http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10

PETITIONER:

THAKUR GOKALCHAND

Vs.

RESPONDENT:

PARVIN KUMARI.

DATE OF JUDGMENT:

16/05/1952

BENCH:

FAZAL ALI, SAIYID

BENCH:

FAZAL ALI, SAIYID

BOSE, VIVIAN

CITATION:

1952 AIR 231 1952 SCR 825

CITATOR INFO :

R 1971 SC1398 (6)

RF 1991 SC1654 (15,35)

ACT:

Punjab custom--Principles to be observed in dealing with

customary law stated--Essentials of valid custom.

HEADNOTE:

The plaintiff, a Rajput belonging to Tehsil Garhshankar

in the District of Hoshiarpur (Punjab), instituted a suit

against the defendant for the recovery of the properties

which belonged to a deceased Gurkha woman R and which she

had acquired by way of gift from a stranger, alleging

that he was the lawfully wedded husband of Rand that accord-

ing to custom which applied to the parties with regard to

succession he was entitled to succeed to the moveable and

immoveable properties of R in preference to the defendant

who was his daughter by R. Held, that even if it be assumed

that R was lawfully married to the plaintiff, the question

to be decided would be whether succession to property which

R had received as a gilt from a stranger and which she owned

in her own right would be governed by the custom governing

her husband's family and not her own. Such marriage as was

alleged to have been contracted by the plaintiff being

evidently an act of rare occurrence, the rule of succession

set up by the plaintiff cannot be said to derive its force

from long usage and the plaintiff was not, in any event,

entitled to succeed.

Their Lordships laid down the general principles which

should be kept in view in dealing with questions of custom-

ary law as follows:

(1) It should be recognised that many of the agricultur-

al tribes in the Punjab are governed by a variety of cus-

toms, which depart from the ordinary rules of Hindu and

Muhammadan law, in regard to inheritance and other matters

mentioned in section 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 custom-

ary law must prove that he is so governed and must also

prove the existence of the custom set up by him. (See Daya

Ram v. Sohel Singh and Others, 110 P R. (1906) 390 at 410;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10

Abdul Hussein Khan v. Bibi Song Dero, L.R. 45 I.A. 10).

(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 so

long that the memory of man runneth not to the contrary"

should not be strictly

826

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 tube or family who would natur-

ally 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 custom such as the

Riwaj-i-am or Manual of Customary Law. (See Abroad Khan v.

Mt. Channi Bibi, A.I.R. 1925P.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 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 agricultur-

ist is raised, it is open to a party who denies the applica-

tion custom to show that the person who claims to be gov-

erned 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 means and source of livelihood, and

does not follow other customs applicable to agriculturists.

(See Muhammad Hayat Khan v. Sandhe Khan and Others, 55 P.R.

(1906) 270 at 274; Muzaffar Muhammad v. Imam Din, I.L.R.

(1928) 9 Lab. 120, 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 compiler's remarks is that if they repre-

sent 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 of his

inquiry and investigation as to the scope of the

827

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. (See Narain

Singh v. Mr. Basant Kaur A.I.R. 1935 Lah. 419 at 421,422;

Mr. Chinto v. Thelur, A.I.R. 1935 Lah. 98S; Khedam Hussain

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10

v. Mohammad Hussain, A.I.R. 1941 Lah. 73 at 79).

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 158 of

1951. Appeal from the judgment and decree dated 24th March,

1948, of the High Court of Punjab at Simla (Teja Singh and

Khosla JJ.) in Regular First Appeal No. 133 of 1945 arising

out of judgment and decree dated 25th November, 1944, of the

Court of the Senior Subordinate Judge, Kangra, at Dharmsala

in Suit No. 86 of 1,943.

Daryadatta Chawla for the appellant.

Gurbachan Singh (Jindra Lat, with him) for the respond-

ent.

1952. May 16. The Judgment of the Court was delivered

by

FAZL ALl 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 declara-

tion 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.

The case of the plaintiff as set out in the plaint was

that he was married to Ram Piari, the daughter of an employ-

ee 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

828

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 Garhshankar 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.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 proper-

ties 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.

