opinion on the wajib-ul-arz: land title regulations in balochistan and punjab

29. Effect of attestation of Riwaj-I-am by non-agriculturists-effect of. It was held in Jamiat-ul-Nisa v. Hashmat-ul-Nisa (3) that the mere attestation of a Riwaj-I-am bya non-agriculturist, who had acquired agricultural land in a village as a means of investment, is not ipso factosufficient to prove that in matters of alienation or succession his family residing in a town followed theordinary customary rules of dominant agricultural tribes. In 107 P.R. 1901 the question for decision was whether Khatris who held land followed custom ornot. Riwaj-I-am was produced which was attested by Khatris and no the strength of this it was contendedthat in matters of alienation they followed custom, but the contention was overruled. See also notes ante.

1) P.R. 1907. P.96.2) 107 P.R. 1901; see also 13 P.R. 1900 and 33 P.R. 1915.3) 124 P.R. 1908

30. Entries in a Riwaj-I-am or a wajib-ul-arz generally refer to ancestral property. Entries in the Customary Law must be taken as referring only to ancestral property when no mentionof self-acquired property is made (1). “As regards self-acquired property, the same consideration do notapply as in the case of ancestral property. Custom on the whole it concerned with the conservation ofancestral holdings, though of course in some cases there is a customary rule placing self-acquired property ina similar category to ancestral property; but mainly Customary Law looks to ancestral property. That is thereason why it has always been held that entries in Riwaj-I-ams and customary laws of districts refer only toancestral property unless there is specific mention of self-acquired property, and the reason is obvious.’ ‘-Per Addison, J . (2). Entries in a Riwaj-I-am or a wajib-ul-arz which do not specifically purport to mention non-ancestralproperty, must be taken to refer to ancestral property (3). Unless there are clear indications to the contraryan entry in a record of custom refers only to succession to ancestral property (4). It is thus now well-settled that entries in a Riwaj-I-am or wajib-ul-arz which do not specificallypurport to mention non-ancestral property, must be taken to refer to ancestral property only (5). “It is true that In the Rewaj-I-am no distinction is drawn between ancestral and acquired property, butit is a well-recognized rule that unless there are clear indications to the contrary, such an entry in a record ofcustoms refers only to the succession to ancestral property (6). It has been held in Mst. Jatan V. Jiwan Singh (7) that in the absence of any indication to thecontrary, entries in the Riwaj-I-am should be taken to refer to ancestral property. But the use of expressionsthat certain persons are excluded from succession “in any case” or “under any circumstances” withoutreference to ancestral character of property or otherwise shows that the exclusion operates on self-acquiredproperties also.

29 http://punjabrevenue.nic.in/cust17.htm

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Where an entry in a Wajib-ul-arz talks about landed property and succession to it and so forth,without discrimination between ancestral and self-acquired, it should be taken that the rule applies only toancestral property (1). The Wajib-ul-arz provided :- “If a proprietor dies sonless leaving an unmarried daughter she shall holda life-interest in his property and pay the revenue. She shall have no concern with it when she marries. Herfather’s collaterals, who celebrate her marriage at their own expense, shall own her father’s estate.” Held, inthe earlier records of custom throughout the Punjab, in absence of an express provision to the effect that thecustom recorded relates equally to ancestral and non-ancestral property, it must be taken to govern ancestralproperty only (2). The Wajib-ul-arz of 1855 settlement provided that if a sonless proprietor gifts any land to his daughterduring his life-time she becomes its owner; otherwise the nearest reversioner inherits and the daughter isdisinherited. Held-“I think that as the passage makes no distinction between ancestral and acquired land, itshould be taken as referring to ancestral land only (3). 31. Analogies from law relating to other provinces. Under sub-section (4) of section 84 of North-Western Provinces and Oudh Land Revenue Act, 1901, presumption of truth is attached to the entries in wajib-ul-arz which is prepared under the provisions of thatsection. A wajib-ul-arz is a somewhat similar document to the riwaj-I-am in the Punjab except that in theUnited Provinces and Oudh presumption of truth is attached to the entries in a wajib-ul-arz while no legalpresumption of truth is attached to an entry in a riwaj-I-am (see A.I.R. 1935 Lah. 419 p. 422 and 1933, 14Lah. 651 at P. 653). In the case of Uma Pershad v. Gandhar v. Singhv (1887, 15 Cal. 20) (4) theirLordships observed as follows :- “All these things are rather emphasized by the wajib-ul-arz, which was made at Fattech Kunwar’sinstance in 1869. Before dealing with the effect of it, their Lordships wish to make some observations uponthe extraordinary and startling character of that document. A wajib-ul-arz has been considered to be anofficial record of more or less weight according to circumstances, but still an official record of the localcustom of the district in which it is recorded. It has been received before this tribunal and elsewhere asimportant evidence. In 1879, 5 Cal. 744 (P. C.) it is stated that these documents are entered on record in theoffice. They must be taken upon the evidence, which is general evidence, to have been regularly entered andkept there as authentic wajib-ul-arz papers. In that case effect was given to the wajib-ul-arz produced. Inthis case the Judicial Commissioner has treated the wajib-ul-arz in question as a document of weight, whichmust be taken as showing local custom until some proof to the contrary is produced. But on looking at theevidence their Lordships find that this wajib-ul-arz was the concoction of Fatteh Kunwar herself, received bythe Settlement Officer as an expression of her views which she had a right to enter upon the village records,because she was proprietor of the estate. But they are not entered here as views; they are entered as theofficial record of a custom, this would probably have been produced from the office as an entry made fiftyyears ago, under circumstances of no suspicion at all, and it would be taken that the Government Officer hadrecorded it as the local custom. And now we find it deliberately stated by the Oudh Courts that the proprietor


