village Nara, tehsil Kahuta, district Rawalpindi:

 

            Bunjahi Khatris of village Nara, tehsil Kahuta, district Rawalpindi, (dhobis by occupation) do not follow agricultural custom in matters of alienation.  “The family owns no land in the village.  There is no evidence to show that agriculture is the principal occupation of the parties or is the main source of their income; on the other hand, they appear to work as village washermen, and presumably they make their living as dhobis”.

 

Lahori Khatris of Batala, District Gurdaspur:

 

            Lahori Khatris of Batala are not governed by custom in matters of succession.

 

Khatris of Mauza Khairabad, District Jalandhar:

 

            Khatris of village Khairabad, district Jalandhar, are governed Hindu Law and not by custom in matters of alienation of ancestral land.  The mere fact they owned land in dispute for six generations did not create a presumption in favour oftheir being governed by custom.  “The parties are ordinary Khatri traders dealing in cloth, grain, etc.  They in no way subsist upon agriculture.  Their chief means of livelihood is trade, not agriculture.”

 

Khatris of villae Kauntrilla, Gujar Khan Tehsil, district Rawalpindi:

 

            Khatris of village Kauntrilla, Gujar Khan Tehsil, district Rawlpindi are governed in matters of alienation of ancestral land by Hindu Law and not custom.

 

 

Khatris of village Salina Moga Tehsil, of Ferozepur District:

 

            The Khatris of village Salina in the Moga Tehsil, of the Ferozepur district follow Hindu Law in matters of alienation and succession.

 

            It was observed in this case: “The plaintiff has failed to prove the following, namely:-

 

(a)        That the families to which the parties belong formed a compact section of the village community.

 

(b)           That the parties ploughed and tilled with their own hands; that the parties depend entirely upon agriculture and have no other occupation.

 

Not a single instance has been cited to show that the ancestors of the parties followed agricultural customs in disregard of their personal law in matters of alienation and succession.”

 

Lodhi Khatris of Ferozepur District:

 

            Lodhi Khatris (a priestly class) of Ferozepur District; Hindu Law applies.  “The evidence is insufficient to establish that the parties belong to a compact village community whose main and substantial source of living is agriculture.  In our opinion, the plaintiff has not been able to rebut the initial presumption that being members of a priestly class the family par excellence was governed in matters of succession by Hindu Law.”—per Shadi Lal, C. J. and Agha Haider, J.

 

24 P. R. 1867

Of Ambala, in adoption.

23 P. R. 1876

Of Kasba Akalgarh, Lahore in adoption.

17 P. R. 1878

Of Hissar, in adoption.

64 P. R. 1883

Kapurs of Amritsar, in adoption.

9 P. R. 1884

Of Peshawar City.

44 P. R. 1884

Of Village Tappala, Tehsil Sharakpur (old) in succession to self-acquired property.

107 P. R. 1884

Of Gujarat Town, in alienation.

76  P. R. 1885

Sarins of Lahore, in alienation.

67 P. R. 1888

Probably all non-agriculturists  and especially those of Peshawar City, in succession.

112 P. R. 1888

Of Rawalpindi, succession.

147 P. R. 1889

Agriculturists of Rawalpindi, in adoption.

198 P. R. 1889

Agricultural Awals of Chak Awal, Amritsar, in alienation.

24 P. R. 1893

Khannas of Peshawar city, in succession.

60 P. R. 1895

Bhandaris of Batala, in succession.

 

       Non-agriculturists owning land, engaged in service, trade and money-lending.

 

 

73 P. R. 1896

Dhals of Mayatpur, Muzaffargarh, in succession.  Non-agricultural, capitalist land-owners.

94 P. R. 1898

Bindras of Rawalpindi, in adoption, held land for more than a generation, but area small.

C. A. 585 of 1898

Of Lodhran, Tehsil Multan, in alienation.

100 P. R. 1901

Non-agricultural Gopies of Aklaba, Ludhaian, in succession.

107 P. R. 1901

Bhandaris of village Vairowal, Taran Taran, in alienation.

119 P. R. 1901

Mahrotras of Multan City, in succession.

12 P. R. 1906

Of village Hasil, Tehsil Chakwal, in alienation.

106 P. R. 1906

Of village Bhagtana Talianwala, Tehsil Batala, in alienation.

102 P. R. 1907

Bunjahis of Rawalpindi City, in inheritance.

35 P. R. 1909

Of Satgharra, Montagomery, in succession.

249 P. W. R. 1912

Of Lahore, in adoption and succession.

338 P. L. R 1913

Of Rahon and Nur Mahal, District Jalandhar in succession, always town residents.  Mere fact of having invested money in land is insufficient to show that they have adopted custom.

60 P. R. 1915

Sarins of Lahore, in succession.

C. A. 998 of 1917

Kapurs of Jhelum, in matters of partition.

1920, 2 Lah. L. J. 377

 

105 P. R. 1917

Of Amritsar City.

69 P. R. 1919

Of Jhelum.

1922, 73 I. C. 239

Khatris of Hoshiarpur.

1927, 8 Lah. 541

Chopra Khatris of Jalandhar City.

1935, 160 I. C. 297

Rangpur, Muzaffargarh District, follow Hindu Law in matters of succession.

 

 

Bedis and Sodhis:

 

63 P. R. 1880

Bedis of Mohmudpura, Pakpatan, in alienation.

22 p. R. 1891

Bedis of Pathankot, in adoption.

122 P. R. 1893

Bedis of Garshankar, in alienation.

C. A. 420 of 1903

Bedis of Tehsil Una, District Hoshiarpur.