The trial court decreed the plaintiff's suit with re-

spect 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 Hoshiar-

pur district in matters of succession, and that according to

that customary law he was the preferential heir to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10

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.

Both the defendants appealed to the High Court against

the judgment of the trial court, and the appeal was ulti-

mately allowed and the plaintiffs suit was dismissed. The

High Court held that though there

829

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

that 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.

Against the decision of the High Court, the plaintiff

has now preferred this appeal, after obtaining a certificate

from the High Court under sections 109 and 110 of the Code

of Civil Procedure.

The first question which arises in this appeal is wheth-

er the plaintiff has succeeded in proving that Ram Piari was

his legally wedded wife. The plaintiff was admittedly em-

ployed as a copyist in the District Judge's court at Hoshi-

arpur and was living in that town. His case was that he

gained the acquaintance of Raj Kumari (defendant No. 2), a

wealthy lady of Kangra district who owned a tea estate in

tehsil Palampur and occasionally visited Hoshiarpur, and

through her good offices was married to Ram Piari, who was

the daughter of one Chandar Bit, an employee of Raj Kumari

working in her tea estate. After marriage, Ram Piari lived

with the plaintiff at Hoshiarpur as his lawfully wedded

wife, and a daughter, Parvin Kumari, (also called Usha Rani)

was born to

830

them on the 4th March, 1929. Raj Kumari had great attachment

to wards Ram Piari and often used to pay visits to Hoshiar-

pur to meet her. In the year 1934-35 (no date is mentioned

in the plaint; but this year is mentioned in the plain-

tiff's evidence), Raj Kumari took Ram Piari from the plain-

tiff's house with belongings of every description on the

pretext of taking her out for recreation. Ram Piari did not

like going round with Raj Kumari and though she wanted to

come back to the plaintiff she had not the courage to diso-

bey Raj Kumari, and in fact Ram Piari and' Raj Kumari in-

wardly hated one another during the last years of the for-

mer's life. In the year 1941, Ram Piari died at Mayo Hospi-

tal at Lahore, leaving the properties in dispute which had

been acquired by her by good management with the plaintiff's

own money.

As against this version of the. plaintiff, the case of

Raj Kumari was that Ram Piari had been enticed away by a

motor driver sometime in 1921, that she returned to Holta

estate after about 11 years with Parvin Kumari who was then

about 3 years old, and after her return both she and her

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10

daughter remained with her (Raj Kumari) till Ram Piari died

in 1941. Raj Kumari, being a widow, felt very lonely and so

brought up Ram Piari as a companion and all the properties

in dispute had been acquired by her with her own money for

the benefit of Ram Piari Parvin Kumari had been educated

and brought up at her expense, and it was entirely false

that she and Ram Piari inwardly hated each other, the truth

being that they liked and were attached to each other.

