Case: Thakur Gokalchand Vs. Parvin Kumari

1. 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.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.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.The trial Court decreed the plaintiffs 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 plaintiffs 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 asthat the appellant belonged to an agricultural tribe of Hoshiarpur District and was therefore governed by the custom prevailing among the Rajputs of thatthat 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,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 Ss. 109 and 110 of the Code of Civil Procedure.

Reasoning:
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 unconvincing 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 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 plaintiffs 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 sisters husband ), and that the plaintiff acted as Paras Rams 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 evidence of certain witnesses who deposed to some of the facts on which the lower Court relied, did not strictly comply with the requirements of S. 50 of the Indian Evidence Act, firstly because the witnesses had no special, means of knowledge on the subject of relationship between the plaintiff and Ram Piari, and secondly because what S. 50 made relevant was no mere opinion, but opinion "expressed by conduct" of persons who as members of the family or otherwise, 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 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 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 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 general principles which we think should be kept in view in dealing with questions of customary law. They may be summarized asIt 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.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, See DAYA RAM v. SOHEL SINGH, 110 P. R. 1906 P. 390 at 410: ABDUL HUSSEIN KHAN v. BIBI SONA DERO, 45 Ind App 10 (PC).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 invaribaility 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, AIR 1941 PC 21   at 32.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 custom such as the Biwaj-i-am or Manual of Customary Law. See AHMED KHAN v. MT. CHANNI BIBI, AIR 1925 PC 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 if 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, AIR 1916 PC 129 AT 131, SALEH MOHAMMAD v. ZAWAR HUSSAIN, AIR 1944 PC 18  ; MT. SUBHANI v. NAWAB, AIR 1941 P C 21 at 25.6. When the question of custom applicable to an agriculturist is raised, it is open to a party who denies the application of custom the 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, 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 Compliers 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 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. MT. BASANT KAUR, AIR 1935 Lah 419 at 421, 422; MT. CHINTO v. THEBU, AIR 1935 Lah 985 : KHEDAM HUSSAIN v. MOHAMMED HUSSAIN, AIR 1941 Lah 73 at 79.The basis of the plaintiffs 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 all, of his property in the village to which he belonged, that his ancestors were bankers or sahukaras, that his father was a clerk of a lawyer practising in Hoshiarpur District and that he himself was a clerk in the District Judges 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 be 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 wouldthe circumstances, we prefer to leave the issue of custom undecided, and base our decision on the sole ground, which by itself is sufficient to conclude the appeal, that the plaintiffs marriage with Ram Piari has not been clearly established.