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has the right to enter his own views upon the village records, and have them recorded as if they were theofficial records of the local customs. Well, that is an exceedingly startling thing and their Lordships think thatthe attention of the Local Government should be called to what has appeared in this case to have been donein one instance and may be done in other instances. It does not been render those records useless-they areworse than useless-they are absolutely misleading, because they are evidence concocted by one party in hisown interest. It is to be hoped that under the Act of 1876 which empowers the Local Government to makerules under which these records shall be framed, such proceedings will not take place any more.” Similarly, in 1910 (32 All. 363) the Privy Council decided that when there is internal evidence that theentries recorded in a wajib-ul-arz cannot the views of individuals as to the practice they wish to see prevailingrather than the ascertained fact of a well-established custom, weight should be attached to the fact that noevidence at all it forthcoming of any instance in which the alleged custom has been observed. But theirLordships did not lay down that where there is no internal evidence that the parties verifying the entries inthe wajib-ul-arz are merely recording their views as to the practice they wish to see prevailing, and where theinternal evidence goes to show that they are stating the existence of a well-established custom, entries in thewajib-ul-arz are not sufficient in absence of rebutyal to prove the existence of a custom set up-see 1914, 24 I. C. 640 (Oudh), distinguishing 1911, 12 I. C. 403 (Oudh). The observations of the Privy Council in 1914, 37 All. 129 at page 143 are to the following effect :- “To hold that a wajib-ul-arz is not by itself good prima facie evidence of a custom which is stated init and that the wajib-ul-arz requires to be corroborated by evidence of instances in which the custom has beenenforced would be to increase the costs of litigation ……… Of course the evidence as to a custom affordedby a wajib-ul-arz may be rebutted by other evidence.” Again, in 1927, 101 I. C. 368 it had been held thatthe statement of a custom recorded in a wajib-ul-arz of a village is good prima facie evidence of a customwithout corroborative evidence of instances in which it has been exercised. The evidence as to a customafforded by wajib-ul-arz may of course be rebutted by other evidence. In 1910, 32 All. 363 it wasremarked-“The respondents appealed to the case of 32 All. 363 where an alteration of the law of inheritancewas held not proved, but the ratio decidendi is clearly given in the judgment of the Board where, it is said :-Where, as here, from internal evidence, it seems probable that the entries recorded connote the views of theindividuals as to the fact that they wish to see prevailing rather than the ascertained fact that awell-established custom exists, the learned Judicial Commissioners properly attached weight to the fact thatno evidence at all was forth-coming of any instance in which the alleged custom had been observed. The statement of a custom recorded in a wajib-ul-arz of a village is good prima facie evidence of thecustom without corroborative evidence of instances in which it has been exercised. The evidence as to acustom afforded by a wajib-ul-arz may, of course, be rebutted by other evidence (1). As regards the evidence of custom furnished by a wajib-ul-arz its weight may be very slight or may beconsiderable according to circumstances (2). As observed by the Privy Council in 1910, 32 All. 363 at p. 373, “there is no class of evidence that is more likely to vary in value according to circumstances than that ofthe wajib-ul-arz.” A statement in a wajib-ul-arz is of high evidentiary value of a custom, but it is to bedisregarded if it appears to have been made from interested motives (3). “These wajib-ul-arzes, whenproperly used, afford most valuable evidence of custom, and are much more valuable than oral evidencegiven after the event. On the other hand, they at times, as is the case here, contain statements which would