The evidence adduced by the plaintiff to prove that Ram

Piari was his lawfully wedded wife consists partly of the

evidence of a number of witnesses and partly of circumstan-

tial evidence. The direct evidence of marriage is furnished

by Babu Ram, P. W. 7, Anant Ram, P.W. 11, Babu, P.W. 12, and

Asa Ram, P.W. 13. Babu Ram claims to be the family priest

and alleges to have officiated as priest at the time of the

plaintiff's marriage, Anant Ram and Asa Ram are

831

jaswal Rajputs residing in village Bham, which is near the

plaintiff's village, Ajnoha, and Babu is a barber. These

four persons have said that they accompanied the marriage

party and that the marriage of the plaintiff with Ram Piari

was celebrated in their presence. The evidence of the other

witnesses and the circumstantial evidence upon which reli-

ance has been placed by the plaintiff have been summarized

by the learned Subordinate Judge in his judgment in these

words :--

"P. W. 5 Mukhi Ram is a Municipal Commissioner at Hoshi-

arpur. P.W. 4 Doctor Shadi Lal is a leading Medical Practi-

tioner of Hoshiarpur. P.W. 9 Lala Sham Lal and P.W. 10 Lala

Har Narain have been co-employees with the plaintiff in the

same office; though these persons (except P.W. 9) have no

social relations with the plaintiff and his family, yet they

have been seeing Ram Piari living with plaintiff as his

wife. She was proclaimed as such by the plaintiff and both

of them were treated as husband and wife by the people of

the Mohalla and by the brotherhood in the village of plain-

tiff. Exhibits P-18 and P-19 show that defendant No. 2 has

been addressing Ram Piari, care of plaintiff in 1932 and has

been receiving correspondence, care of the plaintiff which

shows that she approved of the plaintiff's alliance with Ram

Piari ...... Paras Ram, a younger brother of Ram Piari,

lived in the house of Gokal Chand and it is in evidence that

he used to address the plaintiff as jija--a common name for

sister's husband. From 1930 to 1934 Paras Ram read in the

D.A.V. High School at Hoshiarpur and Exhibits P.W. 6/1 to 6

are copies of entries in the registers of the school regard-

ing applications which were given by Gokal Chand, plaintiff,

for admission of his ward Paras Ram, son of Chandar Bit who

was described as his sala (wife's brother). P.W. 6 Lala

Bishan Das, teacher, has filed these copies. His sister's

house was adjacent to the house of the plaintiff and he had

occasions to see Ram Piari living and being treated as wife

by the plaintiff during those years."

108

832

Upon the evidence to which reference has been made, the

trial court came.to the conclusion that Ram Piari was the

legally married wife of the appellant.

The learned judges of the High Court however found

the evidence of the 4 witnesses who claimed to have been

present at the marriage of the plaintiff to be quite uncon-

vincing, and they pointed out that the case of the plaintiff

being that his marriage had been performed with great pomp

and show, it was surprising that the evidence relating to it

should be confined to 4 persons one of whom appeared to be a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10

hired witness' and the other 3 were interested persons.

As to the evidence of the 4 persons who claim to have

been present at the plaintiff's marriage, we find ourselves

in agreement with the view taken by the High Court. The

evidence of the other witnesses undoubtedly establishes the

fact that for some years the plaintiff and Ram Piari lived

together as husband and wife and were treated as such, that

Paras Ram, brother of Ram Piari, addressed the plaintiff as

jija (a common name for sister's husband), and that the

plaintiff acted as Paras Ram's guardian when the latter was

admitted to D.A.V. School and was described as his brother-

in-law in some of the entries in the school register. The

learned Judges of the High Court considered that the evi-

dence of certain witnesses who deposed to some of the facts

on which the lower court relied, did not strictly comply

with the requirements of section 50 of the Indian Evidence

Act,firstly because the witnesses had no special means of

knowledge on the subject of relationship between the plain-

tiff and Ram Piari, and secondly because what section 50

made relevant was not mere opinion but opinion "expressed by

conduct" of persons who as members of the family or other-

wise, had special means of knowledge. It seems to us that

the question as to how far the evidence of those particular

witnesses is relevant under section 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

833

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 rebuttable, 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. In the