33 P. R. 1907

Bedis of Kalewala, Tehsil Dasuya, District Hoshiarpur in alienation – Test applied “Have they adopted agriculture for generation?’

79 P. R. 1909

Sodhis of Hardo Jhnada, Batala, in alienation.

1935, 168 I. C. 952

Sodhi Khatris of Ferozpore and Ludhiana District follow Hindu Law.

 

Mohammedans

 

Mohammedans (Sahghal) Khatris Of Jullundhur.

 

            Sahghals of Jullundhur converted to Islam. Long residence in city, dependent on service and not agriculture. Even if not following strict Mohammedan Law in matters of inheritance, cannot be said to be bound by agricultural custom in matters of alienation – 74 P. R. 1914.

 

Custom applies.

Kapur  Khatris of the Hafizabad Tehsil, Gujranwala District.

 

            Kapur Khatris of the Hafizbad Tehsil (district Gujranwala) are in matters of succession to immovable property governed by custom a daughter has no right to succeed as an heir to either the ancestral  or the acquired immovable property of her deceased father. it was observed in this case : “Kapur Khatris are not members of any of the well-known dominant agricultural tribes of this province, and Mr............ for the respondent (plaintiff) readily conceded that the onus probandi was upon the plaintiff to show that the branch of Kapur Khatris, with whom we are now concerned do not follow Hindu Law in matters connected with succession to immovable property. he contended, however, and in our opinion successfully, that the plaintiff had been able to discharge the burden and had proved that in such matters the family of the parties had for generations past been intimately connected with zamindari, that they had been for two or three centuries owners of large village estates suited in the immediate neighbourhood of village owned by such agricultural tribes as Bhatti Rajputs, Jats and Arains, that their main income was derived from the possession of such estates; that the head of the family for the time being was the leading agricultural headman (zaildar and lambardar) in the tehsil and had as such signed the wajib-ul-arz and the riwaj-i-am.........., and that the plaintiff had been able to give evidence of numerous instances of daughters being excluded from inheritance by collaterals of their father.............Having regard then to the circumstances above referred to and especially to the very ancient  connection of the family with village lands, we agree with the court below that so far as regards succession to immovable property, the family of the parties is bound by the rules not of Hindu Law but of custom.”

 

Sobti Khatris of Alimgarh, district Gujrat.

 

            Sobti Khatris of alimgarh, district Gujrat, follw agricultural custom and not Hindu Law in matters of inheritance to ancestral property.

 

            “The original village of Alimgarh was founded in the time of the Emperor Akbar by Brahm das, Sobti Khatri, and he and his descendants have continued in occupation therof ever since without any really a compact community of agriculturists and has been so for about 300 years. It is no doubt in evidence that a few of the Sobti Khatris of Alimgarh supplement their income from agriculture by money-lending and by service but the main souce of their livelihhod as agriculture, and the fact that a few of them supplement theur income in other ways does not take them put of the category of agriculturists ............. The palintiff’s counsel points out that there are some other proprietors in the patties besides Khatris. There are, however, only a few such and they are recorded as malikan-i-qabza without any share in the shamilat of the Patti. This fact does not, in our opinion, show that the common bond has been broken by the introduction of strangers into the patti; nor do we think that the fact that some of the land is cultivate an agricultural community, for the presence of tenents is a common feature in every village.’’

 

Bhandari Khatris of Jalalabad district Amritsar.

 

            Bhandari Khatris of Jalalabad, district Amritsar, are governed, in the matter of succession, by the oridinary agricultural custom and not by Hindu law. It was observed that in a case in which the parties are by caste Hindus of good position and residents of a town, and though holding land, non-agriculturists, depending for their livelihood on avocations other than cultivation of land, while the court should see in the first instance whether there is any custom bearing on the question at issue relating to inheritance, alienation, etc., no presumption should be made in favour of the existence of such custom, which will have to be established by the evidence of the parties. This principle was followed by Reid, J., in 107 P.R. 1901............ The principle underlying the above mentioned decision is now well-established, namely, that each case of alleged custom has to be decided primarily upon the proof actually adduced in that case and not upon a priori grounds; and that where the parties concerned are high caste Hindus not depending for their subsistence on agriculture the presumption in the first instance is in favour of the applicability of Hindu Law to the exclusion of custom. In the present case the initial burden lay on the defendant (who asserted that custom applied) of proving that the parties were governed by custom and not by Hindu Law; but I agree with the Courts below that he has discharged the onus, and it must be held that in matters of succession to landed property custom applies to the parties and not their personal law.”—Per shah Din, J.

 

Gujral Khatris, Jhelum District.

 

            Gujral Khatris of Pind Dadan Khan, district Jhelum, are governed by agricultural custom in matters of alienation. “The Gujral Khatris at Golpur have a separate Patti of their own and furnish two out of the three lambardars of the village, and they have been owners of the land in the village from the time of its foundation. The Khatris of this village are dependent in agriculture and cultivate land with their own hands and have been doing so far ever since the village was founded. The occuoation if the members of the community is generally agriculture.’’

 

Wadhawan Khatris of Mauza Ara in the Kharian tehsil, district Gujrat.

 

            Wadhawan Khatris of mauza Ara in the Kharian tehsil, district gujrat, are governed in matters of alienation by the general customary law of the province.

 

Sodhi Khatris.

 

            Sodhi Khatris of Ferozpore district inmatters of alienation are governed by Cus law and not by Hindu Law.

 

Sodhi Khatris of Anandpur (district Hoshairpur) do not follw Hindu Law in matters if inheritance, etc.