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appear to have been concocted by the persons making them in their own interests and are therefore to bedisregarded, being worse than useless.” The wajib-ul-arz of a village is a document of public character, prepared with all publicity, and mustbe considered as prima facie evidence of the existence of any custom which it records. Its record of theexistence of a custom is sufficiently strong evidence to cast on those denying the custom the burden of proof. Looking to the public character of the document, and the way it is prepared, the inferences to be deducedfrom it cannot be disregarded except when they are rebutted by evidence of an opposite character (4). In 1923, 45 All. 413 the Privy Council held the view that when a wajib-ul-arz was unambiguousand recorded a custom in clear terms the burden shifted on the opposite party to prove by oral anddocumentary evidence either that no such custom existed or that it had fallen into desuetude (5). Theevidence afforded by entries in records of custom prepared by responsible officials whose duty it was toascertain and record the customs entered is valuable evidence of the existence of the customs (6). Where a wajib-ul-arz or riwaj-I-am contains merely a record of the wishes and opinions of the parties,it cannot be treated as establishing nay binding custom (1). Where, however, the entries in a wajib-ul-arz orriwaj-I-am, which support the existence of a custom, are not concoctions and do not connote merely the viewor individuals as to the practice which they wished to see prevailing it should be held that they record theascertained fact of a well established custom (2).


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SECTION II

OTHER PROOFS OF CUSTOM 32. Judicial decisions as proof of custom.

Judgements in other cases on the point of custom are admissible in evidence, under section 13, onlyas instance in which the custom in question was judicially recognized, but are not conclusive. It is open torebut them by adducing fresh evidence to show that the custom was not correctly ascertained in those casesor that it had since been modified (1). Similarly, it had been held in Mst. Jannat Bibi v. Ghulam Hussain (2) that a decision in a case ofcustom is not a judgment in rem. It is only relevant under section 13 of the Indian Evidence Act as judicialinstance of the custom being recognized. It may be that owing to faulty prosecution one decision may bearrived at between certain parties while there may be another decision in a suit arising between other persons. In Sher Mohammad v. Mst. Johar Khatun (3), however, it has been held that a judgment on aquestion of custom is relevant, not merely as an instance under section 13, but also under section 42, Evidence Act, as evidence of the custom. When a custom is repeatedly ascertained and acted upon judicially,the production of such judicial decisions is sufficient to prove the custom. It was observed- “It was urged thatthe judicial decision counts only as an instance, but a judgment on a point of custom is also relevant undersection 42, Evidence Act. Besides, the value of the decision depends upon the nature of the enquiry and theevidence produced. It may happen at time that the Riwaj-I-am is held to be conclusive merely because noevidence had been produced to rebut it as for instance was the case in A. I. R. 1925 Lahore 482. On theother hand there was a very elaborate enquiry made in the case reported as 13 Lahore 276. The twodecisions, therefore, cannot obviously be placed on the same footing. Although an initial presumption ofcorrectness attaches to an entry in the Riwaj-I-am, the presumption is a rebuttable one, and I do not see anygood reason why that presumption should not be held to be rebutted by a finding arrived at after anexhaustive enquiry, as it was in 13 Lahore 276. It is indeed difficult to say how the presumption attaching tothe entry in the Riwaj-I-am can be rebutted in any other way. It was urged that the instances relied upon are recent ones and cannot prove a custom contrary towhat is stated in the riwaj-I-am as custom must be immemorial, as laid down in A. I. R. 1937 Lahore 451. But there is no question here of preventing a new custom coming into existence after the compilation of theriwaj-I-am. The question if whether the entry in the riwaj-I-am itself records the custom correctly . . , I seeno good reason why a finding arrived at by the court after a thorough enquiry such as was held in 13 Lahore 276 should be placed on a inferior footing than the entry in the Riwaj-I-am.” –Per Bhide, J. A decision on custom is not a final decision. It only becomes a relevant instance under section 13, Evidence Act, that such a right has been asserted and recognized. It is always necessary to assert and provewhat the custom is (1). The most cogent evidence of custom is not that afforded by expression of opinion as to its existence,but the examination of instances in which the alleged custom had been acted upon and by the proof afforded