first place, the plaintiff has not examined any of his near

relations such as his brother, or collaterals living in

Ajnoha, or any co-villagers, whose presence at the marriage

would have been far more probable than the presence of the

witnesses examined by him. He has also not examined any of

the witnesses residing in or round about Holta estate in

spite of the fact that his own case is that the marriage was

celebrated with great pomp and show. It. was suggested in

the courts below that since defendant No. 2 is an influen-

tial person, no local witnesses would be available to sup-

port the plaintiff's case, but the High Court has very fully

dealt with this aspect and pointed out firstly that Raj

Kumari had litigation with a number of persons belonging to

Palampur and such persons would not be under her influence,

and secondly that no gold reason has been shown why Raj

Kumari, who is alleged to have brought about the marriage

between the plaintiff and Ram Hari, should take a

completely hostile attitude towards him. Then again,

neither the parents nor any of the relations of Ram Piari

have been examined to support the plaintiff. On the other

hand, Ram Hari's own mother, Ganga, has deposed that the

former was never married to the plaintiff, and the statement

made by Ram Piari in her will, which is a very valuable

piece of evidence, is to the same effect. It is also in-

credible that in spite of the love which Ram Piari is said

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10

to have had for the plaintiff, she left him

834

and went away to live with Raj Kumari, and that during the

long period when Ram Piari was away, the plaintiff should

never have visited her or made enquiries about her and his

alleged daughter, Parvin Kumari. This is all the more

strange, since it is stated by the plaintiff that Ram Piari

continued to love him and that she and Raj Kumari inwardly

hated each other. Parvin Kumari says in her deposition that

she had never seen her father and that when she reached the

age of discretion she found herself living at Palampur. The

conduct of the plaintiff in showing such complete indiffer-

ence to his wife and daughter as is disclosed in his evi-

dence is most unnatural, and no less unnatural is his con-

duct in instituting a suit to deprive her of properties

which had come into her hands not by reason of anything done

by him but as a result of the generosity shown towards her

by a stranger. The plaintiff's case that the properties in

dispute were acquired by Ram Piari with the aid of his money

is wholly untrue, and it has been rightly found by both the

courts that they were acquired for her by Raj Kumari. The

plaintiff's witnesses have tried to exaggerate his means to

support his case, but the truth appears to be that he had

hardly any means of his own beyond the somewhat meagre

salary which he used to draw as a court typist.

Several of the witnesses including an Advocate and Ram

Piari's own mother have deposed that Ram Piari had eloped

with a driver and had remained away from Holta estate for a

number of years. Even the Subordinate Judge has not reject-

ed the story of elopement, and though there is no reliable

evidence as to when and how she met the plaintiff, the

possibility of her having lived with him for some years even

though they were not legally married, cannot be ruled out.

The plaintiff claims to be a Rajput of high caste, and it

appears to us rather unusual that he should not marry in his

own tribe but should take in marriage a Gurkha girl who was

born of very poor parents and belonged to a place far away

from where he himself lived.

835

The fact that Paras Ram lived with the plaintiff for

some time and addressed the latter as jija, and that the

plaintiff described himself as guardian and brother-in-law

of Paras Ram, is as consistent with the defence version as

with the plaintiff's. If Paras Ram's parents had been in

affluent circumstances so as to be able to maintain and

educate him, the case would have been different, but there

is evidence to show that Chandar Bir was very poor and both

his wife and daughter had to work as servants of Raj Kumari

to earn their living.

In our opinion, the conclusion arrived at by the High

Court has not been shown by the plaintiff to be incorrect,

and whatever the true facts may be, we are compelled to hold

that in the present state of evidence the plaintiff has not

succeeded in establishing that Ram Piari was his legally

wedded wife.

In the view we have taken, it is not necessary to deal

with the question whether succession to the properties in

dispute will be governed by customary law or by Hindu law,

but since it was argued before us at very great length, we

think that we might state the contentions of the parties

and the difficulties which in our opinion arise in dealing

with those contentions on the material before us. Before

doing so, however, we wish to set out briefly certain gener-

al principles which we think should be kept in view in

dealing with questions of customary law. They may be summa-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10

rized as follows :--

(1) It should be recognized that many of the agricul-

tural 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 section 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 custom-

ary law must prove that he is so governed and must also

prove the existence of the

836

custom set up by him. See Daya Ram v. Sohel Singh and Others

(1), Abdul Hussein Khan v. Bibi Song Dero 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 been 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 invar-

iability as to show that it has, by common consent, been

submitted to as the established governing rule of a particu-

lar locality. See Mr. Subhani v. Nawab(3).

(4) A custom may be proved by general evidence as to its

existence by members of the tribe or family who would natu-

rally 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 custom such as the

Riwaj-i-am or Manual of Customary Law. See Abroad Khan v.

Mt. Channi Bibi(4).

(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 (5), Saleh

(1) 110 P.R. (1906) 390 at 410 (4) A.I.R. 1925 P.C. 267

at 271.

(2) LR. 45 I.A. 10. (5) A.I.R. 1916 P.C. 129 at 131.

(3) A.I.R. 1941 P.C. 21 at 32.

837

Mohammad v. Zawar Hussain(1);Mt. Subhani v. Nawab(2).