 

Where a childless Sikh Guru and a Sodhi Khatris of Muktsar Tehsil, Ferozpore District, executed a number of leases in consideration of cash fines and certain annual rents payable by the lessees who were constituted occupancy tentants, under S. 5 of the Punjab Tenancy Act, as they were called, but with plenary and uncontrolled powers of alienation and rtight of succession lineally as well as collaterally in the male line, and the reversioners sued for a delaration that the leases were alienation of anscestral property by a childless lame proprietor without necessity and were invalid by custom as against reversioners, held amongst other things, that the parties though Sodhi Khatris of a priestly family had held land from a long time, and practically lived by agriculture and must be held bound by the customary restrictions which prevent a childless male proprietor from alienation ancestral land without necessity to the determine of his agnatic heirs.

 

            In matters of alienation by a sonless proprietor of a family Sodhi Khatris of Zira, Ferozepore District, held that the plaintiff (a son) had a locus standi to contest the alienation in presence of father.

 

Maini Khatris of Kasur Tehsil, Lahore District:

 

            Maini Khatris in the Kasur Tehsil of the Lahore District are governed by custom in the matters of succession to sonless proprietors and not by Hindu Law.  “Apart from the wajib-ul-arz of 1856, the Khatris as atribe were consulted at the time of the preparation of the riwaj-i-am of the Lahore District, and therefore must be taken to be governed by Customary  Law”—vide A.I.R. 1934 Lah. 580; A.I.R. 1932 Lah. 326.

 

Sobti Khatris of Gujarat District:

 

            Sobti Khatris of Gujarat District are governed in matters of succession by the customs prevailing amongst agriculturists.  “As the parties are bigh class Hindus, the initial presumption, of course, is that they are governed by their personal law and the onus was upon the plaintiffs to show that they were governed by custom.”  In this case custom applied, it being found that their main source of livelihood was agriculture.  The fact that a few of them eked out their living by money-lending or servicve did not take them out of the category of agriculturists.

 

Khatri Sikhs:

 

            Khatri Sikhs residing in a village of the Ambala tehsil, are governed in matters of alienation by the ordinary Customary  Law of the province.  It was observed in this case: “They depend on agriculture for their living, but also they practice money-lending.  They do not follow their personal law strictly, for it is clear from the evidence on the record that daughters do not succeed amongst them.  Still, of course, it is quite possible for a man to be governed by his personal law modified by custom.  The main question seems to me to be, should the parties be considered as persons depending mainly on agriculture and looking to money-lending only as a subsidiary means of livelihood, or is money-lending their main occupation, and agriculture only the supplement ?  .......The mere fact that they also indulge in money-lending is not, in my opinion, of significance, considering that even Jats often break out as money-lenders.”

 

72 P.R. 1878

Khatris of Tehsil Moga, in adoption,

162 P.R. 1883

Nur Mahal, Jalandhar, in adoption.

44 P.R. 1884

Agriculturists of Mauza Tappoala, Sharakpur, in succession to ancestral property.

101 P.R. 1884

Agriculturists of Tehsil Batala, in alienation.

24 P.R. 1891

Agriculturists of Jhelum, in alienation.

93 P.R. 1892

Agriculturists of Ahmadpur, Tehsil Shorkot, Jhang, in alienation.

24 P.R. 1900

Mauza Kawari, Ambala, own custom differing from agricultural custom in adoption.  Non-cultivators, owning a little land, engaged in trade and service.

3 P.R. 1900

Dhawans of Ferozepore City, own custom in adoption.

77 P.W.R. 1907

Tehsil Batala,

      

       “Where a Khatri and his ancestor have been purely agriculturists for generations they are as much bound by custom as any other agricultural tribe.”

 

16 P.L.R. 1911

Non-agriculturists of Gujranwala, own custom in adoption.

1 Lah. 69

Amritsar, own custom allowing adoption of daughter’s son.

1931, 137 I.C. 81

Chopra Khatris of Akalgarh, Wazirabad tehsil, follow custom.

1933, 147 I.C. 1182

Village Jhanjian, Ferozepore District, governed by agricultural custom.

1934, 16 Lah. 476

Khatris of Ajnala Tehsil, District Amritsar.

1936, 168 I.C. 557

Khatris of different villages in the Gujarat District.

 

 

Bedis and Sodhis

 

30 P.R. 1894

Agriculturists of Mauza Kalan Chakian Sialkot, in adoption.

21 P.R. 1896

Bedis of Hoshiarpur, in alienation.  Ancestors founded the village generations ago; compact body, mainly engaged in agriculture, some in trade and professions.

 

 

(cc)       Khattars

 

97 P.R. 1914

Attock, follow Personal Law in matters of alienation and succession.

 

 

(dd)       Khojas

 

Personal Law applies

 

20 P.R. 1916

Chiniot Town, Jhang District, in alienation.  Non-agriculturists, traders in town.

 

 

 

 

            “Confining the case to the simple issue relating to the power of alienation, we observe that the alien or was a resident of a town, did not depend upon agriculture for his livelihood, and belonged to a tribe, the members of which are, it is well known, generally traders or merchants.  The onus, therefore, lies heavily upon the plaintiffs (collaterals) to prove a custom placing restrictions upon the power disposition of a Khoja and they have hopelessly failed to discharge it.”—per Shadi Lal and Leslies Jones, JJ.

A.I.R. 1937 Lah. 130 :169 I.C. 272 :38 P.L.R. 1022

Trading Khojas of Chakwal town in Jhelum District who were converted from Hinduism and who are not agriculturists do not follow custom in matters of inheritance but Mohammedan Law.  It is true that these khojas were once Hindus, but it must be established by the party who pleads that they follow custom, that when they were converted to Mohammedanism they did not follow Mohammedan Law but custom and also what that custom was.

