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).

 

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