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by judicial or revenue records that the custom had been enforced. Though judicial decisions are notindispensable the acts required for the establishment of Customary Law ought to be plural, uniform andconstant (2). Judicial decisions afford very valuable evidence as to the existence of a custom (3). But a judgmentis of no value when it proceeds almost entirely on the burden of proof (4). A judgment based upon a compromise or confession, although of some probative force, cannot beplaced on the same footing as one in which after contest a custom was held to be proved or negatived (5). It was observed by Jai Lal, J. in Balanda v. Mst. Suban (6) – “In my Judicial decisions opinion thecourts should place greater value on judicial v. Manuals of decisions than the statement of a custom in theCustomary Customary Law. Law unless there is reason to hold that the custom has in the meantimechanged. In any case the burden on the daughter under the circumstances is light.” Addison, J., however,remarked in the same case (page 427) – “I am not in agreement, with all respect, with the opinion of Jai Lal,J., that courts should place greater value on judicial decisions than on the statement of a custom in theCustomary Law. A judicial decision depends on the evidence produced in the case which may be a badlyconducted case. A decision on a question of the custom is not a judgment in rem; it is merely an instance,relevant under section 13, Evidence Act, of a particular custom being ascertained or denied, or possiblerecognized, though the word ‘recognized’ may man recognized by the parties to a particular transaction ratherthan by the Courts. In fact Jai Lal, J. has gone further in a later portion of his judgment and stated that adecision given by this court or the Chief Court of the Punjab as to the existence or non-existence of a customought ordinarily to be almost conclusive evidence of the existence or non-existence of the custom concerned,and must overrule the statement to the contrary of this custom in the Customary Law and it is only inexceptional circumstances that such decisions should not be accepted as decisive of the question. This, withall respect, appears to me to overrule such decisions as 45 P. R. 1917, and many other such decisions of thiscourt, as well as to go against the provisions of the Evidence Act. Again, it has been held in Bahadur v. Mst. Nihal Kaur (1) that a custom to be legal must thereforebe proved to have been in existence for a time preceding the memory of man. It not always being possible toobtain such proof, the courts have invariably been willing to presume the existence of a custom for such aperiod provided that evidence is produced which proves that custom has been in existence as far as livingtestimony can establish it. When therefore recent judicial decisions lay down a custom contrary to that as laid down in ancientRiwaj-I-am such custom cannot be held to be established as a commencement of such custom is not so oldthat “the memory of man runneth not to the contrary” (2). In Subhani v. Nawab (3) it has been held that judicial decision, though of comparatively recent date,may contain, on its records, evidence of specific instances which are of sufficient antiquity to be of value inrebutting the presumption raised by Riwaj-I-am. In such a case, the value of the decision arises from the factnot that it is relevant under sections 13 and 42 of the Evidence Act as forming in itself a ‘transaction bywhich the custom in question was recognized, etc.’, but that it contains, on its records, a number of specificinstances relating to the relevant custom. To ignore such judicial decisions merely on the basis of Riwaj-I-amwould add greatly to the perplexities and difficulties of proving a custom.