Custom applies:

 

27 P.R. 1868

Of Kasur, in succession.

52 P.R. 1888

Of Kasur, own custom in succession.

140 P.R. 1908

Shamis of Lahore City; formerly Hndus who have retained custom in succession.

C.A. 1550 of 1916

Vighmals of Shahdara, non-agricultural converts from Hinduism, in succession.

1920, 3 Lah. L.J. 91

Khojas, i.e., converted Khatris (of Lahore and Shahdara), in matters of succession.

 

            “For the appellants i was urged that the late Chiragh Din had performed a Haj and on more than one occasion had expressed his adherence to Mohammedan Law.  But those circumstances in themselves prove nothing, for all over the Punjab we find instances of Mohammedans who observe Mohammedan Law strictly on the religious side but in matters of succession most undoubtedly observe custom.  From the instances as proved by the parties which have occurred outside this family, it is clear that among Khojas (who almost invariably are residents in urban areas) some follow custom and others their personal law.  The family of the parties (in the present case) unlike most Khoja families has agricultural traditions and within recent times inhabited not a city but a village and depended, at any rate in some degree, upon agriculture for its maintenance.  Indeed, many of its members are still villagers.”—per rossignol and Raoof, JJ.                    

 

(ee)       Khokhars

 

90 P.R. 1910

Non-agriculturists of Gujarat Town follow Personal Law in alienation.

94 P.R. 1891

Agriculturists of Jhelum, follow custom in al.

35 P.R. 1896

Agriculturists of Tehsil Gujarat, follow custom in adoption and alienation.

 

 

(ff)       Lohars

 

Follow Personal Law

 

6 P.R. 1879

Lahore, in adoption.

101 P.R. 1906

Kotli Loharan, Sialkot, in alienation.  Small town artisans, no land belonging to village though owning a little elsewhere.

 

 

Custom applies

 

51 P.R. 1901

Mauza Jamsher, Tehsil Jalandhar, in alienation.  Not a compact body, but cultivators for generations.

39 P.R. 1906

Mauza Kunjah, Gujarat, in alienation.  A small town; migrants from mauza Lorai, a compact village community, classified in the Riwaj-i-am as agriculturists and following Jat custom.

39 P.R. 1906

Mauza Lorai, Gujarat, a cmpact village community.

 49 P.R. 1909

Agriculturists of Amritsar, in adoption.

A.I.R. 1934 Lah. 910

Manghowal (Gujranwala District).  Mere fact that deceased did not work as blacksmith does not prove that custom was given up.

 

 

(gg)       Madaris

 

7 P.R. 1911

Juglers of Ludhiana, follow custom in alienation.  Not gazetted; living almost entirely on agriculture for generations, though a few of tribe still practise jugglery.

 

 

(hh)       Mahajans

 

71 P.R. 1882

Karnal, own custom in succession.

A.I.R. 1938 Lah. 461 :40 P.L.R. 781:177 I.C. 403

Mahajans of Hissar town whose main source of livelihood is business and not agriculture aregoverned by Hindu Law and not by custom.  The customary rules recorded in the Riwaj-i-am are of the rural population and thefact that the Mahajans were consulted in preparing the Riwaj-i-am would not show that the Riwaj-i-am is evidence about custom obtaining amongst allthe Mahajans, particularly among the residents of the town.

 

 

(ii)       Mahesris

 

1 Lah. 92

Delhi, follow custom in adoption.

 

 

(jj)       Majawars

 

38 P.R. 1883

Data Ganj Baksh shrine, Lahore, followcustom in succession.

66 P.R. 1905

Landholders of Tehsil Mailsi, Multan, follow custom in succession.

1930, 12 Lah. 286

In matters of alienation  of ancestral property, Majawars of the shrine of Data Ganj Baksh at Lahore, who described themselves as Rajput Sheikhs, but whose principal source of livelihood was earnings from service at the shrine, are governed by the Mohammedan Law and not by custom.

 

 

(kk)       Mirasis

 

113 P.R. 1884

Ferozepore, follow Personal Law in succession.

 

 

(hh)       Pawalis

 

A.I.R. 1938 Lah. 581:40 P.L.R. 905

The pawalis of Bhera are governed by Mohammedan Law and not by custom.

 

(ee)      Qureshis—Not one of the dominant agricultural tribes in the Province—prima facie governed by Mohammedan Law.

 

            As regards Qureshis there exists a strong presumption that they are governed by Mohammedan Law.  As observed in Jawahar Singh v. Yaqub Shah: “Speaking generally, it may, we think, be safely predicated of Qureshis that they are not members of an agricultural tribe.  They belong to a tribe which came originally from Arabia or at least trtadition so has it, and they claim to be the tribe to which the Prophet belonged.  Prima facie, therefore, the members of this tribe would be zealous of adhering to the principles of their personal law, the Mohammedan Law, and in their case, even when we find them holding land, the same presumption cannot be predicated regarding them as a class as may properly be made, as a result of experience in regard to agricultural tribes either personally or in particular localities.”  In all such cases, where the parties belong to a tribe or community which is not well known to be one of the dominant agricultural tribes of the Province, strong proof is in our opinion needed before the court can conclude that they are regulated in matters relating to succession, alienation and the like questions, by the rules observed commonly by the members of such dominant agricultural tribes.  Mere land ownership is not per se sufficient proof of this in such cases.”

