Judgment

WANCHOO, J. : This is an appeal by special leave from the judgment of Punjab High Court and arises out of a suit for possession of land brought by Munshi Ram respondent. The following pedigree-table will be useful in understanding the claim put forward by the respondent:-

The claim a Munshi Ram was with respect to the proper left by Nanak Chand who is his natural grandfather and also Santu. There is no dispute now about the property of Santu and we are concerned in this appeal only with the property of Nanak Chand. Nanak Chand died in 1939. Munshi Ram s natural father Hans Raj had predeceased Nanak Chand. Munshi Ram himself was adopted by Ata in 1918 before the death of his natural father Hans Raj which took place in 1920. It will be clear from these dates therefore that Hans Raj never succeeded to the property to his father Nanak Chand and Munshi Ram had been adopted by Ata even before Hans Raj s death. The case of Munshi Ram was that he was entitled to one-half share of the property left by Nanak Chand as his heir according to Zamindara custom. The parties it may be mentioned, are Brahmins and Munshi Ram claimed joint possession of the half share of the property left by Nanak Chand of his death. The suit was resisted by Salig Ram (defendant-appellant) who is the other son of Nanak Chand. His case was that Munshi Ram was not entitled either according to personal law or the riwaj-i-am of Amritsar district to any share in the property left by Nanak Chand. The trial court held that Munshi Ram was entitled to succeed to the property left by Nanak Chand along with Salig Ram and decreed the suit accordingly. Salig Ram went in appeal to the District Judge but failed. He then went in second appeal to the High Court but the second appeal was also dismissed. The High Court having refused to grant a certificate the appellant applied to this Court for special leave which was granted; and that is how the matter has come up before us.

2. In questions regarding succession and certain other matters, the law in the Punjab is contained in S. 5 of the Punjab Laws Act, No. IV of 1872. Clause (b) of that section provides that the rule of decision in such matters shall be the Hindu law where the parties are Hindus, except in so far as such law has been altered or abolished be legislative enactment, or is opposed to the provisions of this Act or has been modified by any such custom as it referred to in cl. (a) thereof. Clause (a) provides that any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority shall be applied in such matters. The position therefore that emerges is, where the parties are Hindus, the Hindu law would apply in the first instance and whosoever asserts a custom at variance with the Hindu law shall have to prove it, though the quantum of proof require in support of the custom which is general and well-recognised may be small while in other cases of what are called special customs the quantum may be larger. As was pointed out by Robertson. J., as far back as 1906 in Daya Ram v. Sohel Singh, 110 Pun Re 1906:

"In all cases under S. 5 of the Punjab Laws Act, it 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 further to prove what the particular custom is. There is no presumption created by the clause in favour of custom; on the contrary it is only when the custom is established that it is to be the rule of decision."

These observations were approved by the Privy Council in Abdul Hussein Khan v. Bibi Sona Dero, 45 Ind App 10 at p. 13. The same view has been taken by this Court in Ujagar Singh v. Mst. Jeo, 1959 Supp (2) SCR 781.

3. We have therefore in the first instance to apply Hindu law to the parties to this suit, and it is only when a custom di