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It has also been held in Dasrathlal Chhaganlal v. Bai Dhondubai (4) that it is the law that if acustom is known and has been judicially recognized it is not necessary to allege or prove it; it has becomepart of the local law of which the court takes judicial notice. Similarly, it has been held in SuganchandBhikamchand v. Mangibai Gulabchand (5) that when a custom has been repeatedly brought to the notice ofthe courts and has been recognized by them regularly in a series of cases it attains the force of law, and it isno longer necessary to assert and prove it by calling evidence in each case. If the evidence is all one way, orif there is a strong preponderance of evidence in favour of a particular custom, the courts cannot ignore italthough the witnesses do not cite specific cases in support of their statements. But general evidence which isconflicting has obviously very little value. Judicial decisions can be relied on as furnishing evidence of custom without certified copies of thejudgments being placed on the record (6). In Shamlal Shrikisan v. Mst. Jayabai (7) it was held that judicial decisions are no doubt admissible,and are at times the best available evidence of custom. But in order that a case should be regarded asaffording the best available evidence the circumstances of the decided case in which custom was pleaded andheld proved must be of a similar nature. It is s well-settled principle of law that the custom set up should bestrictly proved and should not be extended by analogy. In Suganchand Bhikachand v. MangibaiGulabchand (1) it was observed that judicial decisions recognizing existence of a disputed custom amongstthe jains of one place are very relevant as evidence of the existence of the same custom amongst the Jains ofanother place, unless it is shown that the customs are different. But there is no presumption that such customapplies to all Jains wherever they are in India. 33. Oral instances Instances in support of an alleged custom are not always to be treated as of little or no value becausesupported only by oral testimony; if the deponents have means of knowledge and the opposite party makes noattempt to rebut, facts stated may often be accepted as proved (2). The fact that a party has repeatedly by act or word shown that he does not really follow a particularlaw, though it does not amount to an estoppel against him, still shows the view held by the party (3). Customs usually grow out of instances and acquire force and sanctity as instances multiply. In a caserelating to the alienation of abadi land in a village by non-proprietors, it had been held that it is wrong to saythat in every case it is for non-proprietors to prove the circumstances under which the alienations of sites bynon-proprietors in a village have taken place. The question upon whom the onus lies to explain thecircumstances depends upon the number of alienations. A large number of instances of sale and mortgages ofinstances of sale and mortgages by the non-proprietors without any protest by the proprietors is sufficient toestablish a custom in favour of the right of the right of the non-proprietors to sell the sites of their house in theabsence of the evidence to the contrary (4). No hard and fast line can be laid down as to how many instances are sufficient to make out a validcustom. Where a custom is a general one obtaining in a caste or clan composed of hundreds of families, thecourt would naturally expect a large number of instances in proof of the custom, but when the custom set upis that of a single family or a small group of families, it is unreasonable to expect a large number of instances


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in the support of the custom (5). There should, however, be such a multiplication or aggregation of instancesas is sufficient to establish a tangible recognition of the custom as obligatory (6). Customs from out ofinstances acquiesced in by the persons interested so invariable and for such a long time as to become a rule oflaw, are recognized to be generally binding on those whom it affects (1). A single instance cannot prove a custom, nor are a few instances of a modern date sufficient to provea custom in derogation of ordinary law (2). But the fact that there have been in the village a large number ofinstances relating to a point of custom increases their value. The antiquity of instances, that is to say, the factthat this custom exists from a long time, is of sufficient importance in proof of custom (3). Where witnesses cite instances of customs, it is for the other side to show by cross-examination orevidence in rebuttal that those instances do not support the custom (4). Instances cited by witnesses mustnot be rejected merely because these witnesses have not deposed to details as to which they could have beenand were not cross-examined (5). Again, the mere fact that instances have not been contested in the court does not make themworthless. Uncontested cases are very good proof of any alleged custom, for, the greater the strength of thecustom the less probability is there of any body attempting to controvert it (6). Thus the fact that noalienations in the village have at all been contested, in some cases, is a proof that the power of alienationexists. The fact that no contest on the part of the agnates ever took place except in recent times raises somepresumption in favour of custom of free alienation, for, if in the absence of definite information, we are toassume that the agents were too poor to sue or thought the land too small, and not worth the trouble oflitigation, or that they were absent from the village or that they assented to the transfer, it is only fair to takeinto account this contingency also, unless the matter is to be absolutely prejudged (7). The very best possibleevidence of a custom is that which shows that it has been followed consistently in a number of instanceswithout dispute (8). The fact that no consent has taken place in the past may well raise a presumption thatthe custom was so well recognized that no one thought of contesting it (9). Uncontested cases are a verygood proof of any alleged custom, for the greater the strength of the custom the less probability is there ofanybody attempting to controvert it (10). It is surely a strong point in favour of the existence of the customand its recognition in the tribe, that no appeal has been made to the court (11). As observed in Mst. Dyan v. Jai Ram (12)- ‘I strongly object to the view that a custom is only proved by instances in which it has beencontested. In reality the better established a custom, the less it will be contested.” To the same effect see theremarks in 50 P. R. 1874 (p. 187) – “We cannot agree with the Deputy Commissioner that because the caseswere uncontested, they were worthless as precedents. On the contrary, the fact that these adoptions areuncontested by natural heirs, constitutes their value as evidence of admitted usages.” It has been observed that instances whether sufficient to establish custom, is question of law (1). Uncontested cases are very good proof of any alleged custom, for the greater the strength of thecustom, the less probability is there of anybody attempting to controvert it. The fact that the operation of acustom has not been resisted cannot at all be used as an argument that such a custom did not exits (2). 34. Mutation entries as proof of custom. A mutation register does not form part of the record-of-rights but is a separate document, and