 

            In a suit relating to succession between members of the Qureshi tribe, when neither party proves any custom affirmatively recourse should be had to Mohammedan Law.

 

Personal law applies:

Qureshis of Bhera Town, District Shahpur:

 

            In matters of succession, Qureshis residents of Bhera Town, District Shahpur, whose common ancestor migrated to Lahore where he worked as Imam of Begum Shahi Mosque and also carried on Piri muridi, must be presumed to be governed by the Mohammedan Law.

 

            In this case the defendants pleaded that customary law applied and that in the presence of sons the daughters did not succeed to their father’s estate.  It was held that the defendants on whom the onus lay heavily of proving that parties were governed by customary law, had failed to discharge it and as no custom had been established by the evidence on the record it must be held in view of the provisions of Section 5 of the Punjab Laws Act, that the parties were governed by their personal law.

 

Of Mauza Pindi Sheikh Musa, Lyallpur district:

 

            In Mohammad Shah v. Bukhan Shah, a person challenged to the unrestricted power of alienation of a Qureshi proprietor of Mauza Pindi Sheikh Musa in the Lyallpur District, which village was formerly included in the Montgomery district.  Held, that such person had the onus on him to show that the Qureshi proprietors living in this village have abandoned the rules of their personal law and have adopted the customs prevailing among the dominant agricultural tribes of the Central Punjab.

 

Chishtis of Ferozepore District:

 

            Qureshi Chishtis of Ferozepore District are not governed by their personal law, i.e. Mohammedan Law, but by agricultural custom.  There is therefore the presumption that among these Chishtis the power of alienation is restricted in respect of ancestral property.  The onus of proving that vendor had an unrestricted power of alienation is on the vendee.

 

175 P.R. 1883

of Wazirabad, in succession.

92 P.R. 1901

Non-agriculturists of Gujranwala Town, in succession.

5 P.R. 1906

of Mauza Kareli, Pind Dadan Khan (Jhelum District), in alienation.

45 P.R. 1908

of Mauza Guliana, Gujar Khan tehsil (Rawalpindi district) in succession.  Pirs holding land.

50 P.R. 1910

Non-agriculturists of Ferozepore City, in succession to land; special custom pleaded.

63 P.R. 1911

Although Qureshis of Mianapur (a suburb of Sialkot City) do not in all matters follow Mohammedan Law, the burden of proving that the tribe follows custom under which alienations by a male proprietor are controllable by his reversionary heirs is on the latter and that in default of such proof, personal law must be applied.

107 P.R. 1917

of Pakpattan (District Montgomery), in succession.

A.I.R. 1922 Lah. 222: 1923, 3 Lah, 274:69 I.C. 693

of Mauza Taragarh (District Gurdaspur), “The parties are Qureshis a tribe regarding which it has bee said in 5 P.R. 1906 that a strong proof is required of its members being governed by custom opposed to Mohammedan Law.  The Qureshis of this village are not a compact village community or section of a village community.  they obtained their land originally by charitable gift.  The parties’ family own 60 ghumaous only and are not sharers in the shamilat.  They are not shown to be a family dependent on agriculture.  Some members are agriculturists but the majority follow other avocations.  Qureshis are not notified as an agricultural tribe under the Punjab Alienation of Land Act in the Gurdaspur district and do not appear in the Riwaj-i-am.”

 

 

 

A.I.R. 1923 Lah. 368 :1922, 76 I.C. 770

of Lahore Town, not being agriculturists, in maters of succession.

 

            “The plaintiffs, who are Qureshis, though they originally belonged to Chiniot, have now been living in the town of Lahore for a large number of years, and the property in dispute is also situated in this town.  They are not agriculturists and have been carrying on the profession of masonry for more than one generation.”

 

1922, 4 Lah. 85

of Multan City, in succession.

 

            “The plaintiffs-collaterals have failed to prove a special custom in the family of the Qureshis of Multan City to which the parties belonged, according to which daughters do not succeed to agricultural land in the presence of sons, though as regards urban immovable property they take their share according to Mohammedan Law.”

 

            In this case the parties were admittedly governed by Mohammedan Law and not by the general agricultural custom of the Province, but it was sought to prove a special family custom (in contravention of the Islamic law of inheritance) by which sons alone succeeded to their father’s agricultural land.  It was held that the instances cited in support of the alleged special custom were not sufficient to prove the custom.

 

A.I.R. 1931 Lah. 315 (1)

of village Rupar Kalan, tehsil Fatehjang in the Attock District, in alienation.

 

            he only point which has been brought out in the evidence of these witnesses is that on the death of one H his son succeeded to his property to the exclusion of his daughter and his widow.  But this solitary instance cannot be held to be sufficient to establish that the parties are governed by Customary  Law even in matters of succession, much less in all matters.”

 

            Custom applies

39 P.R. 1886

of Silara Sheikhs of Mauza Silara, Chiniot Tehsil, in alienation.

69 P.R. 1890

of Dera Ismail Khan, in alienation.

C.A. 682 of 1899

of Gurdaspur.

101 P.R. 1902

of Bhera, Shahpur, own custom, like Mohammedan Law in alienation; agriculturists.

140 P.L.R. 1902

Qureshis, living in a village in the Gurdaspur district, follow agricultural custom and not Mohammedan Law, in such matters as that of daughter’s succession.

79 P.R. 1912

of Qasba Thoru, Tehsil Nuh, Gurgaon, in alienation and succession.

19 P.R. 1916

of village Hardo Sheikh, Tehsil Phillaur, in figts; custom more favourable to daughters than ordinary custom; compact community; cultivating land for 12 generations.

