Back
SUPREME COURT OF INDIA
16TH May, 1952.
FAZL ALI AND BOSE JJ.
Gokal Chand, Appellant
Versus
Parvin Kumari, Respondent.
Civil Appeal No. 158 of 1951.
Advocates appeared
Shri Daryadatta Chawla Advocate, instructed by Shri S. D. Sekhri, Agent, for Appellant; Shri Gurbachan Singh, Senior Advocate (Shri Jindra Lal, Advocate, with him,) instructed by Shri Naunit Lal, Agent, for Respondent.
Held: In. dealing with questions of customary law the following general principles should be kept in view.
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 theEunja15 Laws Act, 1872.
2. In spite of the above fact, there is no presumption that a particular persons or class of persons in governed by custom, and. a party who is alleged "to be governed by customary law must prove that is so governed and must also prove the existence of the customs set up by him. See Daya Ram -v. Sohel Singh, no P.R. 1906 p. 390 at 410 : Abdul Hussein Khan v .Bibi Sona Dero, 45 Ind. App. 10 (P.C.) ,
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 peen used so long that the memory 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. See Mt. Subhani-V. Nawab, A.I.R. 1941 P.C. 21 at 32:
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. exercise without controversy, and such evidence may- be safely acted on , when it is supported by a public record of custom such as the Riwaj i-am or Manual of Customary Law.
See Ahmed Khan v. Mt. Ohanni Bibi, A.I.R. 1925 P.C. 267 at 271.
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 admissible 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 proved to be incorrect, and the quantum of evidence required for the 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 .
See Beg v. Allah Ditta, A.I.R. 1916 P:C. 129 at 131,
Saleh Mohammad v. Zawar Hussain, A.I.R. 1944 P.C. 18 ; Mt. Subhani v. Nawab A.I.R. 1941 P.C. 21 at 25.
6. When the question of custom applicable to an agriculturist is raised, it is open to a P9rty 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 livelihood, and does not follow other customs applicable to agriculturists.
See Mohammad Hayat Khan v. Sandhe Khan, 55 P.R. 1908 p. 270 at 274; Muzaffar Muhammad v. Imam Din, 9 Lah. 120 at p. 125.
7. The opinions expressed by the Compiler 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 Compilers remarks is that if they represent his personal opinion or bias and detract from the record of long standing custom, they will not be sufficint to displace the custom, but if they are the result of inquiry and investigation as to the scope of the applicability of the custom and any special sense in which the exponents of the custom expressed themselves in regard to it, such remarks should be given due weight.
Section 114-Continuous cohabitation of man and woman. as husband and wife-Presumption as to marriage-Rebuttal.
Held: "It seems to us that the question as to how far the evidence of those particular witnesses is relevant under S. 50 is academic, because it is well settled that continuous cohabitation for a number of years may raise the presumption of marriage. In the present case, it seems clear that the plaintiff and Ram Piari lived and were treated as husband and wife for a number of years, and, in the absence of any material pointing to the contrary conclusion, a presumption might have been drawn that they were lawfully married. But the presumption which may be drawn from long cohabitation is rebut table, and if there are circumstances which weaken or destroy that presumption, the Court cannot ignore them. We agree with the learned Judges of the High Court that in the present case, such circumstances are not wanting and their cumulative effect warrants the conclusion that the plaintiff has failed to prove the factum of his marriage with Ram. Piari.
Judgment
FAZL ALI J. : This is an appeal against the judgment and decree of the High Court of Punjab at Simla reversing the judgment and decree of the Senior Subordinate Judge of Kangra in a suit instituted by the appellant for a declaration that he was the sole lawful heir of one Musammat Ram Piari, whom he alleged to be his wife, and as such was entitled to the properties left by her, and for possession of those properties. The suit was instituted against 2 persons, namely, Parvin Kumari, who was alleged to be the daughter of the plaintiff by Ram Piari, and Shrimati Raj Kumari, who were respectively impleaded as defendants Nos. 1 and 2.
2. The case of the plaintiff as set out in the plaint was that he was married to Ram Piari, the daughter of an employee of Raj Kumari (defendant No. 2) about 22 years before the institution of the suit, that after marriage she lived with him at Hoshiarpur and gave birth to a daughter, Parvin Kumari (defendant No. 1) on the 4th March, 1929, and that Ram Piari died in April 1941 leaving both movable and immovable properties which she had acquired in her own name with the aid of his money and which had been taken possession of by Raj Kumari. He further alleged that he was a Rajput by caste belonging to tehsil Garshankar in the District of Hoshiarpur, and was governed by custom in matters of succession, and according to that custom, he, as the husband of the deceased Ram Piari, was entitled to the movable and immovable properties left by her to the exclusion of Parvin Kumari, her daughter.
3. The suit was contested by both Parvin Kumari and Raj Kumari, and both of them denied that the appellant had been married to Ram Piari. Their case was that the properties in suit were acquired by Raj Kumari with her own money for Ram Piari, that the latter had made a will bequeathing them to her daughter, Parvin Kumari that the appellant was not governed by custom, and that in any event the alleged custom could not apply to the personal and self-acquired property of Ram Piari. As regards 2 cars which were also included in the list of properties claimed in the plaint, the case of Raj Kumari was that they belonged to her and that the deceased was only a benamidar.
4. The trial Court decreed the plaintiff s suit with respect to all the properties excepting the 2 cars which were held to belong to Raj Kumari. The Court held that Ram Piari was the legally married wife of the appellant, that he was governed by customary law applicable to Rajputs of Hoshiarpur District in matters of succession, and that according to that customary law he was the preferential heir to the estate of Ram Piari. The Court further held that the will of Ram Piari was invalid as she had no power under the customary law to make a will.
5. Both the defendants appealed to the High Court against the judgment of the trial Court, and the appeal was ultimately allowed and the plaintiff s suit was dismissed. The High Court held that though there was evidence of long cohabitation of the plaintiff and Ram Piari giving rise to a presumption of marriage, yet that presumption had been completely rebutted and the proper conclusion to be arrived at on the evidence on record was than the plaintiff had not been able to prove that Ram Piari was his lawfully wedded wife. As to custom, the findings of the High Court, were as follows:
1. that the appellant belonged to an agricultural tribe of Hoshiarpur District and was therefore governed by the custom prevailing among the Rajputs of that District;
2. that there was no local or general custom allowing the plaintiff to succeed in preference to the daughter, to the property left by Ram Piari which had been given to her by a stranger, namely Raj Kumari, and
3. that the parties were governed by Hindu law under which Parvin Kumari being the daughter of Ram Piari, was entitled to succeed to the properties left by the latter in preference to the plaintiff.
6. Against the decision of the High Court, the plaintiff has now preferr
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