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therefore section 44 of the Punjab Land Revenue Act, 1887, does not apply to it and it carries nopresumption of truth. An entry in it is, however, relevant under section 35 of the Evidence Act as an entry ina public record made by a public servant in the discharge of his duties (3). Unless a mutation entry has beenincorporated in a Jamabandi it has no presumption of truth attached to it. It is, however, not necessary toprove that all the formalities were duly complied with in respect of the mutation. There is presumption thatall official acts are done in regular manner and it is for the other side challenging it to rebut this presumption. It is not necessary to produce the Revenue Officer who sanctioned the mutation or the girdawar as a formalwitness (4). Where the parties were present at the time when certain mutation entries were made with theirconsent, and the revenue officers made every effort to ascertain what the parties wished to be done, theentries them-selves being quite clear, the onus of proving that a mistake was made lies heavily upon the partywho asserts that his intention was not correctly expressed by the entries, and this onus is not discharged byshowing merely that there is a certain amount of confusion in the report of the Patwari and that the area givenby that party is considerably in excess of the area received by him (5). In Diwan Chand v. Mehr Khan (6) itwas held that the report of the Patwari, that the land sought to be attached had been mutated in favour of theson of the judgement-debtor, about four months prior to the application for attachment, was not conclusive toshow that the land was not held by the judgment-debtor. As evidence of custom mutation entries must be judged on their own merits. It was observed byRobertson, J. In Mst. Saddan v. Mst.Khemi (1) – “There are four instances in which widows have beenshown by entries in mutation orders to have succeeded without dispute to the property of their husband’scollaterals. The learned District Judge treats these as not very material and counsel for the respondent urgeson the authority of remarks in certain judgments of this Court that these instances are of no value as theywere not disputed. Now we quite concur in the view that single isolated instances in which there has beenmutual consent are not of great value, but we are of opinion that the very best possible evidence of a customis that which shows that it has been followed consistently in a number of instances without dispute. Even ajudicial decision in a contested case shows that at least the custom was not universally admitted. Wetherefore attach a high value to the 4 instances produced……….in which widows were allowed as a matter ofcourse to succeed to the property of their husbands’ collaterals without dispute.”

In 40 P.R. 1906 mutations were rejected in the lower courts because there was no protest or litigationabout them. It was held that it was an erroneous view. One or two isolated instances of the kind may meannothing and may be explained on various grounds, but the case is very different when we find severalinstances of rights being claimed and being allowed without challenge. Surely then, in such cases,acquiescence is the best proof of customs, for if upon several occasions the people interested accept somegiven state of things without demur, it must be assumed that they do so because their custom recognizes thatstate of things.

The mere fact that the instances of mutations are of a very recent date and have not yet stood the testof being contested in court may be a good contention so far as a single isolated instance is concerned butwhen such instances are considerable this rule does not apply. Mutations are inconclusive, when they are ofrecent dates and have not stood the test of contest in a court of law (2). An old mutation, however, or a


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mutation attested by the Revenue Officer in the village of the parties, in the presence of all the villagers,when a party is not shown to be absent, may raise a presumption that a party knows about it. But mereknowledge that a mutation has taken place in other persons’ favour does not amount to acquiescence (3). “Now it may well be that the plaintiffs did not understand that the mutation was being made in the name ofthe defendant alone. If they did, they may have acquiesced under the impression that he alone was entitledthat would be but little evidence on the issue as to custom.”

Mutations are a very good corroborative evidence of the oral testimony of witnesses who are likely toknow the existence of the custom (4).

No presumption of correctness, however, attaches to a note of the Tahsildar that proprietors do notobject to mutation because it is not conclusive to prove that they were present (5).