 

 

(mm)       Rawals

 

6 P.R. 1902

Mauza Budala, Tehsil Nurpur, Kangra, follow custom in alienation.

 

 

(nn)       Sheikhs

Ordinary presumption is that personal law applies:

Personal Law applies

 

130 P.R. 1884

Kashmiris of Sialkot Town, in adoption and succession.

41 P.R. 1901

of Badli, Rohtak (no in Delhi Province), in adoption and succession : Not primarily agriculturists, but in service; in such cases, no presumption of custom.

1 P.R. 1907, affirmed on appeal to Privy Council (126 P.R. 1912 P.C.)

Ansari Sheikhs of Basti Danishmandan, Jalandhar District, follow Mohammedan Law, in alienation and succession.  A male is competent to make an absolute gift of ancestral property in favour of a daughter.

113 P.R. 1912

In matters of succession, Mohammedan Sheikhs of Delhi City who are labourers and artisans (and not agriculturists in any sense) are governed by Mohammedan Law and not by custom.

7 P.W.R. 1914

Families descended from Diwan Kilandar Bakhsh of Hansi, known as Pirzadas or Sheikhs.  It does not necessarily follow that because a family departed from its personal law in one respect, it has adopted custom in all other respects.

74 P.R. 1914

Sahgal Sheikhs, converted from Hinduism, living in Jalandhar City, do not, in matters of alienation, follow agricultural custom.  In this case gift of ancestral property in favour of wife was upheld in the presence of the donor’s collaterals who failed to prove that the donor could not deal with his property at his will.

 

            “That the Jalandhar Sahgals do not follow Mohammedan Law in all respects may well be true, e.g., it is said that daughters do not inherit; but they are not an agricultural tribe, they reside in a town, they appear to be dependent mainly on service and not on agriculture for their livelihood; and so there is no presumption whatever in favour of a general custom, and the mere fact that they do not follow Mohammedan Law strictly in matters of inheritance is no proof that they follow the general agricultural custom whereby a proprietor cannot alienate ancestral land except for necessity.”—Per Johnstone and Chevis, JJ.

 

A.I.R. 1935 Lah, 908:157 I.C. 860: 37 P.L.R. 655

Where the parties to a suit are Siddiqui Sheikhs residing in the town of Rohtak, whose ancestors are stated to have migrated from Arabia many centuries ago and who for generations have served as kazis or mutwallis and most of the members of whose family are engaged in trade and service and have not followed the plough in agricultural pursuits, the initial presumption is in favour of their being governed by their personal law; and if a party pleads the existence of special family custom in the family, the onus lies heavily on it to prove it.

 

 

Custom applies

 

6 P.R. 1902

Of Mauza Bundals, Tehsil Nurpur, Kangra, in alienation.

C.A. 1032 of 1881

Kunjpura Karnal.

2 P.R. 1883

Ansaris of Basti Danishmandan, Jalandhar in alienation.

74 P.R. 1902

Bokharis of Mauza Bakarwala, Delhi, in succession.  Landholders; constant references by family in past to custom being their rule. 

 

 

(oo)   Sheikh Qureshis

 

Personal law applies:

 

Of Gohana

Rohtak District—succession—presumption is that they follow personal law.

 

            It was held in Ayazud-din v. Mahfuzunnisa—“The parties, as stated above, belong to the tribe of Qureshi Sheikhs which is not one of the agricultural tribes of the district, and they are residents of a town.  It is also clear that they do not till land with their own hands and mostly live on Government service.  In these circumstances, there is no presumption that the general agricultural custom applies to them and the onus is on the plaintiff who puts forward the custom to prove it to the satisfaction of the court.  It is true that there are instances in this family of the exclusion of daughters by sons, of sisters by brothers, and of the succession of widows in the absence of sons.  It was also held by the Division Bench of this Court in Nasib-un-Nisa v. Umed Alienation (Civil Appeal No. 801 of 1902) that among Qureshi Sheikhs of Gohana, collaterals related in the second degree excluded daughters from succession.  These instances only go to prove that in some matters the personal law of the parties has been modified by custom; but there is no warrant for the presumption that, in all matters, custom has superseded the Mohammedan Law.”

 

            Where the Mohammedan Qureshi family of the parties to the suit is proved to have resided in the town of Gujarat in the Punjab and almost all the members of the family of the common ancestor of the parties are shown to have followed urban pursuits, then in the absence of evidence to show that any one of them followed agriculture as his avocation or the ancestor of the family belonged to any compact village community or that the succession in the family was ever regulated by custom it cannot be said that the family of the parties is not governed by Mohammedan Law but by agricultural custom whereby neither the widow  nor the daughter is entitled to any inheritance.

 

Custom applies

 

            Held, that the Qureshi Sheikhs of Qasba Thora, Tehsil Nuh, Gurgaon District, are governed by custom and not by their personal law, and that consequently a gift made by the widow of the last male owner in favour of the collaterals of her deceased husband, to the exclusion of others, was valid.  “We find that, whenever succession opened out in the family, the rule of inheritance by the sons, and in the event of a male proprietor dying sonless, his widow succeeded to the whole estate to the exclusion of daughters and collaterals.  This rule of succession is in direct contravention of the rule of Mohammedan Law, and it shows that whenever a widow succeeded to the whole estate of her husband she succeeded to the whole estate of her husband she succeeded only to a life interest and not as full owner.”—per Shah Din and Scott-Smity, JJ.

 

(pp)       Suds

 

125 P.R. 1880

Ludhiana, follow personal law in adoption.