(6) When the question of custom applicable to an agri-

culturist 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 means and source of

livelihood, and does not follow other customs applicable to

agriculturists. See Muhammad Hayat Khan v. Sandhe Khan and

Others(3), Muzaffar Muhammad v. Imam Din(4).

(7) The opinions expressed by the compiler of a

Riwaj-i-am or Settlement Officer as a result of his intimate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10

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 compiler'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 of his

inquiry and investigation as to the scope of the applicabil-

ity of the custom and any special sense in which the expo-

nents of the custom expressed themselves in regard to it,

such remarks should be given due weight. See Narain Singh v.

Mt. Basant Kaur(5), Mt. Chinto v. Thelur (6); Khedam Hussain

v. Mohammad Hussain(7).

Bearing these principles in mind, the difficulty which

appears to us to beset the case of the plaintiff may be

briefly stated as follows :-

The basis of the plaintiff's case is that the custom by

which he claims to be governed is a "zamindara custom" and

he is governed by it by reason of his belonging to a family

of agriculturists. From the evidence, however, it appears

that he Had sold most, if not

(1)A.I.R.1944 P.C.18. (5) A.I.R. 1935 Lab. 419 at 421, 422.

(2) A.I.R. 1941 P.C. 21 at 25. (6) A.I.R. 1985 Lah. 985.

(5)55 P.R. (1906) 270 at 274. (7) A.I.R. 1941 Lah. 73 at 79

(4) I.L.R. (1928) 9 Lah. 120, 125.

838

all, of his property in the village to which he belonged,

that his ancestors were bankers or sahukars, that his father

was a clerk of a lawyer practising in Hoshiarpur district

and that he himself was a clerk in the District Judge's

court at Hoshiarpur and lived there, and there is hardly any

evidence to show that any of his relations was dependent on

agriculture or that he maintained connection with them. In

our opinion. the witnesses of the plaintiff have tried to

grossly exaggerate his pecuniary means and have not given a

correct picture on which the answer to the question as to

whether he would still be governed by the old custom would

depend. Again, though according to the answer to question

11 in the Riwaj-i-am of Hoshiarpur district, the general

custom governing the Rajputs of that district would seem to

be that a marriage within the tribe only is lawful, the

plaintiff did not marry a Rajput of his district but is said

to have married a Gurkha woman, about whose caste and char-

acter the evidence is conflicting, and whose family was

admittedly not governed by the "Riwaj-iam" upon which the

plaintiff relies. If both the husband and the wife are

shown to belong to the same tribe and to be governed by the

same custom, then the difficulty in deciding what would be

the rule of succession on the death of the wife in regard to

the wife's self-acquired property may not be very great. But

even if it be assumed that Ram Piari was lawfully married to

the plaintiff, the serious question to be decided would be

whether succession to the property which Ram Piari received

as gift from a stranger and which she owned in her own

right, would be governed by the custom governing her hus-

band's family and not her own. Such marriage as is said to

have been contracted by the plaintiff being evidently an

event of rare occurrence, the rule of succession set up by

him cannot be said to derive its force from long usage. As

we have pointed out, 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; and if an Occasion never arose to

apply the rule of succession

839

invoked by the plaintiff, to the property held by a wife in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10

her own right, the foundation on which custom grows would be

wanting. When the matter is further probed, it appears that

the plaintiff relies not only on custom but partly on custom

'and partly on the rule of Hindu law, namely, that the law

which governs the husband will govern the wife also.

Whether the latter rule can be extended to a case like the

present is a question of some difficulty, on which, as at

present advised, we would reserve our opinion. In the cir-

cumstances. we prefer to leave the issue of custom undecid-

ed. and base our decision on the sole ground, which by

itself is sufficient to conclude the appeal, that the plain-

tiff's marriage with Ram Piari has not been clearly estab-

lished.

The appeal therefore fails and it is dismissed. but in

the circumstances of the case and particularly since the

appellant has appealed in forma pauperis, we direct that the

parties will bear their own costs in all the courts.

Appeal dismissed.

Agent for the appellant: S.D. Sekhri.

Agent for the respondent: Naunit Lal.