Where a custom clearly at variance with Hindu Law is sought to be proved, no doubt documentaryevidence is ordinarily of great importance, but where the parties are not agriculturists or an importantland-holding class, the absence of copies of mutation records-the kind of documentary evidence commonlyproduced to prove custom-is not of prime significance (A. I. R. 1937 Lah. 690). 35. Pedigree-tables. Shajra nasabs or pedigree-tables form part of the record-of-rights as prescribed by the FinancialCommissioner under section 31 (2), clause (d). The presumption of truth attaching to entries in a Record ofRights under this section extends therefore to these pedigree-tables also, and the burden of proving that anentry in it is wrong rests heavily on the person who makes such assertion (1). But although a presumption of correctness attaches to the pedigree-table contained in the Record ofRights under this section, that presumption does not extend to an entry made in the pedigree-table withrespect to an extraneous matter entirely unconnected with the question of relationship, as for instancedevolution of lands in a village. If such entries appear on the face of them to be erroneous, a court shouldrefuse to accept them (2). If it can be shown that the law requires that entries dealing with ownership of land should be includedin pedigree-tables then such pedigree-tables are properly part of the revenue records and constitute an entryin a public document, which is prima facie evidence of the truth of its contents. As references with respect tothe ownership of land are by law included in a pedigree-table, presumption of correctness attaching to apedigree-table, also attaches to entries (3). Similarly, entries made in the pedigree-table prepared at the timeof the settlement giving the history of the land are admissible in evidence (4). Somethings there is a conflict between the entries in pedigree-tables prepared at two differentsettlements. Regarding this point it was observed in Data Ram v. Khazana Ram (5) – “For the appellant itis pointed out that the evidence bearing on the point consists of the pedigree-tables prepared in the varioussettlements to all of which a presumption of correctness attaches under section 44, Land Revenue Act, butthat in case of a conflict between them the pedigree-table prepared at the more recent settlement should bepreferred. On the other hand counsel for the respondent urges that whatever may be the position with regardto entries as to ownership, tenancy rights, etc., in the matter of relationship the earlier pedigree-table should


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be preferred as the exact degree of relationship was likely to be known more accurately to persons who werenearer in descent to the common ancestor and whose memory was fresher than that of their grandsons, whowere born a generation or two later. In my opinion it is not possible to lay down any hard and fast rule on thispoint and each case must be decided on its own peculiar facts. The pedigree-table prepared in the course ofeach settlement is a part of the record-of-rights and as such there is a statutory presumption of correctnessattaching to it (74 P. R. 1888). It is, however, impossible to say on a priori ground that the presumption isstronger in favour of the one rather than the other. In a particular district the earlier settlement might havebeen more carefully done and the record more accurately prepared than in the later settlement. In anotherdistrict investigation made in the subsequent settlement might have been more complete and exact, and led todiscovery of errors in the preparation of pedigree-table which had crept in the records of the formersettlement. If the parties conduct their cases properly it will not be difficult for them to produce additionalevidence from the entries in the Khewat and other authentic documents from which it would be easy todetermine which of the two pedigrees is correct.” See also 111 P. L. R. 1913, wherein it is laid down that apedigree-table is superseded by another which appears to have been more carefully made at the time ofsubsequent settlement. 36. Proof of custom by general evidence as to its existence without proof of specific instances. Instances, however, valuable they may be in proving custom, are not absolutely essential to itsestablishment. The sanction of a rule of Customary Law depends upon the consensus of opinion of the bodyof persons to whom such law applies to be bound by the rule. The expression of opinion in such a case, if it isgeneral, is sufficient proof of such law (1). As observed by the Privy Council in Ahmad Khan v. Mst. Channi Bibi (2) – “As regards the custom in respect of which the two courts in India have differed, theirLordships think the Subordinate Judge was in error in putting aside the large body of evidence on theplaintiffs’ side merely on the ground that specific instances had not been proved. They are of opinion that thelearned Judges of High Court are right in holding that a custom of the kind alleged in this case may be provedby general evidence as to its existence by members of the tribe or family, who would naturally be cognizantof its existence and its exercise without controversy. “There is a large body of oral evidence establishing the custom, wholly unrebutted by the defendantswho have relied exclusively on the Riwaj-I-am. The Judges of the High Court have commented on thesedocuments, and their Lordships see no reason to differ from them.” This judgment was referred to by Campbell, J. In Labh Singh v. Mst. Mango (3). Mere want of instances is not enough to show that the rules of customary law do not apply to aparticular case, and that the analogies and general principles of such law are to be resorted to when instancesare absent, and applied whenever it is possible to do so. A rule of custom may be established and held to be of binding force, even where no instance isforthcoming, if there is an overwhelming preponderance of oral testimony of those governed by it and likelyto know of its existence in its favour (1). The proof of custom should not be confined merely to judicialprecedents and definite instances, but might consist in the deliberate and well-considered opinion of thepeople living under, and governed by the custom and other recognized modes of establishing its existence