 

 

(qq)       Syads

prima facie governed by Mohammedan Law.

 

 

Follow Personal Law

Syads should ordinarily be expected to follow their personal law and very strong evidence is needed to rubut the presumption in their case that they are governed by Mohammedan Law.

60 P.R 1878

Mauza Kharkhauda, Rohtak, in succession.

4 P.R. 1888

Gardezis of Multan, in succession.

89 P.R. 1889

Gilanis of Multan, in succession.

25 P.R. 1890

Bokhari Shias of Qasba Sadhawa, Ambala, in alienation and succession.  Mohammedan Law applied, though it is clear they did not follow it strictly.

35 P.R. 1891

Kharar, Ambala, in succession.  Non-agriculturists owning land.  Family members in Government service.

54 P.R. 1903

Shias of Ambala City, in alienation and succession.  Non-agriculturists owning a little land; owners of shops and homes in city.

62 P.R. 1904

Tehsil Bannu, in succession.

98 P.R. 1913

Shias of Ambala City.  Though not strict followers of Mohammedan Law, do not follow custom in matters of succession.  Fact that a widow’s estate has intervened is no criterion of custom.

1921, 64 I. C. 8

Bukhari Syads of Alawalpur (district Jalandhar) are governed by Mohammedan Law in matters of alienation.  “The parties are tailors and there is no evidence to show that any members of their family earned their living by agriculture.  The mere fact that the land has been in the family for several generations will not suffice to show that they follow agricultural custom.”

1927, 28 P.L.R. 322

Alawalpore, District Jalandhar, are governed by Mohammedan Law, in matters of alienation.

A.I.R. 1933 Lah. 59:140 I.C. 584

Syads of Nangloi in the Delhi Province are governed by Mohammedan Law.

1933, 144 I.C. 187

In matters of alienation of ancestral property, Sayeds of Jhang District follow Mohammedan Law.

A.I.R. 1938 Lah. 447:40 P.L.R. 690:177 I.C. 513

Sayeds of Dera Ghazi Khan District follow Mohammedan Law in matters of succession.

A.I.R. 1950 Lah. 6

Bukhari Sayeds of Nawan Kot, Lahore District, are governed by personal law (Muslim Law) and not by custom in matters of alienation of ancestral land and enjoy right of unrestricted alienation.

 

 

Follow Custom

 

C.A. 300 of 1870

Ludhiana City, in succession.

75 P.R. 1879

Shias of Sadhura, Ambala, in succession.

95 P.R. 1879

Bukharis of Jhang, in alienation and succession.

102 P.R. 1884

Ferozepore suburbs, in adoption and succession.

84 P.R. 1886

Agriculturists of Gujarat, in adoption.

82 P.R. 1887

Mauza Kharkhauda, Rohtak, in alienation and succession.

18 P.R. 1889

Gardezis of Mauza Salar Kalan, Multan, in succession.

60 P.R. 1889

Sabzwaris of Mauza Dinpanah, Shakargarh, in succession.  Agriculturists; compact village community.

32 P.R. 1892

Sunnis of Uchagaon, Delhi, in alienation and succession.

138 P.R. 1892

Gujarat town in alienation; Landowners in adjoining village.

144 P.R. 1893

Mauza Kharkhauda, Rohtak, in succession.

143 P.R. 1893

86 P.R. 1894

Agriculturists of Rawalpindi, in adoption and alienation.

11 P.R. 1896

Ambala District in alienation and succession.

C.A. 538 of 1897

Mauza Kharkhauda, Rohtak, in succession.

40 P.R. 1897

Mauza Doraha, Ambala, in succession.

86 P.R. 1900

Agriculturists of Tehsil Jalandhar, in succession.

102 P.R. 1901

Gardezis of Multan, in succession.

16 P.R. 1906

Mauza Khanpur, Hoshiarpur, in alienation.

18 P.R. 1906

Mauza Shahabad, Karnal, in alienation and succession.

25 P.L.R. 1906

Sufis of Ludhiana City, in succession.

40 P.R. 1907

Gilanis of Mauza Masania, Batala, in alienation and succession.

68 P.R. 1908

Basti Syadan, Tehsil Shujabad, Multan in succession.

70 P.R. 1908

Bokharis of Gujarat, in alie and succession.

132 P.R. 1908

Hamdanis of Talagang in alienation.

96 P.R. 1909

Mauza Masanian, Batala, in succession.

135 P.L.R. 1910

Mauza Saranga, Ambala, in succession.

58 P.R. 1910

Sunnis of Mauza Chuma, Tehsil Gurgaon, in succession and alienation.

14 P.R. 1911

Sialkot City, in alienation and succession.

92 P.R. 1911

Bokharis of Tehsil Zira, in alienation.

251 P.L.R. 1911

Mauza Kharkhauda, Rohtak, in succession.

34 P.R. 1915

Bastis of Barti Pirdad Khan, Jalandhar, in succession.

1921. 2 Lah. 383

Sayads of Kharkhauda, Rohtak District, have for long period followed custom and not the strict Mohammedan Law but they have nevertheless been somewhat influenced by their personal law and have widely recognized the rights of succession of females.

1924, 6 Lah. 117 P.C.

1927, 102 I.C. 751

1920, 4 Leh. L.J. 496

1927, 9 Lah. 428

The question whether in matters of succession, Gardezi Sayads of Multan are governed by the Customary  Law of the Province, or by the Mohammedan Law, was left open.

1928, 10 Lah. 531

Sayads of village Khai (District Lyallpur) follow custom.  The parties in this case apparently depended mainly on agriculture for their livelihood and not only on piri muridi.