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(2).” The question whether a particular custom does or does not prevail in any particular tribe is a matter onwhich tribesmen themselves are in the best position to pronounce an opinion. When questions relating totribal custom have to be determined, the parties try to secure the evidence of the numbers of that tribe andeven people living in the neighbourhood as regards the existence and non-existence of the custom. Thepeople of a particular community are the best and the most trustworthy repositories of the traditions which goto constitute a particular custom prevailing in the community and their evidence, therefore, is of a very greatvalue (3). Where the evidence adduced is sufficient to make out the service of a customary right for the periodof living memory of the witnesses it is binding (4). It was also observed in Mohammad Alam v. Mst. Hafizan (5) – “It was held by their Lordships ofthe Privy Council in Ahmad Khan v. Mst. Channi Bibi (6 Lah. 502 P.C.) that custom could properly beproved by general evidence given by the members of the family or tribe without proof of specific instances. In the present case, there is overwhelming oral testimony that in this locality amongst Jats unmarried sisterssucceed for life or till their marriage to the land of their deceased brother which is not ancestral quareversioners. It is a most important consideration that no less than fourteen lambardars have deposed to thiscustom.” In Vaishno Ditti v. Rameshri (6) the question was of succession among Arora Sikhs of Peshawar. The plaintiff’s witnesses gave evidence as to the custom in their community, and the defendants called norebutting evidence at the. The District Judge held that the custom was not established, as the witnesses wereunable to quota any instances in support of their deposition. Their Lordships of the Privy Council overruledthe trial court on this point and holding that the custom relied on for the plaintiff was sufficiently establishedin the absence of any evidence to the contrary, said : “Having regard to the conditions existing in this part of India (North-West Frontier Province), boththe lower courts erred, in their Lordships’ opinion, in disregarding the unrebutted evidence of custom whichwas given by the plaintiff as to her right to succeed to her mother’s share because it was unsupported byinstances……… As regards the custom, there was the evidence of the two witnesses for the plaintiff that in thecommunity of the Arora Sikhs to which the parties belong, a daughter succeeds to the inheritance in theabsence of daughter’s son, and there was no evidence the other way. Though the witness were unable tospeak to any instances in which the custom had been observed, their evidence is entirely in accordance withwhat is laid down in the Customary Law of the Peshawar District.” In Pannalal v. Chaman Parkash (1) it was held that a custom can properly be proved by generalevidence given by members of the community without proof of specific instances. The question in each case,however, depends as to the weight to be given to the evidence of opinion led in that case. It has been held that where a custom is proved to have been followed uniformly during a period ofsixty years such proof is sufficient to held that it is binding. The technical rules of English law areinapplicable in this country (2). In Panchanan Roy v. Fazlur Rahman (3) it was held that an essential attribute of a valid custom isno doubt its remote antiquity. But it is not necessary that its antiquity must in every case be carried back to aperiod beyond the memory of man. If proof be given of facts from which it can be inferred that user


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corresponding to the alleged custom in fact existed at some time past, the existence of the custom from theremoter era will be inferred. In order to establish a customary right of way, there is no reason why 50 or 60years’ user might not, in the circumstances of a case, be regarded as sufficient to indicate the existence of theright from a much remoter period. In Nath Mal v. Illahibux (4) it was held that the most cogent evidence of custom is not that which isafforded by the expression of opinion as to the existence but by the enumeration of instances in which thealleged custom has been acted upon, and by the proof afforded by judicial or revenue records or privateaccounts and receipts that the custom has been enforced. No value can therefore be attached to the broadgeneral statements made by the witnesses who assert the alleged custom but do not enumerate instances insupport of their assertion.

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opinion on the wajib-ul-arz: land title regulations in balochistan and punjab

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