A.I.R. 1947 Lah. 280: 49 P.L.R. 57

The Sayads in the district of Gurdaspur are governed in matters of succession by custom and not by Mohammedan Law.

(rr)       Telis

Follow personal law

.

158 P.L.R. 1912               

Ajnala, Amritsar, in succession to house

A.I.R. 1933 Lah. 240 (2)

Village Bhonike, Autar, Chunian Tehsil, Lahore District, do not follow custom even though in some villages Telis follow custom.  It was observed: “The burden was upon the appellants to establish (1) that they follow custom and (2) if so,  what that custom was.  They have not produced the Riwaj-i-am or Customary  Law of the district to show that, according to it they followed custom.  All they did was to examine certain witnesses who boldly stated that they followed agricultural custom, no instance being given.  On the other hand, it has been established that these Telis own a very small area in the village, that they do not form a compact agricultural community, that they are not confined to agricultural pursuits and that they did not come to the village with the founder thereof.  Lastly, it has been proved that a large number of alienations have been made by these Telis without objection by collaterals.  In these circumstances there can be no doubt, that the appellants have failed to prove that they follow custom.”—per Addison, J.

A.I.R. 1936 Lah. 60

The Telis are a distinct tribe in the Punjab and are a true caste and not merely followers of an occupation.  All Teli Chohans are not necessarily Rajputs.

Follow Custom

 

30 P.R. 1896

Quasi-agriculturists of Lahore District, custom is followed.

103 P.R. 1900

Telis of Pachmand, Shahpur District in succession.

6 P.R. 1917

Mauza Budhial, Tehsil Chakwal, Jhelum.

 

 

(ss)       Udasi Faqirs

 

15 P.R. 1874

Ambala, follow Personal Law.

C.F. VIII All. 646.

 

A.I.R. 1936 Lah. 496

Fakir (Jalandhar) is not a caste as such but only a class of persons.

 

 

(tt)       Zargars

 

1922, 3 Lah. 397

Zargars, being non-agriculturists, would prima facie follow their personal law and the onus that they are governed by custom in matters of succession lies on the party asserting such custom.

51 P.R. 1903

Ambala City, follow Personal Law in adoption, alienation and succession.

61 P.R. 1903

Non-agriculturists of Dagshai, Ambala, follow Personal Law in succession.

 

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:-

 

Case

Tribe

District of residence

District of origin

85 P.R. 1884

Aroras

Amritsar

Multan

5  P.R. 1895

Manuzais

Do

Afganistan

30 P.R. 1903

Brahmins

Do

Oudh

61 P.R. 1903

Zargars

Ambala

Saharanpur

94 P.R. 1913

 

Hoshiarpur

Jalandhar

138 P.R.

Pathans

Mianwali

Bannu

58 P.R. 1905

Sikh Sidhu Jats

Amritsar

Jaisalmir

95 P.L.R. 1915

Maheshris

Delhi

Bikaner

 

 

 

 

 

 

CHAPTER  I
THE  ESSENTIALS  AND  PROOF  OF  VALID  CUSTOM

 

Synopsis

 

1.              Introduction.

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

3.              Custom reasonable and not immoral.

4.              Custom opposed to public policy.

5.              Custom founded on violence and usurpations-barbarous custom.

6.              A custom to be valid must not have been declared to be void by any competent authority before the passing of the Punjab laws act, 1972.

7.              A custom to be valid must not contravene any express law.

8.              Custom to be valid must be ancient, certain and invariable.

9.              General or special custom—Comments.

10.           Custom in the Punjab Tribal or Local?

11.           Customs—special or general—family custom in the Punjab.

12.           Mercantile usages and customs essentials of validity.

13.           Proof of custom.

14.            Evidential value of Riwaj-i-am and Wajib-ul-arz.

15.           Evidential value of entries in Riwaj-i-am.

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

17.           Entries in Riwaj-i-am presumption.

18.           Entries in Riwaj-i-am opposed to general custom and unsupported by instances—presumption is that these are correct unless rebutted.

19.           rebuttal of statements of custom in Riwaj-i-am.

20.           Earlier v. later Riwaj-i-am—contradictory entries—which to be relied upon—changing custom.

21.           Entries in Riwaj-i-am regarding the rights of females—strength of presumption.

22.           Official Manual of Customary Law as substitute for the Riwaj-i-am, evidential value.

23.           opinion of the Settlement Officer in the Official Manual of Cus Law—its value.

24.           Wajid-ul-arz or village administration paper.

25.           Evidential value of entries in a wajib-ul-arz.

26.           Are entries in a wajib-ul-arz operative only for the term of the settlement?

27.           Earlier wajib-ul-arz v. later wajib-ul-arz—conflicting entries which to be relied upon.

28.           Tribes to which Riwaj-i-am or wjib-ul-arz applies.

29.           Effect of attestation of Riwaj-i-am- by non-agriculturists –effect of.

30.           Entries in a Riwaj-i-am or a wajib-ul-arz generally refer to ancestral property.

31.           Analogies from law relating to other provinces.

32.           Judicial decision as proof of custom.

33.           oral instances.

34.           Mutation entries as proof of Custom.

35.           Pedigree tables.

36.           Proof of custom by general evidence as to its existence without proof of specific instances.

37.           Proof of custom by opinion of the people living under, and governed by, the custom.

38.           Admissions.

39.           Acquiescence.

40.           Custom cannot be established by logical process or by generalization.

41.           Negative facts.

 

 

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 and unenforceable.

 

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 claimed, it must necessarily be held to be unreasonable.

 

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 alleged 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